Domestic Relations Law § 240 (1-b) subdivisions (d) (g) and (i) and Family Court Act § 413 (1) subdivisions (d) (g) and (i) amended by Laws of 2011, Ch 436, effective November 15, 2011
In Rose v Moody, 83 NY2d 65 (1993) the Court of Appeals held Domestic Relations Law § 240 (1-b) and Family Court Act § 413 (1) unconstitutional insofar as they imposed an inflexible minimum child support obligation against support obligors whose income would, by virtue of the obligation, fall below the poverty level. The Court of Appeals held that that the irrebuttable presumption mandating that an indigent, non-custodial parent be ordered to pay a minimum of $25 per month in child support contravened the Federal Child Support Enforcement Act Social Security Act, Title IV-D §467(b)(2), as amended, 42 USCA §667(b)(2), thus violating the constitutional principle of Federal preemption. While the effect of the Court's ruling has been to require that support obligors be permitted to rebut the presumption in favor of a minimum obligation of $25 per month, the statutory language had not been conformed accordingly. Additionally, in cases where the basic child support obligation would reduce the non-custodial parent's income to a level below the self-support reserve, but not below the poverty level, both subdivisions provide alternative standards for determining child support, that is, the greater of $50 per month or the difference between the non-custodial parents' income and the self-support reserve. However, both statutes are silent regarding whether separate amounts may also be ordered in such cases for child care, future medical and educational expenses, in accordance with subparagraphs four, five, six and seven of paragraph (c) of both subdivision one of section 413 of the Family Court Act and subdivision (1-b) of section 240 of the Domestic Relations Law. Several cases have, therefore, disallowed the inclusion of any of these expenses as part of the child support order in such circumstances. See Callen v Callen, 287 AD2d 818 ( 3rd Dept 2001); In Re Rhianna R., 256 AD2d 1184 (4th Dept 1998) (citing Matter of Cary)(Mahady) v Megrell, 219 AD2d 334 (3rd Dept 1996), Iv App Dismissed, 88 NY2d 1065 1996); Dunbar v. Dunbar, 233 AD2d 922 ( 4th Dept 1996.) (See NY Legis Memo 436 (2011).
Domestic Relations Law § 240 (1-b) and Family Court Act § 413 (1) were amended by Laws of 2011, Ch 436 to correct these anomalies and to codify the decision in Rose v Moody.
The amendments make the presumption in favor of a minimum order of $25 per month rebuttable by a showing that such an order would be unjust or inappropriate, based upon the ten factors applicable to departures from the child support standards set forth in Domestic Relations Law §240(1-b)(f); Family Court Act 413(1)(f). Family Court and Supreme Court are authorized to order payment of an amount it deems to be just and appropriate. The amendment eliminates the proviso that " in no instance shall the court order child support below $25 per month." The amendment also clarifies that in cases where imposition of the basic child support obligation would reduce the non-custodial parent's income to an amount below the self-support reserve, but not the poverty level, the Court would be authorized, although not required, to direct payments for child care, educational and health care expenses, as part of its child support order.
Domestic Relations Law § 240 (1-b), subdivisions (d) (g) and (i) were amended accordingly. In addition, subdivision (i) was amended to make technical corrections , including deleting “social services” and replacing it with “the office of temporary and disability assistance”.
Domestic Relations Law § 240 (1-b), paragraphs (d), (g) and (i) were amended to read as follows:
(d) Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be twenty-five dollars per month, provided, however, that if the court finds that such basic child support obligation is unjust or inappropriate, which finding shall be based upon considerations of the factors set forth in paragraph (f) of this subdivision, the court shall order the non-custodial parent to pay such amount of the child support as the court finds just and appropriate. Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater, in addition to any amounts that the court may, in its discretion, order in accordance with subparagraphs four, five, six and/or seven of paragraph (c) of this subdivision.
(g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obligation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share exceeds the portion of a public assistance grant which is attributable to a child or children. Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue.
(i) Where either or both parties are unrepresented, the court shall not enter an order or judgment other than a temporary order pursuant to section two hundred thirty-seven of this article, that includes a provision for child support unless the unrepresented party or parties have received a copy of the child support standards chart promulgated by the commissioner of the office of temporary and disability assistance pursuant to subdivision two of section one hundred eleven-i of the social services law. Where either party is in receipt of child support enforcement services through the local social services district, the local social services district child support enforcement unit shall advise such party of the amount derived from application of the child support percentage and that such amount serves as a starting point for the determination of the child support award, and shall provide such party with a copy of the child support standards chart. (Laws of 2011, Ch 436, §1, effective November 15, 2011)
Almost identical amendments were made to Family Court Act , § 413 (1), paragraphs (d), (g) and (i). (Laws of 2011, Ch 436, §2, effective November 15, 2011)
Second Department Holds That Counsel Fees May Be Requested under FCA 438 (a) At Any Time until the Appellate Process Has Concluded
In Talty v Talty--- N.Y.S.2d ----, 2011 WL 3715407 (N.Y.A.D. 2 Dept.), a support proceeding, the Appellate Division, Second Department reversed an order of the Family Court which had vacated a counsel fee award of $11,893.04 and reinstated the award. It observed that Family Court Act § 438(a) provides: "[i]n any proceeding under this article, including proceedings for support of a spouse and children, or for support of children only, or at any hearing to modify or enforce an order entered in that proceeding or a proceeding to modify a decree of divorce, separation, or annulment, including an appeal under article eleven, the court may allow counsel fees at any stage of the proceeding, to the attorney representing the spouse, former spouse or person on behalf of children." It construed the language "[i]n any proceeding under this article" to include "an appeal under article eleven" , and held that the plain meaning of the statute supports the interpretation that a request for an attorney's fee can be made "at any stage of the proceeding," which includes "an appeal under article eleven". In this context, therefore, the "proceeding" does not conclude until the appellate process has concluded. The proceeding is terminated when an appeal has concluded and no more appellate relief is available, or when the time to file an appeal has expired. Applying this interpretation of the statute to the facts of this case, it held that the mother's motion for an award of an additional attorney's fee was timely, as the appellate process had not yet concluded at the time the motion was made. It further held that to the extent that any of its decisions suggested otherwise (citing Matter of McGrath v. Parker, 41 AD3d 852; Matter of Cassieri v. Cassieri, 31 A.D.2d 927, 298 N.Y.S.2d 844), they are no longer to be followed.
“Extraordinary Circumstances Analysis” must Consider "The Cumulative Effect" of All Issues Present in a Given Case and Not View Each Factor in Isolation. Custody Awarded to Non-biological Relative of Child Rather than Father
In Matter of Pettaway v Savage, --- N.Y.S.2d ----, 2011 WL 3611215 (N.Y.A.D. 3 Dept.), Eric Pettaway was the father of a daughter (born in 1997). In 2003, he and the child's mother, Denise Knight, now deceased, stipulated to joint legal custody of the child with primary physical custody to the mother and visitation to the father. The child resided with the mother and the child's two half siblings until the mother's death in June 2009, at which time the father commenced proceeding No. 1, seeking custody. In response, the attorney for the child moved by order to show cause for an award of sole legal and physical custody to William Savage II, also known as Eric Savage. Savage was not a biological relative of the child; he was the father of the child's older half sister and had fostered a close relationship with the child over the course of several years. Savage then commenced proceeding No. 2, also seeking custody of the child. Family Court found the existence of extraordinary circumstances sufficient to permit the court to intervene in the father's relationship with the child and then, further, that the child's best interests would be served by an award of sole custody to Savage. The father, was granted visitation on alternate weekends and such additional periods of time as the parties and the child may agree. The Appellate Division affirmed. It noted that extraordinary circumstances may not be established "merely by showing that the child has bonded psychologically with the nonparent". The extraordinary circumstances analysis must consider "the cumulative effect" of all issues present in a given case and not view each factor in isolation. In prior cases, extraordinary circumstances have been established based upon the combined effect of factors, including the child's psychological bonding and attachments, the prior disruption of the parent's custody, separation from siblings and potential harm to the child, as well as the parent's neglect or abdication of responsibilities and the child's poor relationship with the parent (see Matter of Banks v. Banks, 285 A.D.2d 686, 687 [2001] ). In Matter of Banks v. Bank, a case in which there were a number of significant similarities to this one, the children--at the time of their father's death--had already developed a bond with his second wife after living with the couple for approximately 30 months. The Appellate Division reversed Family Court's award of custody to the biological mother, citing as extraordinary circumstances the death of the father, the "poor relationship" between the children and the mother, bereavement needs and other special issues affecting one of the children and the mother's recent "withdrawal as a parent". Each and all of those factors were present here; as in Banks, one of the child's parents was deceased, the child had formed a strong psychological bond with a nonparent, the child had special needs in addition to psychological needs resulting from bereavement, and the parent seeking custody withdrew almost completely from the parental role for an extended period before the other parent's death. Here, Family Court found that, prior to the mother's death, the father failed to play any significant role in the child's life, visited inconsistently throughout the child's life, and failed to attend to the child's emotional needs. The court credited a psychologist's testimony and opinion that the father had emotionally abandoned the child by his neglect of her and had demonstrated a fundamental lack of understanding of her needs. These findings were fully supported by the record. Family Court's conclusion that the father abdicated his parental responsibilities was supported by the testimony of several witnesses that the father frequently missed scheduled visits with the child and often left the child with other adults even when he did pick her up for visits, and by undisputed testimony that the father did not attend the child's school conferences or special education meetings until after the mother's death, did not know her teachers' names and never helped her with homework, although he testified that he knew she needed special assistance. Even while this matter was pending, the father failed to appear for a scheduled meeting with the child's teacher and guidance counselor, for reasons unexplained. Testimony further revealed that the father had failed to provide for the child's basic needs during her time with him--he had not provided her with enough food during past visits, nor did he supply her with essentials such as soap or deodorant. When the child sustained an injury while performing physical work for the father's brother, neither the father nor his brother furnished appropriate medical care. There was further disturbing testimony--which Family Court found to be credible--that the father knew that his brother had "badgered" the child about her desire to live with Savage, and that the brother had threatened the child that his conduct should not be mentioned in court; despite this knowledge, the father did not intervene or seek to protect the child. Family Court also found that the period in which the father had custody of the child after the mother's death "did not go well," noting that during this vulnerable period, the child felt isolated from her other family contacts and had limited interaction with them--at a time when any responsible parent or caretaker should have readily recognized that such support was essential. The court had ample basis for doubting the father's testimony that he would not relocate with the child to New Jersey, where his new wife resided and owned a growing travel business, finding it instead "extremely unlikely" that the father would foster the close relationship between the child and her sister and "the others [who] have become her true family." The court further found that the father lacked credibility regarding his previous conviction for attempted rape in the third degree of a person under 17, and his failure to complete sex offender treatment thereafter.
