Boggs, J.S.G. v. Rubin, Robert E. ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 1998 Decided November 6, 1998
No. 97-5313
J.S.G. Boggs,
Appellant
v.
Robert E. Rubin, Secretary of the Treasury, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 93cv01845)
Kent A. Yalowitz argued the cause for appellant. With him
on the briefs were Dennis G. Lyons and Stephen Sacks.
Philip W. Horton entered an appearance.
Scott S. Harris, Assistant U.S. Attorney, argued the cause
for appellees. With him on the brief were Wilma A. Lewis,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attor-
ney.
Before: Ginsburg, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Separate opinion, concurring in part and dissenting in part,
filed by Circuit Judge Rogers.
Sentelle, Circuit Judge: Appellant J.S.G. Boggs, who
describes himself as an internationally-recognized artist, cre-
ates images of currency which he uses in transactions de-
signed to explore the meaning and value of money. He
appeals from a district court grant of summary judgment
ruling that his reproductions of United States currency vio-
late federal counterfeiting statutes, making them contraband
per se and forfeit as a result. Boggs raises three claims of
error before this court. First, he argues that his "Boggs
Bills" are protected by the First Amendment, and that this
case is controlled by the line of cases creating increased pre-
seizure procedural safeguards for expressive materials. Be-
cause those safeguards were not observed, he argues, it was
improper for the district court to reach a judgment on the
merits. Second, he argues that the district court erred by
conducting an in camera, ex parte examination of his work
when ruling on cross-motions for summary judgment. Final-
ly, he contends that the court below applied the wrong
standard in determining that the bills are counterfeit. Boggs
argues that these errors require us to order the government
to return his artwork, or grant him an adversarial hearing in
open court. We disagree. The district court correctly stated
and, so far as we can tell from the record before us, correctly
applied the appropriate standards in this case. We affirm for
the reasons stated below.
I. Background
The extensive factual background has been discussed in
detail in Boggs v. Bowron, 842 F. Supp. 542, 544-46 (D.D.C.
1993), aff'd, 67 F.3d 972 (D.C. Cir. 1995) (unpublished table
decision), and Boggs v. Merletti, 987 F. Supp. 1, 3-6 (D.D.C.
1997), and we need not reiterate it here. We supply only the
detail necessary to explain our decision. Art is supposed to
imitate life, but when the subject matter is money, if it
imitates life too closely it becomes counterfeiting. Boggs
creates trompe l'oeil (so lifelike as to fool the eye) images of
U.S. currency with alterations such as substituted names or
pictures, or non-existent denominations, but generally with
the same size, shape, layout and color as legal tender. Boggs
then barters his drawings in return for goods and services.
He has spent thousands of his pictures as currency since he
began this project. No one contends that Boggs intends to
defraud his customers. Boggs explains to the people receiv-
ing his bills that he is an artist and that the bills are not real
cash. He then engages them in a discussion on the value of
money and the social and political institutions that underlie
the system of exchange. But the transactions do not end
there. Boggs's ultimate customers come to him to purchase
the entire transaction. Boggs gives them a receipt for the
goods he purchased, the change he received, and the name of
the person who accepted his "Boggs Bills" as payment. The
buyer goes to the holder of the Boggs Bill and negotiates a
purchase price. Boggs then works with the buyer, putting
together a display including the art work, the receipt and the
change.
Because of the nature of his work, Boggs has drawn the
attention of the counterfeiting investigators of the Secret
Service on many occasions, although he has never been
criminally prosecuted. This case arose because in two sepa-
rate events, in Cheyenne, Wyoming, in 1991 and Pittsburgh,
Pennsylvania, in 1993, Secret Service agents seized Boggs's
artwork as contraband counterfeit bills violating the require-
ments of 18 U.S.C. s 474.
In Cheyenne, Secret Service agents were told that Boggs
had tried to buy goods at a local Kmart, explaining that he
wanted to get face value for a $100 Boggs Bill. A Secret
Service agent and the U.S. Attorney for the District of
Wyoming visited his hotel room without a warrant and, after
what Boggs characterized as tense negotiations conducted
under the threat of arrest, fifteen Boggs Bills were taken
from his hotel room. Boggs was never criminally prosecuted.
