                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 17 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID CASSIRER; et al.,                         No.    19-55616

                Plaintiffs-Appellants,          D.C. No.
                                                2:05-cv-03459-JFW-E
 v.

THYSSEN-BORNEMISZA COLLECTION                   MEMORANDUM*
FOUNDATION, an agency or
instrumentality of the Kingdom of Spain,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                        Argued and Submitted July 7, 2020
                              Pasadena, California

Before: CALLAHAN, BEA, and IKUTA, Circuit Judges.

      Plaintiffs David Cassirer, the estate of Ava Cassirer, and the United Jewish

Federation of San Diego County (collectively “the Cassirers”) appeal from the

district court’s judgment, entered after a bench trial, in favor of Defendant Thyssen-

Bornemisza Collection Foundation (“TBC”) in the Cassirers’ action to recover a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
painting by Camille Pissarro, a French Impressionist, which was stolen from their

ancestors by the Nazi regime in 1939 (“the Painting”). In a prior appeal, we reversed

the district court’s grant of summary judgment in favor of TBC because there were

genuine issues of material fact whether TBC knew the Painting was stolen when it

purchased the Painting from the Baron Hans Heinrich Thyssen-Bornemisza (the

“Baron”) in 1993.1 Cassirer v. Thyssen-Bornemisza Collection Foundation, 862

F.3d 951, 973 (9th Cir. 2017). In that prior appeal, we explained that if TBC had

actual knowledge the Painting was stolen, TBC could be found by the trier of fact to

be an encubridor (an “accessory after the fact”) under Spain Civil Code Article 1956

(“Article 1956”) who could not have acquired title to the Painting through

acquisitive prescription. Id. at 972–73. After a bench trial, the district court

concluded that TBC acquired title to the Painting pursuant to Spain’s law of

prescriptive acquisition because TBC did not have actual knowledge that the

Painting was stolen when it purchased the Painting from the Baron in 1993.

      We have jurisdiction over the district court’s final judgment pursuant to 28

U.S.C. § 1291. We review the district court’s factual findings for clear error and the

district court’s conclusions of law de novo. Kohler v. Presidio Int’l, Inc., 782 F.3d

1064, 1068 (9th Cir. 2015). We affirm.



1
     TBC purchased the Painting from Favorita Trustees Limited, an entity of the
Baron. We refer to Favorita and the Baron collectively as “the Baron.”

                                          2
      1.     As a threshold matter, the Cassirers request that our 2017 decision be

revisited en banc. The Cassirers argue that we erred in holding that (1) Spanish law

governs their substantive claims; (2) the Holocaust Expropriated Art Recovery Act

does not bar Spain’s acquisitive prescriptive defense; (3) Spain’s Historical Heritage

Law does not prevent TBC from acquiring the Painting by acquisitive prescription;

(4) Spain’s acquisitive prescription laws did not violate the European Convention on

Human Rights; (5) and Spain satisfied the element of public possession necessary to

establish acquisitive prescription under Spanish law. Our prior holdings are both

law of the case and binding precedent that we must follow in this appeal. See

Nordstrom v. Ryan, 856 F.3d 1265, 1270 (9th Cir. 2017). Because the Cassirers

have not identified any new factual or legal developments since our prior decision

that require us to reconsider any of those five holdings, we disagree that our 2017

decision should be revisited en banc and will not take any steps toward en banc

review.

      2.     The district court applied the correct legal standard for determining

actual knowledge under Article 1956. A litigant may satisfy Article 1956’s actual-

knowledge requirement through proof of willful blindness on the part of the receiver

of stolen property. See Spanish Supreme Court Judgment (“SSCJ”), Feb. 24, 2009

(RJ 2009/449); SSCJ, June 28, 2000 (RJ 2000/6080). According to the Cassirers,

there are two alternative tests for willful blindness: (1) the “high risk or


                                          3
likelihood” test, which considers whether “the illicit origin of the chattel is highly

probable in light of the existing circumstances,” and (2) the “perfectly imagined”

test, which considers whether “the perpetrator could have perfectly imagined the

possibility” “that the goods have their origin in a crime against personal property or

socio-economic order.” SSCJ, Feb. 24, 2009 (RJ 2009\449). The Cassirers argue

the district court should have applied the perfectly imagined test rather than the high

risk or likelihood test to determine whether TBC was willfully blind to the illicit

origin of the Painting because the perfectly imagined test has a lower standard of

proof. We disagree.

      We are not convinced that the perfectly imagined and high risk or likelihood

tests are different tests for willful blindness or that the perfectly imagined test has a

lower standard of proof than the high risk or likelihood test used by the district court.