Error to Allow Wife to Benefit from Her Failure to Comply with Discovery
In Cabral v Cabral, --- N.Y.S.2d ----, 2011 WL 3600503 (N.Y.A.D. 2 Dept.) the parties were married on January 24, 1980, and had three children, born in 1980, 1982, and 1989. During the marriage, the parties purchased the marital residence in Westchester County, as well as a vacation residence in the Dominican Republic. Beginning in 1983, the defendant was employed by Westchester County, in which position she received a salary and accrued pension benefits. In 1986, the plaintiff obtained an insurance license and opened an agency selling insurance policies and providing financial and other services. The plaintiff was incarcerated from 1991 to 1994 upon his conviction of felony drug charges, and his insurance license was revoked. The plaintiff testified at trial that prior to his incarceration, he liquidated a retirement benefit and used the proceeds to provide a source of income to the defendant and the parties' children. The defendant continued operation of the agency during the plaintiff's incarceration, and during that time federal tax liens were levied against the agency. The plaintiff also testified that after he was released from prison, the defendant refused to allow him to return to work at the agency in any capacity. Thereafter, the plaintiff did obtain full-time employment, albeit at an annual salary which was significantly less than what he earned as an insurance broker. In 2001, the plaintiff commenced this action for a divorce. Due to the defendant's failure to comply with pretrial discovery orders, she was precluded from offering evidence at trial on the issue of equitable distribution. Supreme Court equitably distributed marital property and awarded child support, and the wife appealed. The Appellate Division, 35 A.D.3d 779, 826 N.Y.S.2d 443, reversed and remitted. On remittal, the Supreme Court awarded child support arrears, awarded the husband no share of the wife's pension, directed that he be solely responsible for the federal tax lien assessed on parties' business, and directed him to pay child support. The husband appealed and the Appellate Division reversed insofar as appealed from and remitted. It held that Supreme Court erred in failing to include the defendant's income from the insurance agency in calculating her income or assets, thereby allowing her to benefit from her failure to comply with discovery and shielding her insofar as the income related to equitable distribution. The defendant's income was also improperly omitted in the calculation of child support and in the apportionment of the debt incurred by the parties' insurance agency. It found that Supreme Court should have included the defendant's pension benefits which accrued prior to the commencement date of the action in the equitable distribution of marital property. Finally, under the particular circumstances of this case, and in the absence of any evidence demonstrating that the plaintiff had the ability to earn a salary approaching his previous income, the Supreme Court improperly imputed annual income to him of $85,000 as part of its calculation of child support.
Inquest on Papers to Determine the Amount of Restitution Is Permitted Pursuant to Family Court Act 841(e)
In Polanco v Dilone,--- N.Y.S.2d ----, 2011 WL 3557068 (N.Y.Fam.Ct.) Petitioner moved for summary judgment on her petition for an order of protection based on Mr. Dilone's guilty plea in Bronx Criminal Court to assault in the 3rd degree. On December 2, 2010, the court granted the motion, and issued findings of fact and a 5 year order of protection. The court also directed an inquest on papers to determine the amount of restitution. It observed that pursuant to Family Court Act 841(e), restitution is an available remedy in this case. Petitioner submitted an affidavit, dated December 15, 2010, delineating her expenses: Travel by Subway to prosecute this case: $78.50 Destroyed toys, bottle of perfume and bouquet of flowers: $100 Certificate of disposition: $10. There was no evidence that respondent was ordered to pay restitution in the criminal action and thus this order was not duplicative. Respondent failed to file opposition which was due by January 21, 2011. The Family Court observed that under FCA 834, the standard of proof at a dispostional hearing is material and relevant. Petitioner submitted a receipt for the certificate of disposition which established the $10 expense. Petitioner's travel expenses were also sufficiently documented in that her appearances in court were in the court's file and would necessitate trips to meet with her attorney, the detective and District Attorney. Further, petitioner testified to injuries for which medical treatment was documented and thus those travel expenses were supported by the record as well. However, petitioner did not allege in the petition that she suffered property damage. Since petitioner moved for summary judgment based on the criminal proceedings, there was no testimony here about property damage. The criminal disposition was silent as to property damage as well. In addition, there was no documentary evidence for the $100 for destroyed property. Admittedly, $100 was an estimate for items of sentimental value. While the court is authorized to award nominal damages, it cannot award sentimental value. Furlan v. Rayan Phot Works, Inc., 171 Misc. 839 (Mun Ct, Queens County 1939). The court accepted petitioner's credible testimony that the intrinsic value of the toys, perfume, and flowers was $100. Victoria C v. Higinio C., 1 AD3d 173 (1st Dept 2003). However, petitioner was required to first plead and prove property damage before any damages could be awarded. Therefore, petitioner had established damages in the amount of $88.50. The court granted the petition for restitution and directed that petitioner shall have judgment for $88.50 with interest from September 24, 2009. The clerk was directed to enter judgment accordingly.
Thứ Tư, 31 tháng 8, 2011
Thứ Ba, 30 tháng 8, 2011
State Officials Ruled Immune From Post-Release Action
State Officials Ruled Immune From Post-Release Action
State prison and parole officials cannot be held liable for violating the constitutional rights of felons by administratively imposing a period of post-release supervision, Western District Judge David G. Larimer held yesterday. He said the officials are entitled to qualified immunity because it did not become clear until April 2008 that the prison system could not add the legally mandated post-release supervision period when the court had neglected to do so on the record.
Vincent v. Yelich, 08-cv-6570Lm, and Johnson v. Fischer, 09-cv-6323L, involved 11 inmates who had served a determinate prison sentence and were released between March 2002 and June 2007. Under Penal Law §70.45, each was required to complete a five-year period of post-release supervision. However, because the sentencing court did not specifically order post-release supervision in these cases and many others, officials at what was then the Department of Correctional Services administratively imposed the statutory required supervisory period.
In 2006, the U.S. Court of Appeals for the Second Circuit in Earley v. Murray, 451 F.3d 71, held that post-release supervision was not enforceable unless imposed by the sentencing judge. However, not all New York state courts followed Earley and it was not until April 2008 that the New York Court of Appeals in Garner v. DOCS, 10 NY 3d 358, and People v. Sparber, 10 NY 3d 457, made clear that state law prohibited DOCS from administratively adding post-release super-vision.
"Hindsight is always 20/20," Judge Larimer wrote. "Although the unconstitutionality and/or unlawfulness of defendants' practice of administratively mandating [post-release supervision] may be clear today, it was manifestly not so prior to April 2008, when New York state appellate courts remained split as to Earley's import and scope, and had identified numerous well-seeming ways to distinguish it."
Thứ Bảy, 27 tháng 8, 2011
Finally Facing the Shame of N.Y.
Finally facing the shame of New York: Cuomo and union will root out workers who fail the disabled
Bill Hammond, Daily News, August 23, 2011
LINK
Gov. Andrew Cuomo's deal with the Civil Service Employees Association ensures that the state's most vulnerable residents will be protected.
Gov. Andrew Cuomo's deal with the Civil Service Employees Association ensures that the state's most vulnerable residents will be protected.
Gov. Cuomo's just-finalized contract with the Civil Service Employees Association marks a breakthrough for good government in New York - and one that has nothing to do with wages or benefits.
As part of the five-year deal, the CSEA agreed to reforms that will help the state root out workers who abuse or neglect the mentally disabled people they're supposed to be caring for.
It's an obscure clause that was overshadowed by the contract's three-year wage freeze, trimmed health benefits and first-ever furloughs for state workers - provisions that will save the state hundreds of millions of dollars while avoiding thousands of layoffs.
But protecting New York's taxpayers must take a backseat to protecting its most vulnerable citizens. To the great credit of Cuomo and the CSEA, this contract begins to take that moral imperative seriously.
Just how badly those citizens need protection became obvious in recent months, as The New York Times exposed widespread abuse and neglect in group homes operated by the state Office for People with Developmental Disabilities - with wrist-slap punishment or less for most offending employees. The paper found 399 abuse cases filed against 293 employees over three years. The state tried to fire 129 of the employees, and succeeded with only 30.
The rest got off with nothing worse than a warning or a short suspension. Eventually, the vast majority were allowed to go back to working with severely disabled children and adults - people who often cannot defend or even speak for themselves.
In too many cases, the abusers abused again.
The worst example was an employee of an upstate group home who was literally caught with his pants down, reportedly standing between the legs of a female patient. The man - who already had a record for assaulting a co-worker - was arrested and charged with rape after his semen was found on the victim's body.
