United States v. Twenty-Nine Pre-Columbian & Colonial Artifacts From Peru

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14417
________________________
D.C. Docket No. 1:13-cv-21697-JAL
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TWENTY-NINE PRE-COLUMBIAN AND COLONIAL ARTIFACTS FROM
PERU, et al.,
Defendants,
JEAN COMBE-FRITZ,
Claimant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 2, 2017)
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Before HULL, MARCUS, and CLEVENGER, * Circuit Judges.
PER CURIAM:
Jean Combe-Fritz appeals from the district court’s final judgment of
forfeiture of a number of artifacts confiscated from him by U.S. Customs and
Border Protection (“CBP”) when he arrived at Miami International Airport from
Peru. CBP seized the items pursuant to both the Convention on Cultural Property
Implementation Act (“CPIA”), 19 U.S.C. §§ 2601–13, which limits the importation
of “archaeological and ethnological material” of a foreign State Party; and 19
U.S.C. § 1595a(c), which restricts the importation of items “contrary to law.”
Upon review of the record, and with the benefit of oral argument from counsel for
the parties, we affirm.
I. FACTS & PROCEDURAL HISTORY
Mr. Combe-Fritz, a Peruvian citizen, arrived at Miami International Airport
from Lima, Peru, on August 21, 2010. During Mr. Combe-Fritz’s secondary
screening examination, CBP officers identified a number of items—various
textiles, figurines, and other articles—that were deemed to require further
evaluation from an import specialist. CBP confiscated the items and issued a
Detention Notice and Custody Receipt to Mr. Combe-Fritz. He returned to Peru
shortly thereafter.
*
The Honorable Raymond C. Clevenger, United States Circuit Judge for the Federal
Circuit, sitting by designation.
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On February 15, 2012, CBP issued Mr. Combe-Fritz and his counsel two
separate notices of seizure and possible forfeiture of the seized items. One of the
notices stated that some of the confiscated items were “Archaeological and
Ethnological Material from Peru,” seized pursuant to 19 U.S.C § 2609 and 19
C.F.R. § 12.104e, and subject to summary forfeiture proceedings. The second
notice indicated that other items were “stolen cultural property from Peru” and,
therefore, were seized and subject to forfeiture under 19 U.S.C. § 1595a(c)(1)(A).
Mr. Combe-Fritz submitted a claim of interest for the seized items and paid the
requisite bond, and CBP referred the case to the U.S. Attorney’s office (“the
government”) to initiate judicial forfeiture proceedings. See 19 U.S.C. § 1608.
On May 10, 2013, the government filed a complaint (“first complaint”) for
civil forfeiture in rem against “twenty-nine pre-Columbian and Colonial artifacts
from Peru,” pursuant to 19 U.S.C. § 2609, part of the CPIA. The first complaint
alleged that Dr. Carol Damian, an expert in Latin American and Pre-Columbian
art,” had reviewed the seized items and opined that twenty-nine of them
“appear[ed] to be designated archeological and ethnological material,” the
importation of which is limited under the CPIA. 1 It also alleged that Luis Chang,
Minister Counselor of the Embassy of Peru, had reviewed photographs of the
1
The Fourth Circuit’s case Ancient Coin Collectors Guild v. U.S. Customs & Border
Prot., Dep’t of Homeland Sec., 698 F.3d 171, 175–77 (4th Cir. 2012), provides a concise
overview of the CPIA and its history.
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twenty-nine items and, like Dr. Damian, believed them to be protected articles of
Peruvian cultural heritage, exported without authorization from the government of
Peru.
On July 19, 2013, the government filed a second complaint (“second
complaint”) for civil forfeiture in rem against “Three Artifacts Constituting
Cultural Property from Peru,” pursuant to 19 U.S.C. § 1595a(c)(1)(A).2 The
second complaint alleged that three of the seized items (not included in the first
complaint) were Peruvian cultural property, and, under Peruvian law, the
unauthorized exportation of the defendant property caused ownership of the items
to revert to the government of Peru. As with the first complaint, the second
complaint alleged that Luis Chang had reviewed the three items and believed them
to be the cultural property of Peru, exported without the government’s permission.
