Court ruling on importation of ancient coins!

Discussion in 'Ancient Coins' started by Mat, Aug 7, 2018.

  1. R*L

    R*L Well-Known Member

    I have to say that I find aspects of the reasoning in the decision hard to follow. I am not an American lawyer, and I haven't read the preceding decsions, so there is a good chance I'm missing some subtleties, but to weigh in from my position of relative ignorance, and with due respect to the Court, it seems to me that it has made some basic errors of interpretation.

    Although this is a bit dry, to give a bit of context to that, from what I understand (and without going into the detail) the CPIA lets the US Government create lists of certain material by agreement with other signatories to the UNESCO 1970 Convention, which, by virtue of being listed, becomes subject to import restrictions. Of course, it can't do this arbitrarily, and is only empowered to do so in respect of material that meets the definition contained in the Act of “archaeological or ethnological material of the State Party”. That definition requires that the material be a specific “object” (or type of object) “which was first discovered within, and is subject to export control by, the State Party.” Such material, once listed, then becomes “designated archaeological or ethnological material” which is essentially defined to mean “archaeological or ethnological material of the State Party” which has been properly listed or covered by certain other agreements. There is a bit more to those definitions but the above are the points relevant to the discussion below.

    Ok, with the dry stuff out of the way, we are now ready to discuss the really dry stuff. On my reading of it, what today's decision has effectively held is that so long as a particular object at issue is of the same type as an object or type of object that is designated archaeological or ethnological material, then the import restrictions can be applied without the US Government first having to show that the particular object in question itself meets the definition of being “archaeological or ethnological material of the State Party”, that is, without having to show that the particular object at issue was both discovered within, and is subject to export control by, the State Party.

    That finding is surprising given the Act only applies to material that is archaeological or ethnological material of the State Party. It should go without saying that just because a particular object is of the same type as an object or type of object that is designated archaeological or ethnological material, that equivalence of type is not in and of itself is sufficient to establish that the particular object in question is itself archaeological or ethnological material of the State Party. This is because it is perfectly feasible that of the set of all objects of a particular type only a certain subset thereof may have been both first discovered within, and … subject to export control by, a particular State Party. This is especially so with respect to ancient coins which, as the Guild seems to have unsuccessfully argued in this litigation, have potentially circulated for hundreds of years without regard to modern borders both in their original use as currency and now as collector's items with the result that where they were found may have little or no relevance to the borders of modern nation-states, let alone there being any reason to assume recent export. It is therefore (I would have thought) quite obviously erroneous to assume that just because a particular object might be the same type as another object which is designated archaeological or ethnological material, that the first object is also designated archaeological or ethnological material, but that is what the Court has done.

    It’s probably labouring the point, but for example, if three coins of the same type (lets call them Coins A B & C) were minted in Cyprus (and a thousand or so years later coins of that type were properly listed as designated archaeological or ethnological material under the CPIA), but Coin A was found in (say) a horde buried in antiquity in what is now Turkey, Coin B was found in Cyprus but exported from Cyprus before any export restrictions from Cyprus applied, and Coin C was found in Cyprus and exported from Cyprus after export controls were applied, even though all three coins are the same type and that type has been listed, only Coin C would meet the definition of designated archaeological or ethnological material and thus be properly subject to import restrictions into the US. The first two coins would not, as, not being first found in Cyprus and/or not being subject to export restrictions when exported from Cyprus, they are not archaeological or ethnological material of the State Party as defined in the Act and thus cannot be designated archaeological or ethnological material even though the same type of coin as Coin C.

    That is effectively the heart of the matter and where the Court has, in my opinion at least, gone wrong. I note in particular that the Court’s reasoning at page 28-29 of the judgment is flawed, as (not without a degree of irony), in critising the Guild for “conflating” the definition of designated archaeological or ethnological material with that of archaeological or ethnological material of the State Party, it seems the Court has somehow managed to overlook that the definition of designated archaeological or ethnological material is expressly defined in such a way as to make such material a subset of the set of objects that are archaeological or ethnological material of the State Party.

    It seems quite clear from the reasoning that follows (p32 in particular), that had the Court not made that mistake they would not (and logically could not) have reached the conclusion that it did. However, by allowing the Government to discharge its initial burden simply by reference to whether or not the coins were of the same type as an object that has been listed, without having to also establish that they were first discovered in and were subject to export control by the relevant State Party, the Court erred (or more plainly, has got it arse about face) and is effectively allowing the list of designated archaeological or ethnological material to be determinative of what is covered by the Act instead of the Act being determinative of what is covered by the list.