In Pittsburgh, Boggs planned to proceed on a much gran-
der scale. He conceived and publicized "Project Pittsburgh,"
his plan to spend $1 million in Boggs Bills in the Pittsburgh
area, asking each recipient to pass the bill 5 times before
taking it out of circulation. In November 1992, officials from
the United States Attorney's office and the Secret Service
met and discussed Boggs's plans. The group decided that
Boggs could not be allowed to distribute $1 million in Boggs
Bills. Secret Service agents acting pursuant to warrants
seized more than 1,300 items from Boggs's home and studio.
Boggs requested the return of all of his property, exhaust-
ed his administrative remedies and began this action.
II. Proceedings in the District Court
Boggs filed an action in the district court on September 3,
1993, seeking an injunction against prosecution and the re-
turn of the Boggs Bills seized in Cheyenne and Pittsburgh.
On December 9, 1993, the district court denied the prelimi-
nary injunction and refused to enjoin future prosecution. See
Bowron, 842 F. Supp. at 562-63. The district court also ruled
that 18 U.S.C. ss 474 and 504 are constitutional on their face
and as applied. Boggs filed an interlocutory appeal with this
court on the First Amendment issue, seeking a ruling that the
First Amendment prevented the counterfeiting sections from
applying to his work. In October, 1995, on interlocutory
appeal we upheld the district court's decision that the statute
was constitutional. We affirmed the district court's denial of
injunctive relief and remanded. See Boggs v. Bowron, 67
F.3d 972 (D.C. Cir. 1993) (unpublished table decision).
Following remand, both parties made cross-motions for
summary judgment. Boggs argued that the warrantless sei-
zure in Cheyenne and the seizure without a prior hearing in
Pittsburgh violated heightened First Amendment procedural
guarantees for presumptively expressive materials, and that
the appropriate remedy was return of the seized goods.
Boggs also argued that the heightened standards previously
applied in obscenity cases, including the right to a pre-seizure
adversarial hearing, should have been applied in this case.
The government argued that the First Amendment's height-
ened standards do not apply, and that a judicial hearing is not
constitutionally required after the seizure of counterfeit cur-
rency. The government also argued that it could not be
required to return the Boggs Bills because they are contra-
band prohibited by 18 U.S.C. ss 474 and 481.
Boggs moved for a hearing in open court to determine if
the bills were contraband per se and was denied one by the
district court. On October 23, 1997, the district court inspect-
ed in camera all of the Boggs Bills seized in Pittsburgh. The
court agreed with the Secret Service that certain bills were
contraband within the meaning of sections 474 and 481 of the
criminal code, and that they could not be returned to Boggs.
The district court therefore granted the government's motion
for summary judgment and dismissed the case with prejudice.
III. Analysis
A.Contraband per se
We need not determine whether the Cheyenne seizure was
legal under the Fourth Amendment because Boggs does not
challenge the premise that if the seized bills violate the
likeness or similitude standards in 18 U.S.C. s 474, they are
contraband per se and cannot be returned. Contraband per
se comprises objects which are inherently unlawful to possess,
regardless of how they are used. As we explain below, the
Boggs Bills in this case fall within that category. The district
court properly noted that "[i]ndividuals have no property
right in contraband materials and contraband materials may
not be returned to them." Merletti, 987 F. Supp. at 10. This
Circuit addressed the issue in United States v. Farrell, 606
F.2d 1341, 1344 (D.C. Cir. 1979):
Decisional law recognizes two kinds of contraband.
Traditional or per se contraband is defined as "objects
the possession of which, without more, constitutes a
crime." One 1958 Plymouth Sedan v. Pennsylvania, 380
U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965).
It is well established that a claimant has no right "to
have [per se contraband] returned to him." United
States v. Jeffers, 342 U.S. 48, 54, 72 S.Ct. 93, 96, 96 L.Ed.
59 (1951); Trupiano v. United States, 334 U.S. 699, 710,
68 S.Ct. 1229, 92 L.Ed. 1663 (1948).
We now turn to whether the District Court correctly found
that the Boggs Bills were contraband per se.
B.First Amendment Considerations
The main thrust of Boggs's argument is not that the
district court erred in its determination that the Boggs Bills
violate the statutory requirements, but rather that the district
court erred in looking at the bills at all. Boggs argues that
special procedures established by the Supreme Court under
the First Amendment protecting books and films in obscenity
cases apply with equal force to his artwork. The Supreme
Court has indeed held law enforcement officers to a higher
standard when presumptively expressive materials are in-
volved because of the risk of prior restraint and censorship.
