United States v. Mask Ka-Nefer-Nefer

• Decision Date: 12 June 2014
• Docket Number: No. 12–2578.,12–2578.
• Parties: UNITED STATES of America, Plaintiff–Appellant v. MASK OF KA–NEFER–NEFER, Defendant–Appellee. Art Museum Subdistrict of the Metropolitan Zoological Park and Museum of St. Louis and the County of St. Louis, Claimant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

752 F.3d 737

UNITED STATES of America, Plaintiff–Appellant

v. MASK OF KA–NEFER–NEFER, Defendant–Appellee.Art Museum Subdistrict of the Metropolitan Zoological Park and Museum of St. Louis and the County of St. Louis, Claimant–Appellee.

No. 12–2578.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 13, 2014.

Filed: June 12, 2014.

Sharon Swingle, argued, Washington, DC (Mark B. Stern, on the brief), for appellant.

Patrick Andrew McInerney, argued, Kansas City, MO (McClain Elizabeth Bryant, David A. Linenbroker, on the brief, Saint Louis, MO), for appellee.

Before LOKEN, MURPHY, and SMITH, Circuit Judges.

LOKEN, Circuit Judge.

The issue raised on this appeal is whether the district court ¹ abused its discretion in denying the government's post-dismissal motion for leave to file an amended civil forfeiture complaint. Underlying that issue is an attempt to expand the government's forfeiture powers at the likely expense of museums and other good faith purchasers in the international marketplace for ancient artifacts. We affirm the district court's procedural ruling and therefore leave this important substantive issue for another day.

I.

The district court dismissed the government's forfeiture complaint for failure to state a claim, so we are limited to the pleaded facts. The government's notice of appeal included the district court's Order of Dismissal, but the Statement of the Issue section of the government's brief stated that the only issue on appeal is whether the court abused its discretion in denying a post-dismissal motion for leave to file an amended complaint. The Statement in the brief is controlling. SeeF.R.A.P. 28(a)(5); Solomon v. Petray, 699 F.3d 1034, 1037 n. 2 (8th Cir.2012). Therefore, the appeal of the Order of Dismissal has been waived, and we need not be concerned about the truth of the pleaded facts.

The forfeiture complaint alleged that the Mask of Ka–Nefer–Nefer is a 3,200–year–old Egyptian mummy cartonnage discovered in 1952 by an archeologist working for the Egyptian government and registered as government property. The Mask was housed in a storage facility in Saqqara, Egypt, until 1959, when it was sent to the Egyptian Museum in Cairo for use with an exhibit in Tokyo, Japan. The Mask never went to Japan, instead returning to Saqqara in 1962. In 1966, a box containing the Mask and other artifacts was sent to a restoration lab in Cairo to prepare the artifacts for display. When the Egyptian Museum in Cairo inventoried the box's contents in 1973, the Mask was gone. The Egyptian government's register of antiquities showed no transfer to a private party between 1966, when the Mask was last seen, and 1973. In 2006, the Egyptian government learned that the Art Museum Subdistrict of the Metropolitan Zoological Park and Museum District of the City and County of St. Louis (the “Museum”) purchased the Mask in 1998. The Museum refused the Egyptian government's repeated requests to return the Mask.

At a January 2011 meeting with Museum attorneys, representatives of the United States threatened to bring a forfeiture proceeding against the Mask unless the Museum voluntarily surrendered it. The Museum responded by filing a declaratory judgment action in the Eastern District of Missouri. Reciting the Museum's conflicting version of the historical facts, and asserting that any forfeiture claim would be time-barred by the applicable statute of limitations in 19 U.S.C. § 1621, the Museum sought a declaration that the Mask is not subject to forfeiture. The Art Museum Subdist. of the Metro. Zoological Park & Museum Dist. of St. Louis v. United States, No. 4:11–cv–00291 (E.D. Mo. filed Feb. 15, 2011). The United States rejoined on March 16, filing a motion to stay the Museum's declaratory action and a verified civil forfeiture complaint under 19 U.S.C. § 1595a(c). Part of the Tariff Act of 1930, this statute now provides, in relevant part: “Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall be ... (1) ... seized and forfeited if it—(A) is stolen, smuggled, or clandestinely imported or introduced.” The district court granted the government's motion to stay the Museum's declaratory judgment action pending resolution of the forfeiture case.

