LANGBORD et al v. UNITED STATES DEPARTMENT OF THE TREASURY et al

Filing 182

ORDER THAT THE LANGBRODS' MOTION IN LIMINE FOR JURY INSTRUCTIONS BASED ON THE GOVERNMENT'S VIOLATION OF THE LANGBORDS' CONSTITUTIONAL RIGHTS IS DENIED, ETC. THE LANGBORDS' MOTION IN LIMINE TO LIMIT THE TESTIMONY OF THE GOVERNMENT& #039;S HISTORIAN EXPERT WITNESS IS DENIED, ETC. GOVERNMENT'S REQUEST TO PREVENT THE LANGBORDS' EXPERT ROGER BURDETT FROM TESTIFYING TO HIS FORMER MEMBERSHIP IN THE CITIZENS COINAGE ADVISORY COMMITTEE OR CIRCUMSTANCES OF HIS RESIGNATION IS GRANTED IN PART & DENIED IN PART, ETC. SIGNED BY HONORABLE LEGROME D. DAVIS ON 7/5/11. 7/5/11 ENTERED AND COPIES MAILED AND E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROY LANGBORD, et al.,
Plaintiffs,

:
:
:
v.
:
:
UNITED STATES DEPARTMENT OF
:
THE TREASURY, et al.,
:
Defendants.
:
_______________________________________:
:
UNITED STATES OF AMERICA,
:
Third-Party Plaintiff,
:
:
v.
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:
TEN 1933 DOUBLE EAGLE GOLD PIECES, :
Third-Party Defendant-in-rem.
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:
_______________________________________:

CIVIL ACTION

No. 06-5315

ORDER
AND NOW, this 5th day of July, 2011, upon consideration of the United States’s Motion
in Limine to Admit Documents (Doc. No. 148) and Claimants’ Response thereto (Doc. No. 168);
the United States’s Motion in Limine to exclude certain of Claimants’ exhibits (Doc. No. 152)
and Claimants’ Response thereto (Doc. No. 161); Claimants’ Motion in Limine to Exclude
Evidence Based on Authenticity, Hearsay, Relevance, and Prejudice Grounds (Doc. No. 153) and
the United States’s Response thereto (Doc. No. 162); Claimants’ Motion in Limine to Exclude
Reports and Related Evidence from the Secret Service Investigation (Doc. No. 154) and the
United States’s Response thereto (Doc. No. 163); Claimants’ Motion in Limine for Jury
Instructions Based on the Government’s Violation of the Langbords’ Constitutional Rights (Doc.
No. 155) and the United States’s Response thereto (Doc. No. 164); Claimants’ Motion in Limine

to Limit the Testimony of the Government’s Historian Expert Witness (Eric Rauchway) (Doc.
No. 156) and the United States’s Response thereto (Doc. No. 165); and Claimants’ Reply
Memorandum of Law in Support of their pretrial Motions (Doc. No. 172), the Court hereby
ORDERS as follows:
1.