Consequently, the government’s second complaint alleged that “the removal of the
defendant property from Peru was illegal; ownership of the property had reverted
to the people of Peru; and the three artifacts constitute property stolen, smuggled or
clandestinely imported into the United States.”
Mr. Combe-Fritz filed verified claims of interest in response to each of the
government’s complaints, and the district court consolidated the cases. On
2
“Merchandise which is introduced or attempted to be introduced into the United States
contrary to law shall be treated as follows: (1) The merchandise shall be seized and forfeited if
it—(A) is stolen, smuggled, or clandestinely imported or introduced . . . .” 19 U.S.C.
§ 1595a(c)(1)(A).
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September 16, 2013, Mr. Combe-Fritz filed a motion to dismiss the consolidated
forfeiture action, arguing that (1) the district court lacked jurisdiction because the
Court of International Trade (“CIT”) possessed exclusive jurisdiction over the
case, (2) CBP’s procedures prior to referring the case to the U.S. Attorney did not
comport with due process, and (3) the government failed to state a claim in its
complaints.
While the motion to dismiss was pending, the district entered a scheduling
order setting discovery deadlines. The government noticed Mr. Combe-Fritz’s
deposition for March 13, 2014. Mr. Combe-Fritz moved to stay discovery until the
district court ruled on his motion to dismiss, but the magistrate judge denied the
stay motion, ordering that the parties proceed with discovery and that Mr. Combe-
Fritz’s deposition “go forward at this time.” The parties repeatedly attempted to
reschedule the deposition, but Mr. Combe-Fritz ultimately cancelled agreed-upon
dates on three occasions, citing concerns that he could be arrested while in the
United States because he had not received a U.S. visa to travel from Peru. The
government noticed Mr. Combe-Fritz’s deposition for June 12, 2014, and filed a
motion to compel his attendance. At the hearing regarding the government’s
motion to compel, Mr. Combe-Fritz’s counsel explained that his client had
received a visa and would attend the June 12 deposition voluntarily.
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On June 6, 2014, the government emailed Mr. Combe-Fritz’s attorney to
review some logistical matters regarding the upcoming deposition, including
advising that counsel explain Mr. Combe-Fritz’s Fifth Amendment privilege to
him ahead of time, in order to avoid confusion and delay. Consequently, Mr.
Combe-Fritz insisted that the government grant him immunity or agree to a
protective order. The government refused, and the scheduled June 12 deposition
was postponed to June 30, but Mr. Combe-Fritz did not appear for his deposition
on this date.
Mr. Combe-Fritz filed three motions on July 3, 2014. First, Mr. Combe-
Fritz filed a motion for a protective order and immunity, seeking limitations on the
use of his deposition testimony and any documents relating thereto. Second, Mr.
Combe-Fritz filed a motion to stay forfeiture proceedings until the resolution of
any criminal inquiry against him. Third, Mr. Combe-Fritz filed a motion to amend
the scheduling order, either by reassigning the case to the “Complex Track,” under
Southern District of Florida Local Rule 16.1(a)(2), (3), or by extending the
discovery deadline.
On August 6 and 7, 2014, the district court denied Mr. Combe-Fritz’s
motion to stay without prejudice, finding his Fifth Amendment concerns “too
speculative and hypothetical,” and denied his motion to amend the scheduling
order. The magistrate judge, however, granted Mr. Combe-Fritz a partial
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protective order, concluding that, despite the government’s representations that
there was no federal criminal investigation pending against him, Mr. Combe-
Fritz’s concerns were “not entirely without merit and [could not] be entirely
discounted.” Therefore, although finding that the “purported grounds for
protective order are largely speculative, conclusory, and vague,” the magistrate
judge ordered that Mr. Combe-Fritz’s deposition testimony and other produced
documents “may be used only in connection with this case” and were not to be
used in any potential criminal investigation. The magistrate judge did not
otherwise limit the government’s conduct of discovery or require the government
to confer immunity to Mr. Combe-Fritz.
