Counterfeit or counterfeat?
J.S.G. Boggs, a Pittsburgh artist and Fellow of Art and Ethics at Carnegie Mellon University, makes money the old-fashioned way: he draws it. Over the past ten years, Boggs has gained acclaim and notoriety both for his realistic drawings of money and for his use of the drawings as barter in various transactions.
Boggs' work consists not only of graphic renditions of the currency, but also contains an element of performance art.<3>; First, Boggs painstakingly draws pictures of U.S. currency which vary slightly from the actual bill and have printing on only one side. The side without printing bears a single green thumbprint.<4>; Then Boggs seeks to "spend" his work by offering his drawings in exchange for everything from motorcycles to art supplies to stays in luxurious hotels.<5>; Boggs explains to merchants that his drawings are not real currency, but rather his artwork which he seeks to trade. The merchants then decide whether to trade their goods and services for Boggs' art. Lest they think Boggs does not take the transaction seriously, he always asks for change, "real" money, when the item purchased costs less than the denomination of the picture he traded.<6>; For those merchants who accept Boggs' unconventional method of payment (approximately ten percent of those he approaches agree to the exchange),<7>; the rewards can be substantial, as Boggs' work has consistently gained value in the world of art collection.<8>; Boggs insists that no one who has accepted his work as barter for goods or services has ever claimed to have been defrauded or has ever believed they were receiving actual currency.<9>;
Boggs' own guarantee that he has defrauded no one has not eased the concerns of the U.S. Secret Service, who have become very interested in Boggs' work, probably less for its artistic merit and more because they suspect it is criminal. They allege that Boggs' work violates provisions of the U.S. counterfeiting law. The Secret Service first contacted Boggs in 1991 in Cheyenne, Wyoming after receiving reports that he had exchanged a drawing for merchandise in a local store. At that time, the U.S. Attorney in Wyoming decided not to charge Boggs with any offense, but retained the drawings which the Secret Service had seized. In December, 1992, the Secret Service conducted a search of Boggs' apartment and office, seizing over one hundred drawings and paintings.<10>; As of this Note's completion, no prosecuting authority in the United States had brought charges against Boggs.
Although no charges were brought, the government did not return Boggs' seized work. Boggs initiated a civil suit in a Washington, D.C. federal district court seeking the return of his seized work as well as a declaratory judgment that particular statutory provisions of the federal counterfeiting law are unconstitutional.<11>; The judge held that the Secret Service may keep the paintings as Boggs is not exempt from criminal liability under the challenged counterfeiting statutes.<12>; Boggs' counsel has appealed the decision,<13> but in the meantime Boggs continues to draw pictures of money, and awaits the next move by the authorities.
J.S.G. Boggs
Life Size & In Colour
by Sandra Smith
J.S.G. Boggs is an artist who has consistently employed the image of money in his art since 1984, when he first accidentally "spent"(1) a drawing of a one-dollar bill. More recently he intentionally printed and "spent" 900 one-dollar Boggs-Bills which he "paid" to the organizer of a coin collectors convention, Florida United Numismatists (F.U.N.) Inc. F.U.N. then "paid" the Boggs-Bills to staff members and to a trade journal, Bank Note Reporter, for a full-page advertisement. The madness seems to have been contagious, for Bank Note Reporter then started handing them out as "change" to people who then went out and "spent" them in the greater world of the public-at-large.(2)
To fully appreciate the meaning of such gestural performance work, and the seeming public disobedience that followed, it is necessary to review the circumstances from which it emanates.
Boggs is a fine artist working in the realm of interactive-performance art, having come to the genre not by intent, but by happenstance. The series of events, best chronicled by Lawrence Weschler,(3) began in a cafe in Chicago on a May afternoon in 1984, when Boggs absentmindedly drew several loosely rendered visual elements on a napkin with a Bic pen.
At that time, Boggs was working on a series of paintings focusing on numbers, and the grouping of sketches executed on the napkin included four distinctly individual numeral 1s, one in each of the four corners. Geometric-abstractions combined with floral patterns formed two horizontal and two vertical bands along each edge, with a slight margin of white remaining. In his mind, Boggs recalls, "The composition became a picture frame in the landscape format. The space in the middle was empty except for a big brown coffee drop in the middle on the right hand side." Boggs remembered a friend's phone number, memorized earlier when no pen was at hand, and jotted it down just above the transparent, splash-rippled edges of the coffee drop.
Boggs recalls having thought of the coffee drop as a dark sun within the landscape format, and toyed with ideas of land formations to place beneath it. But his mind wondered and a different choice was made&emdash;a large human face in the middle. All the while he kept twirling the point of the pen across the surface to remove the glutinous ink and fiber buildup from the pen tip, creating "little hairs all over...and a hairy ball" in the left center space. Seeing the phone number he had jotted, he wrote his friend's name, Maureen, in cursive above the lower left decorative band, and printed her address in the thin space above, just beneath the "hairy ball." Having enjoyed the relaxing, free flow of the cursive, he wrote his own name above the lower right band.
The entire sketch would probably have been consigned to duty as a book-mark, or perhaps even employed to wipe the coffee and sticky sugars from his lips, whereupon it would have been crumpled and thrown away, had it not been for the intervention of the waitress serving him.
The waitress interpreted the randomly composed elements of the drawing as a one-dollar bill, and her admiration of the work lead to a series of linguistic misunderstandings which resulted in a legal barter transaction wherein the drawing was proffered as settlement of a debt of ninety cents for coffee and a doughnut. Still, the unusual exchange would most probably have been recalled later only as an humorous incident, had not the waitress consummated the exact assignment of value by insisting that Boggs take a dime in change, adamantly refusing to accept the differential value as a tip.
A lingering fascination with assignment and depiction of value was born, and ultimately combined with deep concerns regarding the nature of universal and individual visual language over time. More questions arose than answers, and Boggs continued to explore the natures of both, using images of paper money as a stable reference point of departure.
Though legal issues were brought up in jest, Boggs dismissed such comedic references as little more than the monetary-art equivalent of pre-adolescent bathroom humor. Ironically, he was not the only one who wasn't laughing.
Boggs was first arrested for counterfeiting, due to his drawings, in England in 1986, finally being acquitted by a jury in 1987.
Throughout 1988 Boggs traveled extensively, spending drawings throughout Europe and America without official incident. Having studied print-making under the artist Stephen Holm in Florida, he began employing print techniques to facilitate the transactions. To ensure that this expansion of his work did not create any further misunderstandings with government officials, Boggs went to Washington, D.C., for a meeting with Roy Nedrow, then director of the United States Secret Service Counterfeiting Division, to discuss the changing nature of his art.