    That is not only illogical, but presumably does not reflect the legislative intention - one would have thought that if the powers that be wanted the Government to be able to place import restrictions on all objects of a certain type irrespective of where they were found and whether or not there were export restrictions in place when exported from the State Party, then they would have made that clear and certainly wouldn't have gone to the trouble of setting up the relevant definitions in the way that they have been set up.

    I'm not great on my international law but the decision also seems to have some consequences in that sphere that could hardly have been intended - on the Court's reasoning a State Party and the US could effectively agree between themselves to import restrictions on the archaeological or ethnological material of another state without reference to that state - eg using our example above of a Cyrpian coin first found in Turkey, under the Court's reasoning in this decision the US and Cyprus could effectively impose import restrictions on Turkey in respect of that coin without Turkey's consent. Again, it is hard to see how that could be intended.

    I’m also at a loss as to why the Court seemed to think that in seeking to address whether or not these particular coins were archaeological or ethnological material of the State Party the Guild was attempting to revisit an earlier issue about whether the type itself was properly listed under CPIA in the first place (perhaps it was argued that way in the hearing?). They seem like distinct issues to me.

    In any case, the Court's mistake permeates through the balance of the decision. E.g. if I am correct in what I say above the Court has also erred in addressing evidentiary and seizure requirements, as while it is quite clear from § 2610(1) that in forfeiture proceedings the Government only has to prove that the material seized under § 2606 has been properly listed under § 2604, both of those sections in turn only apply to designated archaeological or ethnological material. It may be different in the US, but where I practice, in the absence of an explicit statutory authorisation allowing an assumption that the Act applies to all items of a type that has been properly designated regardless of whether individual objects are themselves archaeological or ethnological material of the State Party (and I've not seen such statutory authorisation here), it would be an implicit pre-requisite that in meeting its burden of proof under 2610(1) that the government first show § 2606 and § 2604 actually apply to the items in question!

    There are other issues too, eg it's perfectly Kafkaesque for the court not to require the Government to prove that the Act applies to the objects in question and not to allow the importer to lead evidence to the effect that the object is not the archaeological or ethnological material of the State Party, which seems to be the consequence of only allowing the importer to lead evidence relevant to the defences contained in the Act at § 2606(b) - of course if the object is not the archaeological or ethnological material of the State Party then those defences (which assume that the object is the archaeological or ethnological material of the State Party and thus the State Party or some other specified person is able to provide certification as to the export of the object) are not practically going to be available in the first place! It really is quite absurd.

    I could go on but if you have made it this far without falling asleep you deserve a break! I guess in conclusion I felt compelled to address this as it seems surprising to me that (if I'm right) the Court has made such an obvious and basic error - so obvious that it makes me nervous as it's hard to believe it could have been made - maybe as I said at the outset, it's me who's missing something! But if not, I hope there's scope for another round of appeal. Even though I'm not an American, it pains me to see bad law, especially when it's about our hobby!
     
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  3. Jaelus

    Jaelus The Hungarian Antiquarian Supporter

    Pete is a good friend of mine. I was just talking to him about this ruling last night, as he did a talk about what to know when purchasing coins abroad for the Fairfax Coin Club at my invitation a couple months ago. I'll pass along the thread in case he'd like to contribute.
     
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  4. Sallent

    Sallent Live long and prosper

    I can't see why all of you are struggling so much to read this decision. It's all quite simple, really. A typical ruling usually follows this pattern:

    1: Title, citation, procedural history of the case
    2: Facts of the case
    3: Issues
    4: Decision
    5: Reasoning
    6: Concurrent and dissenting opinions

    It's not rocket science, folks. It's actually a pretty simple read. Bottom of page 31and top of page 32 is the black law (holding) and is then neatly re-stated in the middle of Page 33: namely that the guild is in error as the government does not have to prove the "first discovery" in order to enforce the seizure action. Namely, the fact that the coins are of origin in a country covered by the statute, that is sufficient to sustain seizure, and it is then up to the importer to challenge the individual forfeitures of each coin. Basically, the guild's interpretation is absurd as it would require the government to have beforehand information on each particular coin as to when and where it was dug before they can act (something which often does not exist, especially if the coins were illegally dug and smuggled out of the restricted countries in the first place). To establish that the coins originated in those countries (were struck there) is enough for the government to act, and the burden then shifts to the importer to prove why the coin does not qualify to be seized.