The Government’s Proposed Exhibits are admissible as follows:
Government Proposed Exhibits 1 and 1A: The Court deems the Barnard opinion
and factual findings prima facie authentic under Federal Rule of Evidence
901(b)(8), hereinafter, the “ancient document rule.” The documents themselves
and any level of hearsay therein are admissible, even for the truth of the matter,
based on ancient document exception. Based on the potential prejudice and jury
confusion, these documents are not admissible as stand-alone substantive
evidence. But the Government may introduce them to show that Israel Switt had
notice that the 1933 Double Eagles did not lawfully leave the Mint and the
Government’s experts may discuss the documents as bases for their opinions.
Goverment Proposed Exhibits 2–28: These letters from the American
Numismatic Society’s archival collection, including unsigned letters, are prima
facie authentic under the ancient document rule. The documents themselves and
any level of hearsay therein are admissible, even for the truth of the matter, based
on ancient document exception.
Government Proposed Exhibit 29–74: These documents obtained from the
Connecticut State Library’s archival collection, including any unsigned
documents, are prima facie authentic under the ancient document rule. The
documents themselves and any level of hearsay therein are admissible, even for
the truth of the matter, based on ancient document exception.
Government Proposed Exhibit 76: This copy of George McCann’s official prison
card is prima facie authentic under the ancient document rule. Despite qualifiying
as bad acts evidence, its permissible purposes for introduction—to show
opportunity to steal and lack of accident or mistake—outweigh the minimal
danger that the document will unduly prejudice the Langbords’ case. Upon
request, the Court will caution the jury not to evaluate the bad acts evidence
introduced for its tendency to show propensity to commit additional bad acts.
Government Proposed Exhibits 77–81: The documents obtained from the Federal
Reserve Bank of New York, including any unsigned documents, are prima facie
authentic under the ancient document rule. The documents themselves and any
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level of hearsay therein are admissible, even for the truth of the matter, based on
ancient document exception.
Government Proposed Exhibits 81–217B and 322: These documents from the
National Archives, which were not created by the Secret Service, are prima facie
authentic under the ancient document rule. Proposed Exhibits 117, 119 (page 1) ,
127 (letter marked “COPY”), 133–37, 188, 198, 200, and 202 are prima facie
authentic only as documents manually created more than 20 years ago that
comprise part of the National Archives files, but not as accurate reproductions of
originals, as further explained in the Memorandum Opinion. As to all of these
prima facie authentic documents (Proposed Exhibits 81–217B and 322), the
documents themselves and any level of hearsay therein are admissible, even for
the truth of the matter, based on ancient document exception. With respect to
specific exhibits within this range, the Court concludes as follows:
Proposed Exhibit 119’s first page is not admissible as it lacks any
probative value.
The Langbords object to the admission of Proposed Exhibit 127 on the
grounds that it presents legal conclusions in a way that usurps the function
of the Court to instruct the jury on the law. The Government responds that
it only intends to use the document to rebut the Langbords’ contention that
the Government has changed its position over time regarding whether it
is/was legal to possess a 1933 Double Eagle. For the reasons contained in
the accompanying Memorandum Opinion, the Court determines that this
document is presently inadmissible even for such limited purposes.
After performing a 404(b) analysis detailed in the accompanying
Memorandum Opinion, the Court concludes that the Proposed Exhibits
related to the 1934 case involving Israel Switt’s possession of gold in
violation of the Gold Reserve Act (Proposed Exhibits 166–173) have a
proper evidentiary purpose since they speak directly to motive, knowledge,
intent and the absence of mistake or accident, and are therefore admissible.
As for the Langbords’ objection to the introduction of the Proposed
Exhibits that refer to George McCann (Proposed Exhibits 76, 82, 174,
198–202, 212, 294, 298, 299–300, 301, and 302), the Court concludes that
such evidence is relevant, not offered merely to prove propensity, and
holds probative value not substantially outweighed by undue prejudice.
Proposed Exhibits 189–197, 202, 212, which relate to other thefts from the
Mint, are relevant because they make the theft of the ten 1933 Double
Eagles relevant here at least slightly more probable.
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Government Proposed Exhibits 218 and 219: The Langbords have not challenged
the authenticity of these documents from the Philadelphia Register of Wills; nor
have they objected to their introduction on hearsay grounds. They have, however,
objected to the documents’ introduction on the grounds that they are irrelevant,
are evidence of prior bad acts, and have a high risk of unduly prejudicing the
