No. 98-1785
In the Supreme Court of the United States
J.S.G. BOGGS, PETITIONER
v.
LAWRENCE H. SUMMERS, SECRETARY OF THE TREASURY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
ANTHONY J. STEINMEYER
RICHARD A. OLDERMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether Secret Service agents may seize bills that are in the likeness
and similitude of federal currency, without first providing an adversarial
hearing before an independent judicial officer.
2. Whether the court of appeals correctly declined to order the record on
appeal supplemented, so that it could itself view and determine if the bills
at issue were in the likeness of federal currency, when petitioner failed
to ask the court to supplement the record until after oral argument, and
failed to raise the substantive issue in his brief on appeal.
In the Supreme Court of the United States
No. 98-1785
J.S.G. BOGGS, PETITIONER
v.
LAWRENCE H. SUMMERS, SECRETARY OF THE TREASURY, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-15a) is reported at 161
F.3d 37. The opinion of the district court (Pet. App. 16a-35a) is reported
at 987 F. Supp. 1.
JURISDICTION
The judgment of the court of appeals was entered on November 6, 1998. A
petition for rehearing was denied on February 3, 1999 (Pet. App. 36a). The
petition for a writ of certiorari was filed on May 3, 1999. This Court's
jurisdiction is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. The Constitution gives Congress the power to "coin Money [and] regulate
the Value thereof," Art. I, § 8, Cl. 5, and to "provide for
the Punishment of counterfeiting the Securities and current Coin of the
United States," Art. I, § 8, Cl. 6. Pursuant to that authority,
Congress has prohibited the possession or production of a likeness of an
obligation or security of the United States. See 18 U.S.C. 474(a) (paras.
5-6) (1994 & Supp. III 1997).1 Congress also has provided, in 18 U.S.C.
504 (1994 & Supp. III 1997), exceptions to that prohibition. Section
504(1) permits the possession or production of illustrations of United States
obligations and securities if the illustration is in black and white and
less than 75% or more than 150% the size of the original, and if the negatives
and plates used in making the illustrations are destroyed after their final
use.2 This Court has held that the prohibition and the exceptions, read
in tandem, do not violate the First Amendment. Regan v. Time, Inc., 468
U.S. 641 (1984).
2. Petitioner is an artist and an academic who reproduces, in color, the
currency of the United States. Petitioner admits that those reproductions,
which are the same size as United States currency, can be confused with
actual currency. See C.A. App. 16 (Compl. para. 6) ("Boggs draws pictures
of money. They are actual-sized, trompe l'oeil pieces.").3 Petitioner
then uses his reproductions, referred to as "Boggs Bills," as
a medium of barter. Pet. App. 17a; C.A. App. 16 (Compl. para. 6). Petitioner
purchases services or goods with the notes in order to elicit "a dialogue"
about "the meaning and uses of art and money." C.A. App. 111 (Boggs
Aff. paras. 7-8). This case arises out of two incidents involving petitioner,
the Secret Service, and petitioner's use of the so-called Boggs Bills.
The Wyoming Incident. In March 1991, the Secret Service learned from the
Cheyenne, Wyoming Police Department that petitioner had attempted to obtain
merchandise from a local K-Mart using one of his Boggs Bills. See C.A. App.
124-125 (Hansen Decl. para. 3). Apparently, petitioner had indicated to
a sales clerk at the K-Mart that he wanted to obtain the face value of a
$100 Boggs Bill in goods and receive any change in actual currency. Ibid.
After inspecting samples of the Boggs Bills and determining that they appeared
to be the size, color and similitude of United States currency, a Secret
Service agent met with Boggs at his Cheyenne hotel. Pet. App. 17a, 19a-22a;
C.A. App. 125 (Hansen Decl. para. 6). After being advised that his Bills
appeared to be in violation of federal counterfeiting laws, and after what
petitioner characterized as "several hours of tense negotiation,"
Pet. App. 21a, petitioner agreed to provide 15 samples of his reproductions
(the Cheyenne Boggs Bills) to the Secret Service agent. See id. at 21a-23a.
