Langbord v. United States Department of the Treasury

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4574

___________

ROY LANGBORD; DAVID LANGBORD;

JOAN LANGBORD

v.

UNITED STATES DEPARTMENT OF THE TREASURY;

UNITED STATES BUREAU OF THE MINT; SECRETARY

OF THE UNITED STATES DEPARTMENT OF THE

TREASURY; ACTING GENERAL COUNSEL OF THE

UNITED STATES DEPARTMENT OF THE TREASURY;

DIRECTOR OF THE UNITED STATES MINT; CHIEF

COUNSEL UNITED STATES MINT; DEPUTY

DIRECTOR OF THE UNITED STATES MINT; JOHN DOE

NOS. 1 TO 10 "JOHN DOE" BEING FICTIONAL FIRST

AND LAST NAMES; UNITED STATES OF AMERICA

UNITED STATES OF AMERICA,

Third Party Plaintiff

v.

TEN 1933 DOUBLE EAGLE GOLD PIECES; ROY

LANGBORD; DAVID LANGBORD; JOAN LANGBORD,

Third Party Defendants

Roy Langbord, David Langbord, Joan Langbord,

Appellants

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D. Pa. No. 2-06-cv-05315)

District Judge: Honorable Legrome D. Davis

___________

Argued on November 19, 2014 before Merits Panel

Court Ordered Rehearing En Banc on July 28, 2015

Argued En Banc on October 14, 2015

Before: McKEE, Chief Judge, AMBRO, FUENTES,

SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN,

VANASKIE, SHWARTZ, KRAUSE, and RENDELL,*

Circuit Judges.**

(Filed: August 1, 2016)

*

The Honorable Marjorie O. Rendell assumed Senior

Status on July 1, 2015.

**

The Honorable Dolores K. Sloviter assumed inactive

status on April 4, 2016, after the argument and conference in

this case, but before filing of the opinion.

2

Barry H. Berke [Argued]

Eric A. Tirschwell

Kramer Levin Naftalis & Frankel

1177 Avenue of the Americas

New York, NY 10032

Attorneys for Appellants

Zane David Memeger

Robert A. Zauzmer [Argued]

Jacqueline C. Romero

Nancy Rue

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Attorneys for Defendants-Appellees

____________

OPINION

____________

HARDIMAN, Circuit Judge, with whom AMBRO,

FUENTES, SMITH, FISHER, CHAGARES, VANASKIE,

and SHWARTZ, Circuit Judges, join.

This appeal presents a high-stakes dispute over ten

pieces of gold. Joan Langbord and her sons, Roy and David

Langbord, claim to be the rightful owners of the gold pieces

while the Government claims they are property of the United

States. Following a jury trial, the United States District Court

for the Eastern District of Pennsylvania ruled in favor of the

Government. The Langbords initially prevailed on appeal to

this Court, but we vacated the panel opinion and agreed to

3

hear the case en banc. For the reasons that follow, we will

affirm the District Court’s judgment.

I

The ten gold pieces at issue—1933 Double Eagles

with a face value of $20—were designed at the request of

President Theodore Roosevelt by Augustus Saint-Gaudens

shortly before the renowned sculptor’s death in 1907. During

the next twenty-five years, the United States Mint

manufactured and circulated tens of millions of Double

Eagles as legal tender. Things changed significantly for the

Double Eagle during the Great Depression, however. Within

days of his inauguration on March 4, 1933, President Franklin

Delano Roosevelt signed a series of orders effectively

prohibiting the Nation’s banks from paying out gold. See

Proclamation No. 2039, 48 Stat. 1689–91 (Mar. 6, 1933);

Exec. Order No. 6073 (Mar. 10, 1933). Less than three

months later, the United States went off the gold standard.

See Exec. Order No. 6102 (Apr. 5, 1933); H.R.J. Res. 192,

73d Cong., 48 Stat. 112–13 (June 5, 1933). That same year,

the United States Mint in Philadelphia struck 445,500 Double

Eagles, but they were never issued. Instead, all but 500 of the

1933 Double Eagles were placed into the Mint’s vault in June

1933. The remaining coins1 were held by the Mint’s Cashier;

1

The parties dispute whether the 1933 Double Eagles

are “coins.” The Langbords claim they are coins because they

bear official indicia of their use as instruments of stored

value; the Government disagrees because they were never

circulated. See generally 31 U.S.C. § 5312(a)(3) (defining

“monetary instrument” as including “United States coins and

currency”); Black’s Law Dictionary 326 (4th ed. 1951)

(defining a coin as “[p]ieces of gold, silver, or other metal,

4

of those, twenty-nine were destroyed in chemical reactions

used to verify their metallic purity and two were sent to the

Smithsonian Institution in October 1934.

By 1937, all of the 1933 Double Eagles held at the

Philadelphia Mint were supposed to have been melted. This

turned out not to be the case, however, as some coins were

transferred among collectors, which prompted the Secret

Service to begin investigating the matter in March 1944. The

following year, the Secret Service recovered a small number

of 1933 Double Eagles and determined that they had been

stolen from the Mint by George McCann, who was the Mint’s

Cashier from 1934 to 1940. The Secret Service also

concluded that the coins had been distributed by a

Philadelphia merchant, Israel Switt, who was Joan

Langbord’s father (and grandfather to Roy and David

Langbord).

Since 1944, the United States has attempted to locate

and recover all extant 1933 Double Eagles. See United States

v. Barnard, 72 F. Supp. 531, 532–33 (W.D. Tenn. 1947)

(seeking replevin of a 1933 Double Eagle held by a private

collector). The only exception has been a 1933 Double Eagle

sold to King Farouk of Egypt in 1944 and later acquired in

1995 by Stephen Fenton, an English coin dealer. When

Fenton attempted to resell that coin to a collector in New

York, the Government seized it and a protracted legal dispute

fashioned into a prescribed shape, weight, and degree of

fineness, and stamped, by authority of government, with

certain marks and devices, and put into circulation as money

at a fixed value”). Without resolving this immaterial dispute,

we refer to the 1933 Double Eagles as coins for ease of

reference.

5

ensued. According to the Government, it agreed to resolve its

dispute with Fenton because the Treasury Department had

improvidently issued an export license for the coin when it

was sold to King Farouk in 1944. The “Fenton-Farouk Coin”

was sold at auction in 2002 to an anonymous buyer for

$7,590,020 and the net proceeds were divided equally

between Fenton and the Government pursuant to their

settlement agreement.

Just over a year after the Fenton-Farouk Coin was sold

at auction, Joan Langbord allegedly discovered ten 1933

Double Eagles in a family safe-deposit box. Her attorney,

Barry Berke, who had represented Fenton in his dispute with

the Government, contacted the Mint in an effort to resolve the

Langbords’ claim in the same way. After meeting with Mint

officials, the Langbords agreed to turn the coins over for

authentication but reserved “all rights and remedies.” App.

806. The Mint took possession of the ten 1933 Double Eagles

from Roy Langbord on September 22, 2004.

The Mint authenticated the coins in May 2005, but

refused to return them to the Langbords. In July 2005,

attorney Berke asked the Mint to reverse course in light of its

treatment of other coins of questionable provenance and

argued that “there [was] no basis for the government to seek

forfeiture of the . . . 1933 Double Eagles.” App. 911–13. A

month later, the Mint rejected Berke’s overture, writing:

The United States Mint has no intention of

seeking forfeiture of these ten Double Eagles

because they are, and always have been,

property belonging to the United States; this

makes forfeiture proceedings entirely

unnecessary. These Double Eagles never were

6

lawfully issued but, instead, were taken out of

the United States Mint at Philadelphia in an

unlawful manner. Indeed, the Langbord family

was legally obligated to return this property to

the United States . . . and will not be able to

establish based on any reliable or admissible

evidence how they currently possess, or ever

possessed, title to this United States

Government property.

App. 823.

Although the Mint had disclaimed any intention of

forfeiting the coins, the Langbords responded in September

2005 by sending a “seized asset claim” to the Mint, invoking

18 U.S.C. § 983, a statute enacted by the Civil Asset

Forfeiture Reform Act of 2000 (CAFRA), Pub. L. No. 106-

185, 114 Stat. 202, that contains procedural protections for

those whose property is subject to forfeiture. The Mint

returned the claim to the Langbords “without action.” App.

837. In doing so, the Government argued that no seizure had

occurred because “all 1933 Double Eagles are, and always

have been, property belonging to the United States” and that

the family had “voluntarily surrendered” the coins to the

Mint. App. 837–38. In a series of missives exchanged in

December 2005, the Langbords criticized the Mint for

attempting to “rewrite history and create some kind of record

a few days before the deadline for the government to either

return the coins or institute a forfeiture action.” App. 841. The

Mint responded curtly that the parties had a “fundamental[]

disagree[ment].” App. 848.

7

II

Unable to obtain relief through negotiation or

administrative procedures,2 the Langbords turned to the

courts. In December 2006, they brought suit in the United

States District Court for the Eastern District of Pennsylvania

against the Mint, the Department of the Treasury, and various

federal officials. The Langbords alleged violations of the

United States Constitution, CAFRA, and the Administrative

Procedure Act, as well as common law torts. They also

sought a declaratory judgment to require the Government to

comply with CAFRA either by returning the coins or by

commencing a forfeiture proceeding. The Government filed

motions to dismiss, but they were denied. The Government

then filed an answer without asserting any counterclaims.

A

Following discovery, the parties filed cross-motions

for partial summary judgment and the District Court rendered

a split decision. See Langbord v. U.S. Dep’t of the Treasury,

645 F. Supp. 2d 381, 401–02 (E.D. Pa. 2009).

The Langbords prevailed on both of their

constitutional claims. The District Court first held that the

Mint committed an unconstitutional seizure when it refused to

return the coins to the Langbords. Citing Mason v. Pulliam,

557 F.2d 426, 429 (5th Cir. 1977), the Court reasoned that the

Langbords’ Fourth Amendment possessory rights to the ten

2

After the Mint rejected their seized asset claim, the

Langbords filed an administrative “damages claim” in May

2006. App. 851–56; see also 28 U.S.C. § 2675; 28 C.F.R.

§ 14.2. The Mint denied that claim as well.

8

Double Eagles were not vitiated by the Government’s claim

of ownership. Langbord, 645 F. Supp. 2d at 390–92. The

seizure was unreasonable, the Court held, because the

Government failed to obtain a warrant and its “superior

property interest” did not “control the right of the

Government to search and seize.” Id. at 393–94 (quoting

Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 304

(1967)). The District Court also found that the Langbords’

Fifth Amendment due process rights were violated. After

rejecting the Government’s contention that the Mint had not

seized “property” within the meaning of the Due Process

Clause, the Court evaluated the factors established in

Mathews v. Eldridge, 424 U.S. 319, 335 (1976) and

concluded that the Langbords were entitled to a

predeprivation hearing before a neutral arbiter. Langbord, 645

F. Supp. 2d at 394–99.

Unlike its adjudication of their constitutional claims,

the District Court rejected the Langbords’ argument that the

Government violated CAFRA by failing to comply with the

statute’s notice and claim procedures. In doing so, the Court

held that CAFRA did not apply because the Mint’s

repossession of the coins was not tantamount to a nonjudicial

(i.e., administrative) forfeiture. Id. at 388–90. Despite

CAFRA’s inapplicability, the District Court nevertheless

ordered the Government to “initiate a judicial forfeiture

proceeding concerning the 1933 Double Eagles” as a remedy

for the Mint’s Fourth and Fifth Amendment violations, id. at

402, reasoning:

Where a court concludes, as we have here, that

the Government seized property without due

process and intends to retain the property, we

must “order the government to either return the

9

[property] to the plaintiffs or to commence

judicial forfeiture . . . at which time the

plaintiffs may raise whatever defenses are

available to them.”

Id. at 399 (quoting Garcia v. Meza, 235 F.3d 287, 292 (7th

Cir. 2000)) (citing United States v. Von Neumann, 474 U.S.

242, 251 (1986); Acadia Tech., Inc. v. United States, 458 F.3d

1327, 1334 (Fed. Cir. 2006); United States v. Giraldo, 45

F.3d 509, 512 (1st Cir. 1995)). Consequently, the District

Court required the Government to file a judicial forfeiture

action in accordance with the dictates of CAFRA. Id.

B

Before complying with the District Court’s order to

initiate a judicial forfeiture proceeding, the Government

sought leave to allege three additional counts: replevin,

declaratory judgment, and claims against John Does “to

resolve ripening disputes concerning ownership of other 1933

Double Eagles,” which “several individuals [are] rumored to

have, or to have had.” App. 1145–58. The District Court

denied the Government’s request to seek replevin, noting that

“a property holder cannot bring a replevin claim seeking the

return of property it already has.” Langbord v. U.S. Dep’t of

the Treasury, 749 F. Supp. 2d 268, 274 (E.D. Pa. 2010).

Likewise, the Court denied the Government’s motion with

respect to the John Doe claims because the events

surrounding them were not “reasonably related” to the

original claim as required by Rule 20 of the Federal Rules of

Civil Procedure. Id. at 277–78.

The District Court did, however, permit the

Government to seek a declaratory judgment that the coins

10

“were not authorized to be taken from the United States Mint

and that therefore, as a matter of law, all of the 1933 Double

Eagles remain property belonging to the United States.” App.

1150; see also Langbord, 749 F. Supp. 2d at 271–72, 274–75

(treating the claim as a counterclaim). In doing so, the Court

rejected the Langbords’ contention that the Government’s

nearly four-year delay in seeking a declaratory judgment was

“prejudicial,” “undue,” or in “bad faith.” Langbord, 749 F.

Supp. 2d at 272–76 (citing Foman v. Davis, 371 U.S. 178,

182 (1962); Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir.

2001)). Instead, the District Court found the Government’s

delay was caused by a “misguided legal strategy,” and that

the Langbords were not prejudiced because they had

previously “brought title issues into the mix” by asserting

claims for replevin and conversion. Id. at 273, 275–76.

C

At this stage of the litigation, the positions of the

parties were as follows. Consistent with the District Court’s

remedial order, the Government sought forfeiture of the ten

1933 Double Eagles and a declaration that it owned the coins.

Meanwhile, the Langbords attempted to fend off the

Government by arguing, inter alia, that “[f]orfeiture of the

1933 Double Eagles [was] barred by 18 U.S.C. §

983(a)(3)(B) because the government failed to file a

complaint for forfeiture in the time allotted by [CAFRA].”

App. 1296.