    There are a few other irrelevant issues further down in the case, but the bottom of page 31 and top of page 32, and middle of page 33, is probably the main thing most of you care about.

    The rest mostly deals with how the experts for the guild had nothing of relevance to contribute as the guild failed to make the argument that the seized items fell into one of three exempted categories.

    Took me 10 minutes over breakfast to figure all this out. If you want real complexity, try reading a US Supreme Court decision. Now that can be a bit of a challenge at times, depending which Justice is writing the majory opinion.
     
    Last edited: Aug 8, 2018
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  5. lrbguy

    lrbguy Well-Known Member

    This court made no such error. It applied a principle of U.S. government the implications of which people from other nations may not quite understand; namely the balance of powers. Based on the precedent from Ancient Coin I this court deferred to the State Department handling of definitions. They did so explicitly on the principle of the separation of powers and the parity of the executive and judicial branches of government. Simply put, the court was constrained to uphold whatever definitions the State Department (executive branch) had worked out or established in its diplomatic solution to the request of another State signatory to the UNESCO accord. By its own statement neither this court nor the earlier court in 2012 was free to specify what the State Department had left open on the matter of whether coins were to be considered a type of archaeological or ethnological material of the State Party. State could decide as the diplomacy might dictate, without interference from the Judiciary. That is what they claimed in 2012, and that is what they upheld here in denying the Guild's call to revisit the question of definition.

    If the Guild wishes to challenge the question of why coins ought to be excluded from CPIA agreements, the Court demands that they take that up with the State Department and its CPAC by whatever means they can. The Judiciary will not enter into that battle.
     
  6. V. Kurt Bellman

    V. Kurt Bellman Yes, I'm blunt! Get over your "feeeeelings".

    DING! DING! DING! Winnah, winnah, chicken dinnah!
     
  7. Sallent

    Sallent Live long and prosper

    Yes, bottom of page 31.... says it plain as day. :D

    All the court can do is a plain reading of the legislative or executive notes and comments to try to figure out the intent of the legislative or executive branches, but what the court can not do is to take that and then try to find additional meanings or interpretations based on what's not in the record, as then it would be making law or enforcing law instead of interpreting law, this violating the separation of powers.

    Great post, @Irbguy

    In light of the first coin case, I don't see how this court could have ruled otherwise.
     
    Last edited: Aug 8, 2018
  8. Sallent

    Sallent Live long and prosper

    I'm kind of sad no one brought this to my attention yesterday, I could have gotten down to the meat of it for you. I'm no constitutional attorney and certainly not an appellate attorney, but I think in 7 years of practice I've got experience reading through appellate decisions, one or two thousand decisions probably (who can keep track).
     
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  9. V. Kurt Bellman

    V. Kurt Bellman Yes, I'm blunt! Get over your "feeeeelings".

    By the way, with the SCOTUS going the direction it is, in terms of judicial philosophy, I do expect to read more opinions from THEM with just this sort of flavor. The "we wade into everything" phase may be coming to an end.
     
  10. Deacon Ray

    Deacon Ray Artist & Historian Supporter

    Thanks for this, Mat but it makes my head spin :confused: Just one question—Can we keep what we already have? o_O
     
  11. Deacon Ray

    Deacon Ray Artist & Historian Supporter

    You're the first person I thought of to provide a translation. I was getting ready to suggest that you be summoned to the forum ;)
     
    Last edited: Aug 8, 2018
  12. kevin McGonigal

    kevin McGonigal Well-Known Member

    Yes, what does this do to possession of these coins within the USA? Do they become contraband, unlawful for private citizens possess?
     
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  13. Deacon Ray

    Deacon Ray Artist & Historian Supporter

    I guess everything's cool. VCoins is still up and running ;)
     
  14. V. Kurt Bellman

    V. Kurt Bellman Yes, I'm blunt! Get over your "feeeeelings".

    SO FAR, no one is suggesting confiscation. Stay woke.
     
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  15. red_spork

    red_spork Triumvir monetalis

    These laws entirely deal with importation, possession is not illegal and everything already in the US is 100% safe. As far as I can tell, once a coin gets through customs and is in your hands even if you import it today, it's likely safe as well. If you read the first part of the court decision it spells out the lengths that the ACCG had to go to actually get the government to seize anything in the first place which was basically to create an invoice explicitly spelling out the restricted status of the coins and then to fly them into the US via plane and explicitly declare them at customs, presumably pointing out the invoice discussing their status and only then were they seized.