The Pittsburgh Incident. In November 1992, the Secret Service learned that
the petitioner had printed an additional $1 million in Boggs Bills and that
he planned to spend those bills in the Pittsburgh area over the course of
two years. Pet. App. 17a-18a; C.A. App. 190 (Abraham Aff. para. 17(a)).
Based upon this information, the Secret Service obtained, from a magistrate
judge in the United States District Court for the Western District of Pennsylvania,
a warrant to search Boggs' person, studio and residence. Pet. App. 17a-18a;
C.A. App. 217-224 (Warrant of Dec. 1, 1992). When the Secret Service executed
that warrant, it seized a number of reproductions (the Pittsburgh Boggs
Bills). Pet. App. 18a.
3. Petitioner brought this suit for declaratory and injunctive relief. He
sought a declaration that the anti-counterfeiting statutes (18 U.S.C. 474,
504 (1994 & Supp. III 1997)) either did not apply to him, because he
allegedly had no intent to defraud, or were unconstitutional. He sought
an injunction that would, among other things, (1) prohibit the government
from prosecuting him under the counterfeiting laws or otherwise interfering
with his work or possessions, and (2) require the government to return all
property that has been seized. He additionally sought an award of compensatory
damages for interference with, and injury to, his property. Pet. App. 18a;
C.A. App. 14-27 (Compl.).
The district court held that the statutes at issue were constitutional on
their face and as applied and did not require proof of intent to defraud.
Boggs v. Bowron, 842 F. Supp. 542, 544, 562 (D.D.C. 1993). Analyzing Sections
474 and 504 in tandem, see Regan v. Time, Inc., 468 U.S. at 647-648, the
district court found the size and color restrictions of Section 504 to be
reasonable time, place and manner limitations. Ibid.
In an unpublished judgment order, the court of appeals affirmed. See Boggs
v. Bowron, No. 95-5100, 1995 WL 623690 (D.C. Cir. Oct. 12, 1995) (67 F.3d
972 (Table)). Petitioner filed a petition for a writ of certiorari, which
this Court denied. 517 U.S. 1134 (1996).
4. Petitioner then moved in the district court for summary judgment on the
question of whether he was entitled to the return of his property. See Pet.
App. 16a ("This matter comes before the court on cross-motions for
summary judgment on [petitioner's] claims for the return of his seized property.").
He argued that the procedures employed by the Secret Service to obtain the
Cheyenne and Pittsburgh Boggs Bills violated the First Amendment because
he was not given a hearing before the seizure. And although petitioner's
complaint had not raised a Fourth Amendment claim, petitioner also argued
that the Secret Service's actions in obtaining the Cheyenne Bills had constituted
a warrantless seizure in violation of the Fourth Amendment. He asserted
that the remedy for those alleged violations is return of the bills. Id.
at 18a-19a.
The district court rejected petitioner's claims. It first found that, on
the undisputed facts of record, no seizure occurred in the Wyoming incident,
since the entry into petitioner's hotel room was consensual, as was the
turning over of the Boggs Bills. Pet. App. 19a-23a. And it held that, because
the officers who seized the Boggs Bills in Pittsburgh did so pursuant to
a valid warrant, no Fourth Amendment violation arose out of that incident
either. Id. at 23a-30a.
In particular, the court rejected petitioner's argument that the First Amendment
required the government to provide him with a hearing before the Pittsburgh
warrant was issued. Pet. App. 23a-30a. While the court recognized that,
under the law of the case, the Boggs Bills were to be regarded as presumptively
expressive materials, id. at 23a n.2, it rejected petitioner's argument
that a hearing was required under cases such as Fort Wayne Books, Inc. v.
Indiana, 489 U.S. 46, 63 (1989). The court determined that those cases,
which hold that special procedures are required before materials may be
seized under an obscenity statute, do not apply to the seizure of counterfeit
money. Pet. App. 26a. Because a warrant was obtained for the Pittsburgh
seizure of Boggs Bills, and because the court held that the warrant affidavit
was supported by probable cause, the court concluded that the Pittsburgh
seizure did not violate petitioner's First Amendment rights. Id. at 28a.