Boggs requested the meeting without fear of misunderstanding. The United States Secret Service had been ask to prosecute co-jointly with the Bank of England in 1986 in regard to seven drawings bearing a likeness to U.S. currency bills confiscated by Scotland Yard. The Secret Service had not only declined, but ordered the drawings returned to the artist.
It is important to remember these seven U.S. currency drawings, as shall be seen.
The meeting went much as he had expected, with concerns on both sides discussed openly and intelligently. The Secret Service, finding no immediate danger from either the drawings or the limited edition multiples, appraised Boggs of the swift retribution he would receive were he to succumb to the seduction of genuine counterfeiting, and assured him non-intervention as long as he resisted the ill-gotten gains of crime.
Boggs continued his work vigorously, exercising due care, but without thought of further misunderstanding, only to be arrested again in Australia in 1989. Though the Australian Dollar Boggs-Bills being spent there were predominantly printed, lawyers on three continents quickly brought the case to a close, proving for a second time that Boggs was neither a criminal, nor a con-artist. Boggs left Australia feeling that the issue of his intent had been settled once and for all. But now, exhausted from endless court appearances, he began to wonder if his faith in common sense was but wishful thinking.
Though the case was thrown out of court in Australia, with damages awarded, the United States Secret Service began raiding his various U.S. studios, residences, and museum exhibitions(4) in 1990 and continued to do so in 1991, and 1992, confiscating over 1,300 hundred paintings, drawings and prints, as well as items of personal property such as address books, matchbooks, and (this is not a joke) his boxer shorts.
More importantly, and perhaps most revealing of all, on the last raucous visit to his studio in Pittsburgh, in 1992, the Secret Service also confiscated the exact same seven drawings of U.S. currency bills that, in 1986, they had determined to be legal and ordered returned to Boggs in London. And yet the law had not changed.
Visible Language is the title of the publication you are reading, but it is visual language that is the focus of this essay. Boggs is truly speaking visually. In order to understand what is being said, visually, the context of the set of statements expressed must be understood.
The law had not changed
Thousands of pages of text have been written regarding these works of art and the case in question, and there isn't room here, nor desire, to fill page after page with legalese. The law in question has but one function, to prevent counterfeiting, and the curious wording can be simplified without loss of meaning, with one single clarification.
Sections 474 and 504 of U.S. Code, Title 18 are the relevant passages. Translated into English they state:
It is illegal to make illustrations in the "likeness and similitude"... of U.S. currency...unless they are much larger or much smaller than U.S. currency... and only rendered in "black and white."
As Boggs-Bills are the same size as the currency they refer to, and they are in color, it might appear, by the letter of the law at least, that they are illegal, no matter how inane that might be. But that excludes both the issue of "likeness and similitude" and the seemingly unmentioned issue of "intent."
What constitutes an illustration might keep academics busy for years to come, but that seems infinitely more approachable than the horrific task of arriving at a precise definition of "likeness and similitude." Thankfully, the law itself has granted a pardon from such a hellish task. As a matter of law, likeness and similitude means: that which is calculated to defraud an honest person of average intelligence and ordinary observation, exercising due care.(5)
Clearly, recognition of intent is there, as it is throughout almost all western law. It is improbable that one could "calculate" without it. Since Boggs puts both his name and thumb-print on each of his multiple-works, it stretches the imagination beyond even the most unreasonable limits that his intention could be construed to be fraudulent. But who is to decide?
Clearly the United States Secret Service made a determination that seven drawings bearing a "likeness" to U.S. currency were legal in 1986, only to find the very same drawings in violation of the law in 1992.
Again, the law itself saves us the aggravation of semantic imprecision. "Whether the printings are sufficiently completed or similar to genuine currency is generally a question of fact to be submitted to the jury."(6)
That the government has refused to allow Boggs anywhere near a jury is an interesting fact. Among the more than 1,300 items seized from Boggs at his Pittsburgh studio and his office at Carnegie Mellon University were: matchbook covers, a plastic shopping bag, magazines, video tapes, a calculator, postcards, receipts, "real" money, and the artist's underwear.
These items were not made by Boggs, but are routinely confiscated by the U.S. Secret Service as a matter of policy. That this practice is illegal would surely come to light if any challenge were brought before a jury.
The law firm of Arnold & Porter, who represent Boggs, have written thousands of pages of legal documents since 1992, at a cost of nearly $500,000, to ensure Boggs will have his voice. The U.S. government has likely spent more than twice that amount since 1990 to still that voice. It is estimated that both amounts will double before this case is resolved, most probably before the Supreme Court.
It is a pity that the government is so illiterate in terms of visual language. Whatever might be said in all the words now written or remaining to be written on reams of paper will never speak so eloquently as this single image, expressed and contained on dollar-bill-size paper.
In 1993, a Federal judge ruled against Boggs' first plea for protection under the first and fifth amendments, and in 1994 allowed government lawyers to delay the ruling of record which would allow Boggs and his lawyers to file an appeal. Unquestionably headed for the Supreme Court, yet stuck in legal limbo, Boggs has responded with&emdash;LIFE SIZE & IN COLOUR.
As any lawyer worth salt would explain in legalese, "res ipsa loquitur"(7)
1. There is evidence that Boggs had been drawing "currency" as early as 1969. In a photograph of his bedroom, an image of his interpretation of a United States one-dollar bill floats upon a wall completely covered with drawing and painting. Other photograps reveal that the entire room, all four walls, as well as the ceiling, were covered with pencil, crayon, and paint. 2. The quotes in this paragraph around words ordinarily applied to the transfer of currency indicate that such words do not have the same meaning when they are used to refer to the traansfer of Boggs-Bills. Although exchanged in transactions, Boggs-Bills are never offered as the real currency of any country. For readability, such quotes will not be used hereafter.
3. Weschler, Lawrence, 1988. "Boggs's Bills." in Shapinsky's Karma, Boggs's Bills. San Francisco: North Point Press.
4. Catalog. 1990. smart money (HARD CURRENCY). Tampa, Florida: Tampa Museum of Art.
5. Black, Henry Campbell, Joseph R. Nolan and Jacqueline M. Nolan-Haley. 1990. Blacks Law Dictionary. 6th ed. St. Paul, Minnesota: West Publishing Co.
6. Devitt, Hon. Edward J., Hon. Charles B. Blackmar and Kevin F. O'Malley. 1990. Federal Jury Practice and Instructions/Criminal, 4th ed. Vol. 2. St. Paul,
Minnesota:West Publishing Co.
7. "The thing speaks for itself."