For two weeks in July 2011 the dispute was tried to a

jury, which issued a verdict for the Government on its

forfeiture claim. The Langbords sought judgment as a matter

of law both at the close of the evidence and following the

verdict. On August 29, 2012, the District Court denied the

11

Langbords’ post-trial motion and entered judgment for the

Government on its forfeiture claim. Langbord v. U.S. Dep’t of

the Treasury, 888 F. Supp. 2d 606, 637 (E.D. Pa. 2012). The

Court also declared:

The disputed Double Eagles were not lawfully

removed from the United States Mint and

accordingly, as a matter of law, they remain the

property of the United States, regardless of (1)

the applicability of CAFRA to the disputed

Double Eagles, (2) Claimants’ state of mind

with respect to the coins; or (3) how the coins

came into Claimants’ possession.

Id. at 633–34. The Langbords filed a timely appeal to this

Court; the Government did not file a cross-appeal.

D

On appeal, the Langbords challenged several orders of

the District Court, as well as the jury verdict. A panel of this

Court vacated “all orders at issue on appeal that postdate[d]

the [District Court’s] July 29, 2009 order, including the jury

verdict and the . . . order entering judgment.” Langbord v.

U.S. Dep’t of the Treasury, 783 F.3d 441, 445 (3d Cir. 2015).

In addition, the panel remanded the case to the District Court

with instructions to “return the [1933] Double Eagles to the

Langbords.” Id. at 458. Judge Sloviter dissented, opining that

the coins should not be turned over to the Langbords because

they belong to the Government. Id.

The United States filed a timely petition for rehearing

en banc. In an order dated July 28, 2015, we granted the

petition and vacated the panel opinion and judgment. Oral

12

arguments were heard on October 14, 2015, and the matter is

ripe for disposition.

III

The District Court had jurisdiction over the

Langbords’ claims under 28 U.S.C. §§ 1331, 1346, and 1361,

and 5 U.S.C. § 702. It had jurisdiction over the Government’s

claims under 28 U.S.C. §§ 1345 and 1355. We have appellate

jurisdiction under 28 U.S.C. § 1291.

IV

The Langbords’ appellate arguments can be

summarized as follows: (1) the Government’s forfeiture

action was time-barred; (2) the District Court should not have

decided the Government’s declaratory judgment claim; (3)

the District Court committed reversible errors with respect to

the evidence; and (4) the jury instructions were erroneous.

We address each argument in turn.3

A

We turn first to the Langbords’ argument that the

Government’s forfeiture action was time-barred. Under 18

3

At various stages of this litigation, the Government

has contended that it should not have been required to initiate

forfeiture proceedings because the ten 1933 Double Eagles

are, were, and always will be, property of the United States.

This argument has some logical appeal, but regardless of its

merits, the propriety of the District Court’s order compelling

judicial forfeiture is not before us because the Government

did not appeal it.

13

U.S.C. § 983(a)(2)(A), “[a]ny person claiming property

seized in a nonjudicial forfeiture proceeding under a civil

forfeiture statute may file a claim with the appropriate official

after the seizure.” Assuming that the claim is timely and

formally adequate, see 18 U.S.C. §§ 983(a)(2)(B) and (C), the

statute provides:

(A) Not later than 90 days after a claim has

been filed, the Government shall file a

complaint for forfeiture . . . or return the

property pending the filing of a complaint,

except that a court in the district in which the

complaint will be filed may extend the period

for filing a complaint for good cause shown or

upon agreement of the parties.

(B) If the Government does not . . . file a

complaint for forfeiture or return the property,

in accordance with subparagraph (A) . . . the

Government shall promptly release the property

pursuant to regulations promulgated by the

Attorney General, and may not take any further

action to effect the civil forfeiture of such

property in connection with the underlying

offense.

18 U.S.C. § 983(a)(3).

Consistent with this statutory scheme, the Langbords’

argument is a straightforward syllogism: (1) they filed a

seized asset claim which started § 983(a)(3)’s ninety-day

period for the Government to file a forfeiture complaint; (2)

the Government failed to file a forfeiture action or to obtain

14

an extension of time within ninety days; therefore, (3) the

Government must return the coins to the Langbords.

While the logic of this syllogism is valid, it is based on

a false premise, namely, that the Langbords’ seized asset

claim triggered CAFRA’s ninety-day deadline. Although

subsection (a)(2)(A) of § 983 allows a seized asset claim to be

filed “after the seizure,” it also requires that the claim be

directed to “property seized in a nonjudicial civil forfeiture

proceeding.” Id. (emphasis added). This language

presupposes that a nonjudicial forfeiture4 is pending before a

4

Nonjudicial (or administrative) forfeiture is one of

three modes of forfeiture established by federal law, the other

two being judicial forfeitures brought as civil in rem

proceedings and criminal forfeitures. See generally Stefan D.

Cassella, Asset Forfeiture Law in the United States 256 (2d

ed. 2013) [hereinafter Cassella, Asset Forfeiture]. Nonjudicial

forfeitures “entail[] no judicial involvement,” United States v.

McGlory, 202 F.3d 664, 669–70 (3d Cir. 2000), and “permit[]

the United States to determine whether property in its custody

is unclaimed, and, if it is, to take ownership without the

trouble and expense of court proceedings,” Small v. United

States, 136 F.3d 1334, 1335 (D.C. Cir. 1998). CAFRA

“superimposed” additional rules governing nonjudicial

forfeitures, see Cassella, Asset Forfeiture 158, but the

essential scheme has not changed since 1844—after providing

sufficient notice, an authorized agency may, in the absence of

a claimant willing to contest the action, issue a “declaration of

forfeiture . . . [with] the same force and effect as a final

decree . . . in a judicial forfeiture proceeding in a district court

of the United States.” 19 U.S.C. § 1609(b); compare United

States v. U.S. Currency in the Amount of $2,857.00, 754 F.2d

15

proper seized asset claim can be filed. See also In re Funds on

Deposit, 919 F. Supp. 2d 169, 172–77 (D. Mass. 2012);

Chaim v. United States, 692 F. Supp. 2d 461, 465–66 (D.N.J.

2010); United States v. 1866.75 Board Feet of Dipteryx

Panamensis, 587 F. Supp. 2d 740, 751 (E.D. Va. 2008). A

contrary interpretation would render the emphasized statutory

text “mere surplusage, a result we try to avoid,” Direct Mktg.

Ass’n v. Brohl, 135 S. Ct. 1124, 1132 (2015); see also, e.g.,

Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d

199, 210 (3d Cir. 2015) (“We assume . . . that every word in a

statute has meaning and avoid interpreting one part of a

statute in a manner that renders another part superfluous.”).

Given that property must be seized in a nonjudicial forfeiture

proceeding before a seized asset claim triggers the

Government’s ninety-day period to respond, for the

Langbords’ argument to succeed, they would have to show

that the Mint’s retention of the coins initiated a nonjudicial

forfeiture. As we shall explain, that was not the case.

Here, the Government determined that it was not

obliged to initiate forfeiture proceedings against the 1933

Double Eagles because it had merely repossessed its own

property. Consistent with this view, neither the Mint nor any

other federal agency took any steps to initiate a nonjudicial

forfeiture. In fact, the Government explicitly disclaimed any

intent to forfeit the coins: “The United States Mint has no

intention of seeking forfeiture of these ten Double Eagles

because they are, and always have been, property belonging

208, 211–12 (7th Cir. 1985) (summarizing nonjudicial

forfeiture pre-CAFRA), with Malladi Drugs & Pharms., Ltd.

v. Tandy, 552 F.3d 885, 887–88 (D.C. Cir. 2009) (same but

post CAFRA’s enactment).

16

to the United States; this makes forfeiture proceedings

entirely unnecessary.” App. 823.5 Instead, the Government

asserted its ownership rights to the coins.

In reaction to the Government’s assertion of

ownership, the Langbords incongruously responded with a

seized asset claim in an attempt to invoke protections

afforded those whose property is being forfeited—a different

subject matter. See United States v. A Parcel of Land Known

as 92 Buena Vista Ave., 507 U.S. 111, 125–26 (1993)

(plurality opinion) (citing United States v. Grundy, 7 U.S. (3

Cranch) 337, 350–51 (1806) (“Until the Government does

5

The Langbords claim that the Mint’s letter

constituted notice that initiated a nonjudicial forfeiture. We

disagree because, although CAFRA does not specify the

content of nonjudicial forfeiture notices, a letter that explicitly

disavows any intent to initiate a forfeiture surely cannot

suffice.

Nor do we agree with the Langbords that the

Government “intended to achieve a nonjudicial forfeiture”

because federal agencies besides the Mint thought pursuing

forfeiture would be a prudent course of action, or because

“subsequent communications to the Langbords made clear the

government was retaining the Coins with the intent of

permanently divesting the Langbords of their property

without providing compensation or going to court.” Langbord

Br. 28–29. With respect to the former, it is true that most of

the agencies involved recommended forfeiture, but it was the

Mint’s view that ultimately prevailed. And with respect to the

latter, that argument is based on the erroneous premise that

the Government’s seizure of the 1933 Double Eagles sufficed

to commence a nonjudicial forfeiture proceeding.

17

win . . . a judgment [of forfeiture], however, someone else

owns the property.”)); id. at 134 (Scalia, J., concurring)

(“What the United States already owns cannot be forfeited to

it.”). While forfeiture is a process by which “[t]itle is

instantaneously transferred to another,” Black’s Law

Dictionary 722 (9th ed. 2009), an assertion of ownership

presupposes that the party already has title. Thus, the

Langbords’ seized asset claim was akin to filing a petition for

writ of habeas corpus on behalf of someone not in custody—

mismatched and ineffective.

The Langbords counter that regardless of the agency’s

intentions and conduct, the Government nonetheless initiated

a nonjudicial civil forfeiture proceeding when it seized the

1933 Double Eagles. We disagree for two reasons.

First, seizures and forfeitures are not the same. A

“seizure” is “[t]he act or an instance of taking possession of . .

. property by legal right or process.” Black’s Law Dictionary

1480 (9th ed. 2009). “Forfeiture,” as previously noted,

involves a transfer of title from one party to another. Id. at

722. As these definitions indicate, the essential difference

between a “seizure” and a “forfeiture” is that in the former,

the government obtains possession while in the latter it

obtains title (i.e., ownership). Government actors regularly

seize property with the intention of returning it to the person

from whom it was seized. See, e.g., United States v.

Chambers, 192 F.3d 374, 375–76 (3d Cir. 1999) (“It is well

settled that the government is permitted to seize evidence for

use in investigation and trial, but that such property must be

returned once criminal proceedings have concluded, unless it

18

is contraband or subject to forfeiture.”).6 It follows that a

seizure alone does not initiate a forfeiture proceeding because

it does not implicate a transfer of legal title. See 92 Buena

Vista, 507 U.S. at 125 (“It has been proved that in all

forfeitures accruing at common law, nothing vests in the

government until some legal step shall be taken for the

assertion of its right . . . .” (emphasis added) (quoting Grundy,

7 U.S. (3 Cranch) at 350–51)); cf. Horne v. Dep’t of Agric.,

135 S. Ct. 2419, 2428 (2015) (regulation vesting title to

“reserve raisins” in the government constituted a “physical”

taking under the Fifth Amendment even though “[r]eserve

raisins are sometimes left on the premises of [private]

handlers,” who hold them “for the account of the

[g]overnment” (internal quotation marks omitted)).

6

To be sure, seizure of a putative res “has long been

considered a prerequisite to the initiation of in rem forfeiture

proceedings.” United States v. James Daniel Good Real

Prop., 510 U.S. 43, 57 (1993) (citing Republic Nat’l Bank of

Miami v. United States, 506 U.S. 80, 84 (1992); The Brig

Ann, 13 U.S. (9 Cranch) 289, 291 (1815)). But that fact

implicitly recognizes the distinction between seizure and

forfeiture, and the Supreme Court’s opinion in James Daniel

Good—permitting the Government to pursue forfeiture of real

property in the absence of seizure—only reinforces the point.

See also 18 U.S.C. § 985(b)(1)(A) (stating the general rule

that “real property that is the subject of a civil forfeiture

action shall not be seized before entry of an order of

forfeiture”).

19

Second, we have impliedly rejected the Langbords’

argument twice before. See Mantilla v. United States, 302

F.3d 182 (3d Cir. 2002); United States v. $8,221,877.16 in

U.S. Currency, 330 F.3d 141 (3d Cir. 2003). In Mantilla, we

considered a putatively time-barred forfeiture of money

seized by the Customs Service during an undercover drug

sting. See 302 F.3d at 184 (case proceeding under 19 U.S.C.

§ 1621). We observed that Customs failed to institute a

nonjudicial forfeiture within the five-year statute of

limitations and simply “deposited the funds into its

undercover operation account.” Id. Almost eight years after

the seizure, the claimant filed an action to recover the seized

funds raising an issue under 28 U.S.C. § 2401. Under this

statute, the claimant had a six-year statute of limitations

running from when the “right of action first accrues” to file

his suit against the government to claim his property. Id. at

184. In deciding whether the claimant’s action was timely, we

held that the six-year period under § 2401 started “at the close

of forfeiture proceedings,” or “if no forfeiture proceedings

were conducted, at the end of the five-year limitations period

during which the government is permitted to bring a forfeiture

action.” Id. at 186 (quoting Polanco v. DEA, 158 F.3d 647,

654 (2d Cir. 1998)). This holding effectively applied an

eleven-year limitations period starting from the date of

seizure to hold the claimant’s cause of action timely. See id.

Had the government’s seizure of the drug money commenced

a “de facto” forfeiture, a six-year period would have applied.

One year after Mantilla we applied the same principle

against the government. In $8,221,877.16 in U.S. Currency,

we rejected the government’s argument that it commenced a

forfeiture proceeding within the applicable statute of

limitations simply by seizing funds it believed to be the

20

proceeds of drug trafficking. 330 F.3d at 157–61. In that case,

the government sought forfeiture of the defendant funds

under 18 U.S.C. § 984, which permits the United States to

pursue the forfeiture of “fungible property” (such as money)

without tracing the property to particular unlawful

transactions. 330 F.3d at 158–59. This type of forfeiture

comes with a caveat: a “forfeiture action in rem” under § 984

must be “commenced” within one year of the offense “that is

the basis for the forfeiture.” Id. at 158 (quoting 18 U.S.C. §

984 (2000)). The government argued that its seizure of the

funds was sufficient to toll the statute of limitations, but we

disagreed, holding the “commencement” of a forfeiture action

under § 984 requires the filing of a judicial forfeiture

complaint. Id. at 159–60.