The district court also held that, even if the Boggs Bills had been illegally
seized, they would not be subject to return because they constituted contraband
per se. Pet. App. 33a-35a. In its earlier decision, the court had examined
the 15 samples relinquished in Wyoming and had found that they were similar,
in size, color, and likeness, to genuine currency. It had therefore concluded
that a jury would be justified "if not compelled" to find that
the items were in the likeness and similitude of United States currency.
Id. at 33a. On the basis of that earlier determination, the court concluded
that the Wyoming Boggs Bills were contraband per se. Ibid.
The Pittsburgh Boggs Bills had not been before the district court earlier,
and petitioner had declined to make them available. Accordingly, the government
submitted them to the court for its inspection. Although petitioner requested
a hearing in open court to determine if the Boggs Bills were counterfeit
per se, the district court denied the motion and conducted an in camera
inspection of the Pittsburgh Boggs Bills. Pet. App. 34a-35a. Based on that
inspection, the 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 reproductions of genuine foreign
currency. Each are in the likeness and similitude of genuine currency and
therefore in violation of 18 U.S.C. §§ 472 or 481." Pet.
App. 35a.4
5. The court of appeals affirmed. Pet. App. 1a-15a. First, the court rejected
petitioner's argument that the Secret Service should have afforded petitioner
an adversarial hearing, before an independent judicial officer, prior to
seizing the "Boggs Bills." "Bogg's artwork is designed to
look like money," the court explained, and was therefore subject to
seizure as a violation of the counterfeiting statutes. Id. at 7a. The court
of appeals also distinguished the pornography cases on which petitioner
relied, pointing out that the counterfeiting statute leaves officers in
the field substantially less discretion, and has a significantly lower potential
impact on protected expression, than the pornography statutes at issue in
those cases. "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 materials," the court of appeals explained. Ibid.
The court of appeals also held that the district court acted properly when
it inspected the Boggs Bills in camera. Petitioner, the court of appeals
concluded, had no right, on summary judgment, to have the bills examined
in open court. And while petitioner asserted that he could not tell from
the record what items were submitted to the court for inspection, the court
of appeals observed that "he received notice from the government listing
the items submitted." Pet. App. 8a.
Finally, the court of appeals upheld the statutory standard for counterfeit
currency used by the district court and embodied in 18 U.S.C. 474, but declined
to examine the Boggs Bills to determine whether the lower court had correctly
applied that standard. Petitioner, the court of appeals pointed out, had
failed to raise that issue-i.e., whether or not his Bills were in fact contraband
per se-until after oral argument. Citing Federal Rule of Appellate Procedure
28(a)(4), the court held that it was "too late in the appellate process"
to ask for such review. Pet. App. 10a.
Judge Rogers concurred in part and dissented in part. While she acknowledged
that petitioner's appeal "focused on his First Amendment procedural
claim without explicitly contending that his art does not meet the statutory
definition of counterfeit currency," Pet. App. 11a, she nonetheless
concluded that the court of appeals should overlook any waiver, id. at 12a,
and review the Bills. In her view, the preferable course would have been
to supplement the record with the Boggs Bills so as to permit the court
to determine whether or not the lower court had properly evaluated them.
Id. at 11a-12a.
ARGUMENT
v
The decisions of the courts below are correct and do not conflict with the
decisions of this Court or any other court of appeals. Accordingly, further
review is not warranted.
