United States v. Ancient Coin Collectors Guild, 2018 WL 3734281 (4th Cir. Aug. 7, 2018):
*1 This appeal is pursued by the Ancient Coin Collectors Guild (the “Guild”) from the judgment in the District of Maryland ordering forfeiture to the United States of seven ancient Cypriot coins and eight ancient Chinese coins, which were imported into this country by the Guild. Incorporated within its challenge to the propriety of the district court’s summary judgment decision, the Guild contests the court’s treatment of the Guild’s expert evidence, the striking of one of its pleadings, and the denial of its requests for additional discovery. As explained below, we reject each of the contentions of error, including several that are foreclosed by our previous decision in Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (4th Cir. 2012) (“Ancient Coin I”). Accordingly, we affirm the judgment.
On November 14, 1970, the United States became a signatory, i.e., a State Party, to an international treaty developed primarily by the United Nations—the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership and Cultural Property (the “Treaty”). See 823 U.N.T.S. 231. The Treaty was designed to eradicate the clandestine excavation and illicit trade of “cultural property,” that is, property “specifically designated by each State [Party] as being of importance for archaeology, prehistory, history, literature, art or science.” Id. art. 1(e). Cultural property includes “antiquities more than one hundred years old, such as ... coins.” Id. Article 9 of the Treaty provides that when a State Party determines that its “cultural patrimony is in jeopardy,” it may call upon other State Parties to take action, including through the imposition of import restrictions. Id. art. 9.
In 1983, Congress enacted a public law entitled the Convention on Cultural Property Implementation Act (the “CPIA”), which formally implemented the Treaty. See Pub. L. No. 97-446, 96 Stat. 2350 (1983) (codified at 19 U.S.C. §§ 2601-2613). Pursuant thereto, if another State Party wants the United States to impose import restrictions on its cultural property, that State Party first must make a formal written request. See 19 U.S.C. § 2602(a)(3). By that request, the State Party must claim, inter alia, that its cultural patrimony is in jeopardy, that the imposition of import restrictions would deter “a serious situation of pillage,” and that “less dramatic” alternatives are unavailable. Id. § 2602(a)(1)(A)-(C). After publishing notice of the request but prior to any further action, the CPIA requires the President to forward the State Party’s request to a statutory committee—the Cultural Property Advisory Committee (“CPAC” or the “Committee”)—for review and recommendations. Id. § 2602(f)(1)-(2).1
*2 CPAC is an eleven-member Committee appointed by the President and comprised of experts and stakeholders in “the international exchange of archaeological and ethnological materials.” See 19 U.S.C. § 2605(b)(2)(A). Upon receiving notice of a State Party’s request to impose import restrictions, the Committee is required to conduct an investigation and prepare a report detailing whether import restrictions are warranted. Id. § 2605(f)(1). The report must be detailed, specifying by type or classification the materials that should be subjected to import restrictions. Id. § 2605(f)(4)(B).
The President is required to consider the CPAC report before taking any action on a State Party’s request. See 19 U.S.C. § 2602(f)(3). If the President is then convinced that import restrictions are warranted, he can enter into an agreement—called a Memorandum of Understanding (an “MOU”)—restricting the importation of “archaeological or ethnological materials of the State Party.” Id. § 2602(a)-(b). As relevant here, the CPIA defines the term “archaeological or ethnological material of the State Party” as an object of archaeological or ethnological interest, or any fragment or part thereof, “which was first discovered within, and is subject to export control by, the State Party.” Id. § 2601(2).
After entering into an MOU, the CPIA requires the President to report to Congress, notifying it of the President’s action. See 19 U.S.C. § 2602(g)(1)-(2). The President’s report to Congress should explain “the differences (if any) between such action and the views and recommendations contained in any [CPAC] report,” and provide “the reasons for any such difference.” Id. § 2602(g)(2).