We acknowledge that Mantilla and $8,211,877 were

not decided under CAFRA and do not squarely answer the

question of when a “nonjudicial civil forfeiture proceeding”

begins under the statute.7 Nevertheless, these decisions

plainly recognized—contrary to the Langbords’ contention

here—that a seizure is neither the same as a forfeiture nor

does it automatically trigger forfeiture proceedings. See also

Dusenbery v. United States, 534 U.S. 161, 163 (2002)

(observing that the FBI started the nonjudicial forfeiture

process more than two years after the property was seized);

Taylor v. United States, 483 F.3d 385, 386–87, 389 (5th Cir.

2007) (citing Barrera-Montenegro v. United States, 74 F.2d

657, 658 (5th Cir. 1996) (stating that the DEA began

7

CAFRA applies only to forfeitures commenced on or

after August 23, 2000. United States v. One “Piper” Aztec,

321 F.3d 355, 358 (3d Cir. 2003).

21

nonjudicial forfeiture proceedings a month after the property

was seized and chronicling the agency’s various forms of

notice it provided that such a proceeding had been initiated));

United States v. Miscellaneous Firearms, 376 F.3d 709, 711–

12 (7th Cir. 2004) (stating that the ATF commenced a

nonjudicial forfeiture by sending a letter to the defendant

notifying him of his rights forty-four days after the property

was seized); United States v. Dusenbery, 201 F.3d 763, 765–

66 (6th Cir. 2000) (noting that the publication of notice of

intent to forfeit starts the nonjudicial forfeiture process);

Boero v. DEA, 111 F.3d 301, 304–05 (2d Cir. 1997) (same);

United States v. Clark, 84 F.3d 378, 380 (10th Cir. 1996)

(discussing the FBI’s methods of notifying the defendant of

its intent to forfeit money it had previously seized); Floyd v.

United States, 860 F.2d 999, 1008 (10th Cir. 1988) (noting

that forfeiture proceedings did not begin until notice was

given despite a seizure taking place at an earlier date); United

States v. U.S. Currency in the Amount of $2,857.00, 754 F.2d

208, 211–12 (7th Cir. 1985) (stating that forfeitures begin

with the publication of notice after seizure).8

For the reasons stated, we reject the Langbords’

premise that the Government initiated a “nonjudicial civil

forfeiture proceeding” subject to CAFRA’s ninety-day

deadline. Accordingly, the District Court did not err when it

ordered the Government to pursue a judicial forfeiture of the

8

The Government invites us to hold that nonjudicial

forfeitures under CAFRA commence when it sends notice of

its intent to forfeit the property. We need not reach this issue

because the Government took no steps to forfeit the 1933

Double Eagles.

22

1933 Double Eagles to remedy the Government’s

constitutional violations. 9

B

We next consider the Langbords’ three challenges to

the District Court’s declaratory judgment. First, they claim

that CAFRA is a special statutory proceeding that prohibits

the Government from seeking a declaratory judgment.

Second, they argue that if a declaratory judgment action were

9

Our dissenting colleagues claim that our decision will

“allow the Government to nullify CAFRA’s provisions at

will” on its “say-so that it owns” the disputed property.

Dissent Op. 1. Not so. “CAFRA’s purpose is ‘[t]o provide a

more just and uniform procedure for Federal civil

forfeitures.’” Dissent Op. 5 (emphasis added). Accordingly,

CAFRA applies when the government invokes its forfeiture

power. Permitting the government to pursue its ownership

rights does not eviscerate CAFRA’s procedural protections

for persons whose property is subject to forfeiture because the

rules governing both are different. Cf. United States v. Craig,

694 F.3d 509, 512 (3d Cir. 2012) (distinguishing criminal

restitution from forfeiture). Those who dispute the

government’s claim of ownership have recourse to common

law remedies, such as replevin, which were available long

before CAFRA was enacted and which CAFRA did nothing

to displace. In this case, the Government made no efforts to

institute a nonjudicial forfeiture proceeding, going so far as to

explicitly disclaim the intent to do so. Under these

circumstances, the Government failed to trigger CAFRA's

procedures not by its “say-so,” but by its conduct.

23

appropriate, it had to be submitted to a jury. Finally, they

contend it was an abuse of discretion for the District Court to

allow the Government to seek a declaratory judgment nearly

four years after the litigation began.

1

The Langbords argue that CAFRA constitutes a special

statutory proceeding that precludes the entry of a declaratory

judgment. See Fed. R. Civ. P. 57 advisory committee’s note

to 1937 amendment (“A declaration may not be rendered if a

special statutory proceeding has been provided for the

adjudication of some special type of case . . . .”). We need not

decide this question of first impression, however, because

even if CAFRA were a special statutory proceeding, our

conclusion would be the same: the Government’s declaratory

judgment action was permissible.

The problem for the Langbords is that if CAFRA were

a special statutory proceeding, it would only preclude

declaratory judgments that affect forfeiture. In this case, the

Government did not seek a declaratory judgment in lieu of

forfeiture; it did so in an attempt to quiet title to the Double

Eagles in addition to the court-ordered judicial forfeiture

proceeding. While the declaratory judgment action did turn

on a similar factual predicate as the forfeiture claim (i.e., that

the coins were stolen or embezzled), it used this fact to

establish an independent legal theory, namely, that the

Government was attempting to regain possession of what it

believed to be its own property. As the District Court

persuasively reasoned:

24

[A]lthough CAFRA could be considered the

prosecutor’s remedy, the forfeiture proceeding

only resolves one of the two open questions in

this case: were the Double Eagles stolen from

the Mint and/or possessed by individuals who

knew they were stolen, rendering them

forfeitable under 18 U.S.C. § 641? If the United

States does not meet its burden on the forfeiture

count, whether the Langbords are the legal

owners of the Double Eagles remains

unanswered because a second question—did the

Langbords ever obtain legal title to the Double

Eagles by virtue of their leaving the Mint

through authorized channels?—would remain.

The declaratory judgment count provides a

mechanism for determining the answer to the

second inquiry, relevant because of the United

States’ second role as previous lawful owners—

and according to the United States, perpetually

lawful owners—of the Double Eagles.

Langbord v. U.S. Dep’t of the Treasury, 798 F. Supp. 2d 607,

610 (E.D. Pa. 2011).

In sum, because such a theory does not implicate

forfeiture, it could not be precluded by any special procedures

of CAFRA. To hold otherwise would prevent the Government

from seeking a declaratory judgment in its capacity as a

property owner, which would have the untenable effect of

putting the United States in a worse position than a civilian

property owner—a position at odds with longstanding

precedent. Cf. United States v. California, 332 U.S. 19, 40

(1947) (“[O]fficers who have no authority at all to dispose of

Government property cannot by their conduct cause the

25

Government to lose its valuable rights by their acquiescence,

laches, or failure to act.”); United States v. Steinmetz, 973

F.2d 212, 222–23 (3d Cir. 1992).

For these reasons, the District Court did not err in

allowing the Government to seek a declaratory judgment that

the coins are the property of the United States.

2

The Langbords also contend that once the

Government’s declaratory judgment action was allowed to

proceed, it should have been submitted to the jury. To answer

this question, we ask whether the declaratory judgment action

fits within the pattern of cases typically decided by a court

sitting in equity or whether the case presents an “inverted law

suit” brought by one who would have been a defendant at

common law, which would be for the jury to decide. See

Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185,

1189 (3d Cir. 1979). In adjudicating this question, “federal

not state law is determinative.” Id. (citing Simler v. Conner,

372 U.S. 221, 222 (1963) (per curiam)).

We perceive no error in the District Court’s

conclusion that the Government’s declaratory judgment claim

fits the equitable pattern of an action to quiet title. As the

District Court found: “Here, the Government possesses the

coins and claims rightful ownership, but the Langbords’

assertion that the Double Eagles legally belonged to Israel

Switt and were legally inherited by the Langbord Claimants

clouds the Government’s title.” Langbord, 798 F. Supp. 2d at

611. We agree that such a claim is analogous to a claim to

quiet title. See 5 Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure § 1250 (3d ed. 2016)

26

(describing quiet title, traditionally, as an action brought by a

plaintiff who alleges both ownership and possession of

property for which she seeks to uncloud title).

The Langbords challenge this conclusion, arguing that

Pennsylvania law does not provide for an action to quiet title

to personal property. In their view, the absence of a

Pennsylvania counterpart to a suit in equity means that the

Government’s declaratory judgment is more akin to an action

in replevin—a cause of action resolved by juries. We

disagree, principally because the Langbords’ reliance on

Pennsylvania law is misplaced. Determining whether a

declaratory judgment action is tried before a jury is a question

of federal, not state law. Owens-Illinois, 610 F.2d at 1189; see

also Simler, 372 U.S. at 222 (“[T]he right to a jury trial in the

federal courts is to be determined as a matter of federal law in

diversity as well as other actions.”). Thus, we look to whether

the “basic character” of the suit sounds in equity under

federal law. See Simler, 372 U.S. at 222–23; Owens-Illinois,

Inc., 610 F.2d at 1189. And here it clearly does—fitting the

pattern of a quiet title action. See 28 U.S.C. § 2410(a); 28

U.S.C. § 1655; cf. Hoelzer v. City of Stamford, 933 F.2d

1131, 1135–36 (2d Cir. 1991) (deciding a quiet title action for

personal property without submitting the case to a jury).

The Langbords next argue that the Government’s

declaratory judgment claim should have been submitted to the

jury because, had the Government not unconstitutionally

seized the coins, it would have been forced to try a replevin

action to a jury. We decline the Langbords’ invitation to

engage in a hypothetical analysis. In this case, the District

Court remedied the Government’s impermissible seizure of

the coins by ordering a forfeiture action to be filed and did

not require that the coins be returned to the Langbords. The

27

Langbords essentially ask us to supplement this remedy by

asserting that we should determine whether the Government’s

declaratory judgment should have gone to a jury based on the

premise that the Langbords retained possession of the coins.

And they do so without citing precedent or explaining why

the remedy given by the District Court should be displaced on

appeal. Even if we were to find merit in the Langbords’

contention, it does not follow that had the Government not

seized the coins, it would have been forced to bring a replevin

action. The Government would have had other options. For

example, it could have authenticated the coins, returned them

to the Langbords, and then seized the coins pursuant to a

warrant before bringing an action to quiet title. In sum, we see

no good reason to supplement the District Court’s remedy and

we reject the Langbords’ implicit claim that the

unconstitutional seizure was the “but for” cause of the

absence of a jury trial.

Lodging one final attack on the Court’s decision not to

submit the declaratory judgment to the jury, the Langbords

contend that they reserved the right to a jury trial when they

relinquished the coins to the Mint for authentication with the

proviso that they “reserved all rights.” Whatever rights the

Langbords reserved, it would be passing strange for us to

conclude that the right to be sued in replevin was one of them.

Because the Government was under no obligation to file any

action in replevin and had other means to attempt to prove

title to the coins, the Langbords were not entitled to a jury

trial on the Government’s declaratory judgment claim.

3

The Langbords’ final challenge to the District Court’s

declaratory judgment is that the Government forfeited the

28

claim by failing to add it to its counterclaim in a timely

manner. The Federal Rules of Civil Procedure allow for the

liberal amendment of pleadings and the decision whether

such leave should be granted is “committed to the ‘sound

discretion of the district court.’” CMR D.N. Corp. v. City of

Philadelphia, 703 F.3d 612, 629 (3d Cir. 2013) (quoting

Cureton, 252 F.3d at 272). As such, we review a district

court’s determination only for abuse of discretion. Id.

“A district court may deny leave to amend . . . if a

plaintiff’s delay in seeking amendment is undue, motivated

by bad faith, or prejudicial to the opposing party.” Cureton,

252 F.3d at 272–73. The mere passage of time “is an

insufficient ground to deny leave to amend.” Id. Nevertheless,

“at some point, the delay will become ‘undue,’ placing an

unwarranted burden on the court, or will become

‘prejudicial,’ placing an unfair burden on the opposing party.”

Id. at 273 (internal quotation marks omitted) (quoting Adams

v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984)). In

furtherance of this analysis, courts “focus on the movant’s

reasons for not amending sooner.” Id.

Here, the Langbords contend the District Court abused

its discretion by allowing the Government to add its

declaratory judgment claim after the case had been

progressing for nearly four years. In their view, the request to

amend should have been denied because the Government had

no good reason not to amend sooner.

Our review of the record leads us to conclude that the

District Court committed no error when it allowed the

Government to amend its counterclaim. Agreeing with the

Langbords’ arguments in many respects, the District Court

found that the Government’s delay “though significant, was

29

not undue.” Langbord, 749 F. Supp. 2d at 275. In particular,

the District Court noted that the Government did not have a

good reason for its delay because its proffered excuse seemed

like a “strategic choice.” Id. The Court then proceeded to

consider all the other factors that inform the “undue delay”

analysis. Specifically, the Court found that the claim for

declaratory judgment “neither introduce[d] new factual issues

nor revive[d] irrelevant disputes.” Id. at 273, 275. Rather, it

involved matters the Langbords themselves had put at issue in

their complaint––claims that were still unresolved at the time

the Government sought leave to amend. Id. Thus, the Court

found the amendment would put the Langbords in “no worse

a position had the Government brought th[e] counterclaim”

along with its initial answer. Id. And for that reason, the

Court concluded the amendment would neither prejudice the

Langbords, nor place an unwarranted burden on the Court. Id.

In so finding, the Court concluded that the Government’s

amendment presented no undue delay. Id. at 275. As we have

noted in previous cases, the District Court here “‘had

considerable familiarity with the development of the factual

and legal issues’ and ‘carefully analyzed the [defendant’s]

proffered reasons for delay, the prejudice to [the plaintiffs],

and the substance of the amended complaint.’” CMR D.N.,

703 F.3d at 631 (quoting Cureton, 252 F.2d at 274). We see

no reversible error in its discretionary decision.

C

The Langbords next claim they are entitled to a new

trial because the District Court committed various evidentiary

errors. They contend: (1) Secret Service reports were

erroneously admitted; (2) documents related to United States

v. Barnard, 72 F. Supp. 531 (W.D. Tenn. 1947), should have

been excluded; (3) evidence related to Israel Switt’s prior

30

arrest and forfeiture of gold should not have been admitted;

and (4) certain testimony of the Government’s expert witness,

David Tripp, should have been excluded. We find no error in

admitting the evidence related to Barnard and Switt’s prior

forfeiture, but we agree with the Langbords that portions of

both the Secret Service reports and Tripp’s testimony should

have been excluded. After examining the entire record of the

case, however, we hold that those evidentiary errors were

harmless.

1

We begin by examining the admission of a number of

Secret Service reports dating back to the 1930s and 1940s.