On September 11, 2014, the district court denied Mr. Combe-Fritz’s motion
to dismiss, filed in September 2013. The district court concluded that the CIT did
not possess exclusive jurisdiction over the matter, that CBP had complied with its
due process obligations, and that the government had adequately stated a claim in
both of its complaints.
On December 17, 2014, the government moved in limine to preclude Mr.
Combe-Fritz from testifying at trial, in light of his refusal to sit for his deposition.
On January 16, 2015, the government additionally filed a motion for sanctions “up
to and including dismissal of [Mr. Combe-Fritz’s] claim” for discovery
misconduct. The magistrate judge granted the motion in limine on February 3,
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2015, ordering: “[Mr. Combe-Fritz] must appear for his deposition within ten days
of this Order, or he will be excluded from testifying at trial.” The magistrate judge
declined to grant the government’s motion for additional sanctions. Mr. Combe-
Fritz did not appear for his deposition within ten days of the magistrate judge’s
order.
On April 2, 2015, the district court sua sponte issued an order to show cause
why it should not strike Mr. Combe-Fritz’s claims of interest with prejudice. The
district court recited Mr. Combe-Fritz’s repeated failures to sit for his deposition,
the lesser sanctions that had already been considered and applied, and Mr. Combe-
Fritz’s lack of evidence to establish his own standing. The district court
specifically addressed Mr. Combe-Fritz’s self-incrimination concerns:
To the extent that [Mr. Combe-Fritz] has avoided
appearing for his deposition based on a Fifth Amendment
concern that answers to deposition questions might tend
to incriminate him, this would not give him the right to
simply not appear at all for a deposition. Instead it would
give him the ability to assert his Fifth Amendment
privilege on a question-by-question basis at the
deposition. Claimant cannot simply refuse to even appear
for a deposition based on a fear, even if legitimate, of
criminal prosecution based on his deposition testimony.
On May 15, 2015, following responses from both parties, the district court
explained that Mr. Combe-Fritz had “continuously disregarded his discovery
obligations as a party in this case” and that his “complete failure to actively engage
in the discovery process ha[d] prejudiced [the government’s] ability to pursue this
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litigation.” Accordingly, the district court ordered Mr. Combe-Fritz to sit for
deposition in Miami within thirty days (June 15, 2015) or face dismissal of his
claims. On June 11, 2015, Mr. Combe-Fritz filed a motion for reconsideration of
the court’s order compelling his deposition. In the motion, he argued that
appearing for deposition would be a “waste of judicial resources” because he
would be invoking his Fifth Amendment privilege and that the district court’s
order was “unnecessary.” Mr. Combe-Fritz did not appear for his deposition on or
before June 15, 2015.
On August 4, 2015, the district court denied Mr. Combe-Fritz’s motion for
reconsideration and found that he had willfully frustrated the discovery process and
failed to comply with direct court orders—therefore, as a sanction for his discovery
abuses, the district court struck and dismissed his claims of interest with prejudice,
pursuant to Federal Rule of Civil Procedure 37. The district court explained that
the severe sanction was “warranted to ensure the integrity of the discovery process
and the administration of justice.”
The government moved for final judgment of forfeiture on August 14, 2015.
The court granted the motion and entered final judgment on August 24, 2015.
Later the same day, Mr. Combe-Fritz filed a response to the government’s motion
for final judgment and, because the court had already granted the motion, also
requested that the entry of judgment be vacated. The court summarily denied the
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request. Mr. Combe-Fritz moved for reconsideration, which the court also denied
on the grounds that he was no longer a party to the case.
This appeal followed.
II. DISCUSSION
Mr. Combe-Fritz raises a host of complaints regarding the district court’s
rulings. As an initial matter, Mr. Combe-Fritz contends that the district court
lacked subject matter jurisdiction over the action in its entirety because exclusive
jurisdiction lay with the CIT. Additionally, Mr. Combe-Fritz raises challenges to
both CBP’s procedures and the district court’s conduct of the forfeiture litigation—
including the striking of his claims of interest, which resulted in the ultimate
judgment of forfeiture. We discuss these issues in turn.
