United States v. Eight (8) Rhodesian Stone Statues

• Decision Date: 24 February 1978
• Docket Number: No. CV 77-643-IH.,CV 77-643-IH.
• Citation: 449 F. Supp. 193
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. EIGHT (8) RHODESIAN STONE STATUES, Defendants, Dr. David Brokensha, Claimant.

449 F. Supp. 193

UNITED STATES of America, Plaintiff, v. EIGHT (8) RHODESIAN STONE STATUES, Defendants, Dr. David Brokensha, Claimant.

No. CV 77-643-IH.

United States District Court, C. D. California.

February 24, 1978.

COPYRIGHT MATERIAL OMITTED

Andrea Sheridan Ordin, U. S. Atty., by Michael E. Wolfson, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Stein, Shostak, Shostak & O'Hara, Inc. by Thomas Trager, Los Angeles, Cal., for claimant.

OPINION

IRVING HILL, District Judge.

In this case, the government seized 8 small stone statues imported from Rhodesia on account of alleged violations of certain customs laws (19 U.S.C. § 1592) and economic sanctions (22 U.S.C. § 287c). Thereafter, the government commenced the instant in rem action to secure a decree of forfeiture.¹ The owner of the statues contests the action as a claimant. A separate motion for summary judgment was filed by each party. The government's motion argues on the merits that the government is entitled to a decree of forfeiture and full title to the statues. The claimant's motion argues that the government has now lost its right to obtain title, regardless of the merits of the forfeiture action it might once have had, because of procedural defects and time delays. The claimant's motion seeks a judgment ordering immediate return of the statues.

The Court grants the claimant's motion and denies the government's motion. The government is held to be barred from obtaining a decree of forfeiture on due process grounds — because of procedural deficiencies in connection with the seizure and because of substantial time delays between the seizure and the institution of the district court action. The grant of the claimant's motion on due process grounds renders moot the government's motion on the merits. So the Court makes no factual or legal determination as to whether the government could have obtained a decree of forfeiture if the said due process violations had not occurred.

I. FACTS

It is necessary to recite the facts of the case at considerable length. The claimant, David W. Brokensha, is a professor of anthropology at the University of California at Santa Barbara. He apparently specializes in African culture. The professor bought the statues about August 5, 1968, in Rhodesia while on an African trip. He bought them from the National Gallery of Rhodesia at Salisbury, paying $200 for the lot of eight. Photographs of the statues are in evidence; but there is in the record no detailed verbal description of them. The undersigned is himself a desultory collector of primitive folk art and sculpture, including items from Africa, and I will attempt to describe them. These statues are stone carvings, apparently of soapstone or some other soft stone, simple and quite primitive. The record indicates they were made by black native Rhodesians. The professor believes the statues to be modern, estimating that they were only 5 to 10 years old when he bought them. He believes that these statues are significantly different from prior native sculpture produced in the same area and that they evidence a kind of new movement in the native art of the region. Apparently other scholars agree with him because the statues have been exhibited by at least two important American museums since 1968, on loan from the professor.

There is no claim that these statues are Rhodesian national treasures or were illegally exported from Rhodesia. They were seized because they are Rhodesian in origin and because at the time of their importation (and apparently down to the present time), importation of Rhodesian goods was not permitted under American law.²

Under U.N. auspices, various nations of the world have for some years imposed various economic sanctions on Rhodesia to protest Rhodesia's treatment of its black majority. The United States took its first steps in that movement by Executive Order No. 11322 (found at 22 U.S.C. § 287c), issued on January 5, 1967, which does not apply to the instant case because it does not include art objects within its prohibition.