These documents were admitted under the “ancient

documents” exception to the hearsay rule, which provides that

“[a] statement in a document that is at least 20 years old and

whose authenticity is established” is “not excluded by the rule

against hearsay, regardless of whether the declarant is

available as a witness.” Fed. R. Evid. 803(16); see also Fed.

R. Evid. 901 (providing rules governing the authentication of

ancient documents). The Langbords argue that the District

Court erred in admitting these documents because they

contained hearsay within hearsay and the Court did not

require them to satisfy the multiple-hearsay rule, Fed. R.

Evid. 805 (“Hearsay within hearsay is not excluded by the

rule against hearsay if each part of the combined statements

conforms with an exception to the rule.”).

As the District Court observed, courts have disagreed

about whether the multiple-hearsay rule applies to statements

made in ancient documents. Compare United States v. Hajda,

135 F.3d 439, 443–44 (7th Cir. 1998) (“[If] the [ancient]

document contains more than one level of hearsay, an

31

appropriate exception must be found for each level.”); Hicks

v. Charles Pfizer & Co., 466 F. Supp. 2d 799, 805–07 (E.D.

Tex. 2005) (“Even if a document qualifies as ancient under

Rule 803(16), other hearsay exceptions must be used to

render each individual layer of hearsay admissible.”); United

States v. Stelmokas, 1995 WL 464264, at *6 (E.D. Pa. Aug. 2,

1995), with Langbord v. U.S. Dep’t of the Treasury, 2011 WL

2623315, at *16 (E.D. Pa. July 5, 2011) (citing Murray v.

Sevier, 50 F. Supp. 2d 1257, 1264 n.6 (M.D. Ala. 1999),

vacated on other grounds by Murray v. Scott, 253 F.3d 1308

(11th Cir. 2001); Gonzales v. N. Twp. of Lake Cty., 800 F.

Supp. 676, 681 (N.D. Ind. 1992), rev’d on other grounds, 4

F.3d 1412 (7th Cir. 1993); Ammons v. Dade City, 594 F.

Supp. 1274, 1280 n.8 (M.D. Fla. 1984); 2 John W. Strong et

al., McCormick on Evidence § 323 (5th ed. 2003)). See

generally Gregg Kettles, Ancient Documents and the Rule

Against Multiple Hearsay, 39 Santa Clara L. Rev. 719, 752–

60 & nn.161–63 (1999). In our view, stronger precedent

supports the application of Rule 805 to ancient documents.

We are particularly persuaded by the analysis of the

United States District Court for the Eastern District of

Pennsylvania in United States v. Stelmokas. In that case,

Judge DuBois held that ancient documents were subject to

Rule 805 because “hearsay statements contained within an

ancient document lack the same indicia of trustworthiness and

reliability that provide the rationale for admitting statements

when the declarant is the author of the ancient document.”

1995 WL 464264, at *6. The court noted that the exception

“is based on a rationale that authenticated ancient documents

bear certain indicia of trustworthiness,” namely: (1) a lack of

motive to fabricate due to the document’s age; (2) the writing

requirement “minimizes the danger of mistransmission”; and

32

(3) “the document is more likely to be accurate than the oral

testimony of the declarant based on his memory of events of

twenty or more years ago.” Id. at *5 (citing 2 John W. Strong

et al., McCormick on Evidence § 322 (4th ed. 1992); Charles

E. Wagner, Federal Rules of Evidence Commentary 452

(1993); 4 Jack B. Weinstein & Margaret A. Berger,

Weinstein’s Evidence ¶ 803(16)(1) (1994)). While these

indicia of trustworthiness justified admitting the ancient

document as such, they did not justify admitting hearsay

statements contained therein:

[T]here is no guarantee that a hearsay statement

contained in the [ancient document] is accurate.

The author of the ancient document may have

misheard or misunderstood the hearsay

statement or his written words may not convey

the meaning intended by the hearsay declarant.

These issues of perception and narration are not

merely peripheral but are fundamental problems

of hearsay evidence.

Id. at *6; see also Daniel J. Capra, Electronically Stored

Information and the Ancient Documents Exception to the

Hearsay Rule: Fix It Before People Find Out About It, 17

Yale J.L. & Tech. 1, 9 n.32 (2015) (“[T]he ancient documents

exception does not abrogate the rule on multiple hearsay

imposed by Rule 805—at least in the view of right-thinking

courts.”).10

10

Since 1996, Professor Capra has been the Reporter

for the Judicial Conference’s Advisory Committee on the

Federal Rules of Evidence. The Rules Committee recently

proposed to eliminate the ancient documents exception to the

33

The District Court and the Government rely principally

on treatises that disagree with the multiple-hearsay rule’s

application out of fear that requiring a separate exception for

each level of hearsay would eviscerate the ancient documents

exception. See Langbord, 2011 WL 2623315, at *16–17;

Gov’t Br. 40–41; see also 30C Michael H. Graham, Federal

Practice and Procedure § 7057 n.1 (2014) (stating that

requiring establishment of a different hearsay exception for

the embedded hearsay statements “would effectively

emasculate Rule 803(16)’s utility as it did in Hicks”).

Alternatively, the District Court reasoned that the multiple-

hearsay rule was satisfied because “Rule 803(16) supplies the

grounds by which each level within an ancient document

becomes admissible.” Langbord, 2011 WL 2623315, at *17.

We are unpersuaded, largely because the rationale justifying

the ancient documents exception does not apply to the

admission of hearsay statements embedded within the

documents. Stelmokas, 1995 WL 464264, at *5–6.

We therefore hold that the District Court abused its

discretion by admitting the hearsay embedded within Secret

rule against hearsay in a draft Committee Note published on

August 14, 2015. See Committee on Rules of Practice and

Procedure of the Judicial Conference of the United States,

Preliminary Draft of Proposed Amendments to the Federal

Rules of Evidence (Aug. 14, 2015), available at

http://www.uscourts.gov/file/18375/download. The draft

Committee Note bluntly asserts that “[t]he exception was

based on the flawed premise that the contents of a document

are reliable merely because the document is old” and the rule

“could have once been thought tolerable out of necessity.” Id.

at 25–26.

34

Service reports into evidence without applying Rule 805. In

so holding, we emphasize that this error does not render the

Secret Service reports inadmissible in toto. Rather, first-level

hearsay remains admissible as Rule 805 does not apply to

those statements and their use is permitted by Rule 803(16)

(the ancient documents exception).

2

The Langbords’ second evidentiary objection concerns

the introduction of the opinion and findings of fact from

United States v. Barnard, 72 F. Supp. 531 (W.D. Tenn.

1947). In Barnard, the United States filed a replevin action

against a coin collector to recover a 1933 Double Eagle and

the judge found that the coin at issue had not left the

Philadelphia Mint legally. 72 F. Supp. at 532. On initial

review of the Barnard documents in the Langbords’ case, the

District Court found them admissible under the ancient

documents exception to the hearsay rule. Langbord, 2011 WL

2623315, at *5. But after examining them under Federal Rule

of Evidence 403, the Court found the documents admissible

only for two purposes: to demonstrate that Israel Switt had

notice that the coins were stolen and to help the jury evaluate

expert David Tripp’s testimony under Federal Rule of

Evidence 703. Id. at *5–6.

On appeal, the Langbords insist that the Barnard

documents should have been excluded for four reasons. Their

first objection—that the documents were hearsay—is a

nonstarter for the obvious reason that they were not offered to

prove the truth of their contents. See Fed. R. Evid. 801(c)(2).

Second, the Langbords claim that the Barnard

documents, even if not hearsay, should have been excluded

35

because they were irrelevant. In their view, the Government

was unable to prove Switt was aware of the Barnard opinion

because it could not show that he read either the opinion,

news articles discussing the opinion, or an article about the

case in The Numismatist (a journal for coin dealers). As such,

the Barnard opinion could not have put Switt on notice that

holding the 1933 Double Eagles was illegal. As we shall

explain, these arguments do not satisfy the high bar for

establishing irrelevance.

Evidence is relevant so long as it has “any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence.” United States v.

Sriyuth, 98 F.3d 739, 745 (3d Cir. 1996) (quoting Fed. R.

Evid. 401). “When the relevance of evidence depends on

whether a fact exists, proof must be introduced sufficient to

support a finding that the fact does exist.” Fed. R. Evid.

104(b). To determine whether the Government has met this

burden, “[t]he court simply examines all the evidence in the

case and decides whether the jury could reasonably find the

conditional fact . . . by a preponderance of the evidence.”

Huddleston v. United States, 485 U.S. 681, 690 (1988).

In light of all the evidence, the District Court did not

abuse its discretion by determining that a jury could

reasonably find by a preponderance of the evidence that Switt

was aware of the Barnard documents. This is true for several

reasons. First, the Government presented evidence that Switt

was in the business of dealing coins and had dealt in 1933

Double Eagles. Second, Switt was questioned by the Secret

Service and had been tied to the coin at issue in Barnard.

Finally, the case made national news and was discussed in

The Numismatist.

36

The Langbords argue alternatively that the Barnard

documents should have been excluded under Federal Rule of

Evidence 403 because their probative value was outweighed

by their prejudicial impact. According to the Langbords, the

documents lacked probative value because, if not taken for

their truth, they could show only that the Government

believed that the coins were stolen and sought to recover

them. In other words, the Government’s belief that the coins

were stolen could not provide Switt with knowledge that they

were, in fact, stolen. Thus, they were minimally probative of

Switt’s notice that he could not lawfully possess the coins.

The Langbords have not satisfied the exacting standard

of Rule 403. We may overturn a district court’s decision

under this rule only if “it is ‘arbitrary and irrational.’” Bhaya

v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir.

1990) (quoting United States v. DePeri, 778 F.2d 963, 973–

74 (3d Cir. 1985)). Even if we were to credit the Langbords’

distinction between “Switt’s knowledge” and the

“Government’s belief,” the Barnard documents are

nonetheless probative of Switt’s knowledge because they

provided some notice of the dubiousness of one’s right to

possess a 1933 Double Eagle because the United States had

actively sought their return as stolen government property.

And this probative value was not substantially outweighed by

the risk of unfair prejudice, especially in light of the fact that

the District Court instructed the jury as to how the Barnard

evidence could be used.

Finally, the Langbords claim the District Court abused

its discretion by admitting the Barnard documents under

Federal Rule of Evidence 703 because the Government’s

expert, David Tripp, neither explicitly mentioned Barnard as

evidence underlying his opinion nor referred to it in

37

explaining his conclusions. In fact, Tripp did refer to Barnard

while summarizing his opinion and the material underlying

that opinion.11 And Tripp’s testimony and its context

demonstrate that he used Barnard as a basis for his opinion.

Because this is precisely what Rule 703 anticipates, we find

no abuse of discretion.12

11

Immediately after Tripp mentioned Barnard, the

Langbords asked for an instruction on the use of the opinion.

The Court obliged and explained the purpose of the Barnard

evidence.

12

The Langbords lodge one more challenge against the

Barnard documents, arguing that even if they were

admissible, the Government improperly invoked them in a

manner that invited the jury to consider them for their truth.

This allegedly occurred on five occasions: twice by Tripp,

who referred to the case as showing that the Langbord coins

were illegally taken from the Mint instead of the Barnard

coin, and on three other occasions during the Government’s

closing argument.

In regard to the two Tripp statements, neither commit

the mistake alleged by the Langbords. When read in context,

both statements discuss the Barnard opinion alone and do not

assert that the decision is determinative of the propriety of the

Langbords’ claim to the Double Eagles at issue here. Further

tempering any such concerns, the District Court described the

role of expert witnesses and explained that the Barnard

evidence adverted to by Tripp could be used only to evaluate

the basis upon which he grounded his opinion and was not

determinative of the Langbords’ case. This limiting

instruction helped ensure that the jury understood the proper

purpose of Tripp’s use of the Barnard evidence.

38

For all the reasons stated, we hold the District Court

did not err in admitting the Barnard documents.

3

Next, the Langbords contend that evidence that Israel

Switt forfeited 98 gold coins that he possessed in

contravention of the Gold Reserve Act of 1934 should have

been excluded. The Government sought to introduce

documents from this forfeiture to prove that Switt was aware

of the repercussions of holding coins illegally and that he was

motivated to conceal 1933 Double Eagles.

The Langbords argue that the District Court abused its

discretion by admitting this evidence for three reasons: (1) it

was improper character evidence used to show Switt had a

propensity to unlawfully hoard coins; (2) it was not relevant

as the prior forfeiture took place under the Gold Reserve Act

while this forfeiture was brought under CAFRA; and (3) even

if the past forfeiture was relevant, its probative value was

outweighed by its unfair prejudice.

As for the Government’s alleged misuse of the

evidence during closing arguments, the Langbords did not

object to the Government’s three references to the Barnard

documents in its closing. We find no plain error because the

Langbords’ substantial rights were not affected and the

comments did not “seriously affect[] the fairness, integrity or

public reputation of judicial proceedings.” Han Tak Lee v.

Houtzdale SCI, 798 F.3d 159, 166 (3d Cir. 2015) (quoting

Nara v. Frank, 488 F.3d 187, 197 (3d Cir. 2007)). These three

brief comments were made before the District Court cured

any possible confusion by explaining in a detailed manner to

what extent the Barnard documents could be considered.

39

Federal Rule of Evidence 404(b) prohibits the use of

information regarding an individual’s prior bad acts as

evidence that the person has the propensity to act in such a

manner. Of course, prior bad acts may be admitted for

purposes other than propensity. Fed. R. Evid. 404(b)(2). The

Government contends that evidence of Switt’s prior forfeiture

of 98 gold coins demonstrated his knowledge that it forfeits

illegally held coins and provided a motive to conceal 1933

Double Eagles to avoid this fate. We agree. Accordingly,

these two uses of the evidence from Switt’s prior forfeiture do

not go to his propensity and therefore were not excludable

under Rule 404(b).

With proper purposes identified, the Government must

then demonstrate that the evidence it seeks to introduce is

relevant for those purposes—meaning that it had “any

tendency” to make a consequential fact “more or less

probable than it would be without the evidence,” Fed. R.

Evid. 401; see also, e.g., United States v. Caldwell, 760 F.3d

267, 277–78 (3d Cir. 2014). The Langbords insist the

Government failed to do so because the forfeiture Switt

suffered was effectuated under the Gold Reserve Act while

this forfeiture proceeded under CAFRA. They also emphasize

that the Gold Reserve Act allowed the Government to forfeit

coins possessed in contravention of the Act, while CAFRA

permits the forfeiture of stolen goods. Thus, having coins

forfeited for possessing them against the dictates of the Gold

Reserve Act is not probative of either notice to Switt that the

Government also forfeits stolen coins or Switt’s motivation to

conceal the coins to avoid this type of forfeiture. We disagree.

