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Date: 10-15-2021
Case Style:
United States of America v. LETTER FROM ALEXANDER HAMILTON TO THE MARQUIS DE LAFAYETTE DATED JULY 21, 1780, and ALDRICH L. BOSS, as personal representative for the estate of STEWART R. CRANE and COMMONWEALTH OF MASSACHUSETTS, Acting by and through The Massachusetts Archive
Case Number: 20-2061
Judge: Carol E. Head, Assistant United States Attorney, with whom
Nathaniel R. Mendell, Acting United States Attorney
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney:
Defendant's Attorney: Carol E. Head, Assistant United States Attorney, with whom
Nathaniel R. Mendell, Acting United States Attorney
Adam J. Hornstine, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief
Description:
Boston, MA - Civil Forfeiture lawyer represented defendant with a civil forfeiture action.
This civil forfeiture action begins — and ends — with
the provenance of the property that lies at its center. That
provenance is (unless otherwise indicated) uncontroverted.
Upon learning that British troops stationed in New York
- 4 -
were "making an embarkation with which they menace the French fleet
and army" stationed in Rhode Island, Hamilton wrote the Letter to
relay that information to Lafayette. When Lafayette received the
Letter, he met with Massachusetts General William Heath, who
forwarded the Letter, accompanied by a letter of his own
summarizing Lafayette's intelligence, to the President of the
Massachusetts Council (the Commonwealth's executive body during
the Revolutionary War period). The Council received these missives
on July 26, 1780, and, as a result, authorized sending
Massachusetts troops to Rhode Island to bolster the embattled
French forces.
The Letter, along with the Council's other records of
the period, were transferred in due course to the Commonwealth and
eventually entered the custody of the Massachusetts Archives (the
Archives). An internal table of contents and name index for Volume
202 of the Archives collection identified the Letter and General
Heath's cover letter as part of the collection when the index was
compiled in the mid-nineteenth century. Some thirty years later
(in the 1880s), the Archives again identified the Letter in an
index of Volume 202. And in the 1920s, the Archives selected
Volume 202 for reproduction using the then-novel technology known
as photostatic copying. A photostat of the Letter was made and
bound in a separate booklet along with other documents from Volume
202.
- 5 -
At some point thereafter, the Letter left the Archives.
The date of the Letter's departure is shrouded in mystery. It is
evident, however, that by the time a compilation of Hamilton's
papers was being prepared in the 1950s, the Letter had disappeared.
Only the photostat could be found in the Archives. See The Papers
of Alexander Hamilton, Volume II: 1779-1781 362-63 (Harold C.
Syrett ed., 1961).
How the Letter vanished from the Archives collection is
hotly disputed. Although we do not resolve that contretemps, we
recount the parties' conflicting positions.
The government and the Commonwealth assert that the
Letter was purloined by Harold E. Perry, a kleptomaniacal
cataloguer who worked for the Archives from 1938 to 1945 or 1946.
Perry had extensive access to original papers and, during his
tenure, absconded with numerous historical documents. He sold
some to disreputable dealers and hoarded others in his Cambridge
residence. By the time the compilation of Hamilton's papers was
published in 1961, the Archives had declared that the Letter was
"missing." See id. The Estate conjures up an alternate reality.
It suggests that the Letter was "permissively alienated from the
Archives" by "negligence" or because the Archives no longer wanted
to go through the trouble of maintaining the original document.
Whatever its itinerary, the Letter eventually came into
- 6 -
the possession of Stewart R. Crane.1 Stewart Crane inherited the
letter from his grandfather, R.E. Crane. In November of 2018,
Stewart Crane included the letter in a consignment to the Potomack
Company (Potomack), a Virginia auctioneer, for sale at auction.
Potomack discovered that the letter was listed as "missing" from
the Archives, contacted the Archives, and learned that the Archives
deemed the Letter stolen. Potomack notified the FBI, which seized
the letter pursuant to a judicial warrant on December 19, 2018.
Roughly five months later, the government filed a
verified complaint for forfeiture in rem against the Letter,
alleging that the Letter was subject to forfeiture under 18 U.S.C.