APPEARANCES:
KENT A. YALOWITZ ESQ., Arnold & Porter 399 Park Avenue, New York, New York 10022 on behalf of Appellant [J.S.G. Boggs]
Michael J. Ryan, Esq., on behalf of Appellees [Eljay Bowron, director, United States Secret Service; Robert Rubin, Secretary of the Treasury; Janet Reno, Attorney General] 12
C O N T E N T S
ORAL ARGUMENT OF:
Kent A. Yalowitz, Esq., on behalf of Appellant [J.S.G. Boggs]
Michael J. Ryan, Esq., on behalf of Appellees
Kent A. Yalowitz, Esq., rebuttal on behalf of Appellant
P R O C E E D I N G S
THE CLERK: No. 95-5100, J.S.G. Boggs, Appellant v. Eljay Bowron [Director, United States Secret Service], et al. Kent A. Yalowitz, Esq., for Appellant [J.S.G.Boggs], and Michael J. Ryan, Esq., for Appellees.
THE COURT: Mr. Yalowitz?
ORAL ARGUMENT OF KENT A. YALOWITZ, ESQ., ON BEHALF OF APPELLANT [J.S.G. Boggs]
MR. YALOWITZ: Good morning. I am Kent Yalowitz, from Arnold & Porter, for J.S.G. Boggs. Boggs is a well-credentialed, well-recognized, internationally acclaimed artist who creates art that involves images of money, like many of the artists in whose footsteps he follows, Harnett, Otis Kaye in this century. Boggs has run into trouble with the Secret Service because they do not like what he does. As a result, he has been the victim of censorship and harassment by the Secret Service over a number of years. In 1990, he was involved in the printing of a catalog and the Secret Service advised the printer that the printer had violated the counterfeiting laws by making color proofs, and the printer naturally decided to change the catalog so as to take the Secret Service's advice. In 1991, Boggs was in Cheyenne, Wyoming. He received a visit from the United States Attorney himself, accompanied by a Secret Service agent. There were threats of arrest by the Secret Service agent. There was no warrant. The government agent still took a so-called sampling of Boggs' artwork. It is clear from the record that this was a negotiated resolution of a very tense situation designed not to give the Secret Service some materials voluntarily, but to avoid arrest and wholesale seizure. Then in 1992, this time with a warrant, Secret Service agents raided Boggs' home and studio, seized over 1,300 items, more than a hundred drawings. Each time --
JUDGE BUCKLEY: Counsel, is a counterfeit bill a work of art?
MR. YALOWITZ: No, absolutely not.
JUDGE BUCKLEY: Because it was not produced for artistic purposes?
MR. YALOWITZ: That's right, because it was produced with an intent to cheat someone.
JUDGE BUCKLEY: If there were two bills in front of me, one a Boggs bill and another a very fine counterfeit bill, and the Secret Service Agent did not know the provenance of either one, there is nothing on the face of the Boggs' bill that would alert him to the fact that this was art, as opposed to counterfeit?
MR. YALOWITZ: Well, the --
JUDGE BUCKLEY: Let's put it this way. It is the intent of the producer and there was an object with the application of art.
MR. YALOWITZ: Well, that's true, although intent, as the Court knows, is determined by a finder of fact, taking into account all the facts and circumstances. The look and feel of the Boggs Bill is one factor -- and I know the Court has had a chance to examine some of the art that Judge Lamberth had before him, it doesn't, at least in my view at first glance, it doesn't have the texture of money, it doesn't look like real money, it doesn't have the color of money, and --
JUDGE BUCKLEY: The front of it looks very much like money.
MR. YALOWITZ: Well, I think it looks a lot -- you look at it and it looks a lot like money, but --
JUDGE GINSBURG: The backside doesn't look like money.
MR. YALOWITZ: Right, but --
JUDGE GINSBURG: We don't know from those samples whether the samples that were examined by an expert in counterfeit who testified or swore that it appeared to him to be of a quality that would fool the average knowledgeable intelligent person. Did what we see today, were they comparable to these other items?
MR. YALOWITZ: I think they were. The Secret Service has custody of those items here in Washington and I am sure if the Court is concerned about that question, they would be in a position to produce them. We don't have custody of them. In fact, we have tried for years to get custody of them back, and that is part of the reason we are here today. It is one thing to say to somebody like Boggs, "What you are doing is unlawful and therefore we will prosecute you," or "What you have created is in our opinion contraband, and therefore, we will seek civil forfeiture of it." It is quite another thing to do what the Secret Service has done here. They have said to his printers, and they have said to him "don't do it, or else you will be in trouble," and they have intimidated his printers, they have intimidated customers, they have intimidated gallery owners. When we tried to bring on the question of forfeiture hearing so that a jury could determine whether or not the art that they have seized is or is not contraband, we received a letter from the United States Attorney saying "we will not bring forfeiture action, we are just going to keep your materials."
JUDGE BUCKLEY: May I pose a hypothetical. Let's suppose the most brilliant engraver in the world saw the article last week in the Washington Post describing the new $100 BILL --
MR. YALOWITZ: Or perhaps the photograph which violates the --
JUDGE BUCKLEY: The photograph of the new $100 bill and he said, well, these bureaucrats think that they can fool artists. I am going to demonstrate that I can come up with something that looks exactly like it, it has ink that changes color as one looks at one side or the other, has magic ribbons in it that are fluorescent and so on, and he did produce such an item and labeled it "Art Borealis," that he produced a thousand copies and announced that he was going to give them away to the first thousand people who turned up at a rock festival and honored his favorite charity. Those would immediately go into circulation after they were given away. Would it be improper for the Secret Service to make a preemptive strike and to impound all of those items?
MR. YALOWITZ: Well, let's take it one at a time. Would it be improper for the Secret Service to get a warrant and seize the item and have a prompt judicial hearing at which it is determined whether or not they are contraband or protected expressive materials? Of course not. That is exactly what the Secret Service is supposed to do.
JUDGE BUCKLEY: But, they could impound the whole lot?
JUDGE BUCKLEY: You say you are not sure why, but the District Court determined that the material fit within the statutory prohibition, so that it could have been the basis for prosecution.
MR. YALOWITZ: No. In fact, I think there is a footnote in the District Court's opinion, I believe it is a footnote on about page 40 or 42, saying that the court has expressly not made a determination of whether the materials submitted to it are contraband, so --
JUDGE BUCKLEY: That is true, but is also said that a jury would be virtually compelled to find Boggs guilty.
MR. YALOWITZ: He did say that.
JUDGE BUCKLEY: -- so it seems to come to the same thing in terms of the reasons for withholding the injunction.
MR. YALOWITZ: That is certainly possible. I think, though, that even if the District Court concluded that a jury would find that, that is not the province of the court. Ultimately, that is the province of the jury. That is what the process is all about, is saying if you are going to prosecute him, go ahead and do so, but don't fool around going to his printers, going to his customers, going to him and telling him that you are going to arrest him or that he is going to look cute to other prisoners. Either do it or don't do it. That is the fundamental point that amici have made here, too, which I think is important to recognize.