See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63
(1989) (recognizing the risk of prior restraint); see also
Roaden v. Kentucky, 413 U.S. 496, 501 (1973) (holding that
seizure of expressive materials in some instances requires
additional safeguards); Heller v. New York, 413 U.S. 483,
491-92 (1973); Huffman v. United States, 470 F.2d 386, 392
(D.C. Cir. 1971). Boggs suggests that the Secret Service
should have met more stringent warrant requirements and
that he should have been granted a prior adversarial hearing
before an independent judicial officer. We disagree.
The cases Boggs cites are all obscenity cases, where signifi-
cant judgment was needed to determine if the seized materi-
als violated community standards. We need not determine
the range of cases to which additional protection would apply.
We simply hold that on the facts before us, they do not. The
important First Amendment concerns advanced by the Su-
preme Court in the obscenity cases are not present to the
same extent here. Boggs's artwork is designed to look like
money. While some judgment is needed on the part of the
officers charged with enforcing the counterfeiting statutes,
the inquiry is not inherently content-based and thus poses
little risk of acting as a prior restraint on expressive materi-
als.
C.In Camera Examination
Boggs objects to the district court's in camera examination
of the bills when ruling on the motions for summary judg-
ment. He also alleges that there may have been inappropri-
ate ex parte communication between the government and the
district court when the Boggs Bills were submitted. We hold
that he has no right to have the evidence examined in open
court on motions for summary judgment. See Spark v.
Catholic Univ. of Am., 510 F.2d 1277, 1280 (D.C. Cir. 1975)
(district court may "dispense with oral arguments in appro-
priate circumstances in the interest of judicial economy").
The district court awarded summary judgment in this case in
accordance with Fed. R. Civ. P. 56(c) which states that "[t]he
judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." It is
common practice for trial judges to examine not only written
evidence, but also exhibits when deciding if there is a genuine
issue of material fact. The existence of the specific bills is
not a genuine issue of fact. The district court was applying
the law to the bills before it to determine if they violated the
counterfeiting statutes and were forfeit as contraband. We
find nothing unusual in the district court conducting an in
camera examination of the relevant evidence here. It ap-
pears that the district court properly examined the items
submitted to it by the Secret Service, and there is nothing in
either the district court's memorandum opinion or the record
to suggest that it relied on any ex parte communication in
reaching its decision.
Boggs now complains that he cannot tell from the record
what was submitted, but he received notice from the govern-
ment listing the items submitted. See Defendants' Notice of
In Camera Submission, reprinted in Joint Appendix at 263
(listing the materials being presented to the court). Boggs
was free to request access to the materials at that time. He
did not. He failed to make a timely objection to the submis-
sion below, and did not move to supplement the record here
under Fed. R. App. P. 10(e) or otherwise. If there was error,
we hold that it was insignificant and Boggs could have
avoided any ill effect by proper motion below.
D.Wrong Standard
Finally, we find that Boggs's argument that the district
court applied the wrong standard has no merit. We have
already considered and upheld the district court's constitu-
tional analysis. We now hold that the district court correctly
stated the standard under 18 U.S.C. s 492, which provides in
pertinent part:
All counterfeits of any coins or obligations or other
securities of the United States or of any foreign govern-
ment, or any articles, devices, and other things made,
possessed, or used in violation of this chapter or of
sections 331-333, 335, 336, 642 or 1720, of this title, or
any material or apparatus used or fitted or intended to
be used, in the making of such counterfeits, articles,
devices or things, found in the possession of any person
without authority from the Secretary of the Treasury or
other proper officer, shall be forfeited to the United
States.
The district court correctly found that the statute prohibits
the possession of bills made or executed after the similitude
of United States obligations. Examining certain of the bills
seized in Pittsburgh, the district court concluded that
all of the items that the Secret Service contends are
contraband are, to this court's satisfaction, reproductions
of genuine currency of the United States or reproduc-
tions of genuine foreign currency. Each are in the
likeness and similitude of genuine currency and therefore
in violation of 18 U.S.C. ss 472 or 481. Each reproduc-
tion has the general design and appearance of genuine
United States or foreign currency. None of the pieces in
dispute meet the size and coloration exemptions of 18
U.S.C. s 504 and 31 C.F.R. 411.1. This court is there-
fore compelled to hold that [the disputed items] are
contraband. These items are therefore forfeited to the
United States without the necessity of forfeiture proce-
dures.