§ 981(a)(1)(C) as property traceable to a violation of 18 U.S.C.
§ 2314 and/or 18 U.S.C. § 2315 (statutes that criminalize,
respectively, interstate transport of and trade in stolen goods
valued over $5,000). See 18 U.S.C. §§ 1956(c)(7)(A), 1961(1).
The complaint also alleged that "only the Commonwealth can lawfully
own original documents from its collection dated before 1870,
including . . . the [Letter]" because Massachusetts law "prohibits
the lawful removal or alienation of such documents from the
1 According to the Estate's reconstruction of events — a
reconstruction not burdened with many hard facts — the Letter was
purchased in good faith and for value in 1945 by R.E. Crane from
John Heise Autographs, a reputable rare documents dealer in
Syracuse, New York. In support, the Estate proffered only an
affidavit recounting this family history and an empty envelope,
postmarked in 1945, addressed to R.E. Crane and bearing the return
address of the dealer.
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Commonwealth's custody." As required by Rule G(4)(a) and (b) of
the Supplemental Rules of Admiralty or Maritime Claims and Asset
Forfeiture Actions, notice was given to all known potential
claimants and posted on a government website.
The government gave due notice of the institution of the
forfeiture proceedings. Only the Commonwealth and the Estate filed
claims to the Letter.2 The government moved to strike the Estate's
claim under Supplemental Rule G(8)(c)(i)(B), asserting that the
Estate lacked standing to intervene as a claimant because the
Letter is "a Massachusetts public record that only the Commonwealth
can own" and because "one cannot maintain good title to stolen
property against its true owner." The Estate counter-attacked,
moving to dismiss the government's complaint for failure to state
a claim upon which relief could be granted. See Fed. R. Civ. P.
12(b)(6).
All parties consented to proceed before a magistrate
judge, see 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(a), who
consolidated the pending motions for hearing. After receiving the
parties' briefs and hearing arguments, the district court, in a
thoughtful rescript, granted the government's motion to strike the
Estate's claim. See United States v. Letter from Alexander
2 Stewart Crane died on December 21, 2018 (two days after the
Letter was seized by the FBI). His Estate stepped into his shoes
and filed the claim sub judice.
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Hamilton to the Marquis de Lafayette Dated July 21, 1780, 498 F.
Supp. 3d 158, 175 (D. Mass. 2020). The court concluded (as
relevant here) that the Letter was a public record, which could be
owned only by the Commonwealth, thus precluding any ownership
interest by the Estate. See id. at 165-71. The court then denied
as moot the Estate's motion to dismiss. See id. at 175. And
having concluded that the Commonwealth is the only entity that can
own the Letter, the court awarded it to the Commonwealth. This
timely appeal followed.
II. ANALYSIS
With eyes on the prize, the Estate assails the judgment
below on multiple fronts. First, the Estate argues that the Letter
is not a public record that only the Commonwealth may own. Second,
the Estate argues that even if the Letter is a public record, the
Letter could have been — and was — lawfully alienated by the
Commonwealth. Third, the Estate argues that because its
predecessor in interest purchased the Letter for value and without
knowledge of its possible theft, it is an "innocent owner" within
the purview of 18 U.S.C. § 983(d) and is thus entitled, at a
minimum, to cash compensation. Finally, the Estate argues that
the Commonwealth's competing claim (and, by implication, the
forfeiture complaint itself) is barred by the doctrine of laches.
It is against the backdrop of this asseverational array that we
turn to the task at hand.
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In a civil forfeiture proceeding, we review a district
court's legal conclusions (including legal conclusions on
questions of standing) de novo and factual findings for clear
error. See United States v. Carpenter, 941 F.3d 1, 6 (1st Cir.
2019); United States v. U.S. Currency, $81,000.00, 189 F.3d 28, 33
(1st Cir. 1999). Where, as here, an interpretation of state law
forms part of the district court's reasoning, we review that
interpretation de novo. See Gargano v. Liberty Int'l Underwriters,
Inc., 572 F.3d 45, 49 (1st Cir. 2009). We are not wed to the
district court's reasoning but, rather, may affirm its final
judgment on any rationale made manifest by the record. See RománCancel v. United States, 613 F.3d 37, 41 (1st Cir. 2010).
