with the second case on this morning united states versus  this is the type of case that a lawyer invites in law school but becomes very difficult in the real realm of the law practice and with real people involved this is a case involving a seizure of objects that are claimed to be in violation of certain statutes and regulations in the united states as well as a treaty between the united states and peru the seizure occurred in august excuse me the detention of merchandise entered into the united states in miami occurred in august of two thousand and ten the notice of seizure was issued in february of two thousand and twelve in my view and the view of my clients the result of this court's decision should be either they were manned to customs and border protection institute the required administrative proceedings or if not the case should be dismissed or transferred to the court of international trade because the he's of the government in this case turns to toots in a bar go which is a case that is in the exclusive jurisdiction of the us court of international trade let me ask you about the jurisdictional question if you look at the statute that is shoe fifteen eighty one i it provides that the court of international trade shout have exclusive jurisdiction of any civil action commenced against the united states its agencies or its officers that arise out of any law of the united states providing for embargoes this suit was brought by the united states not against the united states how then could we say in the face of this statutory language that the statute did neutered the court of jurisdiction i believe if you look at section four of that statute and also it also mandates that the court of international trade have jurisdiction related to the enforcement of this embargo right but the length what about the language that i'm talking civil action commenced against the united states was this not a civil action commenced against the united know that it couldn't be me finish i'm sorry or rather was this a civil action that was initiated or instituted by the united states it certainly was a civil action that was initiated and instituted by the united states how do i get around this language well i think the language is clear that if it does apply it foresman of embargoes where there is no case brought against the united states and the law is very clear that if there is a flaw feature or if there is a seizure there is only one remedy in court that a claim it has and that is to wait until the government brings an action for against the claimant so the we see the problem that i have is however we characterize this case whether we see it as an interim action against the property or an against frets the one thing that seems to me to be clear is that the government and not frets commenced or initiated this this action i don't disagree with you but section fo remedies that it talks about the way that this embargo is is acted upon and the enforcement of it obviously is by the government and therefore the court has exclusive jurisdiction if it's an embargo and if it's if it is in forced by the government is in your heart rate is an importation prohibition of functionally equivalent of an embargo in this case yes tell me why well the only the the claim in this case is that the objects that were brought into the united states were illegally brought into the united states because they violated the treaty between the united states and peru which is an embargo there are no cases that talk about this type of case and there are no cases that discuss this type of case but it is clearly in my view respectfully that this agreement between the united states and peru and the enforcement of this agreement creates an embargo in the traditional sense of the wor so the view that that we took from the beginning of this case which started with the detention of the merchandise in two thousand and ten well in addition to that we were not even thinking at that time of the jurisdictional issue because we were fighting with the court that with the customs and border protection that you can't do this the law is very and it's referred to there that when a seizure is made there is the right of the claimant or claimants to submit a petition for admission or mitigation of the seizure and preclude a fall for mr dollar this year talking about your remission remedy under sixteen eighteen right correct ok with respect there are two theories involved in the two different episodes in this case one of your client's things were dealt with under the c p i and the other was dealt with under fifteen ninety five a right correct there to proceed and the fifteen ninety five a side of the case did you get a sixteen eighteen notice that you did and ok so you did not yet a sixteen eighteen notice with respect to the c p i side of the case correct or is there anything that would have stopped you from filing a sixteen eighteen petition in the c p i case as as a whole matter that's a yes or a no answer for a question you know nothing stop you could have filed it get into it i could explain all that i know i've read the correspondence back and forth you know i mean your view of the agency but what i'm trying to decide is precisely what was the exact nature of the error on this administrati side here in a struct me and it wasn't that you were denied a sixteen eighteen hearing because you never asked for one it was rather that you were denied the notice it was the denial of the sixteen eighteen seizure no i but what i'm trying to get at you know is what is the exact year because for example if you are saying well i didn't get the notice right but i didn't bother to file a petition but i could have filed a petition and you obviously knew about the opportunity to file the petition because you filed one and the other cage and isn't it harmless error that you didn't get the notice now because they wouldn't allow us to file a petition and that it went how do i know that because you didn't try to file one away did you ask numerous occasions we got just same time as we got it's very technical but i thought maybe it's my hearing but i thought when i asked you whether you had filed a petition under sixteen eighteen one because we got them simultaneously it would have it the case was very complex as it developed but we decided as if we have to go to court on the one that makes little sense to spend our clients money to file a petition when we're going to be in court on the same issues on the other major violation should read their correspondence you were facing correspondence from somebody and in the proper agency down here in florida telling you that they didn't think that sixteen eighteen procedure applied  all the c b i aid that's what they were telling you and you were saying to them you better get somebody down here who knows what they're talking about because you've been at it for many years and you know that it should but it struck me that you never actually perfected reject a sixteen eighteen petition if you file there it is in the record from the all right i don't have it in front of me but i know it's in the record as i letter from the port director and the head of and we made the decision up front when there was no other we dealt with i've dealt with questions for many years the first time i have ever gotten a notice of summary for all future without the  i'm happy to answer any questions your honour's have about either the subject matter jurisdiction issue or the administrative issue but with respect to your honor's need not delve into the administrative code or subject matter jurisdiction because there are t easy paths to narrow paths to affirm and in this case without having to address mr comey for its his numerous claims of error on a piecemeal basis the first is the firm is on the basis of the district