Don’t you just hate dirtbags? Well, here is a story (and court case) about one that you just might like.

The Kansas Cosmosphere and Space Center (“KCSC”) is a space museum that houses a great space artifact collection, many on loan from NASA. In 2002, the KCSC president/CEO left, after taking a significant number of precious souvenirs with him, including those belonging to NASA. He was caught, and it was discovered that some items were sold, while others were still in his possession. United States v. Ary, 224 F. Supp. 3d 1186, 1187-88 (D. Kan. Dec. 14, 2016). This thief is not the likeable dirtbag.

On May 19, 2011, a federal court in Kansas granted the United States’ motion for an order permitting the FBI to turn over thirty artifacts seized from the thief to enable the U.S. Marshal to sell them and obtain restitution. Almost two years later, the court granted another motion by the United States so that the items would be forfeited, and allowing the Marshal to use third parties to place the artifacts in specialty auctions. On April 23, 2014, the Kansas court granted the United States’ motion for final forfeiture of the property, after showing that the requisite notice had been published on the government’s official website, and no ownership claims were filed as to the property. Included within each of the three motions was an inventory listing the items, including one described as: “One white zippered ‘LUNAR SAMPLE RETURN’ bag'” with corresponding part and serial numbers. Id. at 1188. That’s the dirtbag at the heart of the story.

The Marshal contracted with an online auction to sell the items, including one identified as: “flown zippered lunar sample return bag with lunar dust. 11.5″ Tear at center. Flown Mission Unknown.” No one purchased it at the October 14, 2014 auction. At a second online auction, the bag found a buyer, who paid $995 for this artifact. The winning bidder sent the bag to NASA’s Apollo Lunar Sample Curator at the Johnson Space Center in Houston to determine whether it contained lunar dust – and it did! NASA also confirmed that this was no ordinary dirtbag – it was on Apollo 11, when man first set foot on the moon – and was used by Neil Armstrong as the outer decontamination bag for the first lunar samples ever collected. Further, NASA “determined that fragments in the bag were lunar and that lunar material was intrinsically mixed with the fabric of the bag.” Id. at 1186.

How could this have happened? Apparently, there were two NASA lunar bags in the KCSC collection, and the identifying numbers for the two bags were mixed up during the investigation and prosecution of the thief. One bag was flown to the moon during Apollo 17 and the thief sold it in a 2001 auction for $24,150. The government recovered this artifact and returned it to KCSC, and the thief was obligated to make restitution to the bona fide buyer. During the thief’s trial, it was identified by its correct KCSC identification number, but was thereafter erroneously listed under the Apollo 11 KCSC number. Id. at 1186.

While the United States successfully took multiple steps to enable it to sell the bag, and provided public notice that it would be sold, NASA, the true owner, never claimed it. NASA is a federal agency, just like the U.S. Marshal and the FBI, the latter two who had notice of the sale. The Court found that NASA should be treated just like any other citizen – the United States should have known that NASA was a potential owner, and should have provided it with actual notice. There cannot be “imputed notice” upon a sister governmental agency. The forfeiture was simply the result of a mistake or error, and NASA should not be penalized. Id. at 1191-92.

However, the government’s case “cratered.” The Court found that it lacked authority to rescind the sale to a bona fide purchaser once the Court granted a final order of forfeiture, even when the true owner failed to receive proper notice. Indeed, the Court found that the bona fide purchaser’s interest took priority over any interest that the United States may have acquired by its forfeiture. Similarly, NASA’s title rights as a former owner were extinguished as a result of the final forfeiture order. Id. at 1192-93.

Accordingly, the bona fide purchaser got to keep her moon dust bag. Well, not long enough to gather terrestrial dust. The purchaser sold the lunar bag at a Sotheby’s auction on July 20, 2017 (the 48th anniversary of Apollo 11’s moon landing) for an “astro”-nomical amount – $1.8 million.

Lessons learned? Well, for one thing, the government needed to do what appears to have been an obvious small step (certainly no giant leap) – check with NASA to ensure that the items to be put on sale were indeed things that the space agency didn’t want to keep in its sphere of influence. Now NASA didn’t know that such a precious treasure was about to be jettisoned, but it also shouldn’t have relied upon the U.S. Marshal to be its proxy of tranquility – NASA should have remained vigilant.

The real losers in this case are us, the public, who have now lost an out-of-this-world historic artifact. And there is one more take-away; if you have an eagle eye, a great prize from a government post-forfeiture sale may be landed.

—Bennet Susser, Esq.
Jardim, Meisner & Susser, P.C.