A. Standing.
Standing is a threshold question in civil forfeiture
cases. See United States v. One-Sixth Share of James J. Bulger in
All Present & Future Proceeds of Mass Millions Lottery Ticket No.
M246233, 326 F.3d 36, 40 (1st Cir. 2003). Parties seeking to press
claims of entitlement in such proceedings must demonstrate
independent standing. See id. First, such parties must satisfy
statutory standing through compliance with the procedures and
deadlines for filing a claim set out in Supplemental Rule G. See
id. Second, they must demonstrate constitutional standing through
a legal ownership or possessory interest that would support an
- 10 -
injury in fact.3 See id. at 40-41; see also United States v.
Cambio Exacto, S.A., 166 F.3d 522, 527-29 (2d Cir. 1999). At the
initial intervention stage, "any colorable claim on the defendant
property suffices." See One-Sixth Share, 326 F.3d at 41. As a
result, "[c]ourts do not generally deny standing to a claimant who
is either the colorable owner of the res or who has any colorable
possessory interest in it." $81,000.00, 189 F.3d at 35.
In civil forfeiture proceedings, those ownership or
possessory interests are defined by state law but their effect is
determined by federal law. See id. at 33. A claimant need not
conclusively prove facts supporting his entitlement to the res;
"an allegation of ownership and some evidence of ownership are
together sufficient." Id. at 35. But the interest claimed must
be legally possible under state law — supportable by some set of
facts — and that is the crux of the present matter.
As a general rule, courts should be chary about
conflating the threshold standing inquiry with the subsequent
merits inquiry. See One-Sixth Share, 326 F.3d at 41. But this
general rule — like virtually every general rule — is subject to
3 This requirement for intervening claimants in the civil
forfeiture context is analogous to the rule that intervenors as of
right under Federal Rule of Civil Procedure 24(a)(2), seeking
different relief from other litigants, must have independent
standing. See Town of Chester v. Laroe Ests., Inc., 137 S. Ct.
1645, 1651 (2017). When there are multiple claimants, a claimant
will rarely be seeking relief that does not in some way exclude
other claimants' claims.
- 11 -
exceptions. Here, the merits and the Estate's standing to contest
the merits converge on the same dispositive question of state law:
can the Letter only be owned by the Commonwealth? If the
Commonwealth has exclusive ownership and could not have lawfully
alienated its interest in the Letter, then the Estate lacks any
cognizable legal interest that would give it standing to intervene
as a claimant and the Letter must be awarded to the Commonwealth.
Given this convergence and given, too, that the merits of the
Estate's claim are susceptible to resolution on this basis, we
chart a practical course and resolve both together.
B. The Merits.
This case turns on whether the Letter is an historic
public record and who can own such historic public records. The
district court held — and the parties agree — that these are
questions of Massachusetts law. See Letter from Alexander
Hamilton, 498 F. Supp. 3d at 165 & 165 n.4; cf. Borden v. Paul
Revere Life Ins. Co., 935 F.2d 370, 375 (1st Cir. 1991) (explaining
that when "the parties have agreed about what [state] law governs,
a federal court . . . is free, if it chooses, to forgo independent
analysis and accept the parties' agreement").
Both the meaning of "public records" and the question of
who may possess public records have been addressed by statute in
Massachusetts since at least 1897. At that time, Massachusetts
revamped its public records laws, instituting the regime that, in
- 12 -
large part, still obtains today.4 See An Act Relative to Public
Records (1897 Act), 1897 Mass. Acts 411. It is with that statutory
text that we begin. See U.S. Bank Tr. v. Johnson, 134 N.E.3d 594,
597 (Mass. App. Ct. 2019).
The 1897 Act defined a "public record" in relevant part
as "any written or printed book or paper . . . which any officer
or employee of the Commonwealth . . . is required by law to
receive, or in pursuance of any such requirement has received for
filing, and any book, paper, record, or copy mentioned in any of
the following five sections." 1897 Mass. Acts 411, ch. 439, § 1.
