Daniel Carr ?

Ok. Let's put aside Carr all together and discuss the larger legal question: Can a numismatic item struck over an existing genuine U.S. coin be considered a counterfeit? The answer to that question is yes.

Let me preface the discussion by stating upfront that Carr does not have the nefarious intent of the defendants in the case I'm going to cite and the pieces were of actual numismatic dates. I'm NOT citing the case for the position that Carr is guilty of counterfeiting or wrong doing. I'm citing it solely for the position that over striking a genuine coin does not remove a numismatic over strike from the purview of the counterfeiting statutes on the basis of the monetization of the host coin alone.

In United States v. Wilson, 451 F.2d 209 (5th Cir. 1971), the defendants were charged with counterfeiting after over striking 1955 Roosevelt Dimes on generic silver dime planchets. At the time, 1955 Roosevelt Dimes were worth a premium. The defendants repeated Carr's claim that coins struck over genuine U.S. coins are not counterfeits under 18 U.S.C. §485 but merely altered coins within the meaning of 18 U.S.C. §331. Government expert witnesses testified that the coins in dispute had been struck with blank dies so as to substantially deface the original coins, and were then restruck with counterfeit dies to produce numismatically valuable coins. Id. The court held the original mutilation or defacing was a violation of 18 U.S.C. §331 and that the restriking of the planchet with counterfeit dies was a separate offense under 18 U.S.C. §485 (the counterfeiting statute). "Therefore, the United States could charge the defendants with a violation of either §331 or §485, or both, as it saw fit." Id. at 212 citing United States v. Lissner, 12 F. 840 (C.C. Mass. 1882); Reg. v. Hermann, 4 Q.B.D. 284.

If over striking was in itself enough to remove a coin from the purview of the counterfeiting statutes then the defendants' convictions could not have been sustained. The overstriking of genuine U.S. coins is a red herring in these threads, and thus, the discussion now becomes one of intent and the use of fantasy dates. Are we on the same page so far? Put another way, Carr's obliteration of the host coin (which he has even posted on the PCGS forums that he took unspecified steps to ensure maximum destruction of the host coin in the early days) is materially no different than the technique used in Wilson. This is not to say that his pieces are unlawful per se, but it is irrelevant whether he uses real coins or bullion rounds - the legal effect is the same. Do you see where I am coming from so far?

P.S. The method of destruction was not at issue in the case only that the piece was substantially destroyed. There is no material distinction between one melted, struck over with dies, erased using a metal sander, etc.

 

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Wrong, the result is not the same. You will not see ghosting on blank rounds.
Some of us like the ghosting, me included.

 

From 18 U.S. Code § 331 - Mutilation, diminution, and falsification of coins:

There is no fraudulent intent in Carr's business practice. If someone fraudulently tries to sell on one of his products as a legitimate US coin, the offense is theirs, not his.

From 18 U.S. Code § 485 - Coins or bars:

Again, fraudulent intent is absent. Unless "falsely" in the first paragraph means something different -- I honestly don't know how to interpret that term in this context. Why is it "falsely" instead of "fraudulently"?

The 1971 case, restriking common dimes to resemble desirable 1955 dimes, would seem to arise from a fraudulent attempt to sell the product as genuine 1955 dimes, at a profit. There is also, of course, the issue that 1955 dimes were officially issued by the US Mint, unlike 1965 Peace dollars, 1964 Morgans, and so on. I don't think it mattered in the case cited, but the fact that Carr creates only items that were never issued by the Mint seems to be further evidence against fraudulent intent.

 

Excellent! We're on the same page now. Over striking itself does not render the counterfeiting statutes or label inoperative, so we must now address the intent and fantasy date issue. If intent or the use of a fictitious date is a sufficient defense as a matter of law, then Carr is golden. More on each of those in a moment.

 

@JeffB

It looks like we are in agreement thus far. The over strike process is irrelevant and it comes down to intent and the fantasy date issue, each issue which should be dissected separately.