JUDGE TATEL: Counsel, I just have two questions about the record I wasn't absolutely sure of. One is, in your brief, you refer to these bills as "hand-drawn" or "hand-painted," and there are documents in the record from the government which seem to say that they think at least some of them are mechanically produced.
MR. YALOWITZ: There are both.
JUDGE GINSBURG: There are both?
MR. YALOWITZ: There are works that are produced mechanically with hand-drawn embellishments, and there are two items that the Secret Service seized which are photocopies. They are photocopies of a front and back of a $1,000 bill. The reason that -- and this is all explained in the record -- the reason that Boggs has photocopies of $1,000 bills is people don't know what they look like, and so they are used to educate people in saying I have created a work that looks like a $1,000 bill and here is what the genuine article looks like.
JUDGE GINSBURG: Mr. Yalowitz, how many works of art of this sort has Mr. Boggs produced in any given period of time, let's say in the last year or whatever, in any year covered in the record?
MR. YALOWITZ: I think that we have in the record that there was something like $100,000 spent in a one year period.
JUDGE GINSBURG: Yes, that figure is in there, that he received $100,000 worth of goods and services in return for his art that year. Does he ever receive more for a piece of art than the nominal value on the piece itself?
MR. YALOWITZ: I don't believe so. I think the whole point of it is that the exchange is for the face --
JUDGE GINSBURG: So it is the inference then that the face value of all the works produced in that period was $100,000?
MR. YALOWITZ: I believe that is correct, Your Honor.
JUDGE TATEL: Of the ones he exchanged.
MR. YALOWITZ: I'm sorry?
JUDGE TATEL: Of the ones he exchanged during that period.
MR. YALOWITZ: Right.
JUDGE GINSBURG: So if they were in circulation, they would have a purchasing power of $100,000 if some people accepted them as currency?
MR. YALOWITZ: Right, although they don't, and they don't go into circulation, because they are actually works worth much more than face value. Only a fool would attempt to pass it on as genuine, because they are worth substantially more than their face value.
JUDGE TATEL: But Mr. Boggs passes them on for no more than their face value.
MR. YALOWITZ: Well, -- -- [uproarious laughter, including from Boggs] well, that is part of the transaction, you see. That is part of the challenge of the performance. If I might turn to --
JUDGE GINSBURG: Let me ask you just one other question. Do I understand that the materials were seized on two occasions in Wyoming, right, and in Pennsylvania?
MR. YALOWITZ: Correct.
JUDGE GINSBURG: And has anything ever been returned?
MR. YALOWITZ: No. The government has offered to return -- after the United States Attorney in Pittsburgh declined prosecution, the government offered to return things that it deemed non-contraband, and we felt that for a chain of custody purposes and contextual purposes, it was important that all of the items be kept together. There are continuing proceedings in the District Court concerning items that might have been lost. But the government has never offered to return all of the expressive materials. If I might turn to the second branch of our injunction request, which is a request for an injunction against prosecution. This is a question of statutory interpretation. The question is what level of intent, what level of scienter, did congress intend to incorporate into this statute in 1862 when it enacted it. The District Court found that this was a strict liability felony -- a strict liability felony. That, of course, is unconstitutional under Smith v. California. It violates the First Amendment, and the government has conceded that this cannot be a strict liability felony because of the strictures of the First Amendment. So the question is what level of intent did Congress actually intend to incorporate, and the way one determines that is by looking at the common law roots of the statute --
JUDGE BUCKLEY: Well, not necessarily. Did the common law have anything about purely determinative laws?
MR. YALOWITZ: Well, I think that --
JUDGE BUCKLEY: It had a lot about counterfeiting.
MR. YALOWITZ: Right, and there are early statutes directed to the tools of the counterfeiter. This was not the first statute that took aim at the tools of the counterfeiter.
JUDGE BUCKLEY: But this particular statute seems to have been the last rework by Congress in 1948, and there seems to be very different provisions falling in either one of two categories, those that involve actual acts of counterfeiting, in which case Congress is careful to say with intent to defraud, that's [Section] 471, with the intent to defraud, [Sections] 472, 473, with intent that the same be passed, published, et cetera. We get to [Section] 474, which in the current version bears the level of deterrence, where we don't have any such language.
MR. YALOWITZ: Actually, in Section 474, there are six clauses, and the first four clauses all use the words "with intent to engage in counterfeiting or fraud." Then it is the fifth clause which says "intent to use, intent to sell or otherwise use," and the sixth clause which contains no intent requirement at all, strict liability, according to the District Court. And then there was a --
JUDGE BUCKLEY: Or some standard other than an attempt to defraud, and Congress clearly demonstrated that it was saying intend to defraud when it meant intend to defraud.
MR. YALOWITZ: You see, the teaching of Morissette and the teaching of this Court in Hester is that even where Congress within a single provision uses some paragraphs that have the words "intend to defraud" -- and there are paragraphs that do not -- one must still incorporate the common law level of intent in each paragraph.
JUDGE BUCKLEY: Are you saying that this particular clause is a common law offense?
MR. YALOWITZ: I am saying that it evolved from the common law offense. The nature of its essence --
JUDGE BUCKLEY: That is your argument, but it does not necessarily follow.
MR. YALOWITZ: With great respect, Your Honor, it is a crime that involved -- it is a statute about counterfeiting and that is --
JUDGE BUCKLEY: This is not a counterfeiting crime, this particular clause.
MR. YALOWITZ: The legislators who enacted the statute and the Treasury Secretary Salmon Chase who submitted the statute, all wrote that that was about counterfeiting. The agency charged with its enforcement in the early years also wrote that it was a crime involving counterfeiting. The codifiers put it in Chapter 25 of the Criminal Code, the counterfeiting chapter. The recent floor statements which are subsequent legislative history, although some question its legislative value, also talk about this as a crime about counterfeiting.
JUDGE BUCKLEY: And [Section] 474(a) is defined as a deterrent to counterfeiting.
MR. YALOWITZ: And [Section] 474 is, I believe, plates or stones or obligations in support of counterfeiting --
JUDGE BUCKLEY: Mr. Yalowitz, in Morissette, the Court I think clearly distinguished between the type of offense it had there. That was a conversion action, as I recall. And what it called public welfare offenses that result in no direct or immediate injury to a person or property, but merely creates the danger or probability of which the law seeks to minimize. That is what we have here, isn't it? These are all consensual transactions. Nobody is injured here by the conduct that is covered, and Mr. Boggs' conduct. The objective of the statute is to reduce the probability of something else happening, mainly these coming into circulation as bills.