One of those five sections — section 4 — encompasses "[e]very
original paper belonging to the files of the
Commonwealth . . . bearing a date earlier than the year eighteen
hundred" and provides that such records "shall be safely kept."5
Id. at 412-13, § 4. For ease in exposition, we refer (as did the
district court) to public records satisfying this definition —
that is, original papers belonging to the files of the Commonwealth
4 Because the letter was unquestionably in the custody of the
Commonwealth at a point in time subsequent to 1897, we need not
retreat any further into the mists of history. We note, though,
that evidence of previous laws requiring the safekeeping of public
records fills the margins of early twentieth-century
codifications, see, e.g., 1902 Mass. Rev. Laws ch. 35, and a
recognition that certain records of a public nature must be kept
is enshrined in the Commonwealth's 1780 constitution, see Mass.
Const. pt. 2, ch. II, § IV, art. II.
5 Just four years later, the Massachusetts legislature would
strengthen this injunction, requiring that such records "shall be
preserved and safely kept." See 1902 Mass. Rev. Laws ch. 35, § 14.
- 13 -
and dated before the year 1800 — as "historic public records."6
Given the explicit language of the 1897 Act, there is no
reasonable basis to question that the Letter qualifies as an
historic public record. It is an "original paper" and it "bear[s]
a date earlier than the year eighteen hundred." It was transmitted
to the President of the Massachusetts Council as an attachment to
a letter by Massachusetts General William Heath (which is still in
the possession of the Archives), and it dealt with a matter of
public concern. Furthermore, the Letter's unchallenged provenance
makes it pellucid that it was part of "the files of the
Commonwealth," was retained by the Commonwealth in the normal
course of record-keeping, and was stored in the Archives. To cinch
the matter, the Letter remained there until at least the 1920s, as
evidenced (without contradiction) by two different nineteenthcentury indices, the 1920s index, and the existing photostatic
copy.
Modern Massachusetts public records law does not suggest
a different conclusion. The term "public records" is defined even
more expansively under the most recent statute and extends to,
among other things, "all books, papers, maps, photographs . . . or
other documentary materials or data, regardless of physical form
6 In the current version of the statute, the definition of
historic public records has been expanded to include all such
papers dated before 1870. See Mass. Gen. Laws ch. 66, § 8.
- 14 -
or characteristics, made or received by any officer or employee of
any agency, executive office, department, board, commission,
bureau, division or authority of the commonwealth." Mass. Gen.
Laws ch. 4, § 7, cl. 26. While the statute provides some
enumerated exceptions, see id. § 7, cl. 26 (a)-(v), all of those
exceptions are inapplicable.
The present statute, in consequence of changes in 1901
and 1962, is even stronger and more expansive than the 1897 Act,
requiring that "[e]very original paper belonging to the files of
the commonwealth . . . bearing date earlier than the year eighteen
hundred and seventy . . . shall be preserved and safely kept."
Mass. Gen. Laws ch. 66, § 8.
At oral argument, the Estate acknowledged that the
Letter appears to be an historic public record under Massachusetts
public records law. It lamented, though, that appearances can be
deceiving: taking the text of Massachusetts law at face value
"would mean nearly everything in the hands of the Commonwealth or
a subsidiary agency would have to be construed as a public record."
The Estate branded this result as unacceptable. But in support of
its jeremiad, the Estate cites only Freeman v. Town of Hudson, 714
F.3d 29 (1st Cir. 2013). That decision, which discussed the scope
of extrinsic evidence of "matters of public record" that a federal
court may consider on a motion to dismiss, see id. at 36, did not
address Massachusetts public records law at all. Consequently, it
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offers cold comfort for the Estate's argument.
More pertinent, we think, are the Massachusetts cases
that repeatedly have affirmed that the term "public records" must
be "broadly defined." Att'y Gen. v. Dist. Att'y for Plymouth
Dist., 141 N.E.3d 429, 432 (Mass. 2020); see Hull Mun. Lighting
Plant v. Mass. Mun. Wholesale Elec. Co., 609 N.E.2d 460, 463-64
(Mass. 1993) (collecting cases).