Upon the President’s agreement to an MOU, the Secretary of Homeland Security, in consultation with the Secretary of State, is obliged to promulgate a regulation—or “designated list”—identifying the archaeological or ethnological materials covered by the MOU. See 19 U.S.C. § 2604.2 Restricted materials may be listed therein “by type or other appropriate classification.” Id. Each designated list, however, must be “sufficiently specific and precise” to ensure that (1) “the import restrictions ... are applied only to the archaeological and ethnological material covered by the [MOU]” and (2) “fair notice is given to importers ... as to what material is subject to such restrictions.” Id.
Section 2606 of Title 19 governs the enforcement of the import restrictions contained in the designated lists that have been promulgated. Pursuant thereto, it is unlawful to import “designated archaeological or ethnological material that is exported (whether or not such exportation is to the United States) from the State Party after the designation of such material under section 2604.” See 19 U.S.C. § 2606(a). “Designated archaeological or ethnological material” is a term of art in the CPIA, and is not to be confused with the term “archaeological or ethnological material of the State Party.” Compare 19 U.S.C. § 2601(2) (defining “archaeological or ethnological material”), with 19 U.S.C. § 2601(7) (defining “designated archaeological or ethnological material”). As relevant here, designated archaeological or ethnological material includes “any archaeological ... material of the State Party” which is “covered by an [MOU]” and “listed by regulation under section 2604.” Id. § 2601(7).
*3 The CPIA authorizes the importation of designated archaeological or ethnological material into the United States, but only when the importer can satisfy—at the time of entry—at least one of three evidentiary requirements. See 19 U.S.C. § 2606(b). First, under § 2606(b)(1), the importer can present to Customs and Border Protection (“Customs”) a “certificate or other documentation” from the State Party that requested the restrictions, certifying that the designated material was exported in compliance with that State Party’s laws.3 Second, pursuant to § 2606(b)(2)(A), the importer can present Customs with “satisfactory evidence” demonstrating that the designated material was exported from the State Party at least ten years before it arrived in the United States.4 Third, under § 2606(b)(2)(B), the importer can present “satisfactory evidence” to Customs proving that the designated material was exported from the State Party “on or before the date” the material became subject to import restrictions. Under the second and third requirements, that is, pursuant to § 2606(b)(2)(A) and § 2606(b)(2)(B), the term “satisfactory evidence” means a declaration from the importer, plus a statement from the seller, attesting that the designated material was imported in compliance with one of those two provisions. Id. § 2606(c)(1)-(2).5
If an importer fails to submit any of the documentation specified in § 2606 when designated material enters the United States, Customs officials are directed to “refuse to release the material from customs custody.” See 19 U.S.C. § 2606(b). The importer then has ninety days to file with Customs either the required certificate or satisfactory evidence demonstrating that the designated material was lawfully exported from the State Party. Id. If the importer fails to do so, the designated material is subject to seizure and forfeiture to the United States. Id. § 2609(b).
The Guild is a non-profit organization dedicated to protecting the interests of numismatists, particularly those individuals who specialize in the collection of ancient coins.6 The Guild’s director, Wayne Sayles, founded the organization in 2004 in an effort to preempt the imposition of CPIA restrictions on ancient coins. Sayles and the Guild opposed such restrictions for two primary reasons. First, they rejected the notion that coins should be considered part of a country’s cultural patrimony. More specifically, they read the CPIA to limit the concept of cultural patrimony to those items “first discovered within” a particular State Party’s borders. See 19 U.S.C. § 2601(2). Because most ancient coins have no known locus of discovery—also called a “find spot”—and many coins have been subject to decades, if not centuries, of international circulation, Sayles and the Guild believed that it would be specious to assert that broad categories of coins belonged to a particular country.