While Switt’s prior forfeiture and the one at issue here

do arise from different legal bases, the fact that Switt had

previously forfeited gold coins to the Government is relevant

40

to his knowledge that holding gold coins may be unlawful

under certain circumstances. His prior loss of gold coins

through a forfeiture proceeding also made it more likely that

Switt would conceal any other coins he possessed for fear of

losing them as well.

Nor was this evidence excludable under Rule 403

balancing. In support of their contention that the evidence’s

unfair prejudice exceeded its probative value, the Langbords

point to various instances where the evidence was used at

trial. Langbord Br. 58–60. In particular, they direct us to the

facts that the Government: (1) mentioned Switt’s prior arrest

on too many occasions; (2) stated Switt was “known to the

Secret Service,” “knew how to deal with law enforcement,”

“was angry with the Government,” wanted to “thumb his nose

at the Government,” and failed to relinquish his gold coins in

the manner “all other citizens did;” and (3) elicited expert

testimony on two occasions that Switt failed to carry out his

patriotic duty by not turning the coins over to the

Government. Langbord Br. 58–59. According to the

Langbords, these uses demonstrate the prejudice posed by the

evidence and it should have been excluded outright.

While posing some prejudice to the Langbords, we

cannot conclude that the District Court’s determination that

such prejudice failed to outweigh the evidence’s probative

value was “arbitrary and irrational.” Bhaya, 922 F.2d at 187

(quoting DePeri, 778 F.2d at 973–74). In deciding to admit

the evidence over the Langbords’ objection, the District Court

carefully weighed its probative value and possible prejudicial

impact. The Court found the fact that the evidence spoke to

Switt’s knowledge and motivation at the time in which the

Double Eagles were allegedly concealed particularly

probative as to whether a violation of 18 U.S.C. § 641

41

occurred. Langbord, 2011 WL 2623315, at *5–6. With that

said, the Court acknowledged that some prejudice would

inure, but determined that the balance tipped in favor of

admitting the evidence. Id. at *8. This quintessential

judgment call by the District Court was not an abuse of

discretion.

4

For their final evidentiary objection, the Langbords

assert that the Government’s expert, David Tripp, transmitted

inadmissible hearsay to the jury without drawing upon any

specialized knowledge and that this hearsay’s probative value

did not substantially outweigh its prejudicial effect. Langbord

Br. 60–62 (citing Fed. R. Evid. 702, 703; United States v.

Mejia, 545 F.3d 179 (2d Cir. 2008)). Specifically, the

Langbords cite Tripp’s statements regarding Barnard, his

testimony about Switt’s prior forfeiture, and his summaries of

the Secret Service reports we discussed previously.

We turn first to the Langbords’ argument that Tripp’s

testimony was not supported by specialized knowledge. We

have interpreted Federal Rule of Evidence 702 to impose a

“trilogy of restrictions on expert testimony: qualification,

reliability and fit.” Schneider ex rel. Estate of Schneider v.

Fried, 320 F.3d 396, 404 (3d Cir. 2003). The third of these

requirements, “fit,” is at issue here. In order to satisfy that

requirement of Rule 702, an “expert’s testimony must be

relevant for the purposes of the case and must assist the trier

of fact.” Id.; see also Fed. R. Evid. 702(a) (stating as a

condition for admitting an expert’s testimony that “the

expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to

determine a fact in issue”); United States v. Ford, 481 F.3d

42

215, 218–19 (3d Cir. 2007). To the Langbords, Tripp was a

mere conduit for transmitting inadmissible hearsay to the jury

by reading documents to them. We disagree.

As a historian, the tools of Tripp’s trade include old

documents regarding past events such as the Barnard opinion,

accounts of Switt’s prior forfeiture, and the Secret Service

reports. To fulfill his role as an expert witness, Tripp was

obliged to help the jury understand the historical background

of the 1933 Double Eagles. He did so by “‘surveying a

daunting amount of historical sources,’ evaluating their

reliability and providing a basis for ‘a reliable narrative about

that past.’” United States v. Kantengwa, 781 F.3d 545, 562

(1st Cir. 2015) (quoting Alvaro Hasani, Putting History on

the Stand: A Closer Look at the Legitimacy of Criticisms

Levied Against Historians Who Testify as Expert Witnesses,

34 Whittier L. Rev. 343, 354–55 (2013)). And while the

Langbords are correct that Tripp read portions of his source

material verbatim to the jury, the excerpts he chose from

voluminous historical materials provided context and

explained past events. See id.; Marvel Characters, Inc. v.

Kirby, 726 F.3d 119, 135–36 (2d Cir. 2013) (noting that

“synthesiz[ing] dense or voluminous historical texts” and

offering “context that illuminates or places in perspective past

events” are proper uses of historical expertise). Unlike in

Mejia, where an expert’s testimony was found inadmissible

because he merely summarized law enforcement’s

straightforward investigation against the defendant as a

shortcut to proving the elements of the crime without

synthesis, see Mejia, 545 F.3d at 190–91, 194–98, Tripp’s

testimony synthesized disparate and voluminous historical

sources and provided the jury his opinion on the fate of the

43

1933 Double Eagles. There was no error in allowing Tripp to

testify in this manner.

Next, we consider the Langbords’ related argument

that Tripp’s testimony contained inadmissible hearsay that

should have been excluded under Federal Rule of Evidence

703. That Rule provides that an expert may base his opinion

on otherwise inadmissible evidence so long as other “experts

in the particular field would reasonably rely on those kinds of

facts or data in forming an opinion on the subject.” This

inadmissible information may be disclosed to the jury only if

its “probative value in helping the jury evaluate the opinion

substantially outweighs [its] prejudicial effect.” Fed. R. Evid.

703. As provided by the Committee Notes to the 2000

amendments to Rule 703, courts need not engage in this latter

balancing inquiry if the facts or data at issue are “admissible

for any other purpose” aside from “assist[ing] the jury to

evaluate the expert’s opinion.”

On this point, most of the Langbords’ arguments

evaporate in light of our preceding analysis. As we have

already discussed, the first-level hearsay found in the Secret

Service reports, the Barnard opinion, and information related

to Switt’s prior forfeiture are all admissible. Because they are

admissible for a purpose other than “assist[ing] the jury to

evaluate” Tripp’s opinion, we need not engage in the Rule

703 balancing inquiry and Tripp was free to convey the

information to the jury.

Nevertheless, one portion of the Langbords’ argument

survives—the challenge to Tripp’s invocation of the

embedded hearsay contained in the Secret Service reports that

we previously held inadmissible. And we agree with the

Langbords that this testimony’s probative value did not

44

substantially outweigh its prejudicial impact. While

probative, the testimony was cumulative because it recounted

interviews and reports that were later compiled into a final

report that contained their most important information in

admissible form—i.e. that the coins were stolen from the

Mint and landed in Switt’s possession. At the same time, this

testimony posed additional prejudice to the Langbords

because it included speculation and characterization of events

by out-of-court declarants that was adverse to the Langbords’

position. For this reason, we find that it was an abuse of

discretion to permit Tripp to testify to the embedded hearsay

within the Secret Service reports.

5

While we have found evidentiary errors regarding

portions of the Secret Service reports and portions of Tripp’s

testimony about them, a new trial is appropriate only when “a

substantial right of the party is affected.” Becker v. ARCO

Chem. Co., 207 F.3d 176, 180 (3d Cir. 2000) (quoting Glass

v. Phila. Elec. Co., 34 F.3d 188, 191 (3d Cir. 1994)); see also

Fed. R. Evid. 103(a). We find such an error harmless when

there is a “high probability” that the discretionary error did

not contribute to the verdict. McQueeny v. Wilmington Trust

Co., 779 F.2d 916, 924–25 (3d Cir. 1985). Our review of the

entire record leads us to conclude that the Government was

able to clearly and convincingly prove the elements of its case

without reliance on the tainted evidence. Accordingly, for the

reasons we shall explain, we conclude that the evidentiary

errors were harmless.

45

a

To prevail on its forfeiture action, the Government

needed to prove the Double Eagles “constitue[d] or [were]

derived from the proceeds traceable to . . . any offense

constituting ‘specified unlawful activity’ (as defined in [18

U.S.C. § 1956(c)(7)]),” 18 U.S.C. § 981(a)(1)(C). “Specified

unlawful activity” under § 1956(c)(7) includes stealing or

embezzling “a thing of value of the United States” or

receiving, concealing, or retaining such an item with the

intent to convert it to one’s own use while knowing it was the

product of theft or embezzlement. See 18 U.S.C.

§ 1956(c)(7)(D); id. § 641; Morissette v. United States, 342

U.S. 246, 263, 279 (1952). Thus, the Government had to

prove that: (1) the Double Eagles were things of value; (2)

they were stolen or embezzled; and (3) whoever stole or

embezzled the coins knew he was doing so or whoever

received, concealed, or retained the coins knew that they were

stolen or embezzled and nonetheless intended to use them for

personal gain. Only the second and third elements are

disputed and the Government’s admissible evidence in this

case clearly established both.

b

The evidence at trial demonstrated overwhelmingly

that no 1933 Double Eagle ever left the Mint through

authorized channels and any that did were either stolen or

embezzled. Within 24 hours of his inauguration on March 4,

1933, President Roosevelt issued a proclamation that banned

the payout of gold coin from banks and the Treasury. On

March 9, Congress codified this presidential order. Not until

six days later, on March 15, 1933, did the first 1933 Double

Eagles arrive at the Cashier’s office of the Philadelphia

46

Mint—the office that serves as the “gatekeeper,” taking

newly minted coins and releasing them to the public. A few

weeks later, on April 5, 1933, President Roosevelt issued

another proclamation ordering that all gold in private hands

be returned to the Government.13 And on January 30, 1934,

Congress passed the Gold Reserve Act which stated that all

gold was to be nationalized and the Government’s holdings

were to be melted into gold bars.

The aforementioned legal framework dictated that no

1933 Double Eagles could lawfully be issued to the public.

The coins arrived at the Cashier’s office after Congress had

forbidden the payout of gold. And any coins that left the Mint

were required to have been returned under the direction of

President Roosevelt’s April 5 proclamation. The next year, by

January 30, 1934, all the coins were ordered to be melted.

The Langbords nonetheless contend that 1933 Double

Eagles may have left the Mint because of miscommunication

or mistake. In particular, they point to a window of time

between March 7 and April 12, 1933, during which the coins

may have left the Mint via innocent means. On March 7, an

Assistant Treasury Secretary informed the Mint that gold coin

or bars could be issued in exchange for bullion. This

information was at odds with President Roosevelt’s inaugural

13

This proclamation contained an exception that

allowed collectors to retain coins of rare or unusual interest.

This exception would not have applied to the 1933 Double

Eagles when the proclamation was issued, however, because

the fact that the coins were being struck by the hundreds of

thousands made the 1933 Double Eagles neither rare nor

unusual—a fact on which both the Government’s and

Langbords’ experts agreed.

47

proclamation and Congress’s March 9 codification of that

proclamation. And the Mint was not instructed in a letter from

the Treasury to halt gold exchanges until April 12, 1933. The

parties (and their experts) therefore dispute whether gold

intended for private use could have left the Mint during this

time. But regardless of whether this window actually existed,

the Mint’s own records from the relevant years show that no

1933 Double Eagle ever left the Mint through authorized

channels.

The Mint’s records track the movement of each 1933

Double Eagle. These records were remarkably detailed, going

so far as to show the payment of three pennies and their year

of minting in one transaction. The records indicate that

445,500 Double Eagles were struck. Five hundred of those

were sent to the Cashier, while the remaining 445,000 were

sealed in a basement vault. Of the 500 held in the Cashier’s

office, 29 were destroyed in tests to determine the coins’

purity and weight, 2 were sent to the Smithsonian, and the

remaining 469 were placed in the basement vault. Then, in

accordance with the Gold Reserve Act of 1934, the 445,469

coins left in the vault were ordered melted into gold bars. By

this accounting, it is clear that not a single 1933 Double Eagle

was ever authorized to be issued to the public—a fact to

which both a 1933 Double Eagle historian and a forensic

accountant testified.

The Langbords try mightily to discredit these records,

but fail to do so in a meaningful way. They claim the records

are not reliable for three reasons. First, they argue that Mint

employees “disregarded regulations governing quality control

and bookkeeping audits,” Langbord Br. 14, as evidenced by

the fact that the Cashier failed to properly select coins for the

48

assay process,14 and that the Mint’s holdings and records may

not have been audited as frequently as regulations required.

Neither of these concerns raises serious reliability

questions—selecting the right coin for the assay process has

little to do with the number of coins held by the Mint and the

absence of a timely audit of the Mint’s holdings does not

indicate that the records actually contain errors.

Second, the Langbords note the fact that Mint records

show the release of only four 1933 Eagles (not Double

Eagles) while more than that are privately held today.

Without more, this fact does little to discredit the records.

These alleged errors do not involve 1933 Double Eagles and

the lost 1933 Eagles may not have been logged in the Mint

records because they too may have left the Mint illegally.

And finally, the Langbords argue that the records fail

to show the release of gold coins on certain dates when other

documents show that disbursements did in fact occur. As the

Government explained at trial, however, this argument is

factually incorrect because the documents to which the

Langbords refer show only that individuals asked for gold

coin in return for deposits of gold bullion, not that gold coin

was actually paid out.15 Mint regulations corroborate the

14

An “assay” is a scientific process used by the Mint

to test the purity of the gold contained in a given coin. The

process results in the destruction of the tested coin.

15

The Langbords also offer the possibility that 1933

Double Eagles mistakenly left the Mint through “unclassified

counter cash” which was not broken down by denomination.

In support of this argument, the Langbords cite a statement

made by David Tripp in a deposition in which he indicated

that gold coins may have been part of this counter cash. At

49

Government’s theory by stating that gold would be paid out

only if requested and available—otherwise, requests would be

fulfilled by check.

Beyond the Mint records, the Government introduced

evidence to show that the coins were either stolen or

embezzled. In particular, the Government pointed to a Secret

Service report regarding its investigation following the

appearance of 1933 Double Eagles after all the coins should

have been destroyed. The report’s final conclusion stated that,

in the opinion of the Secret Service, none of the 1933 Double

Eagles that had surfaced ever left the Mint through authorized

channels. Thus, the Secret Service report and the Mint records

reflect the same conclusion that the 1933 Double Eagles had

left the Mint illegally.16

trial, however, Tripp stated that additional research led him to

the conclusion that gold coins were in fact not part of the

counter cash and that 1933 Double Eagles could not have left

the Mint via that manner. While the Langbords dispute this

point, the fact of the matter remains that the Mint records

account for every 1933 Double Eagle and do not show that

any one of them left the Mint through authorized channels.