1. Petitioner first argues that the government's seizure of his "Boggs
Bills" constituted an unlawful prior restraint. According to petitioner,
he should have been afforded a hearing before his trompe l'oeil currency
was seized. He seeks return of the seized reproductions of currency as a
remedy for that alleged violation. See Pet. 13-20.
a. As an initial matter, it is far from clear that petitioner's prior restraint
claim-i.e., his challenge to the government's failure to afford him an adversary
hearing before seizing his Boggs Bills-is properly before the Court in this
case.5 Petitioner's motion in district court sought one form of relief alone:
return of the seized bills. Pet. App. 16a ("This matter comes before
the court on cross-motions for summary judgment on [petitioner's] claims
for the return of his seized property."); id. at 30a (petitioner's
"rationale for challenging the above seizures is that he seeks return
of the items"); id. at 4a-5a ("Boggs argued that * * * the appropriate
remedy [for the allegedly unlawful seizures] was return of the seized goods.");
see also id. at 2a ("Boggs argues that these errors require us to order
the government to return his artwork.").6 It is now clear, however,
that the bills cannot be returned even if their initial seizure was improper
because they are contraband per se, and thus illegal to possess. See id.
at 32a-33a. In particular, the district court expressly concluded that "a
jury would be compelled to find that the fifteen Cheyenne Boggs Bills"
seized in Wyoming "violate 18 U.S.C. § 474, para. 5," because
they are in the "general pattern of general currency" and "in
the likeness and similitude of genuine United States currency." Pet.
App. 33a (citation omitted). Likewise, it expressly concluded that "[e]ach
reproduction" seized in Pennsylvania "has the general design and
appearance of genuine * * * currency." Id. at 35a.
The conclusion that the Bills are contraband per se-and thus illegal to
possess-precludes petitioner from recovering the Bills even if one were
to assume that the initial seizure of those Bills constituted an unlawful
prior restraint. As this Court has explained, where the subject "property
[i]s contraband," the individuals from whom it was seized "have
no right to have it returned to them." Trupiano v. United States, 334
U.S. 699, 710 (1948); United States v. Jeffers, 342 U.S. 48, 53 (1951) (same).
For example, where the police discover heroin during an unlawful search,
the victim of that search may be able to seek suppression of the heroin
in the subsequent criminal trial; the victim may even be able to seek an
award of damages. But he cannot seek the return of contraband narcotics
he cannot lawfully possess. The same reasoning applies to the contraband
counterfeit Boggs Bills that petitioner seeks to have returned here. As
the district court explained, "[i]f mere possession of an item is a
crime, the government's return of that item would make the recipient a criminal,
and a court cannot enter an order that would lead to such a result."
Pet. App. 33a.
That conclusion flows not only from the contraband nature of the Boggs Bills
and this Court's decisions in Trupiano and Jeffers, but also from this Court's
reasoning in Carey v. Piphus, 435 U.S. 247 (1978). There, the plaintiffs
claimed to have been suspended in violation of procedural due process. Agreeing
with the analysis of the court of appeals below, this Court held that the
plaintiffs were not entitled to recover compensation for injuries caused
by the suspensions if they "would have been suspended even if a proper
hearing had been held." Id. at 260. If the suspensions would have occurred
in any event, the Court explained, the lack of a prior hearing "could
not properly be viewed as the cause of the suspensions." Ibid.
That same reasoning precludes petitioner from recovering the Bills as a
remedy for their having been seized without prior process in this case.
In the years following the seizures at issue here, this case has been thoroughly
litigated in district court, and twice appealed in the court of appeals;
that process has shown that the Bills are contraband per se. Consequently,
it is clear that, even if petitioner had been granted a prior, adversary
hearing before the Bills were seized, that hearing would not have prevented
the seizure from taking place. To the contrary, just as the later hearing
found the Bills to be contraband per se and subject to seizure and forfeiture,
so too would have a hearing before seizure. Because the Bills would have
been seized "even if a proper [pre-seizure] hearing had been held,"
the allegedly unlawful failure to hold such a hearing cannot "properly
be viewed as the cause" of the seizures and cannot entitle petitioner
to return of the Bills. Carey, 435 U.S. at 260.7
Consequently, petitioner's prior restraint claim is largely irrelevant to
the propriety of the district court's decision denying petitioner's motion
for return of the Bills. Because petitioner's Boggs Bills are contraband,
petitioner is not entitled to their return, the only relief petitioner sought
in the motion before the district court, even if a prior restraint had been
unlawfully imposed. Conversely, if the courts' conclusion regarding the
contraband status of the Boggs Bills were incorrect, the illegality of the
initial seizure would neither enhance nor lessen the force of petitioner's
claim for their return. If the Bills were not subject to forfeiture as contraband,
petitioner's right to their return would not be defeated by a finding that
the initial seizure was lawful and based on probable cause to believe the
Bills were subject to forfeiture.