*4 Second, Sayles and the Guild feared that coin collectors would be unable to comply with the CPIA’s evidentiary requirements for importation. For example, they asserted that it would be difficult for an importer to obtain a certificate from a foreign country—that is, the certificate required by 19 U.S.C. § 2606(b)(1)—demonstrating that a particular coin had been lawfully exported. In a similar vein, they believed that importers would be unable to satisfy the “provenance” requirements of § 2606(b)(2). According to Sayles, a “huge majority” of collectible ancient coins have no provenance—or record of ownership—because “there’s never been any desire really among collectors of ancient coins to maintain provenance of a coin that they bought for 10 or 15 or $20.” See J.A. 664.7 Sayles and the Guild ultimately believed that if coins became legitimate targets of CPIA restrictions, it would “destroy ancient coin collecting.” Id. at 665.
Beginning in 2004, the Guild engaged in a lobbying campaign to thwart efforts by governments to impose import restrictions on ancient coins. The Guild, however, was unsuccessful in that endeavor. In 2007, the U.S. Department of State (the “State Department”) agreed to a request by the Cypriot government to impose import restrictions on ancient Cypriot coins, including those minted during Cyprus’s Hellenistic and Roman eras. Pursuant to the resulting Cypriot MOU, Customs promulgated a regulation—that is, the “Cypriot Designated List”—identifying the ancient Cypriot coins that are subject to import restrictions.8 Two years later, in January 2009, the State Department entered into a separate MOU with China. Pursuant thereto, the United States agreed to impose import restrictions on Chinese coins minted during the Zhou through the Tang Dynasties, a period of approximately 2,000 years. Consistent with the Chinese MOU, Customs promulgated a “Chinese Designated List,” specifying the restricted materials.9
The Guild opposed the Cypriot and Chinese MOUs, believing that State Department officials had acted in bad faith in adopting the import restrictions. That belief was bolstered by what the Guild perceived as failures of government officials to comply with the CPIA. To remedy those perceived failures, the Guild sought to have its grievances heard and resolved in the courts. The Guild therefore decided to manufacture litigation by deliberately importing restricted ancient Cypriot and Chinese coins into the United States. Once the coins were detained, the Guild planned to sue the federal agencies and officials responsible for imposing and enforcing the import restrictions. The Guild, however, was initially unsuccessful in its efforts to induce Customs to detain various imported coins. The Guild therefore enlisted the help of a British coin dealer, Spink & Son. Using the Cypriot and Chinese Designated Lists for guidance, Spink and the Guild located twenty-three Cypriot and Chinese coins that they considered likely to be detained by Customs.
*5 On April 15, 2009, Spink shipped the Cypriot and Chinese coins from London to Baltimore on a commercial airline flight. To support the Guild’s scheme, Spink attached an invoice to the coin shipment that was designed to alert the Customs officers and result in detention of the coins. The Spink invoice specified that the shipment contained twenty-three coins, including seven coins derived from Cyprus’s Hellenistic and Roman eras (the “ancient Cypriot coins”); nine coins—two of which were knife-shaped—derived from China’s Zhou, Han, and Western Han dynasties (the “ancient Chinese coins”); and seven other Chinese coins that were unattributed to a particular era or dynasty (the “unattributed Chinese coins”).10 The invoice also reflected that each coin had “[n]o recorded provenance” and that each coin’s “find spot” was “unknown.” See J.A. 1164.
On April 24, 2009, Customs officers in Baltimore detained Spink’s shipment of coins. The Spink invoice identified the Guild as the recipient of the coin shipment. Customs therefore issued the Guild a Notice of Detention, which specified its reason for detaining the coins as “Cultural Property Import Restrictions per [19 U.S.C. § 2606].” See J.A. 1172. The Notice of Detention requested that the Guild supply Customs with a “Certificate or evidence” demonstrating that the coins were being imported into the United States in compliance with the CPIA. Id.
