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United States v. Mask of Ka-Nefer-Nefer

United States Court of Appeals, Eighth Circuit

June 12, 2014

United States of America, Plaintiff - Appellant
v.
Mask of Ka-Nefer-Nefer, Defendant - Appellee. Art Museum Subdistrict of the Metropolitan Zoological Park and Museum District of the City of St. Louis and the County of St. Louis, Claimant - Appellee

Submitted: January 13, 2014.

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For United States of America, Plaintiff - Appellant: Dianna Collins, Assistant U.S. Attorney, Richard E. Finneran, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO; Mark B. Stern, Sharon Swingle, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC.

For Mask of Ka-Nefer-Nefer, Defendant - Appellee: McClain Elizabeth Bryant, David A. Linenbroker, Husch & Blackwell, Kansas City, MO; Patrick Andrew McInerney, Dentons Us, Llp, Kansas City, MO.

For Art Museum Subdistrict of the Metropolitan Zoological Park and Museum District of the City of St. Louis and the County of St. Louis, Claimant - Appellee: McClain Elizabeth Bryant, Husch & Blackwell, Kansas City, MO; David A. Linenbroker, Husch & Blackwell, Saint Louis, MO; Patrick Andrew McInerney, Dentons Us, Llp, Kansas City, MO.

Before LOKEN, MURPHY, and SMITH, Circuit Judges. MURPHY, Circuit Judge, concurring.

OPINION

Page 738

LOKEN, Circuit Judge.

The issue raised on this appeal is whether the district court[1] abused its discretion in denying the government's post-dismissal motion for leave to file an amended civil forfeiture complaint. Underlying that issue is an attempt to expand the government's forfeiture powers at the likely expense of museums and other good faith purchasers in the international marketplace for ancient artifacts. We affirm the district court's procedural ruling and therefore leave this important substantive issue for another day.

I.

The district court dismissed the government's forfeiture complaint for failure to

Page 739

state a claim, so we are limited to the pleaded facts. The government's notice of appeal included the district court's Order of Dismissal, but the Statement of the Issue section of the government's brief stated that the only issue on appeal is whether the court abused its discretion in denying a post-dismissal motion for leave to file an amended complaint. The Statement in the brief is controlling. See F.R.A.P. 28(a)(5); Solomon v. Petray, 699 F.3d 1034, 1037 n.2 (8th Cir. 2012). Therefore, the appeal of the Order of Dismissal has been waived, and we need not be concerned about the truth of the pleaded facts.

The forfeiture complaint alleged that the Mask of Ka-Nefer-Nefer is a 3,200-year-old Egyptian mummy cartonnage discovered in 1952 by an archeologist working for the Egyptian government and registered as government property. The Mask was housed in a storage facility in Saqqara, Egypt, until 1959, when it was sent to the Egyptian Museum in Cairo for use with an exhibit in Tokyo, Japan. The Mask never went to Japan, instead returning to Saqqara in 1962. In 1966, a box containing the Mask and other artifacts was sent to a restoration lab in Cairo to prepare the artifacts for display. When the Egyptian Museum in Cairo inventoried the box's contents in 1973, the Mask was gone. The Egyptian government's register of antiquities showed no transfer to a private party between 1966, when the Mask was last seen, and 1973. In 2006, the Egyptian government learned that the Art Museum Subdistrict of the Metropolitan Zoological Park and Museum District of the City and County of St. Louis (the " Museum" ) purchased the Mask in 1998. The Museum refused the Egyptian government's repeated requests to return the Mask.

At a January 2011 meeting with Museum attorneys, representatives of the United States threatened to bring a forfeiture proceeding against the Mask unless the Museum voluntarily surrendered it. The Museum responded by filing a declaratory judgment action in the Eastern District of Missouri. Reciting the Museum's conflicting version of the historical facts, and asserting that any forfeiture claim would be time-barred by the applicable statute of limitations in 19 U.S.C. § 1621, the Museum sought a declaration that the Mask is not subject to forfeiture. The Art Museum Subdist. of the Metro. Zoological Park & Museum Dist. of St. Louis v. United States, No. 4:11-cv-00291 (E.D. Mo. filed Feb. 15, 2011). The United States rejoined on March 16, filing a motion to stay the Museum's declaratory action and a verified civil forfeiture complaint under 19 U.S.C. § 1595a(c). Part of the Tariff Act of 1930, this statute now provides, in relevant part: " Merchandise which is introduced or attempted to be introduced into the United States contrary to law ...


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