         Case: 15-14417   Date Filed: 06/02/2017   Page: 1 of 16


                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 15-14417
                     ________________________

                 D.C. Docket No. 1:13-cv-21697-JAL


UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

versus

TWENTY-NINE PRE-COLUMBIAN AND COLONIAL ARTIFACTS FROM
PERU, et al.,

                                             Defendants,

JEAN COMBE-FRITZ,

                                             Claimant - Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                     ________________________

                            (June 2, 2017)
                 Case: 15-14417       Date Filed: 06/02/2017      Page: 2 of 16


Before HULL, MARCUS, and CLEVENGER, * Circuit Judges.

PER CURIAM:

       Jean Combe-Fritz appeals from the district court’s final judgment of

forfeiture of a number of artifacts confiscated from him by U.S. Customs and

Border Protection (“CBP”) when he arrived at Miami International Airport from

Peru. CBP seized the items pursuant to both the Convention on Cultural Property

Implementation Act (“CPIA”), 19 U.S.C. §§ 2601–13, which limits the importation

of “archaeological and ethnological material” of a foreign State Party; and 19

U.S.C. § 1595a(c), which restricts the importation of items “contrary to law.”

Upon review of the record, and with the benefit of oral argument from counsel for

the parties, we affirm.

                        I. FACTS & PROCEDURAL HISTORY

       Mr. Combe-Fritz, a Peruvian citizen, arrived at Miami International Airport

from Lima, Peru, on August 21, 2010. During Mr. Combe-Fritz’s secondary

screening examination, CBP officers identified a number of items—various

textiles, figurines, and other articles—that were deemed to require further

evaluation from an import specialist. CBP confiscated the items and issued a

Detention Notice and Custody Receipt to Mr. Combe-Fritz. He returned to Peru

shortly thereafter.

       *
           The Honorable Raymond   C. Clevenger, United States Circuit Judge for the Federal
Circuit, sitting by designation.


                                                2
               Case: 15-14417      Date Filed: 06/02/2017      Page: 3 of 16


       On February 15, 2012, CBP issued Mr. Combe-Fritz and his counsel two

separate notices of seizure and possible forfeiture of the seized items. One of the

notices stated that some of the confiscated items were “Archaeological and

Ethnological Material from Peru,” seized pursuant to 19 U.S.C § 2609 and 19

C.F.R. § 12.104e, and subject to summary forfeiture proceedings. The second

notice indicated that other items were “stolen cultural property from Peru” and,

therefore, were seized and subject to forfeiture under 19 U.S.C. § 1595a(c)(1)(A).

Mr. Combe-Fritz submitted a claim of interest for the seized items and paid the

requisite bond, and CBP referred the case to the U.S. Attorney’s office (“the

government”) to initiate judicial forfeiture proceedings. See 19 U.S.C. § 1608.

       On May 10, 2013, the government filed a complaint (“first complaint”) for

civil forfeiture in rem against “twenty-nine pre-Columbian and Colonial artifacts

from Peru,” pursuant to 19 U.S.C. § 2609, part of the CPIA. The first complaint

alleged that Dr. Carol Damian, an expert in Latin American and Pre-Columbian

art,” had reviewed the seized items and opined that twenty-nine of them

“appear[ed] to be designated archeological and ethnological material,” the

importation of which is limited under the CPIA. 1 It also alleged that Luis Chang,

Minister Counselor of the Embassy of Peru, had reviewed photographs of the


       1
         The Fourth Circuit’s case Ancient Coin Collectors Guild v. U.S. Customs & Border
Prot., Dep’t of Homeland Sec., 698 F.3d 171, 175–77 (4th Cir. 2012), provides a concise
overview of the CPIA and its history.


                                              3
                Case: 15-14417       Date Filed: 06/02/2017       Page: 4 of 16


twenty-nine items and, like Dr. Damian, believed them to be protected articles of

Peruvian cultural heritage, exported without authorization from the government of

Peru.

        On July 19, 2013, the government filed a second complaint (“second

complaint”) for civil forfeiture in rem against “Three Artifacts Constituting

Cultural Property from Peru,” pursuant to 19 U.S.C. § 1595a(c)(1)(A).2 The

second complaint alleged that three of the seized items (not included in the first

complaint) were Peruvian cultural property, and, under Peruvian law, the

unauthorized exportation of the defendant property caused ownership of the items

to revert to the government of Peru. As with the first complaint, the second

complaint alleged that Luis Chang had reviewed the three items and believed them

to be the cultural property of Peru, exported without the government’s permission.