The prior restraint issue thus has no bearing on the correctness of the
district court's and court of appeals' decisions not to order the return
of petitioner's property, and is not properly before the Court. And that
remains true even though the lower court decisions purported to address
that issue. This Court "reviews judgments, not statements in opinions,"
Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956), and does not "decide
questions that cannot affect the rights of litigants in the case before
them." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (internal
quotations omitted).
b. In any event, the district court and court of appeals both properly rejected
petitioner's prior restraint argument. According to petitioner, the Secret
Service was required to conduct an adversarial proceeding to determine the
propriety of seizing the Cheyenne and Pittsburgh Boggs Bills before the
seizure occurred. In obscenity cases involving books, films, and videotapes,
petitioner points out, the strong First Amendment-based policy against prior
restraints on free speech requires such a "prompt judicial determination
[of the obscenity issue] in an adversary hearing" before all available
copies of a book or movie may be seized. Heller v. New York, 413 U.S. 483,
492 (1973); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989).
As for the Wyoming Bills, the argument fails because the district court
found that they were not seized but instead were voluntarily surrendered,
Pet. App. 19a-23a, and petitioner never disputes that finding. More fundamentally,
petitioner's attempt to extend the prior restraint doctrine to the counterfeiting
context is erroneous. In the context of obscenity seizures, a pre-seizure
hearing is required in part because a "dim and uncertain line"
separates obscenity from protected expression. Bantam Books, Inc. v. Sullivan,
372 U.S. 58, 66 (1963); see A Quantity of Books v. Kansas, 378 U.S. 205,
210 (1964) (plurality opinion). As the district court below pointed out
(Pet. App. 25a-26a), reasonable minds can and often do differ over what
is, and what is not, obscene. Indeed, this Court's formula for separating
obscenity from protected expression-"whether to the average person,
applying contemporary community standards, the dominant theme of the material
taken as a whole appeals to prurient interest"-is quite subjective
and requires a great degree of judgment in its application. See Roth v.
United States, 354 U.S. 476, 489, 491 (1957). Consequently, "[f]or
a magistrate or other judicial officer to make a probable cause determination
based merely on the bald affidavit of a police officer presents too much
of a possibility that the subjective impression of that police officer will
act as a prior restraint on protected speech." Pet. App. 25a.
In contrast, the standards to be applied in the counterfeiting context-whether
or not the materials are in the likeness of United States currency, and
whether or not they are within the permissible size and color specifications
set forth in 18 U.S.C. 504-are relatively clear and easy to apply. Pet.
App. 26a. No "subjective" determinations are required; the only
question is whether the material to be seized looks like money. Ibid. Moreover,
unlike the seizure of allegedly obscene materials, the seizure of alleged
counterfeit money does not by its very nature raise a grave risk that protected
materials will be seized. As a result, the sound constitutional reasons
for requiring a prior hearing before permitting the seizure of materials
alleged to be obscene simply do not apply to the seizure of materials alleged
to be counterfeit.
Petitioner is mistaken to claim that the decisions of the district court
and the court of appeals afford sexually explicit materials greater protection
than other forms of expression, Pet. 18, or that they limit the prior restraint
doctrine to cases that "involve sex," Pet. 19. Neither court below
held that the prior restraint doctrine applies only to allegedly obscene
(or sexually explicit) materials. Instead, they merely declined to extend
that doctrine to a context-the enforcement of the Nation's counterfeit laws-in
which the applicable standards are neither inherently subjective nor content-based,
and where there is no grave risk that seizures without prior adversary hearings
will suppress protected expressive materials.