Langbords’ case. The Court finds the documents highly relevant to the issue of
knowing and unlawful concealment, an element of the 18 U.S.C. § 641 violation
underlying the civil forfeiture count, and concludes that their undue prejudice
does not substantially outweigh their probative value.
Government Proposed Exhibits 220–302B: These archived United States Secret
Service files concerning the investigation into the theft of 1933 Double Eagles
from the Mint, including any unsigned documents, are prima facie authentic under
the ancient document rule. Proposed Exhibits 221 (enclosures only), 233 (Charles
P. Rump’s unsigned statement), 233A, 237 (last page), 238 (last page), 240
(except March 21, 1944 letter from Helen C. Moore, a signed version of which
appears at 123), 266 (attachments marked “COPY”, except March 21, 1944 letter
from Helen C. Moore), 274 (attachments stamped “signed by”), and 285
(attachment) are prima facie authentic only as documents manually created more
than 20 years ago that comprise part of the Secret Service files, but not as accurate
reproductions of originals, as further explained in the Memorandum Opinion. As
to all of these prima facie authentic documents (Proposed Exhibits 220–302B),
the documents themselves and any level of hearsay therein are admissible, even
for the truth of the matter, based on ancient document exception. With respect to
specific exhibits within this range, the Court concludes as follows:
Despite the legal conclusions contained therein, Proposed Exhibits 228
and 275 are admissible to rebut any argument by the Langbords that the
Government has changed its position over time regarding whether it is/was
legal to possess a 1933 Double Eagle. If the Government arrives at the
view that the presentation of evidence at trial has made Proposed Exhibits
228 and 275 relevant, it should advise the Court outside of the presence of
the jury and obtain a ruling in advance of presenting the documents or
posing document-related questions.
As for the Langbords’ objection to the introduction of the Proposed
Exhibits that refer to George McCann (Proposed Exhibits 233A, 262, 294,
298–302), the Court concludes that such evidence is relevant, not offered
merely to prove propensity, and holds probative value not substantially
outweighed by undue prejudice.
Proposed Exhibits 276 and 279 are admissible to provide a full contextual
understanding of historical events. Proposed Exhibits 305 and 306 are
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admissible over the Langbords’ challenge on relevance and prejudice
grounds, as explained in the accompanying Memorandum Opinion.
Government Proposed Exhibit 303: The Government contends that it will use this
Sotheby’s auction catalog not for the truth of the matters asserted therein, but to
establish notice. The Langbords do not object to that use of the document. If the
Government intends to offer the document for its truth, it should advise the Court
outside of the presence of the jury and obtain a ruling in advance of presenting the
documents or posing document-related questions.
Government Proposed Exhibits 305–311, 314–317: These documents obtained
from the Mint and Treasury Department, including any unsigned documents, are
prima facie authentic under the ancient document rule. Proposed Exhibits
305–307 are prima facie authentic only as documents manually created more than
20 years ago that comprise part of the Mint and Treasury department files, but not
as accurate reproductions of originals, as further explained in the Memorandum
Opinion. As to all of these prima facie authentic documents (Proposed Exhibits
305–311, 314–317), the documents themselves and any level of hearsay therein
are admissible, even for the truth of the matter, based on ancient document
exception. Moreover, Proposed Exhibits 305 and 306 are admissible over the
Langbords’ challenge on relevance and prejudice grounds, as explained in the
accompanying Memorandum Opinion.
Government Proposed Exhibits 318–321: These exhibits comprise a safe deposit
box from Wachovia Bank, photos of the safe deposit box, and Wachovia Bank’s
records pertaining to the safe deposit box in which Joan Langbord claims to have
found the ten 1933 Double Eagles. The Langbords have objected to their
introduction on the grounds that they are irrelevant, are evidence of prior bad acts,
and have a high risk of unduly prejudicing the Langbords’ case. Like the probate
documents, the Court finds the documents highly relevant to the issue of knowing
and unlawful concealment, an element of the 18 U.S.C. § 641 violation underlying
the civil forfeiture count, and concludes that their undue prejudice does not
substantially outweigh their probative value.
Government Proposed Exhibits 323–330: The Langbords do not challenge these
publications’ authenticity. The Government states that it will introduce these
documents not for the truth of the matters contained therein, but for notice
purposes. The Langbords do not object to the documents’ admission for such
purposes. Should the United States seek to enter any of these exhibits for their
truth, it should advise the Court outside of the presence of the jury and obtain a
ruling in advance of presenting the documents or posing document-related
questions.