A. Subject Matter Jurisdiction
We are obligated to consider, as a threshold inquiry, whether subject matter
jurisdiction properly lay with the district court. See United States v. Salmona, 810
F.3d 806, 810 (11th Cir. 2016) (“Without subject matter jurisdiction, a court has no
power to decide anything except that it lacks jurisdiction.”). Questions concerning
a district court’s exercise of subject matter jurisdiction are reviewed de novo.
Mesa Valderrama v. United States, 417 F.3d 1189, 1194 (11th Cir. 2005).
As a general rule, the federal district courts possess original jurisdiction over
forfeiture proceedings, “except matters within the jurisdiction of the [CIT] under
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section 1582 of this title.”3 28 U.S.C. § 1355(a). Mr. Combe-Fritz contends that
the CIT possessed exclusive jurisdiction over the CPIA-based forfeiture, not as a
result of § 1582 but, rather, according to § 1581. Under 28 U.S.C. § 1581(i), the
CIT “shall have exclusive jurisdiction of any civil action commenced against the
United States . . . that arises out of any law of the United States providing
for . . . (3) embargoes or other quantitative restrictions on the importation of
merchandise; or (4) administration and enforcement” of such an embargo or
quantitative restriction. 28 U.S.C. § 1581(i)(3), (4) (emphasis added). Mr.
Combe-Fritz argues that the CPIA effectively creates an embargo by restricting the
importation into the United States of certain foreign goods.
We need not reach the question of whether the CPIA in fact creates an
embargo as recognized by § 1581(i)(3) because we agree with the district court that
the government’s in rem forfeiture action cannot be characterized as a “civil action
commenced against the United States,” a necessary precondition under the statute.
28 U.S.C. § 1581(i). Regardless of his belief that it is legal fiction to label the
twenty-nine items seized under the CPIA as “guilty property,” Mr. Combe-Fritz
cannot overcome the plain fact that the instant forfeiture proceedings were
3
“The [CIT] shall have exclusive jurisdiction of any civil action which arises out of an
import transaction and which is commenced by the United States—(1) to recover a civil penalty
under section 592, 593A, 641(b)(6), 641(d)(2)(A), 704(i)(2), or 734(i)(2) of the Tariff Act of
1930; (2) to recover upon a bond relating to the importation of merchandise required by the laws
of the United States or by the Secretary of the Treasury; or (3) to recover customs duties.” 28
U.S.C. § 1582.
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commenced by the United States, against the defendant property. See United
States v. One-Sixth Share, 326 F.3d 36, 40 (1st Cir. 2003) (“Because civil
forfeiture is an in rem proceeding, the property subject to forfeiture is the
defendant. Thus, defenses against the forfeiture can be brought only by third
parties, who must intervene.”). This was not a case “commenced against the
United States.”
Therefore, the general rule that district courts have original jurisdiction over
forfeiture proceedings brought by the government is properly applied in this case.
B. Rule 37 Sanctions
District courts have broad authority and discretion to fashion sanctions
against parties who fail to engage in discovery (e.g., a party’s failure to attend its
own deposition) or otherwise disobey court orders. See Fed. R. Civ. P. 37(b), (d).
Such sanctions include “striking pleadings in whole or in part” or “rendering a
default judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A); see
also Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987). We have
recognized, however, that “[t]he decision to dismiss a claim or enter default
judgment ‘ought to be a last resort—ordered only if noncompliance with discovery
orders is due to willful or bad faith disregard for those orders.’” United States v.
Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317 (11th
Cir. 1997) (quoting Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir.
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1986)). We review the district’s court imposition of sanctions for abuse of
discretion. Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th
Cir. 2005).