2. Petitioner also argues that the district court erred in viewing the Pittsburgh
Boggs Bills in camera and failing to grant him an in-person hearing at which
he could present evidence and argument. See Pet. 20-24. Those case-specific
claims do not warrant this Court's review.
a. Although due process generally requires notice and an opportunity to
be heard, see Pet. 21, it does not always require an in-person hearing at
which witnesses and evidence may be presented. To the contrary, motions
to dismiss under Federal Rule of Civil Procedure 10(b) and motions for summary
judgment under Federal Rule of Civil Procedure 56 are regularly granted
on the basis of paper submissions alone, as they were here. Moreover, petitioner
had, during the years of litigation created by this case, ample opportunity
to show that the Pittsburgh Boggs Bills do not fall within the prohibition
of the counterfeit laws. And he specifically attempted to do so through
the affidavits he submitted in support of his motion for summary judgment.
See C.A. App. 107 (Boggs Aff.); C.A. App. 155 (Bittman Decl.). The affidavits
and arguments he submitted, however, simply did not reveal a need for the
district court to hear further oral argument or take additional testimony
from witnesses. Under those circumstances, it was not an abuse of discretion
for the district court to rely on the evidence submitted and resolve the
summary judgment motions without a further hearing. Pet. App. 7a; see also
id. at 15a n.7 (Rogers, J., concurring in part and dissenting in part) ("I
* * * concur in the court's holding that in camera review was * * * appropriate.").8
Nor is petitioner correct to suggest (Pet. 21) that the decision is inconsistent
with Robinson v. Hanrahan, 409 U.S. 38, 39-40 (1972) (per curiam), and United
States v. James Daniel Good Real Property, 510 U.S. 43 (1993). Although
petitioner characterizes Robinson as having reversed a forfeiture order
"on the ground that the owner did not receive actual notice of the
forfeiture hearing," Pet. 21, in fact the constitutional defect in
that case was the State's failure to make sufficient efforts to advise the
owner that forfeiture proceedings had been instituted against his property-a
defect that deprived him of any opportunity (on paper or in person) to contest
the forfeiture action. See 409 U.S. at 39-40 (holding that the in rem forfeiture
violated due process because the notice provided by the State was not "'reasonably'
calculated to apprise [the owner] of the pendency of the forfeiture proceedings").
Petitioner's reliance (Pet. 21-22) on this Court's decision in James Daniel
Good Real Property, supra, is misplaced for similar reasons. That case merely
held that, absent exigent circumstances, real property-a home-cannot be
seized by the government without affording the owner notice and an opportunity
to be heard. See 510 U.S. at 46, 52-54. This case did not concern real property
and petitioner, in any event, was clearly given the opportunity to address-in
his moving papers and in response to the government's moving papers-whether
or not his Bills were contraband per se and thus subject to forfeiture.
See Gov't Mem. of Points and Authorities 5-7 (Jan. 30, 1997) (arguing that
the Bills are contraband per se and thus not subject to return).
b. Petitioner, in any event, forfeited his claim that the district court
should not have reviewed the Bills in camera because he failed to object
to that procedure in the district court. Pet. App. 8a. Although petitioner
attempts to blame others for that omission, see Pet. 23, his argument is
unpersuasive and unrelated to any generalized issue of national importance.
Petitioner never objected to the district court's review of the bills in
camera in district court, either before the district court reviewed the
bills and entered judgment, or, through a motion for reconsideration, after
the district court did so. Cf. Insurance Servs. v. Aetna Cas. & Sur.
Co., 966 F.2d 847, 852 (4th Cir. 1992) (where party "had no opportunity
to object" until after the district court issued its order, an objection
in a "motion for reconsideration" is considered "timely made").
Nor did petitioner seek access to the bills during the district court proceedings.