    These laws have been on the books for years and yet most of the collectors here are not well enough versed with them to even know when they're importing a coin that could be seized. Moreover, US-based collectors post restricted coins here regularly that they describe as having purchased in overseas auctions or from overseas dealers without any mention of provenance or import troubles so as much as I hate that these laws are on the books and that they theoretically could restrict US-based collectors, I simply haven't seen it yet. I've seen collectors restrict themselves in some instances and purchase only provenanced coins of these restricted types but they seem to be the minority. This could all change tomorrow of course and Customs could decide they're going to open every package they see with a coin in it and spend the time to properly attribute and then determine if it's on a restricted list but where's the funding for that?

    Also, the US government is quite proud when they do make seizures. Proud enough that they publish it all online at Forfeiture.gov and all I can find searching for "coin" are counterfeit precious metal modern coins and handbags so far. I check this site every so often and when I have seen ancient coins being seized it seems to always be part of a larger general asset seizure generally due to Civil Asset Forfeiture against a drug dealer or something else as opposed to an actual seizure under the laws being discussed here.
     
  16. Carausius

    Carausius Brother, can you spare a sestertius?

    The loss is disappointing, though likely not unexpected. Courts interpret laws, they don't write them. We need good laws. I have suggested at ACCG meetings that a legislative solution would be our best path. Unfortunately, lobbying legislation requires funding that the ACCG does not possess. Join the ACCG and/or make a contribution today. This fight requires your help. If you have a relationship with a U.S legislator, discuss this with him/her or maybe put them in touch with Peter Tompa (if he agrees).

    Second, I've often touted my provenance hunting and encouraged others to curate their collections in a manner that preserves provenance information. This court decision highlights the need to maintain records and provenance info WITH THE COIN for the benefit of future collectors. It doesn't help to have a database that no one can access when you're gone. Print the information and store it with the coins.
     
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  17. Jaelus

    Jaelus The Hungarian Antiquarian Supporter

    Peter Tompa said he posted a reply on here as a guest (he doesn't have an account). Do we need moderator approval to make the post visible?
     
  18. Jaelus

    Jaelus The Hungarian Antiquarian Supporter

    Absolutely. I know plenty of collectors that do this. If I buy something with unknown provenance that is a substantial piece I also research past auctions to see if I can match it up (sometimes you can - much easier with ancients I would assume).
     
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  19. Andrew McCabe

    Andrew McCabe Well-Known Member

    no surprise to me. I would expect courts to defer to the executive on matters of defining what can be imported and on agreements with foreign countries. That's normal. The error was in pursuing a case that was going to lose. It would have been much better to pursue a case about coins that didn't contravene an MOU. For example somehow arrange to have some Roman denarii confiscated and then win them back as not being MOU covered in a court case. Or import MOU covered items that were shown to be out of source country before MOU was executed and do the same. That would have established a precedent that items not covered in an MOU can't be touched. Boundaries are thus set. Seems to me that if the executive has control of other import matters such as tariffs, it can decide to stop the import of defined items it's agreed about with another country. Not sure why the case was fought at all.
     
  20. V. Kurt Bellman

    V. Kurt Bellman Yes, I'm blunt! Get over your "feeeeelings".

    Well, they did have Doug Mudd on the case, and it still wasn't enough. It's not like they didn't bring the weapons.
     
  21. Sallent

    Sallent Live long and prosper

    @red_spork Coins will continue to come into the US, even illegally. After all, the U.S. government doesn't have the manpower to inspect every single of the millions of packages that arrive at it's shore to make sure the declarations match the items. I suspect packages with declarations like "antique metals for inspection" will continue to get through by the boatload. Not that I encourage the practice as a way to get Chinese or Egyptian or Syrian coins, or whatever.

    There's also ignorance of the law, lies, and other means by which coins will slip through. I've imported illegally Chinese coins when an Ebay seller in China claimed that the coins were coming from Hong Kong, from where it is legal to import them. He lied, and sent them from somewhere in mainland China. I suspected a much when I got a package from mainland China with the description "modern metal disks" on it, and opened it to find the coins that were supposed to be coming from Hong Kong. I got stuck with coins that I would not have bought had the buyer been truthful to me in the first place, but there is nothing left for me to do at that point (other than delete the buyer from my eBay account).
     
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