He wasn't fired, but suspended and moved to another home.
At the heart of this culture of impunity is the state's badly broken system for disciplining and firing rogue workers.
Thanks to Civil Service laws and contractual protections, workers cannot be punished at any level without the right to a hearing before an outside arbitrator, jointly picked by managers and union representatives.
The odds of winning a termination case are so long that managers often choose to settle for a lesser punishment, such as a two-week suspension. Others look the other way entirely - and go after employees who try to blow the whistle.
It's a pattern you see throughout state and local government in New York: The rules make it so hard to get rid of bad or mediocre civil servants that management stops trying. Or it resorts to desperate alternatives - such as New York City's longstanding but finally defunct practice of parking unwanted teachers in "rubber rooms."
Cuomo has begun to tackle this inherited mess. But neither he nor the Legislature had power to change the disciplinary rules. This is because those rules were long ago written into labor contracts, giving public employee unions a veto over any reforms.
Thankfully, The Times' articles shamed both management and labor to action. Cuomo demanded disciplinary fixes from the CSEA. And the union agreed without insisting on concessions in return.
In a joint statement announcing the deal, the CSEA and Cuomo acknowledged the obvious: The current system "does not adequately protect our most vulnerable population in state care."
Under the new terms, the state and the CSEA will hash out a detailed schedule of punishments for various offenses - with immediate termination for the most serious cases of abuse, and escalating discipline for repeat offenders - and no more arbitrators making it up as they go along.
"This provides some very long overdue clarity and consistency, so it's really good news for us and the individuals in the system," said developmental disabilities office spokesman Travis Proulx.
Clearly, Cuomo and his agency have a long way to go. Patient advocate Michael Carey - himself the father of a disabled boy who died at the hands of state employees - points out that many managers who have been looking the other way, and failing to properly report abuse to law enforcement, are still on the job.
But firing the people who actually commit abuse has to come first - and Cuomo and the CSEA have taken a clear step in that direction. Good work.
whammond@nydailynews.com
Addressing The Justice Gap
August 23, 2011
Addressing the Justice Gap
Editorial, NY Times, August 24, 2011
LINK
Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.
In civil proceedings like divorces, child support cases, home foreclosures, bankruptcies and landlord-tenant disputes, the number of people representing themselves in court has soared since the economy soured. Experts estimate that four-fifths of low-income people have no access to a lawyer when they need one. Research shows that litigants representing themselves often fare less well than those with lawyers. This “justice gap” falls heavily on the poor, particularly in overburdened state courts.
There is plenty the government, the legal profession and others can do to improve this shameful state of affairs. With the economic downturn, only around two-thirds of law school graduates in 2010 got jobs for which a law degree is required, the lowest rate since 1996. That leaves the other third — close to 15,000 lawyers — who, with financial support from government and the legal profession, could be using their legal expertise to help some of those who need representation.
While the Constitution requires that defendants in criminal cases be provided a lawyer, there is no such guarantee in civil cases. The Legal Services Corporation, created by Congress, gives out federal grants that provide the bulk of support for legal aid to the poor. Over the decades, that budget has shrunk — it was $404 million in 2011, about one-third less than it was 15 years ago, adjusted for inflation. The House Appropriations Committee has proposed reducing that to $300 million for 2012. The cut would be devastating; the budget should, instead, be increased.
Half of the people who seek help from legal aid offices are already turned away. Some offices are so understaffed that they must engage in triage, so that in, say, domestic abuse cases, they will only assist someone seeking a restraining order against a violent partner if that person is in immediate danger of being hurt again.
State bar associations could help address these needs by requiring lawyers to report their pro bono service — such disclosure would likely increase many lawyers’ service to the recommended 3 percent to 5 percent of their paid work. Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.
Legal education must also change. The Carnegie foundation recommends that all law students be given experience in public advocacy, of which providing legal services is one kind. At the same time, law schools should expand loan forgiveness programs for legal services lawyers. A few have such programs, but most schools do not — and not enough schools view tuition as a source to help support future legal-services lawyers.
The justice gap is widening. Government, law schools and the profession need to work together to redesign and fortify the grossly deficient legal services system.
Addressing the Justice Gap
Editorial, NY Times, August 24, 2011
LINK
Most low-income Americans cannot afford a lawyer to defend their legal interests, no matter how urgent the issue. Unless they are in a criminal case, most have no access to help from government-financed lawyers either.
In civil proceedings like divorces, child support cases, home foreclosures, bankruptcies and landlord-tenant disputes, the number of people representing themselves in court has soared since the economy soured. Experts estimate that four-fifths of low-income people have no access to a lawyer when they need one. Research shows that litigants representing themselves often fare less well than those with lawyers. This “justice gap” falls heavily on the poor, particularly in overburdened state courts.
There is plenty the government, the legal profession and others can do to improve this shameful state of affairs. With the economic downturn, only around two-thirds of law school graduates in 2010 got jobs for which a law degree is required, the lowest rate since 1996. That leaves the other third — close to 15,000 lawyers — who, with financial support from government and the legal profession, could be using their legal expertise to help some of those who need representation.
While the Constitution requires that defendants in criminal cases be provided a lawyer, there is no such guarantee in civil cases. The Legal Services Corporation, created by Congress, gives out federal grants that provide the bulk of support for legal aid to the poor. Over the decades, that budget has shrunk — it was $404 million in 2011, about one-third less than it was 15 years ago, adjusted for inflation. The House Appropriations Committee has proposed reducing that to $300 million for 2012. The cut would be devastating; the budget should, instead, be increased.
Half of the people who seek help from legal aid offices are already turned away. Some offices are so understaffed that they must engage in triage, so that in, say, domestic abuse cases, they will only assist someone seeking a restraining order against a violent partner if that person is in immediate danger of being hurt again.
State bar associations could help address these needs by requiring lawyers to report their pro bono service — such disclosure would likely increase many lawyers’ service to the recommended 3 percent to 5 percent of their paid work. Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces.
Legal education must also change. The Carnegie foundation recommends that all law students be given experience in public advocacy, of which providing legal services is one kind. At the same time, law schools should expand loan forgiveness programs for legal services lawyers. A few have such programs, but most schools do not — and not enough schools view tuition as a source to help support future legal-services lawyers.
The justice gap is widening. Government, law schools and the profession need to work together to redesign and fortify the grossly deficient legal services system.
Commission On Judicial Compensation Approves Pay Hike
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| A seven-member commission on judicial pay held hearings in Albany last month. It voted 4 to 3 to approve the increase on Friday. |
Commission Raises N.Y. Judges’ Pay 27% Over 3 Years
By WILLIAM GLABERSON, NY TIMES
LINK
A state commission decided on Friday to increase the pay of the more than 1,200 New York State judges by 27 percent over three years, ending a decade of battles in Albany and the courts, and giving judges their first raise in 12 years.
The seven-member commission, appointed by the leaders of all three branches of government, had been expected to grant a raise. Still, the amount it settled on was considered very modest — and some judges even expressed bitter disappointment.
The commission voted 4 to 3 to approve the increase, with its members sharply divided in a brief meeting in Lower Manhattan that included accusations of political grandstanding. The dissenters said the raises were too small.
Over years of legislative and legal struggles on the judicial-pay issue, New York’s judges, once among the best paid nationally, slipped to being among the lowest paid.
The increase was small compared with some proposed ones that had called for judicial raises across the court system of as much as 60 percent.
The commission was created under a bill passed last year to try to resolve one of the most contentious and long-stalled issues in state government. “This is a start at correcting the injustice that has been done to New York State’s judiciary over more than a decade of neglect,” said the commission’s chairman, William C. Thompson Jr., the former New York City comptroller.
But Mr. Thompson and other members of the commission also said that the fragile state economy required restraint. Under the commission’s decision, the highest level of trial judges in the state, the justices of the State Supreme Court, would receive an increase to $174,000 from the current $136,700, phased in over three years. That would match the salary of United States District Court judges. The raises for all the judges would cost the state about $50 million a year when they are fully implemented.
The creation of the commission was an effort to minimize political fallout from what was likely to be an unpopular decision in a time of budget cutbacks.
The three commission members appointed by Gov. Andrew M. Cuomo were joined in voting for the proposal by the appointee of the Assembly speaker, Sheldon Silver, who, like the governor, is a Democrat. The two appointees of the state’s chief judge, Jonathan Lippman, opposed it as inadequate, as did the appointee of the leader of the State Senate, Dean G. Skelos, a Republican. The Cuomo administration had expressed concern about a large judicial pay raise, so it was not unexpected that the governor’s appointees would limit the increase.
The raises will go into effect next spring unless they are overruled or modified by legislation passed by both houses of the Legislature and signed by the governor. Mr. Thompson said he hoped the size of the increase would dissuade the Legislature and the governor from seeking to overturn the decision, which he said would be “disastrous” for the judiciary.
The commission’s decision would govern judicial pay for four years, after which time another commission would revisit the issue. The pay increase would apply to judges from low-level courts like New York City Civil Court and Criminal Court to the members of the state’s highest court, the Court of Appeals.
The salary of Supreme Court justices had been viewed as a benchmark, with the commission agreeing to keep in place the relative differences in pay across a complex state court system with many pay levels.
The salary of judges in Criminal Court who earn $125,600, for example, would increase proportionally over the next three years, to $160,100. The salary of the chief judge of the state would go from $156,000 to $198,600.
Judges have argued that the pay stagnation forced some judges to leave the bench. On Friday, some judges said the decision would amplify dissatisfaction in the judiciary. “I think it’s very demoralizing,” said Judge Margaret Parisi McGowan of Queens Family Court.