courts rule thirty seven  sanction striking his claims of interest in this case and the second is for lack of standing mr comey for it's avoided or actively refused to show up for his deposition and i just argument because as a result of the sanction he essentially has no claim right if the district court didn't have the power in the first place to entertain the lawsuit because the sole power  decide the matter reposed in the court of international trade and you'd never get to that issue so it seems to me the first question is whether or not fifteen eighty one i deprive the district court of exercising jurisdiction over the case i don't see how you get around that are enough your honor as i missed something there no district judge you get to this issue of s would need to consider and we're obliged to answer that question first we can't sidestep it in simply say because the district court probably imposed rules already seven sanctions now lack of standing would be another question if there wasn't bull that might be another way to come at that right but i'm not sure that that's right either so why don't you start with why the district court properly exercise matter sure as your honor pointed out earlier this simply was not a claim brought against the united states it was a claim brought by the united states that's point number one point number two this was not an embargo and i would refer the court to the supreme court's decision in a kmart case which we rely upon in our brief and in that case the supreme court essentially makes a distinction between qualitative and quantitative restrictions embargos in the traditional sense  quantitative restrictions to zero on the importation of goods or merchandise here what we have is a qualitative restriction not a quantitative restriction section twenty six zero six of the c tells us under what circumstances you know cultural patrimony can be lawfully brought into this country so this isn't a situation where congress said you know under no circumstances can cultural property from a given country be brought in congress said you know under certain circumstances it can be brought in but under other circumstances it cannot be brought in and so this is not a quantitative research into zero it is a purely it's an important friction not an embargo and in fact congress title section twenty six zero six not embargo but import restriction and in that section it explains again you know under what circumstances the merchandise can and can't be brought into the country and so we don't have an embargo here mean both in front of the magistrate judge in the briefing here we were educated on the query as to whether or not this was solely on south florida rule or whether it was nationwide i would assume a section twenty six zero nine a says that the general customs laws apply except where the rules are inconsistent and here under twelve point one zero four the regulations provide for something that is which are under other statutes will provide for sure you can relieve the fact that you've actually begun summary proceedings and house side sixteen eighteen i'm not sure i understand the question i'm sorry opening out there and so you know this is something that was you know clearly would it that clearly would have been within the contemplation of congress at the time watch the rationale the agency  can't say i mean i am not i can say that i'd be sensibly studied the legislative history just like i have i've studied the regulation if you have the regulation and nowhere is there any mention of whether or not there would be a sixteen or eighteen exclusion they  simply were providing for summary for a cure which you can have another two shoes you look i mean i can't speak to the rationale per se as to why it would be the case for one statute versus another but you know the rules say what they say they were promulgated pursuant to section twenty six twelve against section twenty six zero nine lays out the possibility that there would be rules that are inconsistent with general customs laws and that's what we have here have filed the protest you know to the extent that he thought that the notice was you know that the notice was defective he had one of the the summary forfeiture provisions gave him ninety days to come forward with evidence that the  or you know precluded him in any way from you know from challenging this at the initial stage before it got to court but again i mean your honour's need not reach this issue because first of all the district court acted well within its broad discretion in imposing sanctions on mr comey for its for his deliberate discovery misconduct and that actions wipes out all of the rulings made on the way to the end of the game right requiring that the deposition go forward at this time needless to say that never happened the government tried time and time again to set the deposition mr kobe for its sought a protective order on the basis of some non existent criminal any documents rather of testimony produced in the case couldn't be using any other case and notwithstanding that sweeping protection is to come before it still refused to show up for his deposition finally at the eve trial the district court issued an order to show cause why the case shouldn't be dismissed in this was after the magistrate judge had just excluded him from testifying at trial and after that the district court instead of striking his claim i'm sorry  t i'm sorry instead of striking his claim the district gave him one last chance to turn up for his deposition and he didn't and so under these circumstances the district court clearly acted well within its broad  i listen carefully to the government's arguments and when issues that the court is interested in is a summary forfeiture summary for all future provision although we do not believe it is exclusive it can't be where the the choice is given to the defendant or the claimant to waive the ability to file a petition and ask for the government to seek argument here is that our client did not speak english and there was no formal formal notice of detention issued our client was not informed i don't even know because there was a preclusion of opening up discovery i don't even know whether the customs official who made the initial detention spoke spanish so there was no notice to the claimant that he had ninety days to prove that there was no violation of the import laws of the united states and i'd also the issue of a criminal investigation which was the reason and i won't go into it as they only have two and a half minutes that our client would would not come forward and the judge the judge said straight out that as a this is quoted magistrate judge goodman as a new mexico magistrate judge addressing your motion to compel production protection production of got documents from a nonparty in this case put it recently the government suspects that come for it's at his father were part of an illegal immigration to smuggle ancient artifacts into the united states moreover federal bureau of investigation special agents interviewed fact witnesses in this civil forfeiture case and government counsel expressly advised claimants counsel that his client needs to be advised of the fifth amendment rights we believe that the judge abused her discretion in this case by not expand extending the discovery procedures and what what we believe misinterpreting all the facts that were out there relating to a criminal case and as is normal for customs and border protection were not followed in this case because of the summ when there is a contaminant criminal and civil investigation customs regularly puts aside the requirement to go forward with the civil case until the criminal case is end no other questions i thank you for the time thank you counsel thank you both this court will be in recess for fifteen