Those cases have stressed that, notwithstanding the
breadth of the definition, "not every record or document kept or
made by a governmental agency is a 'public record'" because "the
Legislature has identified twenty categories of records that fall
outside of the definition of 'public records.'" Dist. Att'y for
Plymouth Dist., 141 N.E.3d at 433 (alterations omitted). The
Estate does not argue that the Letter comes within any of those
categories.
That ends this aspect of the matter. We conclude,
without serious question, that the Letter is an historic public
record.
This conclusion is outcome-determinative. Both the
government and the Commonwealth have consistently maintained that
because the Letter is an historic public record, the Commonwealth
is entitled to custody of it. Building on this foundation, they
also maintain that the Commonwealth — once the Letter was in its
custody — was obliged to ensure that it was "safely kept," thus
- 16 -
precluding its lawful alienation.
The Estate demurs, contending that even if the Letter is
an historic public record, the Commonwealth was not obliged to
hold fast to the original. In the Estate's view, the Commonwealth
could lawfully have alienated the Letter based on statutory
provisions allowing destruction of certain categories of
documents. See, e.g., Mass. Gen. Laws ch. 66, §§ 8-9. We do not
agree.
Massachusetts law leads inexorably to the conclusion
that the Commonwealth retains ownership of the Letter as an
historic public record and could not have alienated it. To begin,
unless otherwise provided — and no such provision is applicable
here — the Secretary of State has presumptive custody of all public
records of the Commonwealth. See Mass. Gen. Laws ch. 66, § 7;
1897 Mass. Acts at 412, ch. 439, § 3. What is more, the law leaves
no room to doubt that the Secretary of State (or some other
specifically designated custodian) is the only person who may
possess public records on a permanent basis; any person holding
public records must return those records to the relevant government
custodian on pain of penalties, some criminal, for noncompliance.
See Mass. Gen. Laws ch. 66, § 13 ("Whoever is entitled to the
custody of public records shall demand the same from any person
unlawfully having possession of them, who shall forthwith deliver
the same to him."); id. § 15 ("Whoever unlawfully keeps in his
- 17 -
possession any public record or removes it from the room where it
is usually kept . . . shall be punished [as provided].").
Iterations of these provisions were in force during the
period that the Letter was located in the Commonwealth Archives.
See, e.g., 1902 Mass. Rev. Laws ch. 35, § 20 ("Whoever is entitled
by law to the custody of public records shall demand the same from
any person in whose possession they may be, and he shall forthwith
deliver the same to him."); id. § 22 ("Whoever unlawfully keeps in
his possession any public record . . . shall . . . be punished [as
provided]."). And the Massachusetts legislature continued to
strengthen its prerogatives over the custody of public records in
succeeding years. See 1951 Mass. Acts 158, 158-59, ch. 200 ("Upon
complaint of any public officer entitled to the custody of a public
record, the superior court shall have jurisdiction in equity to
compel any person having such record in his possession to deliver
the same to the complainant.").
Attempting to sidestep the obvious conclusion that these
provisions control ownership of the Letter, the Estate speculates
that there is a possibility that the Commonwealth could lawfully
have alienated the Letter. That is whistling past the graveyard:
Massachusetts law requires that original historic public records
(like the Letter) "be preserved and safely kept." Mass. Gen. Laws
ch. 66, § 8. Although the law provides for the potential
destruction of "other paper[s]," such papers do not include
- 18 -
historic public records. Id. This obligation has existed in terms
applicable to the Letter dating back to a time well before the
Letter left the Archives. See 1897 Mass. Acts at 412-13, ch. 439,
§ 14.
The "plain and ordinary meaning" of this statutory
language is generally the best guide to the legislature's intent.
See Town of Boylston v. Comm'r of Revenue, 749 N.E.2d 684, 689
(Mass. 2001). So it is here. With respect to historic public
records, "kept" — the operative verb that has appeared throughout
the succession of pertinent statutory provisions — is best
understood as incorporating facets of its standard definition,
which is to "preserve," "maintain," or "retain and to continue to
have in one's possession or power esp[ecially] by conscious or
purposive policy." Webster's Third New International Dictionary
of the English Language Unabridged 1235 (1981). The associated
adverb, "safely," denotes the care with which this task should be
undertaken by the relevant Commonwealth official. "Preserve,"
added to the statute shortly after "kept," see 1902 Mass. Rev.