Phillip R. Rumsey, president of the state association of Supreme Court justices, said the salary levels in New York “will continue to reflect the low regard that other branches of state government apparently have for the judiciary.”
Judge Lippman said that he was disappointed that the raise was not larger and that it would be phased in over three years.
Judge Lippman was deeply involved in the plan to create the commission and said at the time that it was the “holy grail” to remove negotiations over judicial salaries from the political process. Asked Friday if the decision was a setback, Judge Lippman said the commission had been successful because it ended with a pay increase at a time of economic crisis.
“We live in the real world,” he said. “We see what’s happening in Washington and in our own state. We see what’s happening in the stock market.”
The commission had always appeared divided 3 to 3 over how generous an increase would be, with Mr. Silver’s appointee, James Tallon Jr., a former Democratic member of the Assembly, holding the decisive seventh vote. The increase that was approved, Mr. Tallon said Friday, “balances all of the factors that are out there, including an economy that has tanked.”
But in a switch of usual roles, in which Republicans criticize Democrats for spending, Mark S. Mulholland, Mr. Skelos’s appointee, criticized Mr. Tallon.
Mr. Mulholland said the Republican-controlled Senate stood with the judges in seeking higher pay. He said that by bringing the salaries of State Supreme Court justices to $174,000 instead of $190,000 or higher, the state would be continuing what he called its neglect of the judiciary. He said he was “disappointed” that Mr. Tallon had “not seen fit to close ranks with me.” One of Mr. Cuomo’s appointees, Richard B. Cotton, criticized Mr. Mulholland, a Long Island lawyer, saying it was “highly unfortunate to inject scoring political points into this discussion.”
Asked about the comments, Mr. Silver said he had not spoken to Mr. Tallon about his vote, adding that “an independent commission was created to take the decision away from the Legislature and away from political finger-pointing.”
Center for Judicial Accountability opposes judicial raises
Commission's July 20 2011 Hearing
Judicial Pay Lawsuits
Third Circuit Allows Judicial Immunity Grant for Defense Witness
August 25, 2011
LINK
There are certain imbalances in the trial of a criminal case. Some favor the defense – most obviously, that the prosecution must prove guilt beyond a reasonable doubt, not merely by a preponderance of the evidence. Some favor the prosecution – such as the ability to force witnesses to testify by grant of immunity, an ability the defense does not have.
Essentially, the prosecution may require testimony from any available witness if the testimony is relevant and admissible and not protected by constitutional or evidentiary privilege. If a witness refuses to testify on fifth amendment grounds, the prosecution has the option of granting the witness immunity and thus eliminating, at least theoretically, her fear of self-incrimination and consequently her right not to testify. Prosecutors routinely in white-collar and other cases rely at trial on immunized testimony of accomplices, co-conspirators and others involved in the alleged criminal activity at issue.
The defense, on the other hand, is hampered by its inability to secure the testimony of such witnesses, who, fearful of prosecutorial use of their trial testimony against them in a later proceeding and/or retaliation for their testimony for the defendant, often assert their fifth amendment privilege against self-incrimination to avoid testifying. Although the defense may request that the prosecution, or the court, grant immunity to a defense witness, such requests are almost invariably denied. Prosecutors, generally not interested in helping the defendant, never or virtually never grant such requests, even if there is virtually no possibility that the witness will ever be prosecuted, commonly claiming that the witness might be immunized for other, unknown crimes. Judges routinely refuse to grant immunity out of fear of giving a potential wrongdoer immunity, deference to the prosecutor’s decision, or separation of powers concerns.
In re Nagle (3d Circuit, 10-3974, August 17, 2011), 2011 WL 3610120, a non-precedential opinion, involved such a situation. The underlying indictment charged Nagle and his uncle and business co-owner Fink with defrauding the United States by setting up a phony Disadvantaged Business Enterprise (DBE) to act as a subcontractor so that the business was eligible to, and did, receive government projects. Nagle claimed Fink had excluded him from the day-to-day operations of the business and that he was unaware of any fraud. After Fink pleaded guilty to conspiracy, Nagle subpoenaed him and Fink replied that he would invoke his fifth amendment right and decline to testify.
The defendant requested that the government grant the witness immunity. Not surprisingly, the government refused, contending it did not know what the witness would say and that it feared giving him an "immunity bath." Then, the district court, upon application of the defendant, itself granted Fink immunity.
The case reached the Third Circuit on the government’s interlocutory appeal and writs of mandamus and prohibition challenging the district court’s immunity grant to Fink. The Court of Appeals denied both the appeal and the writs on procedural grounds. While the court did not rule on the merits of the district court’s decision by holding it was not challengeable by either appeal or writ, it did say that the district court "neither committed clear legal error nor clearly abused its discretion," thereby putting its finger, but not its thumb, on the scale favoring the grant of immunity here.
Thirty-seven years ago, a federal judge, denying a motion I made for defense witness immunity, called it "the stupidest motion I ever heard." According to the knowledgeable Ardmore, PA attorney Peter Goldberger, who co-wrote the NACDL amicus appellate brief supporting Nagle, this case is the first Circuit Court decision upholding a grant of immunity. The law sometimes moves slowly.
To be sure, the court’s non-precedential decision is not a strong or unqualified approval of judicial grants of defense witness immunity. The court said only that the grant here was neither a clear error of law nor a clear abuse of discretion. Additionally, the district court’s order was made after the witness Fink had pleaded guilty (but apparently before he was sentenced) and thus the immunity grant did not absolve him of criminal liability, at least for the conduct to which he admitted guilt. Most requests for grants of defense witness immunity are for testimony of persons who have not been charged, let alone convicted. In those instances, the prosecutorial objection that immunity might let a criminal go free has more substance.
Defense lawyers should nonetheless celebrate -- albeit with beer, not champagne. The decision should give some support to district judges (at least in the Third Circuit) who are hesitant to grant defense immunity because of questions of judicial power or fear of reversal. And, it should suggest to prosecutors that they may no longer be able to continue to deprive defendants of essential testimony solely based on the boilerplate, unspecific argument that it might give the witness an "immunity bath" for unknown crimes.
Nagle Mandamus Petition -Download Nagle mandamus petition
Brief of Appelle/Respondent Joseph W. Nagle - Download 3BrNagle e032111
Rply Brief of Appellant/Petition - Download 3USReply e040611
NACDL-PACDL Amicus - Download 3MemAmi NACDL-PACDL e112410
(Goldman)
Thứ Sáu, 26 tháng 8, 2011
Commentary on SLAM Mummy Mask Case - Proceeds Contraband and Statute of Limitations
The current civil litigation surrounding whether the Ka-Nefer-Nefer mummy mask is contraband is worth following given the current legal arguments in play.
The mask, located at the St. Louis Art Museum (SLAM), is claimed by the federal government to be contraband, which is always unlawful to possess. SLAM, meanwhile, argues that the mask, if it is contraband, must be considered derivative contraband, compelling the government to prove that the mask was utilized in the commission of a crime.
It is open to discussion whether the mummy mask fits into the same category as contraband like illegal narcotics. It is also remarkable to think of the mummy mask as derivative contraband like a car used in illegal gun running. It may be that both legal theories are inexact.
The mummy mask might be categorized as proceeds or fruits instead.
Broadly speaking, criminal search and seizure law categorizes property as fruits, instrumentalities, or contraband. Fruits of a crime are the proceeds of a criminal transaction. These items are ones connected with a criminal act and may be seized. Instrumentalities are objects used to facilitate a crime, and these too may be seized. Contraband items are ones that are plainly unlawful to possess like counterfeit money, and these too may be seized.
In the realm of civil forfeiture of property, particularly dealing with items alleged to be connected to a crime, these criminal law concepts of fruits, instrumentalities, and contraband may be translated into three legal theories: proceeds forfeiture, instrumentalities forfeiture, and contraband forfeiture. If contraband forfeiture is the argument of the government, and instrumentalities forfeiture is the argument of the museum, will proceeds forfeiture be considered by the court? We shall see.
Meanwhile, SLAM’s assertion that the statute of limitations has expired in this case, preventing the government from pursuing its court action, is an argument worth watching closely. Statute of limitations is always an issue of importance when applied to cases of fine art and cultural heritage. In the Ka-Nefer-Nefer mummy mask case, it should be noted that the statute of limitations would not likely apply if the mummy mask is categorized as contraband per se. That is because it would be unlawful to possess the mask under any circumstance at any time. And that is perhaps one reason why the government hopes to characterize the mask as contraband, because it could potentially steer the case away from litigation over the statute of limitations altogether.
We look forward to further developments.
DISCLAIMER: The information provided here is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this site. Contact information may be found at www.culturalheritagelawyer.com.
The mask, located at the St. Louis Art Museum (SLAM), is claimed by the federal government to be contraband, which is always unlawful to possess. SLAM, meanwhile, argues that the mask, if it is contraband, must be considered derivative contraband, compelling the government to prove that the mask was utilized in the commission of a crime.
It is open to discussion whether the mummy mask fits into the same category as contraband like illegal narcotics. It is also remarkable to think of the mummy mask as derivative contraband like a car used in illegal gun running. It may be that both legal theories are inexact.
The mummy mask might be categorized as proceeds or fruits instead.
Broadly speaking, criminal search and seizure law categorizes property as fruits, instrumentalities, or contraband. Fruits of a crime are the proceeds of a criminal transaction. These items are ones connected with a criminal act and may be seized. Instrumentalities are objects used to facilitate a crime, and these too may be seized. Contraband items are ones that are plainly unlawful to possess like counterfeit money, and these too may be seized.
