If it’s round, made of metal, bears a left-facing portrait and has any devices or legends similar to U.S. coins, then the public would mistake it for a genuine coin; therefore it’s a counterfeit.
That’s the theory federal prosecutors, with the help of "expert" witness Brian Silliman, successfully presented to a jury, and with it they won a guilty verdict against Bernard von NotHaus.
The jury reached its verdict within 90 minutes on March 18, finding Von NotHaus guilty on all counts — "of making coins resembling and similar to United States coins; of issuing, passing, selling, and possessing Liberty Dollar coins; of issuing and passing Liberty Dollar coins intended for use as current money; and of conspiracy against the United States."
The government’s approach to this case and successful prosecution could have far-reaching implications for every private mint in the United States and for anyone possessing privately issued rounds that remotely resemble or contain any devices used on U.S. coins. Such pieces exist in the marketplace by the hundreds of thousands, if not by the millions, and are bought and sold in the marketplace every day.
Never mind that these privately produced pieces do not replicate the metal content, diameter, weight, design devices and legends used on U.S. coins — the standard definition of a counterfeit.
Von NotHaus’ .999 fine silver Liberty Dollars — denominated as $5, $10, $20 and $50 — do not replicate any U.S. coins and by any standard definition are not coins. The United States has never issued .999 fine silver coins in the denominations von NotHaus used on his Liberty Dollars. In fact, he spent a lot of money printing brochures, books and pamphlets to distinguish his private barter currency from U.S. coins. Von NotHaus espoused the view that his Liberty Dollars were better and had more value than U.S. coins.
So why would 12 reasonable people conclude his Liberty Dollars rose to the level of counterfeiting?
Members of a jury are instructed to render their decision based upon "facts" established by testimony and evidence presented at trial. The jury deciding von NotHaus’ case did just that. They rendered a decision based on the facts and "expert" testimony present by the prosecution.
The defense, prepared by court-appointed legal counsel, offered the jury no expert witnesses and no documentation or explanation of coinage laws. Nor did the defense challenge Silliman’s assertions that the general public would not be able to distinguish between the left-facing Statue of Liberty head used on the Liberty Dollars and a left-facing portrait of George Washington on a quarter dollar or Susan B. Anthony and Sacagawea on dollar coins.
The prosecutor qualified Silliman as an expert in part because he had graduated with "honors" from the American Numismatic Association’s training courses. Silliman further puffed his educational background by stating that his three years of employment with the ANA was the equivalent of earning a PhD. The jury was never told that Silliman’s ANA diploma is really a certificate awarded for the completion of nonaccredited correspondence courses designed for novices.
The government’s use of "similitude" in this case may seem preposterous. But it is now case law because it was left uncontested. And we are left to conclude that the American public is ignorant about coins. n