16

The relevant portion of the Secret Service’s final

report does not contain multiple hearsay. See App. 5025

(“The matter having been discussed [with Mint officials] . . .

the opinion prevails that all of the [1933 Double Eagles]

known to be in unauthorized circulation are the property of

the Government.”). Rather, it recounts the conclusion of the

Secret Service investigators, which is first-level hearsay

admissible under the ancient documents rule.

50

In sum, considering the record as a whole, we have no

doubt that any evidentiary errors were harmless as they relate

to the jury finding that the coins were either stolen or

embezzled from the Mint.

c

Next, the Government was required to show that

whoever stole or embezzled the coins knew he was doing so

or whoever received, concealed, or retained the coins, knew

that the coins were stolen or embezzled and nonetheless

intended to use them for his own gain. In light of the passage

of so many decades, it is unsurprising that direct evidence of

intent is lacking in this case. Such evidence is not required,

however, because “a jury may draw inferences of subjective

intent from evidence of . . . objective acts, and from

circumstantial evidence.” United States v. Piekarsky, 687

F.3d 134, 147–48 (3d Cir. 2012). Here, there is overwhelming

circumstantial evidence in support of the Government’s case.

For starters, we recall the evidence which shows that

no 1933 Double Eagle ever left the Mint through authorized

channels. And if the Mint never meant to issue the coins, its

records show they were never issued, and the Secret Service

concluded none were authorized to leave the Mint, it follows

that the illicit taking and retention of the coins is the only

plausible explanation for how ten 1933 Double Eagles ended

up in the safe-deposit box of Israel Switt’s heirs.

The Government’s evidence did not stop there.

Turning back to the reports from the Secret Service’s

investigation of 1933 Double Eagles that surfaced in the

1940s, the Government showed that Israel Switt was

interviewed by Secret Service agents to determine his

51

connection to the coins that had left the Mint. That

investigation led the Secret Service to conclude that all of the

Double Eagles that made it into private hands were connected

to Switt. The fact that Switt had been involved in the

dissemination of 1933 Double Eagles and that he had been

investigated by the Secret Service for doing so provide strong

evidence that he knew the coins were stolen or embezzled and

that the Government sought their return.

Moreover, the Government pointed to Barnard and

related documents as providing a reason to think Switt knew

the Double Eagles were stolen or embezzled. Those

documents—the publication of the opinion in 1947, a news

report covering the case in the New York Times, and an article

in The Numismatist about the matter—all make it more likely

that Switt would have been aware of the controversy

surrounding the legality of holding 1933 Double Eagles.

Finally, yet another body of evidence points to Switt

knowing the coins were stolen or embezzled: the documents

demonstrating that the Government forfeited 98 gold coins

Switt possessed in contravention of the Gold Reserve Act of

1934. This forfeiture showed that Switt had knowledge that

holding gold coins was impermissible and could result in

adverse government action. It also evidences Switt’s motive

to conceal the coins.

Taking all of this evidence together, the Government

showed that Switt knew that the 1933 Double Eagles were

embezzled or stolen and that it was illegal to possess them.

Yet they were stored in a safe-deposit box for decades until

his daughter disclosed their whereabouts soon after the

Fenton-Farouk coin was auctioned for $7,590,020. These

circumstances are more than sufficient to find a violation of

52

18 U.S.C. § 641 and renders the District Court’s evidentiary

errors harmless.

D

The Langbords’ last line of attack on the District

Court’s judgment is that the Court erroneously instructed the

jury on two elements of the Government’s forfeiture case.

First, they claim the District Court improperly instructed the

jury on the mens rea necessary to establish liability under 18

U.S.C. § 641. Second, they argue that the District Court

should have required the jury to find a violation of § 641

occurring after 1948, the year of the statute’s enactment.17

1

In Morissette, the Supreme Court held that, in the

absence of an express intent requirement in § 641, Congress

“borrow[ed] terms of art in which are accumulated the legal

tradition and meaning of centuries of practice,” and that a

conviction under the statute requires a jury to find “the

criminal intent . . . wrongfully to deprive another of

possession of property.” 342 U.S. at 263, 276 (emphasis

added); see also, e.g., United States v. Crutchley, 502 F.2d

17

We review the District Court’s refusal to give a

requested jury instruction for abuse of discretion. See United

States v. Friedman, 658 F.3d 342, 352 (3d Cir. 2011). “Where

a party properly objects to a jury instruction under [Federal

Rule of Civil Procedure] 51, we exercise plenary review to

determine whether the instruction misstated the applicable

law.” Collins v. Alco Parking Corp., 448 F.3d 652, 655 (3d

Cir. 2006) (citation omitted).

53

1195, 1201 (3d Cir. 1974) (stating that the “essential part of

the common law larceny-type offense” was that “the thief . . .

knew [that the property he took] did not belong to him”

(quoting United States v. Howey, 427 F.3d 1017, 1017–18

(9th Cir. 1970)); United States v. Caverly, 408 F.2d 1313,

1320 n.5 (3d Cir. 1969).

The District Court’s instructions conveyed exactly this

point of law. The Court instructed the jury that it was required

to find that “whoever stole or embezzled [the 1933 Double

Eagles] did so knowingly,” and that “to steal means to take

somebody else’s property without permission with the

intention of permanently keeping it.” App. 2702 (emphasis

added) (also defining embezzlement as “to knowingly and

intentionally take somebody else’s property with the intent to

permanently keep it by virtue of your employment or your

position of trust”).

The Langbords nevertheless contend that the District

Court misstated the law when it further elaborated that

“knowingly means that you’re conscious and aware of what

you’re doing. Right? It means that you’re exercising a choice,

a deliberate choice. It’s not an accident. It’s not a mistake.”

App. 2702. We disagree.

As an initial matter, the District Court’s definition of

“knowingly” accords with our model instruction. See Third

Circuit Model Criminal Jury Instruction 5.02 (revised Apr.

2015) (“knowingly” means that the defendant was “conscious

and aware of the nature of [his or her] actions and of the

surrounding facts and circumstances, as specified in the

definition of the offense(s) charged” (emphasis added)). And

in conjunction with the District Court’s definition of “steal,”

the jury was required to find that whoever took the coins was

54

“conscious and aware” that they were “somebody else’s

property.” App. 2702 (also stating that the jury was required

to find “improper” or “guilty knowledge”). Of course, taken

in isolation, the definition of knowingly—because it does not

specify what knowledge is required—could simply require

mere intentionality of the kind rejected in Morissette. But we

do not review jury instructions in isolation as the Langbords

tacitly propose. See, e.g., Limbach Co. v. Sheet Metal

Workers Int’l Ass’n, AFL–CIO, 949 F.2d 1241, 1258–59 n.15

(3d Cir. 1991) (“When interpreting jury instructions, the

reviewing court considers the totality of the instructions and

not a particular sentence or paragraph in isolation.”).18 The

18

The Langbords also insist the District Court erred by

refusing to instruct the jury that a violation of § 641 had to be

“willful.” A linguistic “chameleon,” see, e.g., United States v.

Starnes, 583 F.3d 196, 210 (3d Cir. 2009) (citing Bryan v.

United States, 524 U.S. 184, 191 & n.12 (1998)), the word

“willful” is not found in the statute. It is therefore

unsurprising that a number of our sister circuits have declined

to promulgate model instructions that include a willfulness

charge. See Committee on Pattern Jury Instructions, District

Judges Association, Fifth Circuit, Pattern Jury Instructions

(Criminal Cases) 180–82 (2015) (Instruction No. 2.27);

Committee on Federal Criminal Jury Instructions of the

Seventh Circuit, Pattern Criminal Jury Instructions of the

Seventh Circuit 196–98 (2012); Judicial Committee on Model

Jury Instructions for the Eighth Circuit, Manual of Model

Criminal Jury Instructions for the District Courts of Eighth

Circuit 221–22 § 6.18.641 (2014) (revised Aug. 5, 2014);

Ninth Circuit Jury Instructions Committee, Manual of Model

Criminal Jury Instructions 178–79 (2010) (Instruction Nos.

8.39 and 8.40); Criminal Pattern Jury Instruction Committee

55

District Court properly instructed the jury on the mens rea

required by § 641.

2

The Langbords’ last objection concerns the District

Court’s instruction that a theft under § 641 rendering the 1933

Double Eagles subject to forfeiture could have occurred

“some time in the past.” App. 2702. The Langbords claim that

the jury should have been instructed that it was required to

find a theft occurring after 1948, the year Congress enacted

the statute. This contention betrays a misunderstanding of the

of the United States Court of Appeals for the Tenth Circuit,

Criminal Pattern Jury Instructions 119–20 (2011) (revised

Sept. 10, 2015); see also Committee on Pattern Jury

Instructions of the Judicial Council of the Eleventh Circuit,

Pattern Jury Instructions (Criminal Cases) 36, 177–79 (2010)

(dividing willfulness offenses into those with an ordinary

general intent requirement, and “highly technical [offenses]

that present the danger of ensnaring individuals engaged in

apparently innocent conduct”).

The District Court accordingly did not abuse its

discretion in declining to give the Langbords’ requested

charge to the jury. See United States v. Croft, 750 F.2d 1354,

1362 (7th Cir. 1984) (“[N]o particular verbal formula or

talismanic combination of words is required to properly

allege the element of specific intent . . . under 18 U.S.C.

§ 641.”). We also note that the Langbords’ proposed

definition of willfulness—requiring knowledge of

unlawfulness—does not differ meaningfully from the “guilty

knowledge” that the District Court required the jury to find.

See App. 2702.

56

interplay between 18 U.S.C. §§ 981 and 1956(c)(7), and the

retroactive application of civil statutes.

In addition to reforming several procedural aspects of

civil asset forfeiture, CAFRA vastly expanded the scope of

property subject to forfeiture by amending 18 U.S.C.

§ 981(a)(1)(C)—the statute authorizing forfeiture in this

case—to include “any offense constituting ‘specified

unlawful activity’ (as defined in section 1956(c)(7)).” See Pub

L. No. 106-185, § 20, 114 Stat. 202, 224 (2000); United

States v. All Funds Distributed to Weiss, 345 F.3d 49, 52–53

& n.2 (2d Cir. 2003) (observing that prior to CAFRA’s

inclusion of “specified unlawful activity” in § 981(a)(1)(C),

the Government could seek forfeiture only through a violation

of the money laundering statutes, 18 U.S.C. §§ 1956, 1957,

and 1960, listed in § 981(a)(1)(A)). Then, as now, §

1956(c)(7) provided that “[t]he term ‘specified unlawful

activity’ means . . . an offense under . . . section 641 (relating

to public money, property, or records).”

The question thus arises whether CAFRA’s

amendment to § 981(a)(1)(C) permits the Government to

pursue the forfeiture of property previously not “subject to

forfeiture” but made so by the Act. In United States v. One

“Piper” Aztec, 321 F.3d 355 (3d Cir. 2003), we addressed a

related question with respect to CAFRA’s imposition of the

burden of proof on the Government to prove forfeiture under

18 U.S.C. § 983(c). In that case, our analysis under Landgraf

v. USI Film Products, 511 U.S. 244, 280 (1994), was not

particularly difficult because Congress “clear[ly] and

unambiguous[ly]” set forth the enactment’s temporal scope

by providing a retroactivity clause. 321 F.3d at 358 & n.3.

Specifically, Congress stated that “[CAFRA] and the

amendments by [CAFRA] shall apply to any forfeiture

57

proceeding commenced on or after [August 23, 2000].” Pub.

L. No. 106-185, § 21, 114 Stat. 202, 225 (2000); 8 U.S.C. §

1324 (note). We therefore held that the Government’s

heightened burden applies only in civil forfeitures

“commenced on or after [August, 23, 2000].” 321 F.3d at

357–58.

So too here. As illustrated by One “Piper” Aztec,

CAFRA’s retroactivity clause is the beginning and end of the

Landgraf analysis in this case because only one date is

relevant to CAFRA’s applicability: August 23, 2000.19 See

19

CAFRA’s retroactivity clause is also why the

Langbords’ focus on § 641’s year of enactment is inapposite.

In passing CAFRA, Congress was aware that entire swaths of

new property would become subject to forfeiture due to

conduct occurring prior to CAFRA’s effective date, pursuant

to various criminal statutes that were themselves enacted

“some time in the past.” Nonetheless, the legislature did not

single out any these myriad dates of enactment, and instead

tied CAFRA’s application only to the date of its own

enactment.

We are also unpersuaded by the Langbords’ reliance

on United States v. Eleven Vehicles, 836 F. Supp. 1147 (E.D.

Pa. 1993). At issue in that case was a version of 18 U.S.C. §

981(a)(1)(A) that rendered forfeitable “[a]ny property, real or

personal, involved in a transaction or attempted transaction in

violation . . . of section 1956 or 1957 of [title 18], or any

property traceable to such property.” 836 F. Supp. at 1151.

Sections 1956 and 1957 are money laundering statutes that

were enacted in the Money Laundering Control Act of 1986,

Pub. L. No. 99-570, §§ 1352, 1366, 110 Stat. 3207-18, 3207-

35. That statute, unlike CAFRA, did not include a provision

58

321 F.3d at 357–58. For this reason, we hold that CAFRA’s

amendment to § 981(a)(1)(C) applies to property made

forfeitable by conduct occurring prior to the Act.

Accordingly, for predicate offenses already listed in §

1956(c)(7) at the time CAFRA was passed—such as § 641—

we need only look to whether the Government filed its

specifying an effective date, much less a retroactivity clause.

836 F. Supp. at 1156 & n.11; see also Pub. L. No. 99-570, §

1364, 110 Stat. 3207-34–35. Furthermore, § 981(a)(1)(A)

required (and still requires) a “violation” of either § 1956 or

§ 1957. Thus, the court in Eleven Vehicles determined the

statutes’ effective date to be the date of their enactment,

October 27, 1986, and declined to permit retroactive

forfeitures thereunder. In contrast, CAFRA not only includes

a retroactivity clause, but is broadly phrased to permit the

forfeiture of “proceeds traceable to . . . any offense

constituting ‘specified unlawful activity,’” which includes “an

offense under . . . section 641.” 18 U.S.C. §§ 981(a)(1)(C),

1956(c)(7)(D) (emphasis added).