In May 2009, the Guild’s lawyer filed a response to the Notice of Detention with Customs, objecting to the seizure and detention of the coin shipment. By that response, the Guild contended that the “State Department promulgated the underlying regulations in an arbitrary and capricious manner and/or contrary to law.” See J.A. 186. The Guild further asserted that—based on its reading of the CPIA—Customs officers were required to “trace the coins in question back to either China or Cyprus before they [could] be properly detained.” Id. Finally, the Guild maintained that it was impossible to provide Customs with the requested certification or satisfactory evidence, and that the Guild wished to have its “views [tested] in [c]ourt.” Id. at 187
Nearly a year later, on February 11, 2010, the Guild filed a civil action in the District of Maryland, naming as defendants the State Department, Customs, and two government officials. The Guild’s complaint challenged the detention of the Spink coin shipment and alleged that the government had violated the Administrative Procedures Act (the “APA”), as well as the Guild’s First and Fifth Amendment rights. The Guild also contended that the defendants had exceeded their authority—that is, acted ultra vires—by imposing import restrictions on Cypriot and Chinese coins.
By Memorandum Opinion of August 8, 2011, the district court dismissed the Guild’s claims. See Ancient Coin Collectors Guild v. U.S. Customs & Border Prot., 801 F.Supp.2d 383 (D. Md. 2011). As relevant here, the court ruled that the State Department’s actions were not reviewable in federal court under the APA. The court further determined that the State Department had not exceeded its authority under the CPIA by effectively “barring the importation of coins with unknown find spots.” Id. at 409. The court also ruled that Customs had neither violated the APA nor acted ultra vires by carrying out its duty to promulgate and enforce the Cypriot and Chinese Designated Lists. Finally, the court concluded that the Guild’s constitutional claims were meritless.
By our Ancient Coin I decision of October 22, 2012, we affirmed the district court’s dismissal of the Guild’s complaint. See 698 F.3d 171 (4th Cir. 2012). Our colleague Judge Wilkinson, writing for a unanimous panel, ruled that the State Department had not exceeded its authority when it agreed to impose import restrictions on Cypriot and Chinese coins. Id. at 179-81. More specifically, the Ancient Coin I decision carefully examined the State Department’s activities leading to the promulgation of the Chinese Designated List and concluded that “there is no question that the State Department complied with CPIA procedures when it placed import restrictions on Chinese coins.” Id. at 179. The decision deemed it unnecessary to conduct a similar analysis of the Cypriot Designated List, explaining that the “district court similarly found that the State Department complied with the statutory requirements in placing import restrictions on Cypriot coins.” Id. at 180.
*6 Our Ancient Coin I decision also rejected the Guild’s contention that the defendants had acted ultra vires by imposing import restrictions on, and later detaining, the collection of coins that were not necessarily “first discovered within” Cyprus and China. See 698 F.3d at 181-82 (quoting 19 U.S.C. § 2601(2)). In so ruling, we recognized that it was the duty of the State Department and CPAC to determine where certain materials were first discovered before placing them on a designated list. Id.
After ruling that the State Department and Customs had properly interpreted and applied the CPIA, the Ancient Coin I decision explained that the Guild would be entitled in a forfeiture proceeding to “press a particularized challenge to the government’s assertion that the twenty-three coins are covered by import restrictions.” See 698 F.3d at 185. The decision also explained the burden-shifting framework applicable in a forfeiture proceeding conducted pursuant to the CPIA. In such a proceeding, the government would bear the burden of establishing that the ancient coins had been “listed in accordance with [19 U.S.C. § 2604].” Id. (quoting 19 U.S.C. § 2610). In other words, the coins must have been “listed ‘by type or other appropriate classification’ in a manner that gives ‘fair notice ... to importers.’ ” Id. (quoting 19 U.S.C. § 2604). If the government satisfied its evidentiary burden in the forfeiture proceeding, “the Guild must then demonstrate that its coins are not subject to forfeiture in order to prevail.” Id. (citing 19 U.S.C. § 1615).