Consequently, the government’s second complaint alleged that “the removal of the

defendant property from Peru was illegal; ownership of the property had reverted

to the people of Peru; and the three artifacts constitute property stolen, smuggled or

clandestinely imported into the United States.”

        Mr. Combe-Fritz filed verified claims of interest in response to each of the

government’s complaints, and the district court consolidated the cases. On

        2
         “Merchandise which is introduced or attempted to be introduced into the United States
contrary to law shall be treated as follows: (1) The merchandise shall be seized and forfeited if
it—(A) is stolen, smuggled, or clandestinely imported or introduced . . . .” 19 U.S.C.
§ 1595a(c)(1)(A).


                                                4
              Case: 15-14417     Date Filed: 06/02/2017    Page: 5 of 16


September 16, 2013, Mr. Combe-Fritz filed a motion to dismiss the consolidated

forfeiture action, arguing that (1) the district court lacked jurisdiction because the

Court of International Trade (“CIT”) possessed exclusive jurisdiction over the

case, (2) CBP’s procedures prior to referring the case to the U.S. Attorney did not

comport with due process, and (3) the government failed to state a claim in its

complaints.

      While the motion to dismiss was pending, the district entered a scheduling

order setting discovery deadlines. The government noticed Mr. Combe-Fritz’s

deposition for March 13, 2014. Mr. Combe-Fritz moved to stay discovery until the

district court ruled on his motion to dismiss, but the magistrate judge denied the

stay motion, ordering that the parties proceed with discovery and that Mr. Combe-

Fritz’s deposition “go forward at this time.” The parties repeatedly attempted to

reschedule the deposition, but Mr. Combe-Fritz ultimately cancelled agreed-upon

dates on three occasions, citing concerns that he could be arrested while in the

United States because he had not received a U.S. visa to travel from Peru. The

government noticed Mr. Combe-Fritz’s deposition for June 12, 2014, and filed a

motion to compel his attendance. At the hearing regarding the government’s

motion to compel, Mr. Combe-Fritz’s counsel explained that his client had

received a visa and would attend the June 12 deposition voluntarily.




                                           5
                Case: 15-14417   Date Filed: 06/02/2017   Page: 6 of 16


      On June 6, 2014, the government emailed Mr. Combe-Fritz’s attorney to

review some logistical matters regarding the upcoming deposition, including

advising that counsel explain Mr. Combe-Fritz’s Fifth Amendment privilege to

him ahead of time, in order to avoid confusion and delay. Consequently, Mr.

Combe-Fritz insisted that the government grant him immunity or agree to a

protective order. The government refused, and the scheduled June 12 deposition

was postponed to June 30, but Mr. Combe-Fritz did not appear for his deposition

on this date.

      Mr. Combe-Fritz filed three motions on July 3, 2014. First, Mr. Combe-

Fritz filed a motion for a protective order and immunity, seeking limitations on the

use of his deposition testimony and any documents relating thereto. Second, Mr.

Combe-Fritz filed a motion to stay forfeiture proceedings until the resolution of

any criminal inquiry against him. Third, Mr. Combe-Fritz filed a motion to amend

the scheduling order, either by reassigning the case to the “Complex Track,” under

Southern District of Florida Local Rule 16.1(a)(2), (3), or by extending the

discovery deadline.

      On August 6 and 7, 2014, the district court denied Mr. Combe-Fritz’s

motion to stay without prejudice, finding his Fifth Amendment concerns “too

speculative and hypothetical,” and denied his motion to amend the scheduling

order. The magistrate judge, however, granted Mr. Combe-Fritz a partial



                                          6
              Case: 15-14417      Date Filed: 06/02/2017    Page: 7 of 16


protective order, concluding that, despite the government’s representations that

there was no federal criminal investigation pending against him, Mr. Combe-

Fritz’s concerns were “not entirely without merit and [could not] be entirely

discounted.” Therefore, although finding that the “purported grounds for

protective order are largely speculative, conclusory, and vague,” the magistrate

judge ordered that Mr. Combe-Fritz’s deposition testimony and other produced

documents “may be used only in connection with this case” and were not to be

used in any potential criminal investigation. The magistrate judge did not

otherwise limit the government’s conduct of discovery or require the government

to confer immunity to Mr. Combe-Fritz.