Both appear to be verbal formulas that require the trier of fact to evaluate

circumstantial evidence after taking into account objective indications, if any, of

prior theft of the object, as well as the subjective knowledge and experience of the

accused encubridor. To the extent the perfectly imagined test is a different, lower

standard of proof than the high risk or likelihood test for willful blindness, the district

court’s failure to address the perfectly imagined test is harmless because the Spanish

Supreme Court has not mentioned or applied the perfectly imagined test for willful

blindness in a case analogous to the present case. Although the Cassirers and Amici


                                            4
rely on several Spanish decisions that mention or apply the perfectly imagined test

for willful blindness, none of those decisions involve stolen artwork or a receiver

who purchased stolen goods from a seller that had an invoice reflecting that he had

purchased the stolen goods from an established and well-known art gallery. See

SSCJ, Nov. 4, 2009 (RJ 2010/1996) (concluding the receiver of a stolen handbag

“could not have been unaware of the illegal origin” of the handbag because it

contained an identification card and bracelet belonging to someone other than the

seller of the handbag); SSCJ, Feb. 24, 2009 (RJ 2009/449) (reciting, but not stating

whether it applied, the perfectly imagined test where the defendant purchased stolen

cars from a dealer he knew, produced documentation to get licenses for the cars in

Belgium using false numbers, stored the cars in his garage spaces, and sold the cars

in Malaga, Spain); SSCJ, June 28, 2000 (RJ 2000/6080) (concluding a receiver of

stolen jewelry “could have perfectly imagined” that the jewelry was stolen because

he purchased the jewelry from a seller he did not know, “did not ask for proof or

explanation of” the seller’s possession of the jewelry, and sold the jewelry at an

auction to “profit without any risk”); Álava Provincial Court, May 13, 2019, JUR

2019/224552 (holding the receiver of a stolen cellphone knew or could have

imagined the cellphone was stolen because he purchased it at a street market without

a box, charger, or warranty for less than half of the cellphone’s fair market value and

then sold it in a different town through a proxy); Las Palmas de Gran Canaria


                                          5
Provincial Court, March 1, 2019, JUR 2019/194217 (concluding the defendant had

knowingly received stolen clothes because the anti-theft magnetic strips were still

attached to the clothes). Thus, we reject the Cassirers’ argument that the district

court applied the incorrect test for actual knowledge under Article 1956; or even if

the district court applied the incorrect test, any error was harmless.

      3.     The district court’s finding that the Baron lacked actual knowledge that

the Painting was stolen was not clearly erroneous. Although parts of the record

suggest that the Baron may have had knowledge the Painting was stolen when he

purchased it from the Stephen Hahn Gallery, there is sufficient evidence in the record

from which a trier of fact could conclude that the Baron lacked actual knowledge

that the Painting was stolen.2 The district court found that the Baron lacked actual

knowledge of the theft based in part on evidence that the Baron purchased the

Painting for fair market value from a reputable art dealer while the Painting was


2
       The district court found that the Baron’s employee mistakenly recorded false
provenance information about the Painting in the Baron’s purchase notebook: that
the Baron purchased the Painting from the Hahn Gallery in Paris, rather than the
Stephen Hahn Gallery in New York, and listed the name of the Painting as “La Rue
St. Honoré, effet de Soleil, Après-Midi, 1898,” rather than Rue Saint Honoré, après-
midi, effet de pluie. The Cassirers accuse the Baron of falsifying the record in his
purchase notebook and argue the district court’s finding that it was a mistake was
clearly erroneous. We reject this argument because there is evidence in the record
from which a trier of fact could find that the erroneous provenance information about
the Painting in the Baron’s purchase notebook was a mistake. Indeed, TBC’s expert
Laurie Stein opined that the false provenance information was a “mistake[],” and
three other paintings, none of which are claimed to have been stolen goods, were
similarly reported as sold in Paris rather than New York.

                                           6
publicly displayed and then publicly and frequently exhibited the Painting after

he purchased it, without anyone asserting it had been stolen in the past. Because

the district court’s finding that the Baron lacked actual knowledge that the Painting

was stolen is supported by inferences that may be drawn from facts in the record, it

is not clearly erroneous. See United States v. Hinkson, 585 F.3d 1247, 1262 (9th

Cir. 2009). Therefore, even if the Baron’s knowledge could be imputed to TBC, it

does not cause TBC to have actual knowledge.