MR. YALOWITZ: I believe that the category of public welfare statutes is limited to misdemeanor offenses which are about things like food and drug purity. I think that the Supreme Court faced that question --
JUDGE BUCKLEY: A food and drug offense that is a felony would not be a public welfare offense?
MR. YALOWITZ: I believe that it is very difficult to find felony statutes with 12-year prison terms as their maximums that are strict liability statutes.
JUDGE GINSBURG: The case argued before yours arose originally from a violation of recordkeeping requirements under the Food and Drug Act, where somebody went to jail for 3 years. I believe it was a strict liability situation. It was certainly a felony.
MR. YALOWITZ: I am not sure what the statute was or whether it was a strict liability felony or perhaps a knowledge felony. Frankly, I think that is the question on which this case turns, is this a knowledge felony or an intent to defraud felony. The government has conceded that it can't be a strict liability felony, because if it is, it violates the First Amendment.
JUDGE GINSBURG: But knowledge of what? What knowledge would be required?
MR. YALOWITZ: You see, that is what I don't fully understand. I think that the government's position has been that if you act knowingly in some way, you are violating the statute. For example, if you possess a copy of the Washington Post and you know that it has an image of United States currency, that you possessed and used an image of money in violation of Section 474. It is not covered by the safe harbor provisions of Section 504, and you are therefore subject to indictment and prosecution for a 12-year felony. That is the government's position in this case, as I understand it. If that is correct, then a very, very broad range of conduct that people assume is innocent conduct is felony conduct. I would think that the rules of avoiding constitutional difficulties would counsel against that interpretation here.
JUDGE GINSBURG: Now, in (6) we are talking about printing or otherwise making copies, right, in paragraph 6?
MR. YALOWITZ: Print, photograph, right.
JUDGE GINSBURG: Right. So someone who buys the Washington Post isn't printing a copy.
MR. YALOWITZ: Right. It is only the Washington Post company itself that --
JUDGE GINSBURG: Right, and whether that conduct is innocent is not at all a clear question. But the person who buys the newspaper is not implicated in the printing under paragraph (6).
MR. YALOWITZ: Only under the government interpretation of paragraph (5), Your Honor.
JUDGE GINSBURG: All right. Now, (5) is possessing, basically possessing copies, right? Does it meet the similitude standard? Is that correct?
MR. YALOWITZ: Yes.
JUDGE GINSBURG: Do you think that a reproduction in the Washington Post might meet that standard?
MR. YALOWITZ: That, I believe, is the government's position.
JUDGE GINSBURG: Even the words of the Washington Post don't meet that standard on some occasions, only the pictures. [Laughter] To put it another way, it is not engraved. Was it in color in the Washington Post?
MR. YALOWITZ: Yes.
JUDGE GINSBURG: And it has run afoul of the size limitations?
MR. YALOWITZ: That's correct.
JUDGE GINSBURG: And was it on stock that could be passed off as currency?
MR. YALOWITZ: It was on newsprint.
JUDGE GINSBURG: Newsprint, so there is difficulty meeting the similitude requirement there, but perhaps not.
MR. YALOWITZ: Perhaps not. It would be question that a finder of fact would have to address. I see that my time is expired. I would be happy to field additional questions and I do hope my --
JUDGE GINSBURG: Is there a reason why you noticed that just now? [Laughter.]
MR. YALOWITZ: It was the quiet from the bench. I would hope to have a minute or two for rebuttal, Your Honor. Thank you so much.
JUDGE BUCKLEY: Mr. Ryan?
ORAL ARGUMENT OF MICHAEL J. RYAN, ESQ., ON BEHALF OF APPELLEES
MR. RYAN: Good morning, Your Honors.
JUDGE GINSBURG: Mr. Ryan, I wonder if you could enlighten us about the offense of carrying around a copy of the Washington Post. I always found it offensive, but I didn't think it was a crime. [Laughter.]
MR. RYAN: Your Honor, I was just having a consultation with my co-counsel. It was my information that the Washington Post reproduction may have met the size requirements, may have been less than 75 percent the size of a regular Federal Reserve Note, so at least it would have met that requirement. If it were in color, it still would have run afoul. I think Your Honors have dealt somewhat with the dual aspects of these statutes. They both have deterrent aspects, as well as enforcement aspects to them, and it may be that the government may be lacking resources to prosecute every instance of a violation. But certainly the deterrent aspects of the statute do come into substantial beneficial impact over time. I would also like to point out, however, that this is not a criminal case. Some of the issues that appellant raised would be for the determination of a jury in a criminal case, in other words, whether a particular bill is or is not a likeness or in similitude. I would also like to point out that in this particular civil action, the appellant brought two claims. One was the claim for injunctive and declaratory relief under the First Amendment. The other claim was for destruction of property and return of property under the Fifth Amendment. That claim was not decided by the District Court. The appellant specifically reserved a claim, so that claim remains in the District Court and has not been decided at this point in time. With respect to the appellant's claim for injunctive and declaratory relief as to the potential investigation or prosecution under these two statues, 18 United States code, Sections 474 and 504, or a declaration that the statutes are unconstitutional on their face or implied, our position obviously is that the District Court properly found that an injunction was not warranted and that the statutes were constitutional. Our position, too, which we would like to emphasize, is that the government is not out to get Mr. Boggs. The only position that the government takes in this proceeding or any other proceeding as to the statute is it would like to preserve the integrity of United States currency and its opportunity to investigate or prosecute potential violations of those statutes.
JUDGE TATEL: Counsel, let me ask you about that then. I would like to ask you a question about the letter to Mr. Boggs ... this September 5th letter. That says that the government has reviewed the materials and believes a majority of them violate the law.
MR. RYAN: Yes, Your Honor.
JUDGE TATEL: Now let me ask you about that letter. The minority of those materials that don't violate the law, does the government still have them?
MR. RYAN: Your Honor, the government has offered to return any materials that do not violate the statute. I would like to emphasize that nothing has been found to violate any statute. However, in the expert opinion of government documents, the questioned document examiners, a number of appellant's works of art, as he calls them, do fall within the coverage of the statute and therefore they would be contraband.
JUDGE TATEL: And the government has kept those and not offered to return them?
MR. RYAN: That's correct.
JUDGE TATEL: Well, why wouldn't it proceed to prosecute him?
MR. RYAN: Pardon me, Your Honor?
JUDGE TATEL: Why wouldn't it proceed then to prosecute him for violating the law?
MR. RYAN: Your Honor, there have been several declinations of prosecution of the appellant. Those are discretionary decisions. The United States Attorneys offices in several jurisdictions have determined not to prosecute for whatever reasons that are known to them.
