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United States v. One Tintoretto Painting Entitled Holy Family With Saint Catherine and Honored Donor

decided: October 15, 1982.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ONE TINTORETTO PAINTING ENTITLED "THE HOLY FAMILY WITH SAINT CATHERINE AND HONORED DONOR," DEFENDANT IN REM. ISAAC SILBERBERG, CLAIMANT-APPELLANT



For failure to pay customs duties the United States sought forfeiture of a Tintoretto painting. Claimant Silberberg, asserting ownership of the masterpiece and no knowledge of its illegal importation, appeals from the grant of summary judgment of forfeiture entered December 15, 1981 by the United States District Court for the Southern District of New York Morris E. Lasker, Judge. Reversed and remanded for a hearing on the factual issues raised.

Feinberg, Chief Judge, Cardamone, Circuit Judge and Leonard B. Sand, District Judge.*fn*

Author: Cardamone

CARDAMONE, Circuit Judge:

We are called upon to decide a forfeiture case commenced by the United States of America against a painting entitled "The Holy Family with Saint Catherine and Honored Donor," as defendant in rem. Two hundred years or so before the plaintiff United States came into being, the defendant in rem was painted by the tempestuous Italian Renaissance painter Tintoretto.*fn1 Claiming that this valuable masterpiece was smuggled into the United States, the government instituted the instant forfeiture proceeding as a civil action in rem for failure to pay customs duties. Initiated by seizure of the painting, the action was instituted under the provisions of 18 U.S.C. § 545 and the Tariff Act of 1930, 19 U.S.C. § 1592 (the latter claim was later dropped). The government sought to enforce the forfeiture in a proceeding which afforded the owner an opportunity to appear and be heard.

Once the painting was seized and a notice of attachment published, Issac Silberberg (claimant) asserted ownership of the Tintoretto painting and filed a verified answer. The government then moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment based upon the affidavits and statements filed. Relying on Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 40 L. Ed. 2d 452, 94 S. Ct. 2080 (1974), Judge Morris E. Lasker, United States District Court Judge for the Southern District of New York, granted the motion. 527 F. Supp. 1071. We believe, however, that the claimant raised a genuine issue of fact regarding the purported forfeiture which precludes summary judgment and entitles claimant to his day in court.

I

Claimant Silberberg, an Israeli national, stated that he purchased the painting without being aware of its authorship in a second-hand shop in Moscow in 1948 after his discharge from duty as an officer in the Soviet Army. Suspecting that the painting was valuable, he paid the equivalent of $20,000 in rubles. Upon moving to Vienna in 1975 and then to Tel Aviv in 1978, he openly displayed the painting in his home.*fn2 After owning the picture for over 30 years, Silberberg decided to sell it in 1979 due to financial needs. Finding there was no market in Israel, he entrusted the painting to Raymond Vinokur, a long-term social and business acquaintance. Vinokur dealt in objects d'art and told Silberberg that he was knowledgeable in the field of art. An arrangement was made between them for Vinokur to sell the picture in the United States on a commission basis.

Vinokur then engaged in the shady maneuvers that led to the arrest of the Tintoretto painting. Vinokur flew to New York on December 5, 1979 and falsely stated on his entry permit that he would be staying at the Barbizon Plaza Hotel in New York City, when in fact he intended to and did stay at the home of one Efin Nezhinsky in Queens, New York. On December 10, 1979 a package containing the Tintoretto arrived in the United States from Germany aboard a KLM flight which landed at John F. Kennedy International Airport (JFK) in New York.

During the preceding month of November 1979 the Federal Bureau of Investigation (FBI), acting on information from confidential sources, had begun an investigation regarding this painting. An FBI agent confirmed through experts the masterpiece's authenticity and the fact that it had been stolen from the Dresden Gallery of Art in East Germany at the close of World War II. The painting was thereafter reputed to have been taken to the Soviet Union in the possession of a Soviet General and later transported to Israel. On December 10 the agent was informed that Nezhinsky had picked up a package containing the Tintoretto at JFK. The customs forms which Nezhinsky completed and signed falsely stated that the Tintoretto was his personal property, for his own use, not for resale, and had a value of $500. Posing as an art dealer, the FBI agent subsequently met with Vinokur at a Madison Avenue Hotel, offered to purchase the painting, and asked Vinokur whether it could be resold. Upon informing the agent that the painting was marketable and that he would sell it to the agent for $250,000, Vinokur was arrested.

On January 22, 1980, Vinokur pled guilty to making false statements in a Customs Bureau document in violation of 18 U.S.C. § 542. As a result of Vinokur's conviction, the government obtained possession of the picture and, later in 1980, instituted this action.

II

Forfeiture statutes, which derive from English common law principles, embody the concept that a forfeiture is absolute. Thus, an owner's interest in the article may be forfeited even though the owner was not a participant in and had no knowledge of the illegal acts which brought about the forfeiture. See Various Items of Personal Property v. United States, 282 U.S. 577, 580-81, 75 L. Ed. 558, 51 S. Ct. 282 (1931). At early common law the right of forfeiture normally did not arise until the offender had been convicted. The Palmyra, 25 U.S. (12 Wheat.) 1, 9, 6 L. Ed. 531 (1827). This doctrine was discarded in an early Supreme Court case which pointed out that the "doctrine never was applied to seizures and forfeitures created by statute, in rem, cognisable on the revenue side of the exchequer. The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing . . . ." Id. Once the offense attaches to the inanimate thing, it is without regard to the personal misconduct of its owner. See J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 510-13, 65 L. Ed. 376, 41 S. Ct. 189 (1921). The underlying rationale for this principle is a legal fiction dating back several thousand years based on the apocryphal notion that " it" is the inanimate object, not its possessor or owner, which offends against the law.*fn3 While this action may be one that is quasi-criminal, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700, 14 L. Ed. 2d 170, 85 S. Ct. 1246 (1965), it is a separate and distinct proceeding from the criminal proceeding against the offending person (here Vinokur) and forfeiture is "no part of the punishment for the criminal offense," Various Items of Personal Property, 282 U.S. at 581 (citation omitted).

III

The sole issue before us is whether there was a proper award of summary judgment for the government based upon its complaint seeking a ...


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