      The Cassirers argue the district court’s finding that the Baron did not possess

the Painting in good faith under Swiss law satisfies the actual-knowledge

requirement under Article 1956. We reject this argument because lack of good faith

under Swiss law does not equate to having actual knowledge of the theft under

Spanish law. Lack of due diligence in investigating provenance, after proof of

suspicious circumstances, can establish lack of good faith under Swiss law.

Compare Cassirer, 862 F.3d at 975 (citing Swiss Civil Code Articles 3.1, 3.2, and

728) with SSCJ, Nov. 4, 2009 (RJ 2010/1996) (noting that under Spanish law, “[i]t

is . . . not enough to simply suspect the illegal origin; rather, the defendant must be

certain of it”). Thus, even if the Baron’s knowledge of suspicious circumstances is

imputed to TBC, that knowledge does not rise to the level of actual knowledge.

      4.     The district court’s finding that TBC lacked actual knowledge that the

Painting was stolen was not clearly erroneous. Although there is evidence in the


                                          7
record that suggests TBC had actual knowledge that the Painting was stolen at the

time that it entered the 1993 purchase agreement with the Baron, there is sufficient

evidence in the record from which a trier of fact could find that TBC lacked

actual knowledge that the Painting was stolen.

      The district court’s finding that TBC lacked actual knowledge that the

Painting was stolen is based, at least in part, on Fernando Pérez de La Sota’s trial

testimony that, at the time TBC acquired the Painting from the Baron, there was a

“minimal” or “hypothetical” risk that the Baron “did not have good title to the

paintings” that he sold to TBC as reflected in the Baron’s $10 million pledge or

“prenda.” The prenda is not irrefutable evidence that TBC recognized there was a

high risk of defective title to the Painting because the pledge was security for the

satisfaction and performance of all of the Baron’s liabilities and obligations under

the 1993 purchase agreement, not just the Baron’s obligation to sell the paintings

free of claims against title, and the district court weighed other evidence, including

the testimony of de La Sota. Because the district court’s finding that TBC lacked

actual knowledge that the Painting was stolen is supported by inferences that may

be drawn from facts in the record, it is not clearly erroneous.3 See Hinkson, 585 F.3d

at 1262.


3
      In 1998, forty-four countries, including the Kingdom of Spain, agreed to
several non-binding principles set forth in the Washington Principles on Nazi-
Confiscated Art. See Washington Conference Principles on Nazi-Confiscated Art,

                                          8
AFFIRMED.




U.S. Department of State (Dec. 3, 1998), https://www.state.gov/washington-
conference-principles-on-nazi-confiscated-art/. The Washington Principles provide,
in relevant part: “If the pre-War owners of art that is found to have been confiscated
by the Nazis and not subsequently restituted, or their heirs, can be identified, steps
should be taken expeditiously to achieve a just and fair solution, recognizing that
this may vary according to the facts and circumstances surrounding a particular
case.” Id. More than 10 years later, in 2009, forty-six countries, including Spain,
reaffirmed their commitment to the Washington Principles by signing the Terezin
Declaration. See Terezin Declaration on Holocaust Era Assets and Related Issues,
U.S. Department of State (June 30, 2009), https://www.state.gov/prague-holocaust-
era-assets-conference-terezin-declaration/. The Terezin Declaration reiterated that
the Washington Principles “were voluntary commitments that were based upon the
moral principle that art and cultural property confiscated by the Nazis from
Holocaust (Shoah) victims should be returned to them or their heirs, in a manner
consistent with national laws and regulations as well as international obligations, in
order to achieve just and fair solutions.” Id. (emphases added). The Terezin
Declaration “encourage[d] all parties including public and private institutions and
individuals to apply [the Washington Principles].” Id. The preamble to the Terezin
Declaration expressly states that these “moral responsibilities” are “legally non-
binding” principles. Id. (emphasis added).
       The district court noted that Spain and TBC’s refusal to return the Painting to
the Cassirers is inconsistent with Spain’s moral commitments under the Washington
Principles and Terezin Declaration. However, the district court found that it could
not force Spain or TBC to comply with these non-binding moral principles, which
counsel for TBC characterized as “guidelines.” It is perhaps unfortunate that a
country and a government can preen as moralistic in its declarations, yet not be
bound by those declarations. But that is the state of the law. See Dunbar v. Seger-
Thomschitz, 615 F.3d 574, 577 (5th Cir. 2010) (“The Terezin Declaration is a
‘legally non-binding’ document.”); see id. at 578 n.2 (referring to the Washington
Principles as “non-binding principles”). We agree with the district court that we
cannot order compliance with the Washington Principles or the Terezin Declaration.

                                          9
