Update: Government Seeks En Banc Review in “Double Eagle” Coin Case

by:  Peter J. Gallagher (@pjsgallagher)

A few weeks ago, I shared an article I published in the New Jersey Law Journal about a dispute over some rare coins that were allegedly stolen from the U.S. Mint more than 80 years ago: The Case Of The Missing Double Eagle Coins. The saga now continues.

As you may recall, the case of Langbord v. United States involved ten Double Eagle coins that were minted in 1933 but never put into circulation. It was believed that all of the Double Eagles had been melted down except for two that were sent to the Smithsonian. Over the years, however, several of these coins began to appear on the market. The government alleged that all of these Double Eagles were illegally removed from the U.S. Mint in Philadelphia by a cashier, George McCann, in concert with a coin dealer, Israel Switt.

The Government was able to recover most of the purloined Double Eagles in the 1940's and 1950's without much fanfare. Several others slipped through the cracks, however, including one that was illegally removed from the Mint, but legally shipped to King Farouk in Egypt (the Government mistakenly granted an export license). When this  coin resurfaced in the mid-1990's, the Government seized it from a dealer trying to sell it. Given the confusion about its ownership created by the issuance of the export license, however, the Government agreed to auction it and split the proceeds with the owner. In 2011, it sold for a record $7.5 million at auction.

Shortly after the auction, Mr. Switt's daughter and grandsons, the Langbords, contacted the Government about 10 additional Double Eagles that they claimed to have found in Mr. Switt's safe-deposit box. They sent them to the Government for authentication and suggested that they be auctioned as well, with the Government splitting the proceeds with the Langbords like it had done with King Farouk's Double Eagle. The Government authenticated the Double Eagles, but refused to return them , claiming they were stolen property.

The Langbords sued to get the coins back. A jury ruled in the Government's favor, but a divided panel of the U.S. Court of Appeals for the Third Circuit reversed and ordered that the Double Eagles be returned to the Langbords. The Third Circuit held that the government failed to follow the Civil Asset Forfeiture Reform Act ("CAFRA") and therefore could not keep the coins.

On July 1, 2015, the Government sought en banc review of this decision. The petition is, as expected, a sober, straight-forward recitation of the ways the Government believes the panel got CAFRA wrong, but it does contain at least one barb: "The family of a thief now stands to benefit in the millions of dollars on the basis of property that belongs to the people of the United States . . . . " 

Stay tuned to see if the Government's petition is granted and, if it is, what happens before the full U.S. Court of Appeals for the Third Circuit.

Planning Board Can’t Deny Variance Based on Anticipated Inability of Applicant to Satisfy Site Plan Criteria

by:  Katharine A. Muscalino

The Bay Head Planning Board initially approved a bulk variance application submitted by a property owner who had inherited an irregular lot with just ten feet of frontage, where fifty feet was required.  Finding that denying a bulk variance for the frontage requirement would result in an undue hardship, and that the Applicant had adequately addressed concerns about emergency access to the Property resulting from the lot frontage variance, the Board approved the application with a 5-4 vote.  Per the approval, the Applicant was required to submit a drainage plan for the Borough Engineer’s approval at the time of site plan application.

Upon an objector’s prerogative writ suit, the parties discovered that a board member had voted on the bulk variance without attending all of the meetings or reviewing all of the transcripts.  The bulk variance application was remanded for a new vote, following a review of the transcripts by all of the board members.  The Board then voted to deny the bulk variance, with a 4-5 vote.  In its resolution, the Board explained that it denied application because the applicant had failed to provide “affirmative testimony… by any competent engineer… on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners.”


Continue reading “Planning Board Can’t Deny Variance Based on Anticipated Inability of Applicant to Satisfy Site Plan Criteria”

It’s About Time! (Of Application)

The Community Builders & Remodelers Association of NJ recently published an article authored by Doug Henshaw and Steve Gouin (not pictured), entitled It's About Time! (of Application).  The article reports on significant changes to the state’s Municipal Land Use Law that are set to take effect in less than one week. Effective May 5, 2011, a new “Time of Application” law mandates that municipal review of a development application must be governed by regulations in effect on the date the application is filed.  This new provision reverses the current legal doctrine and presents a straightforward and sensible approach to both development and municipal planning – it should also spark economic growth.  The article reports on the details of the new provision and its potential impacts on New Jersey’s developers, investors, and business owners.

To Review Or Not To Review? Companies Face Difficult Decisions When Deciding Whether To Review Employees’ Emails With Counsel

by:    Peter J. Gallagher

Whether in the real estate industry or any other field, all companies today face the same issues when it comes to monitoring email communications by their employees, particularly when those communications are sent to outside lawyers.  The New Jersey Law Journal recently published an article that I wrote, "Reader Beware: The Evolving Ethics Of Reviewing E-Mails Between Employees And Counsel," which discusses a particularly draconian sanction imposed by a federal court in Colorado against a company (along with its in-house and outside counsel) that improperly reviewed email communications between a former employee and his counsel.  The article also discusses Stengart v. Loving Care Agency, Inc., a significant 2010 decision from the New Jersey Supreme Court holding that employees have a reasonable expectation of privacy when using company-owned computers to communicate with counsel, at least when such communications are made using a private, password-protected email account as opposed to the employee’s company account.  Although relatively far afield from the usual focus of this blog, I hope you will find the article interesting and informative.