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2.

The Langbords’ Proposed Exhibits are admissible as follows:
Authenticity Concerns: Langbord Proposed Exhibits 8, 10–23, 25–29, 31–44, and
46–63 are prima facie authentic as business records under Rule 902(11).
Langbords’ Proposed Exhibits 2, 3, 64–67, and 150 are self-authenticating official
publications or periodicals covered by Rule 902(5) and (6). Langbords’ Proposed
Exhs. 45, 68, 69, three photographs taken by a paralegal, might properly be
authenticated through her testimony.
Langbord Background Evidence: The Langbords may introduce evidence
regarding their turning over the Double Eagles to the Mint and the Mint’s decision
not to return them. But they shall not provide more than basic contextual
information and shall not include any reference to the possessory or ownership
interest they claim to have had prior to turning over the Gold Pieces, nor shall they
discuss the constitutionality of the Government’s decision not to initiate forfeiture
proceedings.
Langbord Proposed Exhibit 1: This document, a 2007 printout from the Mint’s
website listing the 1933 Double Eagle as a circulating coin, is admissible as a
statement of a party opponent, no matter what the Mint intended by posting the
information.
Langbord Proposed Exhibits 27, 34, 36–39, 41, 43–45, 55, 56: These documents,
which discuss whether the Mint kept small denomination coins segregated by
design or year, are marginally relevant and form one of the bases of expert Roger
Burdette’s opinion. Because they will not prejudice the United States or confuse
the jury substantially, they are admissible.
Langbord Proposed Exhibits 45, 64, and 65: These documents, which tend to
show that the Government records are not complete, are relevant for that purpose.
The Court concludes that Proposed Exhibits 64 and 65 are prima facie authentic
under Rule 902(5) and non-hearsay under Rule 801(d)(2)(D). The Langbords
have not yet established the prima facie authenticity of Proposed Exhibit 45.
Langbord Proposed Exhibits 66 and 75: The Langbords seek to introduce these
two documents only to rebut any insinuation by the United States that it is illegal
to possess 1933 Double Eagles, even if they were released through authorized
Mint channels. If during the trial, the Langbords perceive that these documents
become relevant, they are directed to raise their intention to pose questions in this
area to the Court outside the hearing of the jury and establish a proper foundation
for the admission of the exhibits.
Langbord Proposed Exhibit 74: The Langbords seek to introduce this excerpt
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from a draft of expert David Tripp’s report only to cross-examine him, not for the
truth of the matter. The Government’s objection is therefore unfounded.
Langbord Proposed Exhibit 75: George Hunter’s final report, in which he
authenticated the Gold Pieces for the Mint, qualifies as a report setting forth
“matters observed pursuant to duty imposed by law as to which matters there was
a duty to report,” and is therefore non-hearsay under rule 803(8)(B).
Langbord Proposed Exhibit 95: Because the regulations set forth in Proposed
Exhibit 95 became effective on December 1, 1947, it does not bear upon the
issues presented in this case. It is accordingly not admissible as direct evidence or
for the purposes of cross-examining Government expert David Tripp, unless Tripp
suggests that the 1918 regulations remained in effect past 1947, or something
similar.
Langbord Proposed Exhibits 97: This document is the same document as an
attachment to a memorandum from William Dowling to Frank Burke, which the
Government proposed to introduce as its Exhibit 296. The Langbords’ proposed
exhibit is therefore admissible.
Langbord Proposed Exhibits 138 and 139: These documents, a picture and
drawing of the “Treasury Cash Room” in 1975, are admissible under Rule 703
because the Langbords’ expert, Roger Burette, relied upon them to support his
expert opinion.
3.

The Langbords’ Motion in Limine for Jury Instructions Based on the
Government's Violation of the Langbords’ Constitutional Rights (Doc. No. 155) is
DENIED for the reasons set forth in the accompanying Memorandum Opinion.

4.

The Langbords’ Motion Limine to Limit the Testimony of the Government's
Historian Expert Witness (Eric Rauchway) (Doc. No. 156) is DENIED, except
that although Rauchway will be permitted to testify about his own methods in
reaching a conclusion and about why historians accept and endorse those
methods, Rauchway may not tell the jury how it should or must make those same
determinations, as the accompanying Memorandum Opinion explains in further
detail.

5.

The Government’s request to prevent the Langbords’ expert Roger Burdette from
testifying to his former membership in the Citizens Coinage Advisory Committee
(CCAC) or the circumstances of his resignation (see Doc. No. 151) is
GRANTED, in part, and DENIED, in part as follows: Burdette can testify to his
former CCAC membership in order to provide evidence of his expert
qualifications but may not discuss his resignation, as explained by the
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accompanying Memorandum Opinion.
If either party desires an evidentiary ruling on an exhibit not covered by this Order, the
party is directed to file supplemental motion in limine including a specific request(s). To the
extent the documents already submitted by the parties explain the factual and legal underpinnings
for the desired ruling, the parties may direct the Court to those documents, rather than
resubmitting portions of them or composing new documents.
BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.

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