In the realm of civil forfeiture of property, particularly dealing with items alleged to be connected to a crime, these criminal law concepts of fruits, instrumentalities, and contraband may be translated into three legal theories: proceeds forfeiture, instrumentalities forfeiture, and contraband forfeiture. If contraband forfeiture is the argument of the government, and instrumentalities forfeiture is the argument of the museum, will proceeds forfeiture be considered by the court? We shall see.
Meanwhile, SLAM’s assertion that the statute of limitations has expired in this case, preventing the government from pursuing its court action, is an argument worth watching closely. Statute of limitations is always an issue of importance when applied to cases of fine art and cultural heritage. In the Ka-Nefer-Nefer mummy mask case, it should be noted that the statute of limitations would not likely apply if the mummy mask is categorized as contraband per se. That is because it would be unlawful to possess the mask under any circumstance at any time. And that is perhaps one reason why the government hopes to characterize the mask as contraband, because it could potentially steer the case away from litigation over the statute of limitations altogether.
We look forward to further developments.
DISCLAIMER: The information provided here is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this site. Contact information may be found at www.culturalheritagelawyer.com.
Thứ Tư, 24 tháng 8, 2011
Court of Appeals to Determine Whether the Defendant or the Attorney Decides to Have the Jury Consider a Lesser Included Offense
As detailed in a post last Fall (see) in People v Colville (79 AD3d 189 [2nd Dept 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. That might be changing as Judge Read has granted the appellant in Colville leave to appeal to the Court if Appeals. Hopefully, this means that New York attorneys might soon obtain an answer to this important and recurring question.
Thứ Ba, 23 tháng 8, 2011
SLAM Disputes Government's "Contraband" Claim in Ka-Nefer-Nefer Mummy Mask Case
In the latest round of legal papers filed in the case of United States v. Mask of Ka-Nefer-Nefer, the St. Louis Art Museum (SLAM) says that its possession of the ancient Egyptian mummy mask cannot be likened to possession of cocaine as the US government's lawyers claim. (See July 31, 2011 blog post for background.)
SLAM's attorneys describe two kinds of contraband. They explain that there is contraband per se, which include items illegal to possess under any circumstance (author's note: think of counterfeit money) and which can be automatically confiscated by the government without a hearing. They also say that there is derivative contraband, which include lawful items that are forfeitable because they are connected with a crime (author's note: think of a car used in drug trafficking). SLAM argues that if the mask is in fact contraband, then it must be characterized as derivative contraband that is not automatically forfeitable. Because the mask is not automatically forfeitable contraband per se, SLAM argues that the government must present evidence that the object is forfeitable as an item that derives from a criminal act.
SLAM writes in its August 3, 2011 pleading (some citations omitted):
"The Government’s evolving positions with respect to the ownership issue seem to be at war with themselves. First, it admitted in its own pleadings that there are several bases under [Egypt’s patrimony] Law No. 215 which would provide for private ownership of artifacts such as the Mask. Now it argues that Egyptian Law No. 215 forecloses property rights in artifacts such as the Mask and renders them contraband per se, akin to cocaine or an illegal whiskey still. In fact, Egyptian Law No. 117, which was enacted in 1983, after Law No. 215, specifically acknowledges that artifacts such as the Mask could be privately owned. United States v. Schultz, 333 F.3d 393, 401-02 (2d Cir. 2003). In that seminal case, the Second Circuit went on to recognize that Law No. 117 was the first Egyptian law declaring illegal any private ownership of all antiquities found in Egypt after 1983. The Mask, therefore, clearly cannot be considered contraband per se in the way that such items as narcotics are intrinsically unlawful to possess."
By making the claim that the mummy mask arguably can be characterized contraband derived from a crime, SLAM tries to reinforce its assertion that the burden of proving the forfeiture is on the government.
Meanwhile, it should be noted that the issue of whether the statute of limitations forecloses the government's seizure action is an argument that SLAM continues to raise. SLAM's lawyers write:
"The Museum has consistently taken the position that the Government’s claim is barred from the outset by the statute of limitations and that its forfeiture claim must fail because the Government is unable to prove the Mask was stolen. In raising the arguments it does, the Government is attempting to delay or avoid the consideration of those questions by confusing the standard for constitutional standing and making the bizarre suggestion that the Court pretend that the Museum claims an interest 'not of a centuries old Egyptian mask, but rather a kilogram of cocaine.'"
The United States Attorney's Office counters SLAM's latest assertions in a pleading filed August 4, saying that SLAM failed to make arguments about the contraband issue when it was supposed to. The government’s lawyers contend that SLAM never before raised the distinction of contraband per se and derivative contraband, writing that the museum only now “disputes whether private ownership of the Mask is authorized under Egyptian law.”
SLAM's attorneys describe two kinds of contraband. They explain that there is contraband per se, which include items illegal to possess under any circumstance (author's note: think of counterfeit money) and which can be automatically confiscated by the government without a hearing. They also say that there is derivative contraband, which include lawful items that are forfeitable because they are connected with a crime (author's note: think of a car used in drug trafficking). SLAM argues that if the mask is in fact contraband, then it must be characterized as derivative contraband that is not automatically forfeitable. Because the mask is not automatically forfeitable contraband per se, SLAM argues that the government must present evidence that the object is forfeitable as an item that derives from a criminal act.
SLAM writes in its August 3, 2011 pleading (some citations omitted):
"The Government’s evolving positions with respect to the ownership issue seem to be at war with themselves. First, it admitted in its own pleadings that there are several bases under [Egypt’s patrimony] Law No. 215 which would provide for private ownership of artifacts such as the Mask. Now it argues that Egyptian Law No. 215 forecloses property rights in artifacts such as the Mask and renders them contraband per se, akin to cocaine or an illegal whiskey still. In fact, Egyptian Law No. 117, which was enacted in 1983, after Law No. 215, specifically acknowledges that artifacts such as the Mask could be privately owned. United States v. Schultz, 333 F.3d 393, 401-02 (2d Cir. 2003). In that seminal case, the Second Circuit went on to recognize that Law No. 117 was the first Egyptian law declaring illegal any private ownership of all antiquities found in Egypt after 1983. The Mask, therefore, clearly cannot be considered contraband per se in the way that such items as narcotics are intrinsically unlawful to possess."
By making the claim that the mummy mask arguably can be characterized contraband derived from a crime, SLAM tries to reinforce its assertion that the burden of proving the forfeiture is on the government.
Meanwhile, it should be noted that the issue of whether the statute of limitations forecloses the government's seizure action is an argument that SLAM continues to raise. SLAM's lawyers write:
"The Museum has consistently taken the position that the Government’s claim is barred from the outset by the statute of limitations and that its forfeiture claim must fail because the Government is unable to prove the Mask was stolen. In raising the arguments it does, the Government is attempting to delay or avoid the consideration of those questions by confusing the standard for constitutional standing and making the bizarre suggestion that the Court pretend that the Museum claims an interest 'not of a centuries old Egyptian mask, but rather a kilogram of cocaine.'"
The United States Attorney's Office counters SLAM's latest assertions in a pleading filed August 4, saying that SLAM failed to make arguments about the contraband issue when it was supposed to. The government’s lawyers contend that SLAM never before raised the distinction of contraband per se and derivative contraband, writing that the museum only now “disputes whether private ownership of the Mask is authorized under Egyptian law.”
Chủ Nhật, 21 tháng 8, 2011
Prosecutors Reveal Further Details in Khouli Case: Allege One Half Million Dollars Paid Abroad, Smuggled Antiquities Found in Garage, Ancient Artifacts Labeled 19th Century "English Glass Bottles"
The US Attorney’s Office, Eastern District of New York, brought an in rem action (Latin for “against the thing”) on June 14, 2011 to forfeit cultural property seized from Mousa “Morris” Khouli, an antiquities dealer who operated Windsor Antiques in New York. The objects sought to be forfeited are three Egyptian wood nesting coffins, two wooden horses, wood furniture, $80,488.99 in cash, thirty-seven Luristani bronzes, eighteen Iraqi glass vessels, twenty-one clay relief plaques, and sixty-five stone flat faces.
A grand jury in May indicted Khouli and three co-defendants on criminal charges stemming from their involvement in an alleged antiquities smuggling ring. Now the government’s civil complaint is unsealed, providing further details about the case.
A summary and timeline containing the latest information has been created below. All quotations come from the government’s thirty-seven page in rem complaint dated June 24, 2011. Moreover, the government’s assertions must be proven in court by prosecutors; they remain allegations at this stage of the proceedings.
Authorities say that Windsor Antiques listed many imported cultural objects to have originated from the United Arab Emirates. Federal prosecutors allege illegal entry of these goods by means of false statements and smuggling.The US Attorney’s Office charges that “[u]pon information and belief, Windsor [Antiques] has sold stolen Iraqi cultural property in violation of Iraqi patrimony laws and has imported Egyptian antiquities and other antiquities in violation of 18 U.S.C. §§ 542 and 545.”
“All the [cultural objects] were imported, sold, purchased, and/or are proceeds of an extensive scheme by Khouli, and others, to smuggle cultural property and launder money, by and through their respective entities, Windsor, and other entities.”
“Although Khouli and Windsor have been on notice [since 2003] of the need to accurately declare country of origin, Customs entry records for the past five years reveal that 75% of Windsor’s declared cultural property listed the United Arab Emirates (‘UAE’) as the country of origin.” “[F]ifteen out of twenty cultural property importations . . . by Windsor listed the UAE as the country of origin. Given Khouli’s February 10, 2009 representation [to authorities] that none of his merchandise originated in the UAE, all of these declarations were false and contrary to Title 18, United States Code, Section 542 and 545.”