Under those circumstances, the court of appeals did not err in concluding
that petitioner's claim of error was forfeited. See Pet. App. 8a ("If
there was error, * * * [petitioner] could have avoided any ill effect by
proper motion below."); id. at 15a n.7 (Rogers, J., concurring in part
and dissenting in part) ("With respect to [petitioner's] claim that
the district court erred by viewing the bills ex parte, I concur in the
opinion of the court * * * to the extent that it relies on [petitioner's]
failure to seek access to the bills during the district court proceedings.
* * * [T]he district court's procedure [did] not result in reversible error.").
3. Finally, petitioner complains that the court of appeals failed to rule
on whether the Boggs Bills in fact violate 18 U.S.C. 474(a) (paras. 5-6),
and affirmed the district court's judgment without having actually seen
the Boggs Bills. Pet. 24-25. That claim is both fact-bound and without merit.
As the court of appeals made clear, it had good reason for declining to
review the district court's application of 18 U.S.C. 474 and 504 to the
Boggs Bills by reviewing the Bills-petitioner did not timely ask it to do
so. Although Rule 28(a) of the Federal Rules of Appellate procedure requires
the argument section of an appellant's brief to contain "the contentions
of the appellant with respect to the issues presented," petitioner
failed to ask the court of appeals "to make a full reexamination of
the merits of the grant of summary judgment" by reviewing the Bills
and applying the appropriate standard to them. Pet. App. 10a; see also id.
at 11a (Rogers, J., concurring in part and dissenting in part) (Petitioner
"should not be too surprised by this result, as his appeal" did
not "explicitly contend[] that his art does not meet the statutory
definition of counterfeit currency.").
Indeed, petitioner actually sought to deprive the court of appeals of access
to the Boggs Bills so as to prevent it from conducting that review. Although
petitioner now complains that the record did not include the actual Boggs
Bills at issue, Pet. 24, petitioner not only failed to file a timely motion
to supplement the record to include those Bills, Pet. App. 10a, but actually
opposed, in his court of appeals brief, the government's offer to present
the Boggs Bills to the court for inspection, ibid. Only during oral argument
did petitioner change his mind about the government's offer, and only afterward
did he move to supplement the record. Ibid. As the court of appeals explained,
that is "simply too late in the appellate process" to ask the
court of appeals to address an additional issue and to ask it to supplement
the record so as to be able to do so. Ibid. At the least, that ruling did
not constitute an abuse of the court of appeals' discretion. Petitioner's
fact-bound challenge to it does not warrant this Court's review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
ANTHONY J. STEINMEYER
RICHARD A. OLDERMAN
Attorneys
AUGUST 1999
1 Paragraphs 5 and 6 of 18 U.S.C. 474(a) (1994 & Supp. III 1997) provide:
Whoever has in his possession or custody, except under authority from the
Secretary of the Treasury or other proper officer, any obligation or other
security made or executed, in whole or in part, after the similitude of
any obligation or other security issued under the authority of the United
States, with intent to sell or otherwise use the same; or
Whoever prints, photographs, or in any other manner makes or executes any
engraving, photograph, print, or impression in the likeness of any such
obligation or other security, or any part thereof, or sells any such engraving,
photograph, print, or impression, except to the United States, or brings
into the United States, any such engraving, photograph, print, or impression,
except by direction of some proper officer of the United States-
Is guilty of a class B felony.
Although the relevant events of this case took place between 1991 and 1993,
the substance of 18 U.S.C. 474 has not changed since then. In October 1992,
however, Congress renumbered Section 474 as 474(a) and added Section 474(b).
See Pub. L. No. 102-550, Tit. XV, § 1552, 106 Stat. 4070. And, in September
1996, Congress changed a violation of Section 474(a) from a class C felony
to a class B felony. See Pub. L. No. 104-208, Tit. VI, § 648(a), 110
Stat. 3009-367.
2 18 U.S.C. 504 (1994 & Supp. III 1997) provides in pertinent part:
Notwithstanding any other provision of this chapter, the following are permitted:
(1) The printing, publishing, or importation, or the making or importation
of the necessary plates for such printing or publishing, of illustrations
of-
(A) postage stamps of the United States,
(B) revenue stamps of the United States,
(C) any other obligation or other security of the United States, and
(D) postage stamps, revenue stamps, notes, bonds, and any other obligation
or other security of any foreign government, bank, or corporation.