First, the intent issue is another distraction. Regardless of Carr's subjective intent, it is irrelevant to the objective label applied to his coins. If intent has any role whatsoever it is to any potential legal liability. His coins may still accurately be described as "counterfeit" even if he faces no criminal liability. After all, we label Chinese coins as counterfeits; however, none of them are in violation of U.S. law because U.S. law is not operative to foreign actors in China. The pieces are still "counterfeit." Also, if I strike a restrike for fun and am so impressed with my work that I decide to see if I can pass it, at what point did the coin become a "counterfeit?" At what point did the "coin" change?

Now on to law and intent. There must be an intent to defraud to be charged under the alteration statute 18 U.S.C. 331. We both agree that there is no apparent liability for Carr under 18 U.S.C. 331 for the destruction of the host coin or for the over strike process. The issue now becomes whether he has run afoul of the counterfeiting statute, 18 U.S.C. 485 and 18 U.S.C. 487. This entails a discussion of Von Nothaus. To be clear, I am not saying that his works are identical to the coins in Von Nothaus. The pieces are not. The case is still instructive as it makes a ruling on the intent required to trigger a prosecution under 18 U.S.C. 485, one of the statutes that Von Nothaus was convicted under.

In U.S. v. Von Nothaus, No. 5:09CR27-RLV, slip op. (W.D. N.C. 2014) a federal district court judge applied the plain meaning of 18 U.S.C. §485 and found it spells out at least two separate criminal offenses. One concerned the production of coins that are counterfeited, forged, or otherwise falsely made as stated in the first paragraph. The second paragraph prohibits uttering and other offenses involving counterfeit coins. The court found that the second paragraph (for the crime of uttering) prohibits the same class of coins as contained in the first paragraph but "adds an intent requirement - that the conduct be undertaken with the intent to defraud." In other words, the court found that no intent to defraud is required to convict under the first paragraph for falsely making, forging, or counterfeiting a coin.

The interpretation articulated by the Von Nothaus court is also consistent with logic applied in interpreting other federal forgery statutes. In U.S. v. Reich, 479 F.3d 179 (2nd Cir. 2007), a U.S. Circuit Court of Appeals was charged with interpreting another federal forgery statute falling within Chapter 25 of Title 18 (the chapter addressing forgery and counterfeiting that includes the currency and coin statutes). In interpreting the statute, the court looked to other statutes in the same chapter and concluded that there were two classes. Acts involving forgeries and counterfeits likely to be used to defraud private citizens out of their money or property such as uttering required an intent element. Acts which "impugn the reputation or integrity of the federal government regardless of whether the perpetrator intended to defraud private citizens." Id. at 189. The court specifically discussed 18 U.S.C. §485 and agreed with me that that the first paragraph does not incorporate an intent to defraud element with the "falsely make, forge, or counterfeit" language contained in the first paragraph (the offense for production of counterfeits), while it did require an intent to defraud to "pass, utter, publish, or sell" for the offense provided in the second paragraph. Id. at 189. Cf. U.S. v. Cowan, 116 F.3d 1360 (7th Cir. 1997). I'm sure Carr will dismiss the two circuit court opinions as dicta, but they do reinforce the holding in Von Nothaus. The cases thus far have specifically addressed the coinage statute, 18 U.S.C. 485. The logic (i.e. the lack of intent explicitly in the statute means that intent to defraud is not a factor) has also been applied to the paper currency statute. Webb v. U.S., 216 F.2d 151, 152 (6th Cir. 1954) ("The legislative purpose is clear that Congress intended, in protecting the currency, to tolerate no manipulation in the making of impressions of government obligations or securities, whether the copies or impressions might be good or bad, and regardless of the purpose for which they might be made.... [T]here being no need of proof of unlawful intent, there is no need of proof that such impressions were calculated to deceive.").

There is also another case addressing 18 U.S.C. 487 that I don't have my fingertips.

NEXT STOP... Fantasy Dates and Coins Never "Issued" or "Monetized"