      On September 11, 2014, the district court denied Mr. Combe-Fritz’s motion

to dismiss, filed in September 2013. The district court concluded that the CIT did

not possess exclusive jurisdiction over the matter, that CBP had complied with its

due process obligations, and that the government had adequately stated a claim in

both of its complaints.

      On December 17, 2014, the government moved in limine to preclude Mr.

Combe-Fritz from testifying at trial, in light of his refusal to sit for his deposition.

On January 16, 2015, the government additionally filed a motion for sanctions “up

to and including dismissal of [Mr. Combe-Fritz’s] claim” for discovery

misconduct. The magistrate judge granted the motion in limine on February 3,



                                            7
                Case: 15-14417    Date Filed: 06/02/2017   Page: 8 of 16


2015, ordering: “[Mr. Combe-Fritz] must appear for his deposition within ten days

of this Order, or he will be excluded from testifying at trial.” The magistrate judge

declined to grant the government’s motion for additional sanctions. Mr. Combe-

Fritz did not appear for his deposition within ten days of the magistrate judge’s

order.

         On April 2, 2015, the district court sua sponte issued an order to show cause

why it should not strike Mr. Combe-Fritz’s claims of interest with prejudice. The

district court recited Mr. Combe-Fritz’s repeated failures to sit for his deposition,

the lesser sanctions that had already been considered and applied, and Mr. Combe-

Fritz’s lack of evidence to establish his own standing. The district court

specifically addressed Mr. Combe-Fritz’s self-incrimination concerns:

               To the extent that [Mr. Combe-Fritz] has avoided
               appearing for his deposition based on a Fifth Amendment
               concern that answers to deposition questions might tend
               to incriminate him, this would not give him the right to
               simply not appear at all for a deposition. Instead it would
               give him the ability to assert his Fifth Amendment
               privilege on a question-by-question basis at the
               deposition. Claimant cannot simply refuse to even appear
               for a deposition based on a fear, even if legitimate, of
               criminal prosecution based on his deposition testimony.

         On May 15, 2015, following responses from both parties, the district court

explained that Mr. Combe-Fritz had “continuously disregarded his discovery

obligations as a party in this case” and that his “complete failure to actively engage

in the discovery process ha[d] prejudiced [the government’s] ability to pursue this

                                            8
              Case: 15-14417     Date Filed: 06/02/2017   Page: 9 of 16


litigation.” Accordingly, the district court ordered Mr. Combe-Fritz to sit for

deposition in Miami within thirty days (June 15, 2015) or face dismissal of his

claims. On June 11, 2015, Mr. Combe-Fritz filed a motion for reconsideration of

the court’s order compelling his deposition. In the motion, he argued that

appearing for deposition would be a “waste of judicial resources” because he

would be invoking his Fifth Amendment privilege and that the district court’s

order was “unnecessary.” Mr. Combe-Fritz did not appear for his deposition on or

before June 15, 2015.

      On August 4, 2015, the district court denied Mr. Combe-Fritz’s motion for

reconsideration and found that he had willfully frustrated the discovery process and

failed to comply with direct court orders—therefore, as a sanction for his discovery

abuses, the district court struck and dismissed his claims of interest with prejudice,

pursuant to Federal Rule of Civil Procedure 37. The district court explained that

the severe sanction was “warranted to ensure the integrity of the discovery process

and the administration of justice.”

      The government moved for final judgment of forfeiture on August 14, 2015.

The court granted the motion and entered final judgment on August 24, 2015.

Later the same day, Mr. Combe-Fritz filed a response to the government’s motion

for final judgment and, because the court had already granted the motion, also

requested that the entry of judgment be vacated. The court summarily denied the



                                          9
             Case: 15-14417     Date Filed: 06/02/2017     Page: 10 of 16


request. Mr. Combe-Fritz moved for reconsideration, which the court also denied

on the grounds that he was no longer a party to the case.

      This appeal followed.

                                 II. DISCUSSION

      Mr. Combe-Fritz raises a host of complaints regarding the district court’s

rulings. As an initial matter, Mr. Combe-Fritz contends that the district court

lacked subject matter jurisdiction over the action in its entirety because exclusive

jurisdiction lay with the CIT. Additionally, Mr. Combe-Fritz raises challenges to

both CBP’s procedures and the district court’s conduct of the forfeiture litigation—

including the striking of his claims of interest, which resulted in the ultimate

judgment of forfeiture. We discuss these issues in turn.