JUDGE TATEL: Well, what status does that leave the materials, then, that are in the government's possession?
MR. RYAN: Your Honor, it would be my estimate that those materials which are not contraband, the government would offer --
JUDGE TATEL: No, no, no, I am not talking about those. I understand you offered to return those.
MR. RYAN: Yes.
JUDGE TATEL: But it said a majority of the materials are viewed as illegal --
MR. RYAN: By the government, and under the case law --
JUDGE TATEL: You would not return those, but you also may not prosecute.
MR. RYAN: We also may not prosecute, and the point is that the case law in our view, Your Honor, says that materials which are per se contraband, such as an obvious counterfeit note or obvious drugs, let us say, under a drug prosecution may be withheld by the government without the government initiating forfeiture proceedings. Now the plaintiff --
JUDGE TATEL: Well, there are no First Amendment issues lurking in a case like that, are there?
MR. RYAN: Your Honor, we would submit not, if it is in the government's expert opinion specifically per se contraband, as opposed to derivative contraband, let's say money, that was used to buy drugs or a car that is used in a drug transaction, that would be derivative contraband. However, the appellant does have a remedy, namely to bring a civil action, which he has done in this case and a claim which has not yet been decided by the District Court. He has asked for the return of his property, so that matter remains undecided in the District court, or he may bring a Rule 41 motion under the criminal rules to return the property.
JUDGE TATEL: Did the District Court review the materials that the government has seized?
MR. RYAN: It reviewed I believe the 15 samples that were taken as a result of the interview in Wyoming, Your Honor. It did review those materials, it is my understand.
JUDGE TATEL: What about the several thousand that were seized in Pennsylvania?
MR. RYAN: I don't believe those materials were reviewed by the District Court, Your Honor.
JUDGE TATEL: So his situation then is that those materials have been seized. The government's position is that a majority of them are contraband.
MR. RYAN: Yes.
JUDGE TATEL: But no court has reviewed them, right?
MR. RYAN: That's correct, Your Honor.
JUDGE TATEL: Because you have decided not to prosecute, because the District Court --
MR. RYAN: No.
JUDGE TATEL: No?
MR. RYAN: No, Your Honor, it is not because the government has decided not to prosecute that the materials have not been reviewed. As I said, the appellant can bring a civil action for return of property. That is a civil action that is currently pending. The return of property claim has not been decided by the District Court, so the appellant may gain relief in fact for return of property in this very case in the District Court, or the appellant has an alternative remedy under the Federal criminal rules to ask for return of property under Rule 41. It is our understanding that appellant has not made such a motion for return of property. So there are alternate avenues for return of property.
JUDGE TATEL: And the action for return is now pending. What is the standard by which or the law by which that would be resolved?
MR. RYAN: The Fifth Admendment claim that is currently in the District Court, Your Honor.
JUDGE TATEL: Yes?
MR. RYAN: Your Honor, I would --
JUDGE GINSBURG: Oh, it is a Fifth Amendment takings case?
MR. RYAN: It is a takings case, a request for damages, alleged destruction of property and withholding of property, and that claim was specifically reserved by the appellant below and has not yet been decided. The District Court initially decided that appellant had apparently abandoned that claim. Appellant made a motion to clarify and the District court held that claim in abeyance while this appeal goes forward.
JUDGE GINSBURG: So the footnote saying that the court hasn't determined whether the material is contraband refers apparently to the open proceedings?
MR. RYAN: It could, Your Honor. It is unclear, I believe, on that language whether in fact there is a relation of that statement to one or the other of the claims, but --
JUDGE BUCKLEY: Is there any conceivable way in which materials as to which a jury would be justified, if not compelled, to find similitude to genuine currency, would not be contraband and returnable?
MR. RYAN: Your Honor, I don't know how a jury could find that materials was in the similitude or likeness of currency and not be contraband. That would be our position on that. But those again are jury questions in a criminal case, and no criminal case is pending or about to be brought against the appellant, so far as we are aware, and in our view that further attenuates appellant's request for injunctive relief against investigation or prosecution of him under the statutes.
JUDGE GINSBURG: Just because it at least reserves the possibility that there is some distinction yet to be drawn here.
MR. RYAN: I believe that question would be open, Your Honor, but that --
JUDGE GINSBURG: It just hasn't turned to it, perhaps.
MR. RYAN: It hasn't turned to it, hasn't been fleshed out. There hasn't been a showing made by the parties on those questions. So in our view, an injunction isn't warranted in this case, because the government has not on this record proceeded in bad faith. As I said, the United States Attorneys offices, several of them have declined prosecution --
JUDGE GINSBURG: At some point, Mr. Ryan, when you get enough declinations and continue to pursue the matter, is it at that point bad faith?
MR. RYAN: I believe Your Honor may be positing a situation which is not in the case in the same sense that there have been declinations. However, there is not, to our knowledge, a continuing investigation, a continuing imminent prosecution of the appellant.
JUDGE GINSBURG: What about a sort of general harassment? As I understand the allegation, that you scare off customers, you scare off printers?
MR. RYAN: Your Honor, the statutes, in view -- my second argument is obviously that the statutes are constitutional, and in our view that decision has been made by the Supreme Court in Regan v. Time, so that the investigation and potential prosecution of apparent violations under those two statutes would be legitimate, so that the government would have the ability to go pursue what it believes to be a prima facie violation of the statute.
MR. RYAN: Your Honor --
JUDGE GINSBURG: Can this become an abuse of discretion or prosecutional discretion or bad faith?
MR. RYAN: Your Honor, at some point in time down the road, I am not prepared to say that it might not reach that level, but it certainly on this record has not reached that level. In fact, this record indicates that the appellant is the one who has on many occasions contacted the Secret Service to come to his exhibitions, to come visit him, to visit his exhibits, and the Secret Service has declined to go to these locations, has not responded to his invitations, so the contacts on many occasions, have been initiated by the appellant, so that we believe that his claims of harassment by the Secret Service in fact ring hollow, that he is not being harassed. In fact, there is no record basis for those claims in this case. As I said earlier, the second aspect --
JUDGE GINSBURG: Mr. Ryan, is it fair to surmise that if the enforcement of 474 were remitted to the Department of Justice, the FBI, that this matter wouldn't have gotten to where we are? There appears to be a breach, in other words between -- is it Treasury? --
MR. RYAN: The Secret Service, Your Honor.
JUDGE GINSBURG: -- the Secret Service and Justice as to whether this is worth pursuing.
MR. RYAN: Your Honor, that is one conclusion that could be drawn perhaps from the fact that there have been declinations.
JUDGE GINSBURG: It is possible that you just have two or three U.S. Attorneys who have better things to do, but at some point it would seem to be policy of the U.S. Attorneys not to pursue this case.