Finally, to the extent that the Langbords’ retroactivity

argument suggests that the Government’s forfeiture action

depends on actions that were not criminal at the time they

were taken, we disagree with their factual premise. As

Morissette makes clear, although § 641 was enacted in 1948,

the statute had “no other purpose . . . than to collect from

scattered sources crimes so kindred as to belong in one

category.” 342 U.S. at 266–67. Thus, the fact that § 641 did

not exist until 1948 does not mean that “embezzl[ing],

steal[ing], or purloin[ing] . . . property of the United States”

was lawful activity prior to that date. Id. at 266 n.28.

59

forfeiture complaint on or after August 23, 2000. Id. With

respect to the ten 1933 Double Eagles at issue in this case, the

Government filed its forfeiture complaint in 2009. App.

1162–82. Thus, “our inquiry is done.” One “Piper” Aztec,

321 F.3d at 358. The District Court’s jury instructions were

proper.

* * *

This case is unique for many reasons. It involves

iconic American gold pieces that apparently had lain dormant

in a safe-deposit box for decades. Almost immediately after

the 1933 Double Eagles surfaced in 2002, the right to possess

and own them was vigorously disputed. The resolution of that

dispute required the District Court to consider novel questions

of constitutional, statutory, and common law. The able trial

judge worked diligently through all of the issues and gave

both sides a fair trial. Once the jury had spoken, the District

Court declared that the 1933 Double Eagles had always been

property of the United States. Although the benefit of

hindsight has convinced us that certain errors were committed

in the conduct of the trial, they did not affect the outcome.

We will affirm the judgment of the District Court.

60

JORDAN, Circuit Judge, concurring in part and concurring in

the judgment:

_________________________________

I agree with the excellent opinion of the Majority in all

but one respect. Like Judge Rendell and those joining her

partial dissent, I cannot join Part IV.A of the Majority

Opinion. I have serious doubts about the Majority’s assertion

that there was no nonjudicial forfeiture proceeding here and,

hence, I also question the conclusion that CAFRA does not

apply. Nothing in CAFRA or, to my knowledge, elsewhere in

the United States Code specifies how a “nonjudicial forfeiture

proceeding” actually begins. Although the government

asserts, and the Majority agrees, that there were no such

proceedings here, the language of CAFRA suggests

otherwise.

Of particular note is 18 U.S.C. § 983(a)(1)(A)(iii).

Under that section, when the government obtains a criminal

indictment with an allegation that the property is subject to

forfeiture before the 60-day period for notice has expired,1 it

has two choices concerning its notice obligation: (1) “send

1

As the Majority lays out, see Majority Op. at 14,

CAFRA provides that the government generally has 60 days

from the date of seizure to send to interested parties written

notice of the seizure and its intent to forfeit the property, at

which point a claimant may file a seized asset claim. See 18

U.S.C. § 983(a)(1)(A); 19 U.S.C. § 1607(a). If a seized asset

claim is filed, the nonjudicial forfeiture cannot proceed, and

the government then has 90 days to file a complaint for

judicial forfeiture or to return the property pending the filing

of a complaint. 18 U.S.C. § 983(a)(3)(A).

1

notice within the 60 days and continue the nonjudicial civil

forfeiture proceeding under this section”; or (2) “terminate

the nonjudicial civil forfeiture proceeding” and use the

criminal forfeiture laws. 18 U.S.C. § 983(a)(1)(A)(iii)

(emphasis added). Both verbs – “continue” and “terminate” –

presuppose that a nonjudicial civil forfeiture proceeding has

already begun, even though no “notice” designated as such

may have been provided. In addition, § 983(e)(1) provides

that “[a]ny person entitled to written notice in any nonjudicial

civil forfeiture proceeding under a civil forfeiture statute who

does not receive such notice may file a motion to set aside a

declaration of forfeiture with respect to that person’s interest

in the property … .” That section similarly assumes the

existence of a nonjudicial forfeiture proceeding, even though

the government has not yet sent something designated as a

“notice” to verify its intent to pursue forfeiture.

That is not to say that no notice is necessary. Some

manifestation of the intent to keep the seized property is

needed. The Code of Federal Regulations provides that an

“administrative forfeiture proceeding”2 commences, as

relevant here, “when the first personal written notice” of the

seizure is sent to interested parties. 28 C.F.R. § 8.8. The

Majority makes the footnoted assertion, at the government’s

urging, that, “although CAFRA does not specify the content

of nonjudicial forfeiture notices, a letter that explicitly

disavows any intent to initiate a forfeiture surely cannot

2

The regulations define an “administrative forfeiture”

as “the process by which property may be forfeited by a

seizing agency rather than through a judicial proceeding,” and

provide that the term “nonjudicial forfeiture” as used in § 983

bears the same meaning. 28 C.F.R. §§ 8.2, 9.2.

2

suffice.” (Majority Op. at 17 n.5.) I disagree. In my view,

the simple omission of the word “forfeiture” from the

government’s notice – when that notice did in fact assert the

functional equivalent of a forfeiture – does not avoid the

deadlines and protections of CAFRA. When (as here) the

government seizes property, asserts its title, and tells the

previous owner that it will never return the property, that

should surely suffice to trigger a “nonjudicial forfeiture

proceeding.”3

It is noteworthy that, in teaching Department of Justice

attorneys the proper contours of forfeiture policy, the 2016

Department of Justice Asset Forfeiture Policy Manual

cautions its attorneys not to use formalistic distinctions to try

to bypass CAFRA’s statutory deadlines. That manual

provides that, even though CAFRA’s 90-day deadline may

not apply to property subject only to judicial forfeiture, in a

case involving such seized property, “the prosecutor should

treat [a seized asset claim] as if it were a ‘claim’ referred to in

section 983(a)(3)(A) …, and should thus commence a judicial

forfeiture action within 90 days of the receipt of the request.”

Department of Justice Asset Forfeiture and Money

Laundering Section, Asset Forfeiture Policy Manual at 58

(2016), available at https://www.justice.gov/criminal-afmls/

3

Further, the government’s claim that it did not need

to engage in a forfeiture proceeding because the Double

Eagles were its own property is a logical box that I, like the

Majority, will decline to step into. (See Majority Op. at 13

n.3.) That dubious position both assumes the truth of the

government’s allegation without any requirement of proof

and gives the government the power to unilaterally define

when there is and is not a forfeiture.

3

file/839521/download. The Manual establishes that deadline

for judicial forfeiture because,

[i]f the Government were to seize property for

forfeiture in a situation where administrative

forfeiture was authorized, but then ignore the

60- and 90-day deadlines in sections 983(a)(1)

and (3) on the ground that it intended all along

to skip over the administrative forfeiture

process and proceed directly with a judicial

forfeiture, courts might suspect that the

Government was actually conjuring an ad hoc

excuse for missing the statutory deadlines, or

had decided to bypass the administrative

forfeiture proceeding for the express purpose of

circumventing the statutory deadlines and the

underlying congressional intent.

Id. at 57. That is an insight worth mulling over.

The Majority’s careful distinction between a “seizure”

and a “forfeiture” – that the former transfers possession while

the latter transfers title – is certainly correct. (Majority Op. at

18-19.) But a seizure will often be a component of a

forfeiture. And that distinction is of limited utility here,

because when the government seized the disputed coins it

simultaneously asserted that it had no intention to seek

forfeiture since it already had title. In other words, the

government took possession and, in doing so, asserted title. It

is difficult to square the Majority’s distinction between

seizure and forfeiture on this record, when the government

took the coins and said that it had both possession and title.

Under these circumstances, the government’s claim of

4

ownership and the manifestation of its intent to retain

indefinite possession of the coins was, in my view, sufficient

to initiate a nonjudicial forfeiture proceeding.

All of this accords with common sense because, in the

absence of some clear description of what a notice must

contain or how a nonjudicial forfeiture proceeding starts, the

reasonable default conclusion is that it begins when the

government takes your property and refuses to ever give it

back – in short, when there is a seizure accompanied by some

manifestation of an intent to claim ownership. I thus am

inclined to agree with Judge Rendell that, when CAFRA

speaks of a “nonjudicial forfeiture proceeding,” it is not

referencing some formal administrative action with the

trappings of a quasi-judicial proceeding. The statute is using

that phrase as a shorthand recognition that law enforcement

agencies can and do leave the courts out of the process of

taking and keeping property when it appears that no one else

is claiming an interest in the property. As the Majority itself

recognizes, “[n]onjudicial forfeitures ... ‘permit[] the United

States to determine whether property in its custody is

unclaimed, and, if it is, to take ownership without the trouble

and expense of court proceedings.’” (Majority Op. at 15 n.4

(quoting Small v. United States, 136 F.3d 1334, 1335 (D.C.

Cir. 1998)). I thus do not accept the premise advanced by the

Majority that, for there to have been a “nonjudicial civil

forfeiture proceeding” in this case, there needed to be some

government action beyond the seizure of the Double Eagles

and the stated intent to retain possession and ownership of

them.4

4

This case presents the circumstance of the

government both taking possession and asserting ownership,

5

The oddity of the government’s decision to initially

forgo any approach to a court in this case is that it was

apparent from the outset there were claimants to the property

in question. Laying claim to the Double Eagles without going

to court was thus a bad idea from the start. Most every

government agency involved here – the U.S. Attorney’s

Office for the District of Columbia, the Secret Service, and

the Department of the Treasury – seemed to share that view.

Every agency except one: the Mint. A nonjudicial approach

to resolving the dispute over ownership should not have been

the option chosen by the government, and, indeed, the District

Court determined that the government’s actions here violated

the Langbords’ constitutional rights, concluding “that the

Government’s belief that the coins had been stolen did not

diminish [the Langbord’s] Fourth Amendment rights and did

not change the nature of the Government’s seizure.” (App.

153.) That conclusion has not been challenged on appeal and

it is supported by the record. The District Court then faced

the difficult decision of determining how to remedy the

constitutional violation while giving both the Langbords and

the government the day in court that should have been sought

in the first instance. The Court’s decision requiring the

government to “promptly initiate a forfeiture action” may or

may not have been appropriate under the circumstances, but

the government’s handling of the dispute was clearly ill-

advised. (App. 157.) The safe and sensible choice would

have been to comply with CAFRA.

which makes the outcome all the clearer to me. But if the

government had simply said “we’ve got the coins and we’re

keeping them,” without reference to ownership or title, I do

not think that would be any less a forfeiture.

6

That reasoning leads me also to reject the Majority’s

characterization of the Langbords’ decision to file a seized

asset claim as being “incongruous[].” (Majority Op. at 17.)

A seized asset claim certainly sounds like the right way to

claim assets that the government has seized, so there was

nothing incongruous about that step. Nor am I persuaded by

the Majority’s assertion that the Langbords’ “seized asset

claim was akin to filing a petition for writ of habeas corpus

on behalf of someone not in custody – mismatched and

ineffective.” (Majority Op. at 18.) To borrow the metaphor,

it seems to me instead that the situation is more like one in

which the government is keeping a habeas claimant locked in

a 6’ by 9’ room while insisting that he is not really in custody.

Just because the government says a person is not in custody

does not make it so. Likewise, the government took custody

of the Double Eagles and would not return them, so its

assertion that what was happening was not a forfeiture of

whatever right the Langbords might have had does not make

that assertion true. I would not go as far as Judge Rendell in

faulting the government for “audacity” (Dissent Op. at 1), but

I do believe we have allowed ourselves to be caught in a

semantic game in this case. Labeled a “forfeiture” or not,

what matters is what happened: the government took the

property, claimed ownership, and kept it; the Langbords

wanted it back. Resolving disputes like that is what forfeiture

proceedings are for. A good argument can be made, and

Judge Rendell has made it, that Congress meant for CAFRA

to be the first option that the government and claimants turn

to when fighting over who gets to keep disputed property.

But the strict deadlines in CAFRA do not always apply

and we have reason to question whether they do here. The

7

reason for doubt is not because the government says, “these

are ours; you stole them.” CAFRA specifically contemplates

property stolen from the government as being subject to

CAFRA’s regime. See 18 U.S.C. § 981(a)(1)(C) (stating that

property “subject to forfeiture” includes the proceeds of

“specified unlawful activity” defined in 18 U.S.C.

§ 1956(c)(7), which includes the offense of theft of

government property under 18 U.S.C. § 641). The reason that

the CAFRA deadlines may not apply is, instead, as noted by

Judge Rendell, that the Double Eagles may be merchandise

valued at over $500,000, instead of being monetary

instruments, so they may be statutorily ineligible for

nonjudicial forfeiture. See 19 U.S.C. § 1607(a); Dissent Op.

at 8-10.

No court has yet addressed that question, and it is an

interesting one, but, unlike the dissenters, I do not see a need

to remand the case for an answer. The unusual facts here

provide an alternative basis for affirming the judgment of the

District Court. As the Majority notes, the government

pursued a proper declaratory judgment action to quiet title to

the Double Eagles “in addition to the court-ordered judicial

forfeiture proceeding.” (Majority Op. at 24 (original

emphasis).) The government did so under a legal theory

independent of its forfeiture claim, “namely, that the

Government was attempting to regain possession of what it

believed to be its own property.” (Id.) Because, in these

particular circumstances, the District Court was within its

discretion in allowing the government to file a declaratory

judgment action in addition to (and not in lieu of) the judicial

8

forfeiture proceeding,5 there is no need for us to assess the

propriety of the forfeiture action itself. Even if the

government violated CAFRA, the fact that the disputed

property (allegedly) belonged to it all along allowed it to seek

a separate declaratory judgment in its capacity as the

property’s purported rightful owner. Given the unusual

procedural and factual background of this case, any errors in

the forfeiture proceeding did not infect the distinct

declaratory judgment action. That is all we need to say, and

judicial restraint counsels that we go no further. Cf. PDK

Labs, Inc. v. Drug Enf’t Admin., 362 F.3d 786, 799 (D.C. Cir.

2004) (“[I]f it is not necessary to decide more, it is necessary

not to decide more.”) (Roberts, J., concurring in part and

concurring in judgment).

In short, because a separate action to quiet title was

permissible in this unusual context, we need not venture into

the CAFRA thicket. I emphasize, however, that my

agreement that there is an independent and adequate basis on

which to affirm here should not be taken as an endorsement

of the government’s ignoring the statutorily provided

mechanisms for forfeiture. The approach taken by the Mint is

one that ought not be repeated.

I concur in the balance of the Majority’s opinion and

in its judgment.

5

I fully agree with Part IV.B.3 of the Majority’s

opinion, which explains why “the District Court committed

no error when it allowed the Government to amend its

counterclaim” to add the declaratory judgment claim.

(Majority Op. at 29.)

