Wednesday, 18 January 2012

Baltimore Illegal Coin Import Stunt Case: Not Going at all Well for ACCG Coineys

Real Cultural Heritage Lawyer Rick St. Hilaire has a very revealing text on his blog: Federal Attorneys File Appellate Brief in Baltimore Coin Case (January 18, 2012). Nicely coincident with the date of the public comments on the renewal of the Cyprus cultural property MOU which lies at the heart of the case. His post neatly explains the whole sorry saga of the court cases initiated on April 15, 2009 by the deliberately illegal import through Baltimore of Chinese and Cypriot coins sent by Spink's in London without the required documentation which would allow lawful passage through US borders (silly old Spink's eh?). Then, instead of providing that documentation (for which the CCPIA allows them as much as ninety days) the ACCG took the Gubn'mint to court. Goodness knows why. This case has been dragged through the courts ever since. In the latest round, the appellate brief filed by the ACCG on October 31, 2011 argues that (a) that the enactment and application of the import controls by the State Department and/or Customs and Border Protection (CPB) was unlawful (b) allegedly "China did not request the import restrictions" on coins and (c) allegedly "the CPIA’s import controls require federal officials to prove an ancient coin’s find spot before it can be seized".

Now it's the government's turn; on January 13, 2012, Attorneys for the United States have filed their brief in the matter 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:
The United States’ brief rejects the Ancient Coin Collectors Guild’s (ACCG) interpretation and application of the Cultural Property Act (CPIA), writing that the ACCG “fundamentally misunderstands the CPIA’s statutory scheme.” Attorneys for the United States contend in their brief that its agencies followed the rules while the ACCG did not follow the process. The government's lawyers write that the ACCG should have followed the forfeiture process established by Congress. Instead, the ACCG filed a lawsuit.
In other words, there were appropriate measures in place by which the ACCG could have established their claim on the imported property, but it did not make use of them. A court case of the nature demanded by the ACCG is not an appropriate alternative to following the correct procedure established by law. There can be, the government says, judicial review of agency action only ‘for which there is no other adequate remedy in a court’ and the ACCG has not followed the procedure to establish that in this case this is the situation.
At the time of the attempted import of the coins in Baltimore, lawyers for the United States say that “Customs provided [the ACCG] with the opportunity to present a certification of lawful export or other evidence establishing a right to entry .... [but the ACCG] disclaimed any ability to present such evidence. [...] Had the ACCG challenged the seizure of the coins through the congressionally prescribed forfeiture proceeding, it would have confronted a defined standard of proof requiring the ACCG to show that the coins were legal to import. [...] the burden shifts to the claimant [ACCG] to show that the property is not subject to forfeiture, or to establish an applicable affirmative defense.” The United States rebukes the ACCG for short-circuiting the judicial forfeiture proceeding, avoiding its burden of proof, and claiming that the government acted beyond its authority (i.e. ultra vires).
The United States authorities also maintain that the ACCG has confused the meaning and requirements of the CPIA. Well, as I have pointed out in this blog many times, that is what it has seemed to me all along. As any fool can see, there is NO requirement for federal officials to "prove an ancient coin’s find spot before it can be seized". The CCPIA is very clear that to import the coins into the United States, the ACCG needed only to show that the items figuring on the Designated Lists were outside Cyprus or China before the effective dates of the relevant lists. The Act defines three different ways to do this, and allows ninety days to sort out which one they want to use.
Plaintiff declined to offer any declaration to that effect, claiming that it could not offer the evidence required by the statute because it did not know whether the coins had been ‘first found in the ground’ of either China or Cyprus. But the CPIA quite plainly does not require plaintiff to know where the coins were ‘first found in the ground’; all that was required was information as to the whereabouts of the Cypriot coins as of July 16, 2007 and of the Chinese coins as of January 16, 2009”.
Trying to talk sense to the coineys though is - as we have seen - an uphill battle.

As for the notion that China does not want the USA to restrict imports of unlawfully exported coins, and that China "never formally requested import restrictions on coins" , the Government claims this may be rejected because (as their lawyers have already pointed out to a previous court):
China’s request did, in fact, address ancient Chinese coins, as noted in the public summary of the request that is posted on the State Department’s website.”
Moreover as St Hilaire emphasises, the government's lawyers "pointedly draw attention to the fact that the President exercises his foreign affairs powers when acting pursuant to the CCPIA". The Act
provides the President with broad power to apply import restrictions pursuant to MOUs he enters into with foreign States in furtherance of the United States’s obligations under the Convention on Cultural Property and with the goal of ‘promoting U.S. leadership[] in the preservation of cultural treasures.’” The attorneys point out that “Congress recognized that allowing illicitly excavated and trafficked artifacts to enter into the United States, thereby permitting a market in such goods, threatened our relationships with other nations, and that this legislation was thus “‘important to our foreign relations.’”
This is the key point the coineys grouped around the ACCG fail to grasp, that by their actions they are jeopardising their country's ability to exercise an important part of their foreign policy. They are placing their own selfish interests ahead of those of the state. Something tells me the coineys are going to lose this case and end up looking Very, Very silly.

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