On April 22, 2013, the government filed in the District of Maryland the complaint that underlies this appeal, seeking forfeiture to the United States of the ancient Cypriot and Chinese coins. See United States v. 3 Knife-Shaped Coins, No. 1:13-cv-01183 (D. Md. Apr. 22, 2013), ECF No. 1 (the “Complaint”).11 The Complaint alleges that the defendant coins “compris[e] archaeological material of China and Cyprus that is listed ... as property subject to such import restrictions.” Id. at 4. The Complaint makes clear that the importer failed to supply the Customs officers with CPIA-compliant evidence. For example, the Complaint alleges that neither Cyprus nor China issued certificates or documentation confirming that the coins’ exportation was not in violation of their laws. The district court thus issued a warrant for arrest in rem for the seized coins. The Guild promptly filed a Claim of Interest in the defendant coins, pursuant to Supplemental Admiralty and Maritime Claims Rule G(5)(A) of the Federal Rules of Civil Procedure.
In June 2013, the Guild answered the Complaint, interposing twelve affirmative defenses and demanding a jury trial. In the process, the government moved to strike portions of the Guild’s answer, contending that several of the Guild’s responses—including affirmative defenses—sought to relitigate issues that were resolved by the Ancient Coin I decision. While the government’s motion to strike was pending, the Guild amended its answer, identifying additional affirmative defenses and seeking to counter the motion to strike. See United States v. 3 Knife-Shaped Coins, No. 1:13-cv-01183 (D. Md. Sept. 27, 2013), ECF No. 13 (the “Amended Answer”).
*7 By Opinion and Order of June 3, 2014, the district court granted the government’s motion to strike, applying it to the Amended Answer. See United States v. 3 Knife-Shaped Coins, No. 1:13-cv-01183 (D. Md. June 3, 2014), ECF Nos. 22 & 23 (the “Strike Opinion” and “Strike Order,” respectively). In so ruling, the court observed that “much of the [Amended Answer] and most if not all of the affirmative defenses seek to relitigate issues concerning the validity of the regulations and the government’s decision to impose import restrictions on certain Cypriot and Chinese coins.” See Strike Opinion 2. The court stressed that the Ancient Coin I decision “forecloses any further challenge to the validity of the regulations.” Id. at 1.
Eight months after the district court struck the Amended Answer, the Guild filed a newly amended answer. See United States v. 3 Knife-Shaped Coins, No. 1:13-cv-01183 (D. Md. Feb. 25, 2015), ECF No. 36 (the “Second Amended Answer”). In its Second Amended Answer, the Guild removed portions of its previous answer that had sought to relitigate Ancient Coin I. Despite those changes, the government moved to strike the Second Amended Answer. Although it noted that there “appear[ed] to be valid challenges to portions of the [Second Amended Answer],” the court denied the government’s motion. See United States v. 3 Knife-Shaped Coins, No. 1:13-cv-01183, at 2 (D. Md. Feb. 11, 2016), ECF No. 63. Thus, the Second Amended Answer became the Guild’s operative responsive pleading for the remainder of the forfeiture action.
By its final contention, the Guild maintains that the district court acted improperly by striking the Amended Answer. We have not heretofore explicitly identified the applicable standard of review with respect to a district court’s granting of a motion to strike pleadings. See Jennings v. Univ. of N.C., 482 F.3d 686, 702 (4th Cir. 2007) (en banc) (concluding that “district court did not abuse its discretion in denying [motions to strike]” (emphasis added)); Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (concluding that “the district court did not err in striking the Defendants’ purported affirmative defense,” but not expressly identifying the applicable standard of review). But several of our sister circuits have applied an abuse of discretion standard. See, e.g., Delta Consulting Grp., Inc. v. R. Randle Const., Inc., 554 F.3d 1133, 1141 (7th Cir. 2009) (“We review a district court’s decision to strike for an abuse of discretion and will not disturb a decision that is reasonable and not arbitrary.”); Hatchett, 330 F.3d at 887 (“We review the grant of a motion to strike a pleading for abuse of discretion.”). In applying that standard, the Seventh Circuit explained that it would “not disturb a decision [to strike a counterclaim] that is reasonable and not arbitrary.” See Delta Consulting Grp., Inc., 554 F.3d at 1141. Consistent therewith, we are satisfied to apply the abuse of discretion standard on this contention of error.15
The Guild contends that the district court erred by striking its Amended Answer under Rule 12(f) of the Federal Rules of Civil Procedure. Pursuant to that provision, a trial court is entitled to strike from a pleading an “insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” See Fed. R. Civ. P. 12(f). The Guild maintains that the affirmative defenses stricken in this case did not fit within any of Rule 12(f)’s enumerated categories. Furthermore, the Guild argues that Rule 12(f) motions are viewed with disfavor “because striking a portion of a pleading is a drastic remedy.” See Waste Mgmt. Holdings, 252 F.3d at 347.