Laws ch. 35, § 14, avoids surplusage by reinforcing the notion
that "original paper[s] belonging to the files of the Commonwealth"
themselves, not copies, must be retained. See Webster's Third,
supra at 1794 (defining verb "preserve" as "to keep alive, intact,
in existence, or from decay").
Seeking to water down this plain meaning, the Estate
- 19 -
cites Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), for
the proposition that "shall" (as in "shall be safely kept")
sometimes can mean "may." See id. at 432-34 & 432 n.9. But that
usage is quite rare: "the mandatory 'shall,' . . . normally
creates an obligation impervious to judicial discretion." Lexecon
Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35
(1998); see Union of Concerned Scientists v. Wheeler, 954 F.3d 11,
17 (1st Cir. 2020). The Estate has made no effort to show why the
normal meaning of shall should not control in this instance.
Taking into account the strong policy interest in maintaining
historic public records for posterity, we believe that the ordinary
meaning of "shall" is what the Massachusetts legislature intended
in crafting section 8 and its precursors. Every indication is
that the legislature said what it meant and meant what it said.
The bottom line is that Massachusetts law establishes a
mandatory duty to preserve and safely keep historic public records
in the Commonwealth's possession. The text of the statute brooks
no exceptions. It follows that any alienation of historic public
records would be unlawful.
Laboring to force a square peg into a round hole, the
Estate suggests that two statutory provisions imply the
possibility that historic public records could be lawfully
destroyed and, thus, alienated. Passing the obvious point that
the Letter was never destroyed and still exists, neither of these
- 20 -
statutes possesses the reach that the Estate ascribes to them.
The Estate first alludes to the second independent
clause in section 8 of chapter 66, which permits the destruction
of "other paper[s]" under certain circumstances. Mass. Gen. Laws
ch. 66, § 8. In this statutory context, though, the term "other
paper[s]" can be defined only by exclusion of the categories of
documents required to be "preserved and safely kept" in the
preceding independent clause of the section, which encompasses
historic public records. See id. The semicolon separating these
independent clauses in the modern statute, see id., fortifies that
reading by "shatter[ing] the unity" of the sentence. Globe
Newspaper Co. v. Bos. Ret. Bd., 446 N.E.2d 1051, 1056 (Mass. 1983).
The Estate next alludes to section 9 of chapter 66, which
permits the copying and replacement of public record books that
are no longer "practicable" to maintain as originals. Mass. Gen.
Laws ch. 66, § 9. For two reasons, this provision is irrelevant
to the case at hand. For one thing, it deals exclusively with a
separate category of documents — "public record books" — and
historic public records are entirely a different matter. For
another thing, there is simply no basis for an assumption that the
Letter is (or was) in such a state that preservation was not
"practicable." Given these facts, the statutory provisions to
which the Estate alludes cast no doubt on the conclusion that
historic public records cannot lawfully be alienated.
- 21 -
Our construction of the Massachusetts statutory scheme
governing historic public records is consonant with the general
principle that "[p]ublic records are the people's records, and the
officials in whose custody they happen to be are merely trustees
for the people." 66 Am. Jur. 2d Records and Recording Laws § 4
(Aug. 2021). So, too, our construction is consonant with the
principle that title to government property may generally pass
only in the manner prescribed by legislative enactment and not
through the carelessness, negligence, or perfidy of government
employees or agents. See, e.g., United States v. California, 332
U.S. 19, 40 (1947) (stating that "[t]he Government, which holds
its interests here as elsewhere in trust for all the people, is
not to be deprived of those interests by the ordinary court rules
designed particularly for private disputes over individually owned
pieces of property . . ."); cf. Aaron v. Bos. Redev. Auth., 850
N.E.2d 1105, 1108-09 (Mass. App. Ct. 2006) (observing that adverse
possession does not run against the Commonwealth for land held in
trust for the public for specified purposes). We think that these
principles apply with special force where, as here, the property
at issue is an historic public record that constitutes part of the
patrimony of the Commonwealth.7
7 To be sure, there may be circumstances in which a public
entity, acting lawfully, may dispose of property such that it may
be deemed abandoned to a fortuitous finder. See, e.g., Morissette
v. United States, 187 F.2d 427, 441 (6th Cir. 1951) (McAllister,
- 22 -
Finally, we give short shrift to the Estate's suggestion
that the Commonwealth's claim of ownership is barred by the
doctrine of laches. In general terms, the doctrine of laches
restricts the assertion of claims or defenses by litigants who
have slept upon their rights or prerogatives and, thus, have
prejudiced opposing parties by or through their inexcusable delay.