Merletti, 987 F. Supp. at 11. The district court properly
applied the same analysis regarding the bills seized in Chey-
enne.
Boggs now asks us to overturn the district court's grant of
summary judgment on the merits. On brief, he opposed the
government's offer to present the Boggs Bills to this court,
only changing his position during oral argument. After oral
argument, he moved to supplement the record, and now asks
that he be allowed to argue the merits of the district court's
determination that the bills violate the counterfeiting statute.
This is simply too late in the appellate process, and we hold
that he has waived any right to our full examination of the
evidence. Rule 28(a)(4) of the Federal Rules of Appellate
Procedure requires that the appellant's argument "contain
'the contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the
authorities, statutes and parts of the record relied on.' " See
Carducci v. Regan, 714 F.2d 171 (D.C. Cir. 1983) (refusing to
determine issue that had not been fully briefed by parties).
If Boggs wished this court to make a full reexamination of the
merits of the grant of summary judgment, it was his duty as
appellant to request that this court do so and present argu-
ment on that question. We will not consider at this late stage
an argument that the appellant failed to raise.
IV. Conclusion
We conclude that the district court did not err either in the
procedure it followed or the standard it applied in ruling on
the motions for summary judgment before it and concluding
that the bills it examined were forfeit as contraband. The
judgment of the district court is affirmed.
Rogers, Circuit Judge, concurring in part and dissenting in
part: The court affirms on de novo review the district court's
grant of summary judgment by concluding that "art" it has
never seen is "so far as we can tell" contraband per se. See
opinion at 2. Boggs should not be too surprised by this
result, as his appeal focused on his First Amendment proce-
dural claim without explicitly contending that his art does not
meet the statutory definition of counterfeit currency. Rather,
he contended that the district court applied the wrong stan-
dard in concluding his art was counterfeit under 18 U.S.C.
s 474. But on de novo review, where this court "sits in the
same position as the district court,"1 we cannot truncate
Boggs' contentions as quickly and neatly as the court would
like.
Implicit in Boggs' challenge to the manner in which the
district court reviewed his work and the gloss the court
imposed on 18 U.S.C. s 474 is the assumption that if he does
not prevail on these claims, the question of the legal status of
his bills will remain open for the court. Indeed, the first
paragraph of his argument in his brief cites a decision from
this court noting that we have an obligation to make an
independent examination of the record as a whole in cases
implicating the First Amendment. Appellant's Brief at 15
(citing Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C.
Cir. 1988) (quoting New York Times Co. v. Sullivan, 376 U.S.
254, 284-86 (1964))). In the last paragraph of his brief he
seeks, as an alternative to reversal and prompt return of his
property, further proceedings with respect to the remaining
materials. Id. at 32. Moreover, in its brief the government
relied on the fact that this court must "undertake its own
independent analysis ... of whether the bills in question are
'in the likeness of' or 'after the similitude of' genuine currency
within the meaning of Criminal Code s 474" in maintaining
that whether the district court viewed the bills in camera "is
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1 Stroup v. GSC Serv. Inc., 938 F.2d 20, 22 (2d Cir. 1991);
Bloomington Nat'l Bank v. Telfer, 916 F.2d 1305, 1307 (7th Cir.
1990); T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987).
simply beside the point to the issue presented to this Court."
Appellee's Brief at 12. In response, Boggs contended that
the government has never demonstrated that each of the
seized items is contraband per se. Reply Brief at 2.
Of course, Boggs might have stated his argument more
clearly by explicitly requesting what he sought implicitly, but
his failure to take the formal step of adding a sentence to his
brief seeking a de novo examination by this court of each
seized item does not warrant the dispositive significance
attached to it by the court. The court's rigid insistence on
formality is particularly inappropriate here because in his
complaint filed in the district court Boggs expressly chal-
lenged the government's "mistaken" interpretation of s 474,
see Complaint at p 21, and he sought a hearing before the
district court to oppose the government's classification of his
art as contraband. Given that this case involves government
regulation--indeed, confiscation--of expressive materials, and
that art may at times imitate reality,2 this court is obliged on
de novo review of the grant of summary judgment to look at
the Boggs bills to determine if they meet the statutory
criteria for counterfeit currency.3
Without viewing the bills, this court cannot determine for
itself whether the district court correctly applied the law, or
__________
2 Labeling a counterfeit bill "art" will not save it from the
Secret Service's incinerator, but at some point, an artwork's loose
resemblance to currency will not strip it of First Amendment
protection. Cf. Regan v. Time, Inc., 468 U.S. 641 (1984) (invalidat-
ing and upholding portions of s 474). Congress struck a balance
between these extremes in s 474, and it falls to this court to
determine whether, in the judgment of Congress, Boggs' art imi-
tates reality too effectively.