(It should be noted that there is no mention by the government of Khouli’s spin-off company known as Palmyra Heratige (sic). As reported in this blog on July 18, 2011, Khouli’s sole-proprietorship, known as Windsor Antiques, Inc., was created on September 28, 1995 and dissolved on December 27, 2010, roughly one year after the government moved to dismiss initial criminal charges against Khouli. Palmyra Heratige (sic), Inc., Khouli’s newly formed company, emerged on May 28, 2010, about three and a half months after federal authorities searched Khouli and his business. That February 12, 2010 search, described below, netted several ancient Iraqi artifacts.)
On May 23, 2003 federal authorities seized four FedEx packages originating from the United Kingdom. Waybills described the export country and country of origin as English even though the majority of the objects were ancient Iraqi.“For example, two of the FedEx waybills included “English glass bottles circa 1860 A.D.” in their respective list of contents. However, experts in archeology and Iraqi antiquities determined that the glass bottles in these shipments were . . . dated from the third century B.C. to 8 century A.D.”
“Upon information and belief, Windsor/Khouli abandoned its claims to these glass bottles after they were seized by Customs/ICE, and they have since been repatriated to the Iraqi authorities.”
Between 2003-2005, Windsor Antiques offered an unusually high number of Luristani bronzes for sale, suggesting illegal excavation of the antiquities.“While a small percentage of an area’s artifacts can be expected to move to other regions during antiquity, the volume of Luristani bronzes offered for sale by Windsor—over 300 between 2003 and 2005—is consistent with illegal excavation from Iran and Iraq, rather than sporadic findings in other locations due to ancient movement. Indeed, Luristani bronzes are known to have been the subject of significant looting from excavations in the Luristan region.”
In October 2006, federal officials seized Luristani artifacts that were marked as originating from the United Arab Emirates.“Emirates Post, an international mail carrier, shipped to Windsor, using an informal entry, 19 copper daggers. The label on the package being shipped to Windsor described its contents as 19 copper daggers and handles valued at $350 whose country of origin was the UAE. Customs officers examined the contents and took photographs of the daggers. The photographs were identified by an expert on Iraqi antiquities as ‘Luristani bronzes’ originating from Luristan, a province in western Iran, with some pieces found in eastern Iraq near the Iraqi-Iranian boarder.”
Between January 2008 and February 2008, stone faces were smuggled out of the United Arab Emirates and into to the United States. They were described as made in India, originating in Yemen, being south Arabian, or as “other antiques.”“Correspondence between Khouli and the UAE between approximately January and February 2008, demonstrate that Khouli attempted to arrange and/or arranged for as many as 89 Stone Flat Face Antiquities to be smuggled out of the UAE and imported into the United States with false or fraudulent customs declarations, invoices, and countries of origin.”
“For example, as a result of these correspondences, a shipping invoice from an entity ‘Palace Arts’, in Dubai, UAE to Windsor in New York, dated January 29, 2008, was created and indicated ‘89 Decorative Stone Carved Heads;’ ‘Origan [sic] made in India;’ and with a unit price of $75 U.S. dollars, for a total price of $6,675 in U.S. currency.”
“Another shipping invoice, apparently from the same UAE entity to Windsor, New York, for this same shipment and also dated January 29, 2008, was also created and indicated ‘89 Decorative Stone Carved Heads;’ ‘All antque [sic] and over one hundred years old;’ ‘Country of Origan [sic] Yemen;’ and with a unit price of $140 U.S. dollars, for a total price of $12,460 in U.S. currency.”
“On February 6, 2008, upon entry into the United States to John F. Kennedy Airport via Emirates Sky Cargo, from the UAE, this shipment was declared to Customs as 465 kilograms of ‘other antiques over 100 Years Old.’”
“Upon information and belief, within a couple days after smuggling these Stone Flat Face Antiquities from the UAE into the United States with multiple invoices, containing different countries of origin and with different values, Khouli attempted to sell at least one of these items for approximately $700 describing it as ‘Limestone Yemen head’ circa 200 A.D.”
“Further, upon information and belief, on or about September 2008, Khouli sold one of these items for approximately $2,000 describing it as a ‘South Arabian limestone steale’ circa 1-2nd Century A.D.”
From December 2007 through May 2008 over one half million dollars was paid out by Khouli or his shop, contrasted with slightly more than $32,000 claimed by Windsor Antiques for all US imports taken in.“[A]n analysis of the WINDSOR ACCOUNT for the six month period of December 2007 through May 2008 indicates that Khouli/Windsor sent via wire transfer or otherwise, a minimum of approximately $527,620 in U.S. currency abroad, including to the UAE. Yet for the same six month period, U.S. Customs databases and invoices of declared imports by Windsor into the United States indicate that Windsor claimed imports valued worth only $32,360. This discrepancy suggests that Windsor has purchased significantly more cultural property using the WINDSOR ACCOUNT than it has declared on its imports into the United States.”
Immigration and Customs Enforcement (ICE) conducted searches on September 8, 2009 that yielded seized cultural property and money. Khouli was placed under arrest.“On September 8, 2009, pursuant to a consent search of Khouli’s residence . . . various antiquities and items of cultural property, including but not limited to, the INNER EGYPTIAN WOOD SARCOPHAGUS . . . and 61 of the 65 STONE FLAT FACE ANTIQUITIES . . . were seized by ICE.”
The inner Egyptian wood coffin was “consensually seized from Khouli’s garage.”
“On September 8, 2009, pursuant to a court authorized search warrant issued by the United States District Court for the Southern District of New York for Windsor, various antiquities and items of cultural property, including but not limited to, 3 of the 65 STONE FLAT FACE ANTIQUITIES . . . the 37 LURISTANI BRONZES . . . seized by agents of the Department of Homeland Security, United States Immigration and Customs Enforcement (‘ICE’).”
“Approximately Sixty-Five (65) of these smuggled Stone Flat Face Antiquities, have been located and seized by ICE: 61 were found in Khouli’s garage during the consent search on September 8, 2009; one was found, mounted on a stand, and seized at Windsor during the consent search on September 8, 2009 . . . .”
“In addition to Khouli’s history of importing from UAE and selling in the United States an unusually large volume of ‘Luristani’ bronzes . . . on September 8, 2009, during the execution of the search and seizure warrant at Windsor, agents found and seized approximately 37 additional ‘Luristani’ bronzes pieces which Khouli/Windsor had available for sale.”
“Upon information and belief, no certificates of origin or documentation exist to substantiate how the[se objects] entered the United States or their country of origin.”
“In addition, on or about September 8, 2009, pursuant to a court authorized seizure warrant issued by the United States District Court for the Eastern District of New York, all funds in the WINDSOR ACCOUNT . . . were seized by ICE. At the time of seizure, the WINDSOR ACCOUNT contained approximately $80,489.00 in U.S. currency.”
Between September 8, 2009 and November 4, 2009, Khouli arranged to deliver and sell illicit antiquities.“…Khouli sent and received numerous communications in order to arrange for: (a) portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities to be delivered into the United States; (b) monies to be sent from the WINDSOR ACCOUNT . . . to accounts outside the United States in order to pay for the smuggled Egyptian sarcophagus set and other Egyptian antiquities to be delivered into the United States; (c) invoices to be created in order to sell and/or attempt to sell the smuggled Egyptian sarcophagus set and other Egyptian antiquities with false or improper provenance documentation; and (d) monies to be sent to bank accounts owned and/or controlled by Khouli/Windsor that were located in and outside the United States, including but not limited to the WINDSOR ACCOUNT, for the anticipated sale or attempt to sell the smuggled Egyptian sarcophagus set and other Egyptian antiquities.”
Between October 2008 and November 2009, Khouli’s communications displayed efforts to engage in illegal antiquities trafficking.“Communications between Khouli and others between at least October 2008 and November 2009, further demonstrate that Khouli arranged for and/or caused to be wire transferred over $5,000 in U.S. currency from or through the WINDSOR ACCOUNT, to a place outside the United States in order to pay for portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities.”
“Similarly, communications between Khouli and others between at least October 2008 and November 2009, further demonstrate that Khouli arranged for and/or caused to be wire transferred tens of thousands of dollars in U.S. currency into or thorough the WINDSOR ACCOUNT, as well as other accounts held by Windsor/Khouli located outside the United States, in order to buy, smuggle, sell or attempt to sell portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities with false or improper provenance documentation.”
On November 4, 2009, federal authorities seized Egyptian cultural objects in New Jersey that were bound for Khouli/Windsor Antiques.“On or about November 4, 2009, pursuant to a border search at the Port of Newark, New Jersey, the INNER EGYPTIAN WOOD SARCOPHAGUS AND OUTER SARCOPHAGUS LID . . . and the 2 WOOD HORSES AND MULTIPLE PIECES OF WOOD FURNITURE . . . were found in a shipment from the UAE to Windsor/Khouli. This shipment was detained and seized by Customs/ICE.”
“Furthermore, the import documents accompanying the shipment from UAE to Khouli/Windsor that arrived in the Port of Newark, New Jersey before November 4, 2009, included an invoice, packing list, and ‘Certificate of Origin,’ indicating that it: (a) came from “Amal Star Antiques” in Dubai, UAE; (b) was shipped to Windsor, New York, New York; (c) contained fifteen pieces of “artistic hand made furniture”; (d) all pieces were ‘wooden’; (e) the country of origin was ‘India;’ and (f) the total value of the shipment was $13,700 in U.S. dollars.”