See City of Sherrill v. Oneida Indian, 544 U.S. 197, 217 (2005).
This defense, however, is typically not available against a state
or federal sovereign seeking either to enforce a public right or
to protect a public interest. See, e.g., Texaco P.R., Inc. v.
Dep't of Consumer Affs., 60 F.3d 867, 878 (1st Cir. 1995); Wang v.
Bd. of Registration in Med., 537 N.E.2d 1216, 1220 (Mass. 1989);
see also United States v. California, 332 U.S. at 40 (explaining
that "officers who have no authority at all to dispose of
Government property cannot by their conduct cause the Government
to lose its valuable rights by their acquiescence, laches, or
failure to act"). Such a bar to the use of laches against a
sovereign is particularly apt in the context of historic public
records held in trust for future generations, and we hold that the
J., dissenting) ("There is no reason why the government may not
abandon property as well as an individual."), rev'd, 342 U.S. 246
(1952); Willcox v. Stroup, 467 F.3d 409, 414 n.1 (4th Cir. 2006)
(suggesting abandonment as a defense to a state's claim of title).
Here, however, the relevant provisions of Massachusetts law
foreclose this possibility with respect to historic public
records.
- 23 -
bar applies here.8
The short of it is that Massachusetts's public records
law definitively resolves both the issue of the Estate's standing
and the merits of this civil forfeiture action. As an original
paper belonging to the Commonwealth and dated in 1780, the Letter
is owned by the Commonwealth. It could not lawfully have been
alienated to a third party under any statutory regime that was
operative either before or after the Letter left the custody of
the Commonwealth. This showing — that the Letter could not
lawfully have been alienated — is sufficient to satisfy the
government's burden "to establish, by a preponderance of the
evidence, that the property is subject to forfeiture." 18 U.S.C.
§ 983(c)(1). And because it could not have obtained any lawful
interest in the Letter, the Estate lacks any legally cognizable
ownership interest that would confer standing upon it to contest
forfeiture. The Letter belongs to the Commonwealth and was
properly consigned by the district court to its custody.
The lack of a legal ownership interest within the meaning
of 18 U.S.C. § 983(d)(6) likewise defeats the Estate's claim that
8 Even if a laches defense was available to the Estate in this
case — and it is not — that theory would run aground on the facts.
For aught that appears, any delay in bringing a claim was clearly
attributable to the fact that the Commonwealth lacked knowledge of
the Letter's whereabouts, and both the government and the
Commonwealth acted expeditiously once Potomack notified the FBI
that the Letter had surfaced.
- 24 -
it is an "innocent owner" under that statutory provision. Other
claims advanced by the Estate are either patently meritless or
fatally underdeveloped, and they do not warrant discussion.
Outcome: We need go no further. We hold that the Letter is an
historic public record as that term is defined in the 1897 Act, as
from time to time amended; that, based on the undisputed evidence,
the Letter was in the custody of the Commonwealth for some period
following the passage of the 1897 Act; and that it could not
lawfully have been alienated. We hold, therefore, that the
district court acted appropriately in granting the government's
motion to strike the Estate's claim of ownership, in denying the
Estate's Rule 12(b)(6) motion as moot, and in honoring the
Commonwealth's claim of entitlement to the Letter. For the reasons
elucidated above, the judgment of the district court is
Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: