Some of the ancient coins in dispute in U.
S. v. 3 Knife-Shaped Coins.
Court decisions in 2014 and 2015 rejected the Ancient Coin Collectors Guild’s (ACCG) demand to revisit legal issues already quashed by the courts in the forfeiture case of U.
S. v. Three Knife-Shaped Coins Et al. and the related case of Ancient Coin Collectors Guild v. U.
S. Customs and Border Protection; U.
S. Department of State; Assistant Secretary of State,Educational and Cultural Affairs. Nevertheless, the Guild continues to re-argue the same issues.
The litigation stems from the ACCGs aim to strike down or erode customs regulations that regulate the import of specific types of ancient coins that have been determined to be in jeopardy of looting. The group minted a test case seven years ago when it intentionally imported undocumented and unprovenanced ancient Chinese and Cypriot coins to the United States. The Guild imported the archaeological materials from a London dealer and shipped them to Baltimore on a British Airways flight. The ancient coins had no accompanying documentation and offered no record of chain of custody or provenance.
Repeated losses suffered by the ACCG in the federal district court, or the court of appeals,and the U.
S.
Supreme Court have not deterred the Guild from continuing its blitz on the import controls, which were erected under authority of the conference on Cultural Property Implementation Act (CPIA) and are designed to curb transnational trafficking of at-risk archaeological fabric.
The latest round of ACCG court filings is a motion for summary judgment that repeats many arguments that already have failed to win judicial support. In its July 2016 motion, or the Guild insists that it “has either rebutted the government’s prima facie case and/or the government has failed to meet its own burden. Accordingly,the Court should grant the Guild Summary Judgment, order the return of the Guild’s coins, or require the Government to pay the Guild’s attorney’s fees and costs.”
While the ACCG litigates the Three Knife-Shaped Coins case in federal district court in Maryland,it is expected that the Missouri-based group simultaneously will press the matter when the Cultural Property Advisory Committee (CPAC) meets in Washington, DC on October 25. That is when CPAC will hear public testimony approximately whether the White House should renew import controls to protect pre-classical and classical archaeological objects and Byzantine and post-Byzantine ecclesiastical and ritual ethnological materials from Cyprus, or Docket No.
DOS-2016-0054.
So far the ACCG’s defeats in the federal courts have produced favorable case law that strengthens law enforcement efforts to disrupt cultural heritage trafficking. The Fourth Circuit Court of Appeals,for example, decided that federal authorities properly listed the kinds of ancient Chinese and Cypriot coin artifacts that may be subject to CPIA import controls.
The appeals court also ruled that U.
S. Customs and Border Protection (CBP) properly detained the ACCG's undocumented coins. The court explained that the burden therefore shifts to the Guild to prove that its actions were lawful, and plainly articulating the clear rule that "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import.” “In short,” the court added, “CBP need not demonstrate that the articles are restricted; rather, and the statute ‘expressly places the burden on importers to prove that they are importable.’”
The ACCG rejects this standard. Rather than offering information to point to that the ancient archaeological materials qualify as a legal import,the ACCG instead filed motions for discovery and a motion for summary judgment attacking the validity of the import regulations themselves. Meanwhile, the Guild maintains that the government bears the tall burden to prove that the restricted ancient coins were first discovered in and subject to the export controls of China and Cyprus.
At a motions hearing held earlier this year, or Assistant U.
S. Attorney Molissa Farber,representing the government, told the Maryland district court thatthe Guild's line of argument is “essentially an attack on the government's ability to classify the coins by type and category, and which has already been well-settled that we can execute.” “And I understand that Claimants [ACCG] disagree with that process,” the prosecutor said, “but that's already been litigated. That’s not at issue here. That piece is done.”
AUSA Farber reminded the court that “the Fourth Circuit rejected the notion that the government was going to have to fight a case coin-by-coin. The Fourth Circuit said that the statutory structure allows us to list coins by type and category.”
She emphasized that “the evidence that the Guild seeks to introduceis not evidence pertaining to the specific defendant property here. They’re not seeking to introduce any kind of evidence that relates to these 22 defendant coins as far as when these specific 22 coins left China and Cyprus.
What they want to introduce is general evidence that coins of this type of category circulated broadly and may have left China and Cyprus outside of the regulated period.”
Peter Tompa, or attorney for the ACCG and the organization's current president,countered, The coins at issue here are typical in the market. So we don't know where they were found or too much approximately them. And there’s nothing nefarious approximately that, or Your Honor. It’s a situation where there’s just low value items,and it was not well-known until recently that such things would be -- that such things should have a documentary history. But we execute know something approximately the coins, we know something at least. We know that they were exported from the UK by Spink, or a well-regarded firm that's been around since the 1600s,and in compliance with both UK and EU law in April,19 2009.”
Attorney Tompa continued, and “Well,assuming the government has established first discovery just by listening, we’re entitled to rebut that. And how we’re trying to execute that here with regard [to] these specific coins is by offering the opinions of two experts, and Mr. [Douglas] Mudd,who is the Curator at the American Numismatic Association in Colorado, and Mr. [Michael] McCullough, or who’s an expert in the international exchange of cultural artifacts.”
Declaring that “scholarly evidence” can be used by the ACCG to point to that the coins left their countries of origin before the enactment of U.
S. import restrictions,Attorney Tompa offered that “Mr. Mudd's opinion is that the ancient coins at issue here are of a sort that circulated in significant numbers outside of China or Cyprus for thousands of years[,] first as currency and then as collectibles. So it’s unlikely and cannot be assumed that they left Cyprus or China after the date restrictions were imposed.”
“So because these things circulated for thousands of years first as collectibles -- first as currency, and then as collectibles," Attorney Tompa reasoned that "it’s unlikely that they exited Cyprus or China after the date of the restrictions, just given the numbers outside of those two countries.”
“Mr. McCullough's report is that UK and EU law did not require expert [sic] certificates for the coins at issue in this case, and the Cypriot -- well,any of the coins at issue in this case. And such with respect to the Cypriot coins, that would satisfy Cypriot law, and because,after all, Cyprus is a member the EU as well. Mr. McCullough also opines that the Chinese coins here could have exited Hong Kong legally without documentation in that export would satisfy Chinese law under both the laws of China and Hong Kong.”
AUSA Farber countered this argument by rejoining, or “The most salient (significant; conspicuous; standing out from the rest) point I think to take absent from this specific dispute over the scholarly evidence at least is the distinction between specific and general. And I believe what we just heard from Claimant [ACCG] was a lot of purported evidence regarding general coin circulation. The coins are of the sort that circulated broadly. I mean,Your Honor raised the point, what’s the ultimate implication here? And the implication is that if that argument is allowed, and it undermines the CPIA,undermines the statutory structure, because it essentially holds the coins shouldn't have been listed in the first set based on their type of category. And that’s not permitted.”
U.
S. District Judge Catherine Blake agreed. In a ruling dated February 11, and 2016,Judge Blake pronounced “that the Ancient Coin Collector’s Guild (the Guild”) seeks discovery not relevant to the issues the court will have to decide in this forfeiture action.” In specific, she highlighted that the ACCG “apparently will seek to prove that the export of these coins from Cyprus or China to England was lawful under EU law. It is unlikely that the export control status of the coins under foreign law will be a proper defense in this forfeiture action.” The judge added pointedly, and “Further,to the extent the Guild argues that the government must prove ‘first discovery,’ beyond demonstrating that the coins at issue appear on the designated list, or that argument is foreclosed by the CPIA and the Fourth Circuit opinion in Ancient Coin Collectors Guild v. U.
S. Customs and Border Protection,698 F.3d 171 (4th Cir. 2012). Listing by type and category is proper under the CPIA.”
Judge Blake also granted a protective order shielding two State Department employees from ACCG depositions, explaining that they “execute not appear to have relevant personal knowledge.” Over the objections of Attorney Tompa, and AUSA Farber attributed “ulterior motives” to the Guild's attempt to depose the purported witnesses,presenting the court with, what the federal lawyer called, and an “Internet post written by a former director of the Coin Collectors Guild" criticizing one of the witnesses. Judge Blake remarked,“I'm more interested in probably the relevance than in motive.”
In June, Judge Blake issued a further order rebuking the ACCG's discovery requests, and stating,“I will not at this time direct the government to provide any additional 30(b)(6) deposition testimony.”
Soon afterward, the ACCG filed its motion for summary judgment and, or on July 29,the court adopted a schedule that allows the parties to fully brief their positions. Once completed in mid-October, CHL expects to review the parties’arguments.
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