“Amidst this shipment, [the EGYPTIAN WOOD INNER SARCOPHAGUS AND OUTER SARCOPHAGUS LID were] . . . undeclared and/or falsely declared and found tightly wrapped in heavy bubble wrapping, in contrast to the other pieces of the shipment, [specifically the horses].”
On December 16, 2009 the government filed a motion to dismiss the criminal charge against Khouli.
On February 12, 2010, federal agents seized several illicit Iraqi items from Khouli.“On February 12, 2010, pursuant to a second court authorized search warrant of Windsor issued by the Southern District of New York, various antiquities and pieces of cultural property including, the 18 PIECES OF IRAQI GLASS . . . ; and the 21 IRAQI CLAY PLAQUES . . . ; and 1 of the 65 STONE FLAT FACE ANTIQUITIES . . . seized by ICE.”
“… [A]nd three more, [Stone Flat Face Antiquities ] also mounted on stands, were found at Windsor during execution of the February 12, 2010 search warrant.” (Author’s note: Other paragraphs of the government’s complaint, like the one above, appear to indicate that only one stone face was seized on this date.)
“A review by an expert in ancient history and Mediterranean archeology of the 21 clay relief plaques seized from Windsor on or about February 12, 2010, indicated that they appear to be ancient and are of a type produced in central and southern Iraq (Babylonia) from around 2000-1600 B.C.”
“Upon information and belief, no certificates of origin nor any other documentation exists to substantiate how [the 21 clay relief plaques] entered the United States or their country of origin.”
On May 4, 2011 a federal grand jury handed up an indictment against the Khouli + 3 defendants, and on June 14, 2011 the government filed an in rem action to forfeit the antiquities and money seized from Khouli.
DISCLAIMER: The information provided here is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this site.
A grand jury in May indicted Khouli and three co-defendants on criminal charges stemming from their involvement in an alleged antiquities smuggling ring. Now the government’s civil complaint is unsealed, providing further details about the case.
A summary and timeline containing the latest information has been created below. All quotations come from the government’s thirty-seven page in rem complaint dated June 24, 2011. Moreover, the government’s assertions must be proven in court by prosecutors; they remain allegations at this stage of the proceedings.
Authorities say that Windsor Antiques listed many imported cultural objects to have originated from the United Arab Emirates. Federal prosecutors allege illegal entry of these goods by means of false statements and smuggling.The US Attorney’s Office charges that “[u]pon information and belief, Windsor [Antiques] has sold stolen Iraqi cultural property in violation of Iraqi patrimony laws and has imported Egyptian antiquities and other antiquities in violation of 18 U.S.C. §§ 542 and 545.”
“All the [cultural objects] were imported, sold, purchased, and/or are proceeds of an extensive scheme by Khouli, and others, to smuggle cultural property and launder money, by and through their respective entities, Windsor, and other entities.”
“Although Khouli and Windsor have been on notice [since 2003] of the need to accurately declare country of origin, Customs entry records for the past five years reveal that 75% of Windsor’s declared cultural property listed the United Arab Emirates (‘UAE’) as the country of origin.” “[F]ifteen out of twenty cultural property importations . . . by Windsor listed the UAE as the country of origin. Given Khouli’s February 10, 2009 representation [to authorities] that none of his merchandise originated in the UAE, all of these declarations were false and contrary to Title 18, United States Code, Section 542 and 545.”
(It should be noted that there is no mention by the government of Khouli’s spin-off company known as Palmyra Heratige (sic). As reported in this blog on July 18, 2011, Khouli’s sole-proprietorship, known as Windsor Antiques, Inc., was created on September 28, 1995 and dissolved on December 27, 2010, roughly one year after the government moved to dismiss initial criminal charges against Khouli. Palmyra Heratige (sic), Inc., Khouli’s newly formed company, emerged on May 28, 2010, about three and a half months after federal authorities searched Khouli and his business. That February 12, 2010 search, described below, netted several ancient Iraqi artifacts.)
On May 23, 2003 federal authorities seized four FedEx packages originating from the United Kingdom. Waybills described the export country and country of origin as English even though the majority of the objects were ancient Iraqi.“For example, two of the FedEx waybills included “English glass bottles circa 1860 A.D.” in their respective list of contents. However, experts in archeology and Iraqi antiquities determined that the glass bottles in these shipments were . . . dated from the third century B.C. to 8 century A.D.”
“Upon information and belief, Windsor/Khouli abandoned its claims to these glass bottles after they were seized by Customs/ICE, and they have since been repatriated to the Iraqi authorities.”
Between 2003-2005, Windsor Antiques offered an unusually high number of Luristani bronzes for sale, suggesting illegal excavation of the antiquities.“While a small percentage of an area’s artifacts can be expected to move to other regions during antiquity, the volume of Luristani bronzes offered for sale by Windsor—over 300 between 2003 and 2005—is consistent with illegal excavation from Iran and Iraq, rather than sporadic findings in other locations due to ancient movement. Indeed, Luristani bronzes are known to have been the subject of significant looting from excavations in the Luristan region.”
In October 2006, federal officials seized Luristani artifacts that were marked as originating from the United Arab Emirates.“Emirates Post, an international mail carrier, shipped to Windsor, using an informal entry, 19 copper daggers. The label on the package being shipped to Windsor described its contents as 19 copper daggers and handles valued at $350 whose country of origin was the UAE. Customs officers examined the contents and took photographs of the daggers. The photographs were identified by an expert on Iraqi antiquities as ‘Luristani bronzes’ originating from Luristan, a province in western Iran, with some pieces found in eastern Iraq near the Iraqi-Iranian boarder.”
Between January 2008 and February 2008, stone faces were smuggled out of the United Arab Emirates and into to the United States. They were described as made in India, originating in Yemen, being south Arabian, or as “other antiques.”“Correspondence between Khouli and the UAE between approximately January and February 2008, demonstrate that Khouli attempted to arrange and/or arranged for as many as 89 Stone Flat Face Antiquities to be smuggled out of the UAE and imported into the United States with false or fraudulent customs declarations, invoices, and countries of origin.”
“For example, as a result of these correspondences, a shipping invoice from an entity ‘Palace Arts’, in Dubai, UAE to Windsor in New York, dated January 29, 2008, was created and indicated ‘89 Decorative Stone Carved Heads;’ ‘Origan [sic] made in India;’ and with a unit price of $75 U.S. dollars, for a total price of $6,675 in U.S. currency.”
“Another shipping invoice, apparently from the same UAE entity to Windsor, New York, for this same shipment and also dated January 29, 2008, was also created and indicated ‘89 Decorative Stone Carved Heads;’ ‘All antque [sic] and over one hundred years old;’ ‘Country of Origan [sic] Yemen;’ and with a unit price of $140 U.S. dollars, for a total price of $12,460 in U.S. currency.”
“On February 6, 2008, upon entry into the United States to John F. Kennedy Airport via Emirates Sky Cargo, from the UAE, this shipment was declared to Customs as 465 kilograms of ‘other antiques over 100 Years Old.’”
“Upon information and belief, within a couple days after smuggling these Stone Flat Face Antiquities from the UAE into the United States with multiple invoices, containing different countries of origin and with different values, Khouli attempted to sell at least one of these items for approximately $700 describing it as ‘Limestone Yemen head’ circa 200 A.D.”
“Further, upon information and belief, on or about September 2008, Khouli sold one of these items for approximately $2,000 describing it as a ‘South Arabian limestone steale’ circa 1-2nd Century A.D.”
From December 2007 through May 2008 over one half million dollars was paid out by Khouli or his shop, contrasted with slightly more than $32,000 claimed by Windsor Antiques for all US imports taken in.“[A]n analysis of the WINDSOR ACCOUNT for the six month period of December 2007 through May 2008 indicates that Khouli/Windsor sent via wire transfer or otherwise, a minimum of approximately $527,620 in U.S. currency abroad, including to the UAE. Yet for the same six month period, U.S. Customs databases and invoices of declared imports by Windsor into the United States indicate that Windsor claimed imports valued worth only $32,360. This discrepancy suggests that Windsor has purchased significantly more cultural property using the WINDSOR ACCOUNT than it has declared on its imports into the United States.”
Immigration and Customs Enforcement (ICE) conducted searches on September 8, 2009 that yielded seized cultural property and money. Khouli was placed under arrest.“On September 8, 2009, pursuant to a consent search of Khouli’s residence . . . various antiquities and items of cultural property, including but not limited to, the INNER EGYPTIAN WOOD SARCOPHAGUS . . . and 61 of the 65 STONE FLAT FACE ANTIQUITIES . . . were seized by ICE.”
The inner Egyptian wood coffin was “consensually seized from Khouli’s garage.”
“On September 8, 2009, pursuant to a court authorized search warrant issued by the United States District Court for the Southern District of New York for Windsor, various antiquities and items of cultural property, including but not limited to, 3 of the 65 STONE FLAT FACE ANTIQUITIES . . . the 37 LURISTANI BRONZES . . . seized by agents of the Department of Homeland Security, United States Immigration and Customs Enforcement (‘ICE’).”
“Approximately Sixty-Five (65) of these smuggled Stone Flat Face Antiquities, have been located and seized by ICE: 61 were found in Khouli’s garage during the consent search on September 8, 2009; one was found, mounted on a stand, and seized at Windsor during the consent search on September 8, 2009 . . . .”
“In addition to Khouli’s history of importing from UAE and selling in the United States an unusually large volume of ‘Luristani’ bronzes . . . on September 8, 2009, during the execution of the search and seizure warrant at Windsor, agents found and seized approximately 37 additional ‘Luristani’ bronzes pieces which Khouli/Windsor had available for sale.”
“Upon information and belief, no certificates of origin or documentation exist to substantiate how the[se objects] entered the United States or their country of origin.”