MR. RYAN: Yes, Your Honor, that's possible and I am not prepared to say that policy exists or is at work in this case. It is my understanding, just a matter of general background, that there has recently been a prosecution of someone who was an artist under this statute who is reproducing copies of money out in Los Angeles, California. I don't believe any defenses of unconstitutionality of the statute were raised in that case and that case, I understand, is on appeal to the Ninth Circuit.
JUDGE BUCKLEY: Is there a reported decision in that case?
MR. RYAN: Your Honor, I don't believe so. I believe there was a jury finding of guilt. It was United States v. Eschold, I believe in the District Court out there, and I understood from the U.S. Attorney's office out there that the case is currently on appeal in the Ninth Circuit.
JUDGE BUCKLEY: In Central California.
MR. RYAN: I believe so, Your Honor. The point is that case doesn't raise the issues that are present in this case, because it is my understanding that the defendant in that case did not claim unconstitutional application of the statutes or unconstitutionality on its face.
JUDGE BUCKLEY: But it does suggest that the Department of Justice regards this as a prosecutable violation.
MR. RYAN: Yes, Your Honor, certainly those statutes do receive prosecutions from time to time. They just haven't been in the appellant's case. (Judge Ginsburg looks at watch and rolls his eyes.) To wrap up very quickly, Your Honor --
JUDGE TATEL: One question: As I understand the way this works -- the appellant engages in a transaction with a merchant, an admirer of his art, who takes a Boggs bill in exchange. Is that the way this works?
MR. RYAN: Your Honor, I believe so. Perhaps --
JUDGE TATEL: Is that person violating subparagraph (5), the possession element of 474?
MR. RYAN: Your Honor, I believe paragraph (5) does require an intent to sell or use.
JUDGE TATEL: Suppose he is an investor, an art investor, and thinks Mr. Boggs' art is going to go up in value, so he buys it now and is going to sell later.
MR. RYAN: I believe under the hypothetical you are posing, there might be a technical violation there in the sense that the individual who purchased the Boggs bill from Mr. Boggs was himself intending to use the document or the bill further for his own profit, to make a profit or gain economic benefit out of it, so that, YES, there would be some transgression of the statute there.
JUDGE TATEL: What about a museum? It would be true of a museum that bought his artwork?
MR. RYAN: Again, Your Honor, whether the museum was intending to sell or use I think again would be a jury question in a criminal case, if one were brought against a museum. It would see that --
JUDGE TATEL: So it is possible that the Smithsonian is violating 474 subparagraph (5).
MR. RYAN: If it had bills that were not geniune currency that were in the similitude of -- I think that --
JUDGE TATEL: I am talking about Mr. Boggs' artwork. I am talking about his bills.
MR. RYAN: Again, it would have to meet the similitude requirement, which is something that is made to deceive, calculated to deceive and would have to be possessed with the intent to sell or use, and those are jury questions in a criminal case.
JUDGE TATEL: But there is a statutory question as to the breadth of the term used here. Normally, a museum doesn't acquire -- a dealer might, but a museum doesn't acquire a piece in order to sell it.
MR. RYAN: To sell it further? It is simply to display it?
JUDGE GINSBURG: Right. They acquire it in order to display it, which could arguably be a form of use, but it might not be, depending on the congressional intent for the breadth of that term.
MR. RYAN: Your Honor, Judge Tatel, as Judge Ginsburg just said, I don't know the breadth of the term "to use," so that it might be that that would not violate the statute. I just don't know, and that would be something that would --
JUDGE BUCKLEY: It can be a very broad term, as we know from 924(c). In the Smith case, the Supreme Court said using a gun included bartering it for something else.
MR. RYAN: Yes, Your Honor.
JUDGE BUCKLEY: This is my last question: the government's concern here, the Secret Service's concern here, am I right, is that these bills can be mistaken for real bills and that they can get into the stream of currency? Is that the problem?
MR. RYAN: I think that is the problem, Your Honor. I believe Mr. Boggs has indicated either in his complaint or in his affidavit that he has been approached from time to time by counterfeiters and --
JUDGE TATEL: Well, has he ever responded affirmatively to the counterfeiters?
MR. RYAN: No, I don't believe that he has.
JUDGE TATEL: So then why is that relevant?
MR. RYAN: The point is, as Your Honor seems to be indicating, that if those bills get out into the stream of commerce, there may be others who don't have Mr. Boggs' attitude about them.
JUDGE TATEL: Is there anything in the record which indicates that has happened?
JUDGE TATEL: I couldn't find anything in the record which indicated that anybody has ever been confused by these bills.
MR. RYAN: Your Honor, the only thing that is in the record is the District Court's statement in its opinion that it has examined these things and felt that a jury would be inclined, if not compelled, to find that they were within the statute.
JUDGE TATEL: Our review of that is de novo, isn't it?
JUDGE GINSBURG: It has the ability to go forward, but it is playing a cat and mouse game.
MR. RYAN: It is de novo, Your Honor. I would also like to point out, though, that not everything necessarily that the appellant does could potentially violate the statute. It is those documents which were examined by the Secret Service documents examiner which were found to fall within the purview of the statute. The Secret Service is not about creating a total ban on all of Mr. Boggs' attempts at artwork. In fact, as the Supreme Court found in Regan v. Time, these size and color restrictions in Section 504 leave open ample alternative channels of communication. He can create art, so long as it doesn't violate the size and color restrictions. Yes, Your Honor, this Court's review of those questions is de novo. However, we believe that there is a basis there for the District Court, as the Secret Service found, to have a legitimate, investigatory at least, interest in Mr. Boggs' work and it does fall within the purview of those statutes.
JUDGE BUCKLEY: We are told that some of his work is mechanically reproduced.
MR. RYAN: Yes, Your Honor.
JUDGE BUCKLEY: Does that mean photocopies or photo offset in some way, or does that mean that there are plates created?
MR. RYAN: Your Honor, in our supplemental apendix, at page 17, there is a declaration of Senior Documents Examiner Larry Stewart, and I believe that you will find on page 20 of the supplemental appendix where he is describing his examination of these 15 bills which I believe were taken in Wyoming, that two of the notes were direct counterfeits, and the remaining 13 Boggs notes were produced through a combination of steps including photographs and artwork and/or computer-generated artwork and color office machine copiers. And then he goes on to give examples of how these were reproduced on, for instance, a four-color office machine copier, and that certain alterations were made to those bills to customize them or to make them unique to Mr. Boggs. That would be our indication of the record that described how the Secret Service found those bills to have been produced.
JUDGE BUCKLEY: Insofar as there are direct copies made from genuine currency, I take it there can be no questions of similitude or lack of similitude.