9

RENDELL, Circuit Judge, dissenting with whom McKEE,

Chief Judge and KRAUSE Circuit Judge join:

I respectfully dissent from Part IV.A of the majority’s

opinion. The majority’s reasoning as to why CAFRA’s

nonjudicial forfeiture provisions do not apply here is at best

cryptic and, at worst, sets an incorrect and dangerous

precedent that would allow the Government to nullify

CAFRA’s provisions at will. In effect, the majority holds that

the Government did not commence a nonjudicial forfeiture

proceeding, and thus avoided the dictates of CAFRA, based

mainly on its buy-in to the Government’s audacity—the

Government’s say-so that it owned the 1933 Double Eagles

and had no intention of forfeiting them. But in reaching this

unprecedented result, the majority not only disregards how

CAFRA works and what actually happened here, but also

renders CAFRA’s protections largely meaningless and defies

Congress’s intent in passing the statute.

I.

This case involves precisely the type of situation that

CAFRA was enacted to prevent: the Government’s seizing

and taking ownership of property in derogation of the rights

of ordinary citizens. Indeed, Congress passed CAFRA to

“level[] the playing field between the government and

persons whose property has been seized.” United States v.

Real Prop. in Section 9, 241 F.3d 796, 799 (6th Cir. 2001).

To that end, CAFRA imposes deadlines on the Government

for commencing a nonjudicial forfeiture proceeding of seized

property and for filing a judicial forfeiture action in response

to a citizen’s timely claim to that property—not to mention

deterrent penalties for missing those deadlines.

1

A nonjudicial forfeiture proceeding under CAFRA is

not a “proceeding” in the true sense of the word, but, rather, a

statutory scheme. That scheme is commenced when the

Government seizes property and notifies all interested parties

within “60 days . . . of the seizure,” 18 U.S.C. §

983(a)(1)(A)(i), that it intends to keep the property as its own

“without the trouble and expense of court proceedings,” Small

v. United States, 136 F.3d 1334, 1335 (D.C. Cir. 1998). If no

one submits a timely claim to the property in response

(known as a “seized asset claim”), the Government can issue

a “declaration of forfeiture . . . [that has] the same force and

effect as a final decree and order of forfeiture in a judicial

forfeiture proceeding in a district court of the United States.”

19 U.S.C. § 1609(b). But if someone asserts a timely seized

asset claim, the nonjudicial forfeiture proceeding ceases, and

the Government has 90 days to file a judicial forfeiture action,

18 U.S.C. § 983(a)(3)(A), in which it then bears the burden of

proving its right to the property, id. § 983(c)(1). If the

Government does not file a timely action, though, it must

“promptly release the property . . . and may not take any

further action to effect the civil forfeiture of such property in

connection with the underlying offense.” Id. § 983(a)(3)(B).1

1

The cases cited by the majority, though not decided

under CAFRA, confirm that the nonjudicial forfeiture scheme

generally operates this way. See, e.g., Taylor v. United States,

483 F.3d 385, 387–88 (5th Cir. 2007); United States v.

Miscellaneous Firearms, 376 F.3d 709, 711 (7th Cir. 2004);

United States v. Dusenbery, 201 F.3d 763, 765–66 (6th Cir.

2000); Boero v. DEA, 111 F.3d 301, 304 (2d Cir. 1997);

Floyd v. United States, 860 F.2d 999, 1008 (10th Cir. 1988).

2

The majority ignores how CAFRA’s scheme applies

here—notwithstanding that the events fit within it in lockstep.

The Government seized the 1933 Double Eagles when it

failed to honor the Langbords’ July 25, 2005, letter requesting

their return and instead “decided to keep [them] for [its] own

purposes.” Langbord v. U.S. Dep’t of Treasury, 645 F. Supp.

2d 381, 392 (E.D. Pa. 2009). Next, on August 9, 2005, within

60 days of seizing the 1933 Double Eagles, see 18 U.S.C. §

983(a)(1)(A)(i), the Government sent a letter to the

Langbords notifying them that it intended to keep these

items—without a court proceeding—because they allegedly

“already are, and always have been, property belonging to the

United States.” App. 823.2 To be sure, in this letter the

Government disclaimed any intent to forfeit the 1933 Double

Eagles. See id. But this statement alone cannot preclude the

letter from constituting notice of the Government’s intent to

nonjudically forfeit them. See 18 U.S.C. § 983(a)(1)(A)(i)

(requiring only that “notice shall be sent in a manner to

achieve proper notice”); Stefan D. Cassella, Asset Forfeiture

Law in the United States 173 (2d ed. 2013) (“Section

983(a)(1)(A)(i) is silent as to the content of the notice.”). And

2

It is indisputable that allegedly stolen Government

property is subject to forfeiture. See 18 U.S.C. § 981(a)(1)(C)

(property is subject to forfeiture if it “constitutes or is derived

from proceeds traceable to . . . any offense constituting

‘specified unlawful activity’ (as defined in section 1956(c)(7)

of this title)”); id. § 1956(c)(7)(D) (“[S]pecified unlawful

activity” includes “an offense under . . . section 641 (relating

to public money, property, or records)”); id. § 641

(criminalizing the theft or embezzlement of any “thing of

value of the United States or of any department or agency

thereof”).

3

in response to this notice, the Langbords filed a timely claim,

terminating the nonjudicial forfeiture proceeding and

triggering the Government’s obligation to file a judicial

forfeiture action within 90 days and prove its right to the 1933

Double Eagles. But it did not.3

The majority concludes that the Langbords failed to

trigger the 90-day deadline with their seized asset claim

because the Government chose not to initiate forfeiture

proceedings against the 1933 Double Eagles. It reasons that

“the Government determined that it was not obliged to initiate

forfeiture proceedings against the 1933 Double Eagles

because it had merely repossessed its own property” and “[i]n

3

Consider what would have happened if the

Langbords had not filed a timely seized asset claim but had

filed a replevin action a few months after the Government’s

notice. Despite the Mint’s stated position that it was not

seeking forfeiture, is there any doubt that it would have

argued that the Langbords were barred under CAFRA from

claiming the 1933 Double Eagles because they had been

nonjudicially forfeited due to the Langbords’ failure to file a

timely seized asset claim? The Government cannot have it

both ways.

Indeed, I suggest that the Mint’s statement that it did

not intend to pursue forfeiture proceedings meant that it did

not intend to file an unprompted judicial forfeiture complaint.

Every agency involved in this saga other than the Mint

advised the Mint that it should bring a judicial forfeiture

action from the outset. See App. 818. Yet the Mint decided

not to do so and instead commenced a nonjudicial forfeiture

proceeding by notifying the Langbords that it intended to

keep the 1933 Double Eagles without any court proceeding.

4

fact . . . explicitly disclaimed any intent to forfeit the[m].”

Majority Op. 16. Instead, the majority notes, “the

Government asserted its ownership rights to the coins.” Id.

17. It thus holds that the Government never took any steps to

commence a nonjudicial forfeiture proceeding against the

1933 Double Eagles, and so the Langbords’ seized asset

claim was “mismatched” and “ineffective,” likening it to the

filing of a writ of habeas corpus on behalf of someone not in

custody. Id. 18.4

But that approach enables the Government to nullify

all of CAFRA’s protections merely by asserting its ownership

of property and lack of intent to forfeit that property.

Congress cannot have intended this result. See Civil Asset

Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114

Stat. 202 pmbl. (CAFRA’s purpose is “[t]o provide a more

just and uniform procedure for Federal civil forfeitures”);

United States v. Khan, 497 F.3d 204, 208 (2d Cir. 2007)

(Congress passed CAFRA “to deter government

overreaching”); United States v. Martin, 460 F. Supp. 2d 669,

672 (D. Md. 2006) (“CAFRA was enacted in 2000 to curb

what Congress perceived as abuses of the existing civil

forfeiture system.”). Rather, to stay true to Congress’s intent,

we must focus on what actually occurred here: the

Government seized property that is, by statute, subject to

4

The majority’s second line of reasoning relies on two

cases, Mantilla v. United States, 302 F.3d 182 (3d Cir. 2002),

and United States v. $8,221,877.16 in U.S. Currency, 330

F.3d 141 (3d Cir. 2003). These non-CAFRA cases support the

unremarkable proposition that a seizure does not necessarily

commence a forfeiture proceeding, and they do not determine

the outcome of this case.

5

forfeiture, see supra note 2, with the intent to keep that

property permanently and without a court proceeding, and so

notified the Langbords. Clearly, then, a nonjudicial forfeiture

proceeding was in process before the Langbords filed their

seized asset claim, which should have triggered the filing of a

judicial forfeiture complaint by the Government within 90

days, see 18 U.S.C. § 983(a)(3)(A).5

Accordingly, because the Government’s failure to file

a judicial forfeiture action within 90 days of the Langbords’

5

The Government’s claim that the 1933 Double

Eagles belong to the United States, after all, is just that, and

the validity of that claim is the very question to be answered

by a forfeiture proceeding, not by the Government’s say-so.

That CAFRA expressly provides for an “innocent owner

defense,” see 18 U.S.C. § 983(d)(1) (providing that “[a]n

innocent owner’s interest in property shall not be forfeited

under any civil forfeiture statute”), drives home that where

there is any colorable claim of a legitimate property interest

by the claimant-possessor, the validity of the asserted interest

needs to be determined through a forfeiture proceeding.

Allowing the Government’s self-declaration of its own

property interest to be conclusive puts the forfeiture cart

before the horse. Were it otherwise, the Government might

well assert that its pre-existing title to seized property enables

it to avoid CAFRA in any number of situations. See, e.g., id.

§ 981(f) (“All right, title, and interest in property described in

subsection (a) of this section [i.e., forfeitable property] shall

vest in the United States upon commission of the act giving

rise to forfeiture under this section.”); but cf. United States v.

92 Buena Vista Ave., 507 U.S. 111, 124–29 (1993) (plurality

opinion) (explaining that an identical provision in 21 U.S.C. §

881(h) does not confer title until forfeiture has been decreed).

6

timely seized asset claim barred it as a matter of law from

taking any further action to forfeit the 1933 Double Eagles,

see 18 U.S.C. § 983(a)(3)(B), the District Court erred in

permitting the Government to later file its declaratory

judgment and judicial forfeiture actions.6 Instead, the District

Court should have ordered the 1933 Double Eagles returned

to the Langbords pursuant to the statutory directive. I would

therefore reverse the District Court’s order.

6

I respectfully disagree with Judge Jordan’s view in

his concurrence that, even if the Government violated

CAFRA’s 90-day deadline, it was still permitted to bring its

declaratory judgment action seeking to quiet title to the 1933

Double Eagles. He and the majority justify the Government’s

declaratory judgment action because it was purportedly based

on a legal theory independent of the forfeiture claim. At

bottom, though, in both claims, the Government sought to

quiet title to the 1933 Double Eagles. See United States v.

McHan, 345 F.3d 262, 275 (4th Cir. 2003) (“[T]he purpose of

a quiet title action is to determine which named party has

superior claim to a certain piece of property.” (internal

quotation marks omitted)). The forfeiture claim and

declaratory judgment action were thus “essentially predicated

upon the same cause of action,” Algrant v. Evergreen Valley

Nurseries Ltd. P’ship, 126 F.3d 178, 185 (3d Cir. 1997), and

because the Government was not permitted to “take any

further action to effect the civil forfeiture of such property,”

18 U.S.C. § 983(a)(3)(B) (emphasis added), as a matter of

law it was not allowed to circumvent CAFRA’s 90-day

deadline “by ‘[d]raping [its] claim in the raiment of the

Declaratory Judgment Act,’” Algrant, 126 F.3d at 185

(quoting Gilbert v. City of Cambridge, 932 F.2d 51, 58 (1st

Cir. 1991)).

7

II.

But we must address another issue as to the

applicability of CAFRA’s nonjudicial forfeiture provisions

here. Even though the Government’s seizure and notice

usually commence the nonjudicial forfeiture scheme, some

property is ineligible for nonjudicial forfeiture. The

Government has urged that the 1933 Double Eagles are

ineligible for nonjudicial forfeiture because they are

“merchandise” whose value “exceed[s] $500,000” and not

“monetary instrument[s].” 19 U.S.C. § 1607(a); id. § 1610. If

that is true, the Langbords’ seized asset claim would have

been ineffective to trigger the 90-day deadline. See 18 U.S.C.

§ 983(a)(2)(A) (claim can be filed only by a “person claiming

property seized in a nonjudicial civil forfeiture proceeding”).

And, thus, the judicial forfeiture initiated by the Government

in 2009 would have been timely because § 983(a)(3)(A) did

not apply.

This issue should give us pause. The definition of

“monetary instruments” includes, among other things,

“United States coins and currency,” “travelers’ checks,” and

“bearer securities.” 31 U.S.C. § 5312(a)(3). Did Congress

intend that “monetary instrument” should encompass only

currency in circulation and liquid assets that constitute

substitutes for currency? See H.R. Rep. No. 91-975, at 22

(1970) (discussing a statute requiring domestic financial

institutions to report certain transactions involving “monetary

instruments” and stating that “[i]t is not the intention of your

committee . . . that [monetary instruments] be expanded any

further than necessary to cover those types of bearer

instruments which may substitute for currency”). On the other

8

hand, the 1933 Double Eagles are rare, uncirculated coins

whose seemingly immense value derives from their status as

collector’s items. Viewed in this way, they would be not

monetary instruments but, instead, merchandise possibly

worth over $500,000, which is ineligible for nonjudicial

forfeiture.

This is a threshold issue that must be decided—one

that cuts to the very applicability of CAFRA’s nonjudicial

forfeiture scheme.7 Nevertheless, although it was presented to

the District Court, it was never addressed there, let alone

decided. We should therefore remand to the District Court for

it to make the initial ruling on this issue.8

Thus, I urge that CAFRA’s nonjudicial forfeiture

scheme was set in motion here and would require that the

1933 Double Eagles be returned to the Langbords under 18

U.S.C. § 983(a)(3)(B). But that result should follow only if

the District Court decides that CAFRA’s nonjudicial

forfeiture scheme even applied to them. I suggest that remand

7

See, e.g., In re Funds on Deposit, 919 F. Supp. 2d

169, 174–75 (D. Mass. 2012) (holding that CAFRA’s

nonjudicial forfeiture scheme did not apply because the

Government seized property that was ineligible for

nonjudicial forfeiture under 19 U.S.C. §§ 1607(a) and 1610).

8

The District Court would decide (1) whether the 1933

Double Eagles are merchandise or U.S. coins and currency;

and (2) if merchandise, whether they are in fact worth over

$500,000. While there is evidence in the record suggesting

this valuation, it was never an issue that was vetted or decided

in the District Court.

9

is the appropriate disposition in the first instance and,

therefore, respectfully dissent.

10