3 Our obligation is particularly clear in light of declarations from
an art professor and a museum curator attesting to the artistic
integrity of Boggs' work. A third declaration, from a distinguished
art historian, notes the historical pedigree of Boggs' decision to
create images of money, and reminds us that since as early as 1886,
the sensibilities of American artists and anti-counterfeiting authori-
ties have collided.
even if it applied the correct law. It is not sufficient to rely,
as the court does, see opinion at 8, on the district court's
recitation of the correct statutory standards. Elsewhere in
its opinion, the district court described 18 U.S.C. s 474 as
essentially objective, yet it appears to incorporate a substan-
tial degree of subjectivity.4 In addition, the district court's
findings that a sponge and bow tie are in the "similitude" of
actual currency raise questions about its statutory interpreta-
tion that warrant scrutiny on appeal.
Any doubt that reviewing the Boggs bills is appropriate
should have been dispelled by the government's advocacy of
the same result. In its brief, the government invited this
court to review the bills, and it even brought its trove of
confiscated art to the oral argument. Only at oral argu-
ment--after Boggs orally moved to supplement the record
and the government saw the possibility of affirmance without
exposing the Boggs bills to further judicial scrutiny--did the
government retreat from its prior position of openness. In-
deed, it is somewhat ironic that in an opinion that turns on
the concept of waiver, the court ignores the government's
repeated acceptance of the outcome that the court now deems
Boggs to have foreclosed.
Moreover, reviewing the Boggs bills would not be arduous,
at least not as the court suggests.5 See opinion at 9. If this
court supplements the record, it would be in the same posi-
tion as the district court, which rendered its decision after
viewing the bills without conducting a hearing and apparently
without relying on extraneous source material. The court's
resolution of appellant's First Amendment claim characterizes
s 474 as requiring relatively objective judgments that a law
enforcement officer can make without need for an adversarial
pre-seizure hearing before a magistrate. See opinion at at 6.
If s 474 is as easy to apply as the court says it is, there
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4 No one disputes that Boggs raised a timely challenge to the
district court's interpretation of s 474.
5 Of course, arduousness could hardly be determinative of this
court's responsibility on de novo review.
should be no difficulty in reviewing the Boggs bills without
further argument from the parties. It may well be that
Boggs focused on procedural claims rather than the merits of
the district court's in camera review to postpone an affir-
mance that he may perceive as inevitable, but we will not
know until we look.
The court's reliance on Fed. R. App. P. 28(a), see opinion at
9, is therefore insufficient to abrogate its obligation to review
the Boggs bills de novo.6 As this circuit has noted, Rule 28
does not automatically require ignoring issues that a party
fails to present clearly in its brief. Rather, "substantial
public interests" or the need to avoid an "unduly harsh"
result justify relaxing traditional foreclosure principles. Con-
sumers Union v. Federal Power Comm'n, 510 F.2d 656, 662
n.10 (D.C. Cir. 1975). In such cases, a "balancing of consider-
ations of judicial orderliness and efficiency against the need
for the greatest possible accuracy in judicial decisionmaking"
warrants appellate review of ostensibly waived issues. Id. at
662; see also Columbia Gas Transmission Corp. v. FERC,
844 F.2d 879, 880 (D.C. Cir. 1988).
Because this court is unable to review the district court's
interpretation of s 474--which it purports to affirm--without
viewing the Boggs bills, I would grant Boggs' motion to
supplement the record to include the confiscated Boggs bills
and would view the bills in order to determine de novo
whether they fall within the statutory definition of counterfeit
currency. Accordingly, I dissent from Part III(D) of the
court's opinion.7
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6 The court has authority under Fed. R. App. P. 10(e) to
supplement the record "on its own initiative."
7 With respect to Boggs' claim that the district court erred by
viewing the bills ex parte, I concur in the opinion of the court only
to the extent that its relies on Boggs' failure to seek access to the
bills during the district court proceedings. While the district
court's procedure does not result in reversible error, it is impossible
to characterize ex parte receipt of unknown materials not in the
record as "insignificant." I also concur in the court's holding that
in camera review was otherwise appropriate.