                           A. Subject Matter Jurisdiction

      We are obligated to consider, as a threshold inquiry, whether subject matter

jurisdiction properly lay with the district court. See United States v. Salmona, 810

F.3d 806, 810 (11th Cir. 2016) (“Without subject matter jurisdiction, a court has no

power to decide anything except that it lacks jurisdiction.”). Questions concerning

a district court’s exercise of subject matter jurisdiction are reviewed de novo.

Mesa Valderrama v. United States, 417 F.3d 1189, 1194 (11th Cir. 2005).

      As a general rule, the federal district courts possess original jurisdiction over

forfeiture proceedings, “except matters within the jurisdiction of the [CIT] under



                                          10
               Case: 15-14417       Date Filed: 06/02/2017      Page: 11 of 16


section 1582 of this title.”3 28 U.S.C. § 1355(a). Mr. Combe-Fritz contends that

the CIT possessed exclusive jurisdiction over the CPIA-based forfeiture, not as a

result of § 1582 but, rather, according to § 1581. Under 28 U.S.C. § 1581(i), the

CIT “shall have exclusive jurisdiction of any civil action commenced against the

United States . . . that arises out of any law of the United States providing

for . . . (3) embargoes or other quantitative restrictions on the importation of

merchandise; or (4) administration and enforcement” of such an embargo or

quantitative restriction.      28 U.S.C. § 1581(i)(3), (4) (emphasis added).                Mr.

Combe-Fritz argues that the CPIA effectively creates an embargo by restricting the

importation into the United States of certain foreign goods.

       We need not reach the question of whether the CPIA in fact creates an

embargo as recognized by § 1581(i)(3) because we agree with the district court that

the government’s in rem forfeiture action cannot be characterized as a “civil action

commenced against the United States,” a necessary precondition under the statute.

28 U.S.C. § 1581(i). Regardless of his belief that it is legal fiction to label the

twenty-nine items seized under the CPIA as “guilty property,” Mr. Combe-Fritz

cannot overcome the plain fact that the instant forfeiture proceedings were


       3
         “The [CIT] shall have exclusive jurisdiction of any civil action which arises out of an
import transaction and which is commenced by the United States—(1) to recover a civil penalty
under section 592, 593A, 641(b)(6), 641(d)(2)(A), 704(i)(2), or 734(i)(2) of the Tariff Act of
1930; (2) to recover upon a bond relating to the importation of merchandise required by the laws
of the United States or by the Secretary of the Treasury; or (3) to recover customs duties.” 28
U.S.C. § 1582.


                                               11
             Case: 15-14417      Date Filed: 06/02/2017    Page: 12 of 16


commenced by the United States, against the defendant property. See United

States v. One-Sixth Share, 326 F.3d 36, 40 (1st Cir. 2003) (“Because civil

forfeiture is an in rem proceeding, the property subject to forfeiture is the

defendant. Thus, defenses against the forfeiture can be brought only by third

parties, who must intervene.”). This was not a case “commenced against the

United States.”

      Therefore, the general rule that district courts have original jurisdiction over

forfeiture proceedings brought by the government is properly applied in this case.

                                 B. Rule 37 Sanctions

      District courts have broad authority and discretion to fashion sanctions

against parties who fail to engage in discovery (e.g., a party’s failure to attend its

own deposition) or otherwise disobey court orders. See Fed. R. Civ. P. 37(b), (d).

Such sanctions include “striking pleadings in whole or in part” or “rendering a

default judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A); see

also Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987). We have

recognized, however, that “[t]he decision to dismiss a claim or enter default

judgment ‘ought to be a last resort—ordered only if noncompliance with discovery

orders is due to willful or bad faith disregard for those orders.’” United States v.

Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317 (11th

Cir. 1997) (quoting Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1556 (11th Cir.



                                           12
              Case: 15-14417    Date Filed: 06/02/2017   Page: 13 of 16


1986)). We review the district’s court imposition of sanctions for abuse of

discretion. Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th

Cir. 2005).