The forfeiture complaint alleged that the Mask was “missing” after 1966 because it had been stolen and smuggled out of Egypt. “Because the Mask was stolen,” the complaint concluded, “it could not have been lawfully exported from Egypt or lawfully imported into the United States.” The Museum filed a timely claim that it owned the Mask and moved to dismiss the complaint for failure to state a claim, alleging that the government's complaint lacked facts supporting the claim with the detail required by Supplemental Rules E(2)(a) and G(2)(f) to the Federal Rules of Civil Procedure, which govern civil forfeiture actions.² Specifically, the Museum argued, the complaint failed to allege detailed facts showing that “the Mask was stolen” and that it had been introduced into the United States “contrary to law.” In a June 2011 Memorandum in Opposition, the government responded that its complaint need only plead “facts [that] provide probable cause ³ to believe that the Mask was stolen from Cairo, and that therefore its importation into the United States in 1998 was in violation of 19 U.S.C. § 1595a.”

More than one year after the forfeiture complaint was filed, the district court granted the Museum's motion to dismiss. United States v. Mask of Ka–Nefer–Nefer, No. 4:11CV504, 2012 WL 1094658 (E.D.Mo. Mar. 31, 2012). The memorandum opinion explained that the complaint's “one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally” did not plead sufficiently detailed facts showing (1) that the Mask was “stolen, smuggled, or clandestinely imported or introduced” into the United States, and (2) “facts related to some predicate unlawful offense, presumably a law with some ‘nexus' to international commerce from which the Title 19 customs regulation arises.” The court cited Davis, a decision in which the Second Circuit discussed “The Meaning of ‘Contrary to Law’ ” in 19 U.S.C. § 1595a(c). 648 F.3d at 89–90.

On April 6, the government filed a Motion for Enlargement of Time To File Motion for Reconsideration and/or To Seek Leave To File Amended Complaint Prior to Entry of Judgment. The government asserted that it would move to reconsider because the court's Order dismissed only the complaint and not the underlying action but would also seek relief under Rules 59(e) and 60(b)(6) if the court “construes its Order as ... a dismissal of the ‘action.’ ” In a docket text order entered April 10, the court granted the government “until 5–7–12 to file what it suggests is a motion to reconsider.” The text notice stated: “WARNING: CASE CLOSED on 3/31/2012.” ⁴

On May 7, the government filed its motion to reconsider, arguing that the court had misunderstood the pleading standard governing civil forfeiture actions under 19 U.S.C. § 1595a(c)(1)(A). The Memorandum in Support more fully disclosed the litigation strategy underlying the bare-bones forfeiture complaint. Citing the statute's “plain text” but no supporting case law, the government asserted: “Section 1595a itself prohibits the importation of stolen property into the United States, regardless of whether any other law has been violated in the process of importation.” The Memorandum explained away Davis and other earlier contrary decisions as reflecting assumptions made by those courts based on burdens of proof “the government may have assumed” in those cases. That explanation may fit some of the opinions, but it does not fit all the § 1595a precedents we have found. See United States v. 57,261 Items of Drug Paraphernalia, 869 F.2d 955, 956 (6th Cir.) (Customs agents “made the seizure under the remedial provisions for civil forfeiture found in ... 19 U.S.C. § 1595a(c) ... in combination with ... the 1986 statute making it ‘unlawful for any person ... to import or export drug paraphernalia’ ”), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); ⁵United States v. One 1970 Ford Pick–Up Truck, 537 F.Supp. 368, 370 (N.D.Ohio 1981) (“The government ... had the burden of showing ... probable cause to believe the goods were introduced into the United States contrary to law. This the government did, with evidence ... the [bonded] containers were broken into.”).

The significance of this issue seems quite clear. The “stolen merchandise” subsection, § 1595a(c)(1)(A), was added by a 1993 amendment. In the reported cases we have found where the government sought forfeiture under this subsection, the claim has been that importation of the stolen merchandise violated the National Stolen Property Act (“NSPA”), 18 U.S.C. §§ 2314, 2315, see, e.g., United States v. A 10th Cent. Cambodian Sandstone Sculpture, No. 12 Civ. 2600, 2013 WL 1290515 at *6 (S.D.N.Y. Mar. 28, 2013), or Customs statutes that criminalize the smuggling of merchandise into this country, see18 U.S.C. §§ 542, 545; United States v. Broadening–Info Ents., 462 Fed.Appx. 93, 96 (2d Cir.2012). In Davis, the Second Circuit held that the NSPA had the requisite nexus to international commerce to suffice “as a basis for [the government's] invocation of Section 1595a.” 648 F.3d at 90. A violation of the NSPA requires proof that valuable merchandise was transported in foreign commerce “knowing the same to have been stolen, converted or taken by fraud.” § 2314. In United States v. Portrait of Wally, 663 F.Supp.2d 232, 269 (S.D.N.Y.2009), the government was denied summary judgment on its § 1595a claim, despite sufficient evidence that the painting was stolen, because the court found that whether “the Museum imported Wally into the United States knowing it was either stolen or converted” was a genuine...