Based on the procedural history recited above, we cannot say that the district
court abused its discretion in striking and dismissing Mr. Combe-Fritz’s claims of
interest. See Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420
F.3d 1317, 1325 (11th Cir. 2005) (“[W]hen employing an abuse of discretion
standard, we will leave undisturbed a district court’s ruling unless we find that the
district court has made a clear error of judgment, or has applied the wrong legal
standard.”). The facts show that, over the course of more than a year, Mr. Combe-
Fritz consistently shirked his obligation to appear for his deposition, depriving the
government of a meaningful opportunity to explore his claims of interest. Despite
having both the government’s assurances that there was no federal criminal
investigation pending against him and a limited protective order from the
magistrate judge, Mr. Combe-Fritz continued to cite hypothetical self-
incrimination concerns as his only reason for not appearing. This was unavailing.
In addition to attempts to accommodate Mr. Combe-Fritz’s Fifth
Amendment concerns, the district court and magistrate judge repeatedly gave Mr.
Combe-Fritz chances to avoid dismissal, exhausting other, less severe sanctions.
In response to the government’s motion in limine and motion for sanctions, the
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magistrate judge ordered that “[Mr. Combe-Fritz] must appear for his deposition
within ten days of this Order, or he will be excluded from testifying at trial.” The
threat of this lesser sanction was not sufficient, and Mr. Combe-Fritz ignored it.
Then, following its order to show cause why the court should not strike Mr.
Combe-Fritz’s claims of interest, the district court issued an order compelling his
deposition within thirty days, providing him a final opportunity to cure his
discovery misconduct. Following well-established law, the district court
specifically explained that Mr. Combe-Fritz could not rely on his Fifth
Amendment concerns, even if legitimate, to avoid being deposed. See United
States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969) (“[E]ven if the danger of
self-incrimination is great, [a party’s] remedy is not to voice a blanket refusal to
produce his records or to testify. Instead, he must present himself with his records
for questioning, and as to each question and each record elect to raise or not to
raise the defense. . . . [A] blanket refusal is unacceptable . . . .” (internal footnote
omitted)). 4 And the district court warned that, should Mr. Combe-Fritz fail to
appear within thirty days, “it may be grounds for dismissal of his claim.”
As we have already noted, Mr. Combe-Fritz did not sit for his deposition
within the thirty-day deadline. Instead he chose to file a motion for
reconsideration, in which he again asserted an improper “blanket refusal” to sit in
4
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981).
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light of his self-incrimination concerns and argued that requiring his deposition
would be a “waste of judicial resources.” Consequently, the district court
determined that, “[w]hile the issue of whether [Mr. Combe-Fritz] had actually
violated a specific Court discovery order may have been at one time ‘at least
slightly, ambiguous,’ that is no longer the case. Claimant has willfully violated the
Court’s Order to Compel and is solely at fault for the violation.”
Mr. Combe-Fritz’s conduct went beyond simple negligence,
misunderstanding, or an inability to comply with court orders. The record amply
supports the district court’s conclusion that Mr. Combe-Fritz’s “failure to appear
on several occasions for his deposition was willful and in bad faith.” As such, we
see no abuse of discretion in the district court’s order striking and dismissing Mr.
Combe-Fritz’s claims of interest.
Moreover, because the district court acted within its discretion in striking
Mr. Combe-Fritz’s claims, we need not address Mr. Combe-Fritz’s remaining
challenges, both to CBP’s procedures and to the district court’s numerous other
rulings. See, e.g., United States v. $239,500 in U.S. Currency, 764 F.2d 771, 773
(11th Cir. 1985) (holding that the district court’s Rule 37 dismissal, resulting in
dismissal of the claimant’s claims in a forfeiture action, “left no issue before the
court as to the forfeiture and left [claimants] without standing to contest the merits
of the Government's claim.”); United States v. $49,000 Currency, 330 F.3d 371,
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375–76 (5th Cir. 2003) (holding that the district court’s Rule 37 sanction, resulting
in default judgment against claimant, was proper and “dispositive,” making further
inquiry into other issues raised on appeal unnecessary).
The district court’s entry of final judgment of forfeiture in the consolidated
forfeiture action is therefore affirmed.
AFFIRMED.
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