      Based on the procedural history recited above, we cannot say that the district

court abused its discretion in striking and dismissing Mr. Combe-Fritz’s claims of

interest. See Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420

F.3d 1317, 1325 (11th Cir. 2005) (“[W]hen employing an abuse of discretion

standard, we will leave undisturbed a district court’s ruling unless we find that the

district court has made a clear error of judgment, or has applied the wrong legal

standard.”). The facts show that, over the course of more than a year, Mr. Combe-

Fritz consistently shirked his obligation to appear for his deposition, depriving the

government of a meaningful opportunity to explore his claims of interest. Despite

having both the government’s assurances that there was no federal criminal

investigation pending against him and a limited protective order from the

magistrate judge, Mr. Combe-Fritz continued to cite hypothetical self-

incrimination concerns as his only reason for not appearing. This was unavailing.

      In addition to attempts to accommodate Mr. Combe-Fritz’s Fifth

Amendment concerns, the district court and magistrate judge repeatedly gave Mr.

Combe-Fritz chances to avoid dismissal, exhausting other, less severe sanctions.

In response to the government’s motion in limine and motion for sanctions, the



                                          13
               Case: 15-14417       Date Filed: 06/02/2017       Page: 14 of 16


magistrate judge ordered that “[Mr. Combe-Fritz] must appear for his deposition

within ten days of this Order, or he will be excluded from testifying at trial.” The

threat of this lesser sanction was not sufficient, and Mr. Combe-Fritz ignored it.

       Then, following its order to show cause why the court should not strike Mr.

Combe-Fritz’s claims of interest, the district court issued an order compelling his

deposition within thirty days, providing him a final opportunity to cure his

discovery misconduct. Following well-established law, the district court

specifically explained that Mr. Combe-Fritz could not rely on his Fifth

Amendment concerns, even if legitimate, to avoid being deposed. See United

States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969) (“[E]ven if the danger of

self-incrimination is great, [a party’s] remedy is not to voice a blanket refusal to

produce his records or to testify. Instead, he must present himself with his records

for questioning, and as to each question and each record elect to raise or not to

raise the defense. . . . [A] blanket refusal is unacceptable . . . .” (internal footnote

omitted)). 4 And the district court warned that, should Mr. Combe-Fritz fail to

appear within thirty days, “it may be grounds for dismissal of his claim.”

       As we have already noted, Mr. Combe-Fritz did not sit for his deposition

within the thirty-day deadline. Instead he chose to file a motion for

reconsideration, in which he again asserted an improper “blanket refusal” to sit in

       4
        This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981).


                                               14
             Case: 15-14417     Date Filed: 06/02/2017    Page: 15 of 16


light of his self-incrimination concerns and argued that requiring his deposition

would be a “waste of judicial resources.” Consequently, the district court

determined that, “[w]hile the issue of whether [Mr. Combe-Fritz] had actually

violated a specific Court discovery order may have been at one time ‘at least

slightly, ambiguous,’ that is no longer the case. Claimant has willfully violated the

Court’s Order to Compel and is solely at fault for the violation.”

      Mr. Combe-Fritz’s conduct went beyond simple negligence,

misunderstanding, or an inability to comply with court orders. The record amply

supports the district court’s conclusion that Mr. Combe-Fritz’s “failure to appear

on several occasions for his deposition was willful and in bad faith.” As such, we

see no abuse of discretion in the district court’s order striking and dismissing Mr.

Combe-Fritz’s claims of interest.

      Moreover, because the district court acted within its discretion in striking

Mr. Combe-Fritz’s claims, we need not address Mr. Combe-Fritz’s remaining

challenges, both to CBP’s procedures and to the district court’s numerous other

rulings. See, e.g., United States v. $239,500 in U.S. Currency, 764 F.2d 771, 773

(11th Cir. 1985) (holding that the district court’s Rule 37 dismissal, resulting in

dismissal of the claimant’s claims in a forfeiture action, “left no issue before the

court as to the forfeiture and left [claimants] without standing to contest the merits

of the Government's claim.”); United States v. $49,000 Currency, 330 F.3d 371,



                                          15
             Case: 15-14417     Date Filed: 06/02/2017     Page: 16 of 16


375–76 (5th Cir. 2003) (holding that the district court’s Rule 37 sanction, resulting

in default judgment against claimant, was proper and “dispositive,” making further

inquiry into other issues raised on appeal unnecessary).

      The district court’s entry of final judgment of forfeiture in the consolidated

forfeiture action is therefore affirmed.

      AFFIRMED.




                                           16