MR. RYAN: Your Honor, that I believe would be our position, but again that would be rising in a criminal case. I would only like to point out, though, that it needn't be starting off from an exact copy of a bill. I believe the statutes say that whole or part of the bill, as long as the whole or part of the reproduction resembles or is in the likeness of a genuine Federal Reserve Note, that then the reproduction would fall within the statute. So there may be gross dissimilarities between a genuine note and the reproduction, so long as the reproduction has part of the genuine note within it that would fall within the statute. I would like to close by saying that the Senior Documents Examiner did find that in his opinion that these could be passed off as genuine currency, the ones that he examined. Thank you very much, Your Honors. We request that the judgment be affirmed. Thank you.
JUDGE BUCKLEY: Thank you, counsel.
JUDGE GINSBURG: Mr. Yalowitz?
ORAL ARGUMENT OF KEN A YALOWITZ, ESQ., ON BEHALF OF APPELLANT -- REBUTTAL
MR. YALOWITZ: Thank you, Your Honor. If I make pick up on the question that Judge Tatel was asking, there is nothing in the record that anybody has ever complained to the Secret Service or any other law enforcement agency about being deceived by Boggs' bills. We repeatedly challenged the government in the District Court to come forward with such evidence and they did not. I would like to add in response to Judge Ginsburg's question that the two photocopies in the record do not meet the similitude test. Recall that the similitude test is whether something is calculated to deceive, whether on its face it looks like it was intended to deceive. These were photocopies of $1,000 bills. I don't think that anybody could be fooled or would be fooled into accepting them as real $1,000 bills. That is just not reasonable.
JUDGE BUCKLEY: Why?
JUDGE TATEL: Each one is just one side?
MR. YALOWITZ: Each one is just one side of a $1,000 bill.
JUDGE GINSBURG: Because the amount is so great that one would look at the other side, is that the point?
MR. YALOWITZ: Because the amount is so great that one would say, wait a minute, I am not going to take a $1,000 bill, I have never seen a $1,000 bill in commerce. I mean it is not something that any merchant would accept at face value. It is not routine. It is just not normal.
JUDGE GINSBURG: Where was the other one, or are they both. --
MR. YALOWITZ: They were front and back, the front and back of a $1,000 bill, one-sided.
JUDGE GINSBURG: I see. So together they make a $1,000 bill.
MR. YALOWITZ: Right.
JUDGE GINSBURG: They could be pasted together?
MR. YALOWITZ: Well, they could be pasted together, but I don't believe they could be passed. If I might say a word also --
JUDGE GINSBURG: Wait a minute. Why not? You said they wouldn't pass first because the back is not genuine and doesn't purport to be genuine. But if the back were united with the front and they see a two-sided bill, why wouldn't it pass?
MR. YALOWITZ: First of all, there are no $1,000 bills in circulation. Who would take a $1,000 bill? Second, if they were pasted --
JUDGE GINSBURG: Somebody who is selling something worth $1,000 or less.
MR. YALOWITZ: Well, I suppose that is possible, but I think that our experience in ordinary commerce is that people would not take $1,000 bills.
JUDGE GINSBURG: Why are they produced?
MR. YALOWITZ: They were produced to show people what $1,000 bills would look like so that --
JUDGE GINSBURG: I mean why does the U.S. Government produce them?
MR. YALOWITZ: They haven't produced them since the 1930s. They haven't produced them for generations. If I might say a word about our procedural posture, the District Court has held in abeyance our request for the return of property, but the burden is on the government to go forward in First Amendment cases. The burden is on the government to have a prompt post-seizure judicial hearing. The Supreme Court precedent on that is well settled. And the fact that we had to bring the proceeding on, the fact that we have done so and that the District Court might adjudicate it, even though they have told them not to under--
JUDGE GINSBURG: Perhaps because it is not in any obvious way a First Amendment case until you make it that. It looks like a counterfeiting case to a gumshoe at the Secret Service.
MR. YALOWITZ: I don't think it does. I think the record is pretty clear that, from the git-go, every Secret Service agent hears about Boggs in the context of --
JUDGE GINSBURG: If they start making plastic replicas of Uzis and putting them into my baggage when I go on airline trips and then say, well, they are sculptures, they are not operative, that would not be an obvious First Amendment case until I try to put that gloss on the materials.
MR. YALOWITZ: Surely, you are correct. What is different here is that it is presented first and foremost as the work of an artist. The Secret Service agents know that from the git-go.
JUDGE GINSBURG: But they say con artist. Now, you want to say First Amendment artist. It seems to me is not surprising that they haven't initiated the proceedings and allowed you to do so.
MR. YALOWITZ: If that is true, if they believe that he's a con artist, they should prosecute him and they should prosecute him under an intent to defraud standard --
JUDGE GINSBURG: Well, they tried to prosecute him, but the U.S. Attorneys apparently have bigger fish to fry.
MR. YALOWITZ: Well, at some point doesn't it become something that they shouldn't do, if --
JUDGE GINSBURG: At some point I think it becomes harassment when there is no reasonable expectation that they can get a U.S. Attorney to take the case.
MR. YALOWITZ: Right.
JUDGE GINSBURG: But they have only tried twice --
MR. YALOWITZ: Three times.
JUDGE GINSBURG: Three times. Three strikes, you're out, I suppose.
JUDGE BUCKLEY: And now there has been a similar case prosecuted in Central California.
MR. YALOWITZ: This is the first we have heard of it, Your Honor. I don't know what that case is about. I know there have been prosecutions under Section 474, many under the standard of intent to defraud, some that produced convictions, some that did not. It seems to me that is what this case ultimately boils down to, is what is the proper level of intent that Congress required in this statute, and we look to traditional statutory interpretation tools to discern that. We look at the common law roots, we look at the rules of avoiding constitutional questions, we look at the legislative history, and all of those things tell us that Congress intended this to be an intent to defraud statute. If that is the case, the District Court found, and nobody disagrees, Boggs does not have an intent to defraud.
JUDGE BUCKLEY: How do you explain the glaring distinction between paragraphs (5) and (6) and the four that say intent to defraud, intent to defraud?
MR. YALOWITZ: That is simple elision by Congress, Your Honor. Both this Court in Hester and the Supreme Court in X-citement Video have all said that the omission in some parts of the statute, but not others, is simply not enough, that is simply not enough. Court after court has said that, simply not enough. Thank you so much.
JUDGE BUCKLEY: Thank you, counsel. The case is submitted.
[Whereupon, at 12:30 p.m., the case in the above-entitled matter was submitted.]
(At which, Boggs, Kent Yalowitz and several others went for lunch at the Washington, D.C., train station. The verdict in the O.J. Simpson case was handed up during the lunch.)
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