On July 29, 1968 (a week before these statues were purchased), Executive Order 11419 (found at 22 U.S.C. § 287c) was issued which greatly broadened the prior restrictions on importation of Rhodesian goods. E.O. 11419 became immediately effective and is phrased as a total prohibition on importation of any commodity or product originating in Rhodesia. Art objects are not exempted. The various cabinet secretaries charged with the enforcement of the prohibitions are each given authority in the Executive Order to "issue such regulations, licenses or other authorizations as he considers necessary to carry out the purposes of this Order . . .".³

The regulations issued pursuant to Executive Order 11419 authorize the Secretary of the Treasury to grant general import licenses involving certain specified Rhodesian commodities and transactions. In addition, the regulations allow for the issuance of specific import licenses on an ad hoc basis.⁴

When the statues reached this country on November 22, 1968, at Los Angeles, the professor was on hand personally. He did not apply for any import license. He sought to have the statues enter as original works of art, duty-free, and they were so recognized. There is a printed claim form issued by the Bureau of Customs intended for use in claiming that an item is an original work of art. The form is entitled "Declaration for Free Entry of Works of Art, Artistic Antiquities, Original Paintings, Statuary, etc." Professor Brokensha filled in one of these forms and stated on it that the place of origin of the statues was Mozambique. This erroneous statement, the government contends, constitutes a violation of 19 U.S.C. § 1592 and provides a separate basis for forfeiture of the statues, in addition to the apparent violation of the Executive Order 11419. The professor has offered a colorably persuasive explanation of the misstatement.⁵

The evidence before the Court is clear and uncontradicted that for seven years after the importation of the statues, the professor made no attempt to hide their existence and no attempt to confuse anyone as to their country of origin. On the contrary, he has continually referred to the statues as Rhodesian works in his academic lectures and writings, and on loan from him, they were exhibited in at least two museums as Rhodesian works. Professor Brokensha retained ownership of the statues and the right to their possession from the time of importation to and including the date of seizure. In August of 1975, almost 7 years after the statues entered the country, they were seized while on exhibit at the American Museum of Natural History in New York City⁶ by customs agents attached to the New York office of the Customs Service.

Apparently there had been some governmental inquiry about the importation of the statues because Professor Brokensha had employed a firm of Los Angeles attorneys specializing in customs law to represent him in connection with the statues even before their seizure. All of the correspondence referred to infra, to and from the government, came from those attorneys or was addressed to them.

On October 20, 1975, about 2 months after the seizure, the professor's attorney commenced what was to become a series of letters to various officials of the Customs Service in Los Angeles and New York dealing with the seizure and return of the statues. Of particular note are the letters of November 20, 1975, and April 12, 1976, described infra. This correspondence from claimant's counsel articulates and reiterates four main propositions:

1. Claimant has not received official notice of seizure including notice of the authority under which the seizure was made.

2. Claimant believes the seizure was erroneous and illegal and wants to know which District Director or Area Director⁷ of the Customs Service he should address in seeking the return of the statues.

3. Claimant desires the matter to be determined and settled as quickly as possible.

4. Claimant asserts that the failure of the government to proceed in an expeditious manner and as required by law, may well have adversely affected the government's right to proceed further in its forfeiture action. (This claim appears in the later portion of the correspondence.)

The replies to these letters, when replies were forthcoming at all, were often months late and were not distinguished by their precision or clarity. In essence, the government continued to ignore all of the requests and statements made in the claimant's letters. Instead, the government embarked on a ping-pong game, batting the case and the claimant back and forth between the Los Angeles and New York offices of the Customs Service. But the game was played without the crispness and speed one normally associates with ping-pong. It was a surrealistic ping-pong game in that every government stroke was delivered with excruciating slowness as the following chronology demonstrates.

On October 20, 1975, the claimant's attorney addressed a short letter to the Area Director of Customs at New York City in which he asked that official notice of seizure and all other relevant correspondence be sent to the attorney's office. There was no reply, and on November 17, 1975, the attorney telephoned the New York office to find out why. He was then informed that the official notice of seizure would be issued by the Los Angeles office after the New York office had completed its investigation. So, three days later, the attorney wrote to the District Director at Los Angeles. He again asked that official notice of seizure be sent and stressed that the 3-month delay since seizure had already prejudiced the claimant's right to a fair and expeditious hearing. The letter concludes with a request that Professor Brokensha be advised "as soon as possible of the manner in which the U.S. Customs Service intends to proceed in this case." No reply to this letter was ever...