Although the striking of a pleading can be a tough remedy, the district court did not abuse its discretion by granting the government’s motion. In so ruling, the court was simply adhering to our Ancient Coin I decision. We therein acknowledged that, during an ensuing forfeiture proceeding, the Guild could “press a particularized challenge to the government’s assertion that the twenty-three coins are covered by import restrictions.” See 698 F.3d at 185 (emphasis added). The portions of the Amended Answer that were stricken by the district court, however, were not particularized to this forfeiture action. Rather, the stricken allegations sought to resurrect claims that the Guild had already lost in Ancient Coin I. For example, the court struck the following affirmative defenses:
*22 • The Guild’s defense that the import restrictions were “imposed without regard for the significant procedural and substantive constraints found in ... CPIA,” see Amended Answer 7;
• The Guild’s defense that the “import restrictions on coins of ‘Cypriot type’ or ‘from China’ were the products of bureaucratic bias and/or prejudgment and/or ex parte contact,” id.; and
• The Guild’s defense that the government’s forfeiture claims were barred by “fraud and illegality” based on the fact that “the State Department bureaucracy misled Congress and the public” on the recommendations of CPAC, id.
The Ancient Coin I decision had resolved those issues by ruling that the State Department and Customs had properly imposed import restrictions on ancient Cypriot and Chinese coins, in compliance with the CPIA. In this forfeiture case, the district court thus lacked the authority to question the validity of our earlier rulings. Similarly, we are bound by the rulings of our earlier panel decision. See McMellon, 387 F.3d at 332. Thus, the stricken defenses were not pertinent to this forfeiture action, and the court did not err in striking them.
The Guild also presents its motion to strike contention with a constitutional hue as a violation of its due process rights. Relying on the Supreme Court’s decision in Degen v. United States, the Guild contends that the ruling on the motion to strike deprived the Guild of the “right of a citizen to defend his property against attack.” See 517 U.S. 820, 828, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996). A review of the Degen case, however, reveals that the constitutional argument is also without merit.
In Degen, the government sought the forfeiture of multiple seized properties suspected of having been purchased with the proceeds of illegal drug transactions. See 517 U.S. at 821, 116 S.Ct. 1777. Degen, as the claimant, had moved to Switzerland and refused to return to this country to face criminal charges. He did, however, file an answer in the civil forfeiture case. After the government moved to strike Degen’s answer, the district court granted the motion to strike and awarded summary judgment to the government. The court explained that Degen was “not entitled to be heard in the civil forfeiture action because he remained outside the country, unamenable to criminal prosecution.” Id. at 822, 116 S.Ct. 1777.
Although the Ninth Circuit affirmed, the Supreme Court granted certiorari and reversed. See Degen, 517 U.S. at 822, 116 S.Ct. 1777. Recognizing that the federal courts have “certain inherent authority to protect their proceedings,” the Court ruled that the district court had nevertheless overstepped its authority and contravened Degen’s due process rights by barring him from claiming and defending his property in the forfeiture action. Id. at 822-23, 116 S.Ct. 1777. As the Court explained, “the sanction of disentitlement is most severe,” and respect for the judicial system is “eroded ... by too free a recourse to rules foreclosing consideration of claims on the merits.” Id. at 828, 116 S.Ct. 1777.
In stark contrast to the claimant in Degen, the Guild has not been disentitled from defending its property in a forfeiture action. In fact, the Guild was not even disentitled from pursuing the affirmative defenses stricken by the district court. In the Ancient Coin I litigation, the district court and this Court each considered and rejected the Guild’s claims regarding the propriety of the import restrictions imposed on ancient Cypriot and Chinese coins. Having already received two hearty bites at the proverbial apple, the Due Process Clause does not entitle the Guild to a third. The district court’s conclusion in the Strike Opinion and Order thus did not violate the Guild’s due process rights.16
*23 Pursuant to the foregoing, we are satisfied to reject each of the Guild’s contentions on appeal. We therefore affirm the district court’s judgment of forfeiture.
Although the CPIA explicitly vests the President with a number of responsibilities arising thereunder, the President has delegated much of that authority to the Department of State. See Exec. Order No. 12555, 51 Fed. Reg. 8475 (Mar. 10, 1986).
When the CPIA was adopted, the Department of the Treasury was responsible for promulgating regulations governing compliance with Article 9. See Convention on Cultural Property Implementation Act, Pub. L. No. 97-446, §§ 302(8), 305, 96 Stat. 2350, 2351, 2355 (1983) (codified at 19 U.S.C. §§ 2601(8), 2604). In 2003, however, the Secretary of the Treasury issued a directive delegating that authority to the Department of Homeland Security. See Delegations of Authority, 68 Fed. Reg. 51,868 (Aug. 28, 2003). The Department of Homeland Security now carries out those responsibilities through one of its agencies, Customs and Border Protection.
Section 2606(a) defines the “certificate or other documentation” required under § 2606(b)(1). Pursuant thereto, designated archaeological or ethnological material cannot be imported into the United States “unless the State Party issues a certification or other documentation which certifies that such exportation was not in violation of the laws of the State Party.” See 19 U.S.C. § 2606(a).
Section 2606(b)(2)(A) also requires the importer to present “satisfactory evidence” that the importer did not “acquire[ ] an interest, directly or indirectly, in such material more than one year before the date of entry.”
The “satisfactory evidence” requirement of § 2606(b)(2)(A) has three components. First, it requires a declaration by the importer stating that, to the best of his knowledge, “the material was exported from the State Party not less than ten years before the date of entry into the United States.” See 19 U.S.C. § 2606(c)(1)(A)(i). Second, the importer must submit a declaration stating that he did not acquire an interest in the designated material “more than one year before the date of entry of the material.” Id. § 2606(c)(1)(A)(ii). Third, the individual who sold the material must provide a statement identifying “the date, or, if not known, his belief, that the material was exported from the State Party not less than ten years before the date of entry into the United States, and the reasons on which the statement is based.” Id. § 2606(c)(1)(B).
On the other hand, § 2606(b)(2)(B)’s “satisfactory evidence” requirement has only two components. First, the importer must submit a declaration which states that, to the best of his knowledge, “the material was exported from the State Party on or before the date such material was designated under [section 2604].” See 19 U.S.C. § 2606(c)(2)(A). Second, the individual that sold the designated material must submit a statement which identifies the “date, or if not known, his belief, that the material was exported from the State Party on or before the date such material was designated under [section 2604], and the reasons on which the statement is based.” Id. § 2606(c)(2)(B).
Numismatics has been defined as the “study or collection of coins, paper currency, and medals.” Numismatics, New Oxford American Dictionary (2d ed. 2005).
Citations herein to “J.A.__” refer to the contents of the Joint Appendix filed by the parties in this appeal.