Illustrations permitted by the foregoing provision of this section shall
be made in accordance with the following conditions-
(i) all illustrations shall be in black and white, except that illustrations
of postage stamps * * * may be in color;
(ii) all illustrations * * * shall be of a size less than three-fourths
or more than one and one-half, in linear dimension, of each part of any
matter so illustrated which is covered by subparagraph (A), (B), (C), or
(D) of this paragraph, except that black and white illustrations of postage
and revenue stamps * * * may be in the exact linear dimension in which the
stamps were issued; and
(iii) the negatives and plates used in making the illustrations shall be
destroyed after their final use in accordance with this section.
The Secretary of the Treasury shall prescribe regulations to permit color
illustrations of such currency of the United States as the Secretary determines
may be appropriate for such purposes.
3 The phrase trompe l'oeil means deception or trick of the eye, and refers
to a style of painting that creates a strong illusion of reality, often
such that the viewer, on first sight, is in doubt as to whether the thing
depicted is real or a representation. See 18 Oxford English Dictionary 578
(2d ed. 1989).
4 While the court concluded that all the Boggs Bills that the Secret Service
claimed to be contraband were in fact contraband per se, and therefore subject
to forfeiture, it found that the Secret Service had correctly declined to
forfeit many of the Boggs Bills because they were not contraband and therefore
were not forfeited. Indeed, of 81 reproductions in one group, only three
were found to be contraband. See Pet. App. 35a.
5 Moreover, there is some question concerning the district court's authority
to order the return of the property. Although the district court purported
to "operate under its equitable power in determining whether the property
should be returned," Pet. App. 30a-31a n.3, in our view such a power,
if it exists at all, cannot be used to compel officers of the United States
to turn over property held by the United States absent a waiver of sovereign
immunity. Petitioner nowhere identifies the waiver of immunity that would
permit a suit to compel the return of property here. But see Polanco v.
DEA, 158 F.3d 647, 652 (2d Cir. 1998) (concluding that waiver of immunity
in Administrative Procedure Act, 5 U.S.C. 702, extends to suits for the
return of property).
6 Nor can petitioner persuasively argue that this issue is "live"
because, if he prevailed, he might be entitled to the monetary relief requested
in his complaint. Petitioner abandoned that claim in this action-choosing
instead to raise it through a separate action, No. 95-1051 (D.D.C)-and in
any event sought no relief other than return of his Bills either in his
motion for summary judgment in district court or on appeal in the D.C. Circuit.
7 To the extent petitioner seeks to challenge the conclusion that the Bills
are contraband per se, petitioner waived that fact-bound claim by failing
to raise it in a timely fashion below. See pp. 19-20, supra; see also Pet.
App. 10a. In any event, the record establishes that the works in dispute
are contraband per se. The Secret Service submitted affidavits of counterfeiting
experts attesting to the fact that Boggs Bills meet the definition of counterfeit
currency-and hence constitute contraband per se. The district court, which
reviewed the Bills, reached the same conclusion. And petitioner's own complaint
appears to concede the point, referring to the Boggs Bills as "actual-sized,
trompe l'oeil pieces," C.A. App. 16 (Compl. para. 6), i.e., as actual-sized
reproductions of currency drawn in a style that is sufficiently life-like
to "fool the eye." See note 3, supra. See also C.A. App. 111 (Boggs
Aff. para. 9) ("My work simply would not carry the same meaning in
black and white or in grotesquely enlarged or comically shrunken size.").
8 Petitioner's suggestion that he was entitled to a jury trial before civil
forfeiture could be ordered, Pet. 23, is also incorrect. Since no reasonable
juror could have concluded that petitioner's documents were not contraband,
see p. 11, supra, the district court properly granted the government's motion
for summary judgment.