The Cypriot Designated List restricted gold, silver, and bronze coins of Cypriot type, including but not limited to issues of certain ancient Cypriot kingdoms dating from the end of the 6th century B.C. to 332 B.C., issues of the Hellenistic period from 332 B.C. to approximately 30 B.C., and provincial and local issues of the Roman period from around 30 B.C. to 235 A.D. See Extension of Import Restrictions, 72 Fed. Reg. 38,470, 38,471 (July 13, 2007) (codified at 19 C.F.R. § 12.104g(a)).
The Chinese Designated List restricted the importation of tool- and disc-shaped coins from the Zhou Dynasty, coins of the “ban liang” variety from the Qin Dynasty, coins dating from the Han through the Sui Dynasties, and coins deriving from the Tang Dynasty. See Import Restrictions Imposed on Certain Archaeological Material from China, 74 Fed. Reg. 2838, 2842 (Jan. 16, 2009) (codified at 19 C.F.R. § 12.104g(a)).
The Spink invoice reflects that two of the ancient Chinese coins were knife-shaped, and one was a spade-shaped coin. The invoice thus differs from the allegations contained within the forfeiture complaint, which mentions three knife-shaped coins. That discrepancy, however, is immaterial to this appeal.
Before filing its Complaint, the government discovered that there was a discrepancy between the number of coins identified in the Spink invoice—twenty-three—and the number of coins detained by Customs—twenty-two. The discrepancy relates to the number of ancient Chinese coins and is not pertinent in this appeal.
Cabined within a footnote in its opening appellate brief, the Guild suggests that this Court may lack jurisdiction. The Guild asserts that the district court’s rulings “raise the specter that CPIA forfeiture actions fall under the Court of International Trade’s ‘embargo jurisdiction.’ ” See Br. of Appellant 16 n.4. Relying only on a single law review article, the Guild maintains that the “embargo jurisdiction ... would divest this Court’s jurisdiction.” Id. In its brief’s statement of jurisdiction, however, the Guild contends that there was jurisdiction in the district court and that jurisdiction exists in this Court. We agree that the district court possessed jurisdiction over the forfeiture proceedings under 28 U.S.C. §§ 1355(a), 1356, and that we possess final order jurisdiction pursuant to 28 U.S.C. § 1291. Therefore, insofar as the Guild pursues a jurisdictional challenge, we reject it.
Although the Guild characterizes each of its contentions of error as a violation of the Guild’s constitutional rights, substantive constitutional arguments underpin only its third and fifth contentions. With respect to the other contentions of error, the Guild provides no more than brief, conclusory statements that its constitutional rights were contravened. We are satisfied to reject the unsupported constitutional arguments due to insufficient briefing and lack of merit. See Canady v. Crestar Mortg. Corp., 109 F.3d 969, 973-74 (4th Cir. 1997) (ruling that issue raised but not briefed was waived); see also Bronson v. Swensen, 500 F.3d 1099, 1104-05 (10th Cir. 2007) (recognizing that appellants forfeited constitutional argument by inadequate briefing).
Section 2610 of Title 19, which places the burden of proof on the government in these proceedings, specifically provides as follows:
Notwithstanding the provisions of [§ 1615], in any forfeiture proceeding brought under [the CPIA] in which the material or article, as the case may be, is claimed by any person, the United States shall establish ... in the case of any material subject to the provisions of [§ 2606], that the material has been listed ... in accordance with [§ 2604].
19 U.S.C. § 2610 (emphasis added).
The Guild asserts that we should review de novo a district court’s striking of a pleading. Supporting that contention, the Guild had provided a citation to our decision in Waste Management Holdings. As noted above, however, that decision did not expressly identify the appropriate standard of review for striking a pleading under Rule 12(f). See 252 F.3d at 347.
The Guild also maintains that we should be willing to revisit Ancient Coin I because the Cypriot and Chinese import restrictions were imposed in bad faith. More specifically, the Guild contends that the import restrictions resulted from a conspiracy between State Department officials, the archaeological community, and Goldman Sachs. We are satisfied to decline to revisit Ancient Coin I on that basis.
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