“In addition, on or about September 8, 2009, pursuant to a court authorized seizure warrant issued by the United States District Court for the Eastern District of New York, all funds in the WINDSOR ACCOUNT . . . were seized by ICE. At the time of seizure, the WINDSOR ACCOUNT contained approximately $80,489.00 in U.S. currency.”
Between September 8, 2009 and November 4, 2009, Khouli arranged to deliver and sell illicit antiquities.“…Khouli sent and received numerous communications in order to arrange for: (a) portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities to be delivered into the United States; (b) monies to be sent from the WINDSOR ACCOUNT . . . to accounts outside the United States in order to pay for the smuggled Egyptian sarcophagus set and other Egyptian antiquities to be delivered into the United States; (c) invoices to be created in order to sell and/or attempt to sell the smuggled Egyptian sarcophagus set and other Egyptian antiquities with false or improper provenance documentation; and (d) monies to be sent to bank accounts owned and/or controlled by Khouli/Windsor that were located in and outside the United States, including but not limited to the WINDSOR ACCOUNT, for the anticipated sale or attempt to sell the smuggled Egyptian sarcophagus set and other Egyptian antiquities.”
Between October 2008 and November 2009, Khouli’s communications displayed efforts to engage in illegal antiquities trafficking.“Communications between Khouli and others between at least October 2008 and November 2009, further demonstrate that Khouli arranged for and/or caused to be wire transferred over $5,000 in U.S. currency from or through the WINDSOR ACCOUNT, to a place outside the United States in order to pay for portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities.”
“Similarly, communications between Khouli and others between at least October 2008 and November 2009, further demonstrate that Khouli arranged for and/or caused to be wire transferred tens of thousands of dollars in U.S. currency into or thorough the WINDSOR ACCOUNT, as well as other accounts held by Windsor/Khouli located outside the United States, in order to buy, smuggle, sell or attempt to sell portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities with false or improper provenance documentation.”
On November 4, 2009, federal authorities seized Egyptian cultural objects in New Jersey that were bound for Khouli/Windsor Antiques.“On or about November 4, 2009, pursuant to a border search at the Port of Newark, New Jersey, the INNER EGYPTIAN WOOD SARCOPHAGUS AND OUTER SARCOPHAGUS LID . . . and the 2 WOOD HORSES AND MULTIPLE PIECES OF WOOD FURNITURE . . . were found in a shipment from the UAE to Windsor/Khouli. This shipment was detained and seized by Customs/ICE.”
“Furthermore, the import documents accompanying the shipment from UAE to Khouli/Windsor that arrived in the Port of Newark, New Jersey before November 4, 2009, included an invoice, packing list, and ‘Certificate of Origin,’ indicating that it: (a) came from “Amal Star Antiques” in Dubai, UAE; (b) was shipped to Windsor, New York, New York; (c) contained fifteen pieces of “artistic hand made furniture”; (d) all pieces were ‘wooden’; (e) the country of origin was ‘India;’ and (f) the total value of the shipment was $13,700 in U.S. dollars.”
“Amidst this shipment, [the EGYPTIAN WOOD INNER SARCOPHAGUS AND OUTER SARCOPHAGUS LID were] . . . undeclared and/or falsely declared and found tightly wrapped in heavy bubble wrapping, in contrast to the other pieces of the shipment, [specifically the horses].”
On December 16, 2009 the government filed a motion to dismiss the criminal charge against Khouli.
On February 12, 2010, federal agents seized several illicit Iraqi items from Khouli.“On February 12, 2010, pursuant to a second court authorized search warrant of Windsor issued by the Southern District of New York, various antiquities and pieces of cultural property including, the 18 PIECES OF IRAQI GLASS . . . ; and the 21 IRAQI CLAY PLAQUES . . . ; and 1 of the 65 STONE FLAT FACE ANTIQUITIES . . . seized by ICE.”
“… [A]nd three more, [Stone Flat Face Antiquities ] also mounted on stands, were found at Windsor during execution of the February 12, 2010 search warrant.” (Author’s note: Other paragraphs of the government’s complaint, like the one above, appear to indicate that only one stone face was seized on this date.)
“A review by an expert in ancient history and Mediterranean archeology of the 21 clay relief plaques seized from Windsor on or about February 12, 2010, indicated that they appear to be ancient and are of a type produced in central and southern Iraq (Babylonia) from around 2000-1600 B.C.”
“Upon information and belief, no certificates of origin nor any other documentation exists to substantiate how [the 21 clay relief plaques] entered the United States or their country of origin.”
On May 4, 2011 a federal grand jury handed up an indictment against the Khouli + 3 defendants, and on June 14, 2011 the government filed an in rem action to forfeit the antiquities and money seized from Khouli.
DISCLAIMER: The information provided here is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this site.
A Few Thoughts on Sentencing
by
Jill Paperno
Second Assistant Monroe County Public Defender
Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.
Persistent offender statutes
Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.
There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.
Persistent violent felony offender
Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)
So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.
Persistent felony offender
Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court. The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.
With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.
So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).
So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.
Mandatory consecutive
Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.
Prior violent felonies
Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).
Jill Paperno
Second Assistant Monroe County Public Defender
Plea and sentence negotiations are a part of our practice that requires social skills, strategy, and yes, a knowledge of the sentencing laws. If a client is facing a much higher sentence, maybe the deal on the table is a good one. But if they're not, it may not be. Very often DAs and judges are not familiar with the details of the sentencing laws and might, out of lack of familiarity, misstate the sentence exposure your client faces. We have to know what the possible sentences are in a case before we walk into the conference. But unfortunately, the sentencing statutes are dense and poorly written. But we still have to know them. There are some common errors defense attorneys make that I'd like to address broadly. Remember - it's always important to read the applicable statutes - after all these years all the experienced attorneys I know review them time and time again. And for some of these statutes, the practice commentaries and cases interpreting the statutes are a must-read as well.
Persistent offender statutes
Prosecutors often enjoy raising the specter of persistent felony sentencing if a defendant does not accept a lousy offer.
There are two kinds of persistent felony sentencing statutes - the persistent felony offender statute and the persistent violent felony offender statute. Each one elevates the minimum sentence a defendant may receive, and makes the maximum sentence life. But there are important distinctions between the two.
Persistent violent felony offender
Penal Law Section 70.08 addresses persistent violent felony offender sentencing. The procedure a court must use in determining whether a defendant should be subjected to such sentencing is contained in CPL 400.16. Generally speaking, a person who has been convicted of a violent felony offense or predatory sex offense and has two prior violent felonies for two separate convictions within a ten year period (not counting time spent incarcerated) is a persistent violent felony offender. If a court makes the determination a person is a PVFO then persistent violent felony offender sentencing is mandatory. The second predicate offense must be committed after the first felony offense for a person to be found to be a PVFO. It is NOT required that a person serve two prior state sentences. Each prior violent felony must be within ten years of the current felony, but the ten years is tolled during periods of incarceration. (See, e.g. People v. Ogarra, 757 NYS2d 683.)
So some of the important things to know about PVFO sentencing are that the crimes must be sequential, the sentence is mandatory if applicable, and there is a ten year period within which the two prior violent felonies must have occurred.
Persistent felony offender
Penal Law Section 70.10 addresses persistent felony offender sentencing. Notably, that statute does not require that the two prior felonies occur within a specified period. It does, however, require that the felonies be sequential and that the defendant served a state prison bid on at least two prior felony convictions (by requiring the sentence for each conviction be in excess of one year or death under Penal Law 70.10(1)(b)(i)) (Death? Then isn't persistent a bit of overkill, if you'll pardon the pun?) Persistent felony offender sentencing is within the discretion of the judge, and may be based on factors other than simply prior sentences. Therefore, it has been challenged as unconstitutional (but found constitutional by the NYCA and Second Circuit) and may yet be reviewed by the Supreme Court. The procedure used to determine whether a defendant is a persistent felony offender is contained in CPL Section 400.20.
With any kind of predicate sentence, out of state charges may be considered to be felonies, but you actually have to analyze whether they constitute felonies under New York law, first by looking at the face of the statute, and sometimes by looking at the accusatory. (For example, in some states, breaking into a car may be considered a burglary. Not a felony in New York even if a person did state time in the other state, and even if it was your car. Thus, not a predicate felony for sentencing purposes.) See 70.04(1)(b)(i) and 70.06(1)(b)(i) for the requirements for out of state felonies, as well as cases interpreting that statute.
So some of the most important things to know about PFO sentencing are that the crimes must be sequential, the sentence is NOT mandatory if applicable, there is no statutory period in which the two felonies must have occurred, but each must have resulted in a sentence of state prison (70.10[1][b][i]).
So if the judge or prosecutor is threatening persistent sentencing, make sure you have reviewed your client's record and determined whether it supports that sentence.
Mandatory consecutive
Penal Law Section 70.25 governs when sentences must be concurrent or consecutive. Importantly, although a defendant may be a second felony offender, that does not automatically mean that s/he is required to serve consecutive time. The specific circumstances that require consecutive time are contained within the statute. They include when a person is sentenced as a predicate or persistent felony offender (but do not apply to all predicates/persistents - read the statute) and are on parole (which is described as an "undischarged sentence of imprisonment imposed prior to the date on which the present crime was committed"), defendants charged with escape, bail jumping, VFOs while released on pending felonies, etc.
Prior violent felonies
Keep in mind that certain E felonies charged as attempts to commit D felonies may not be prior violent felonies. See Penal Law Section 70.02(d).
The Government’s Knowing Use of False Testimony And its Failure to Investigate its Witnesses
by
Mark D. Hosken, Supervisory Assistant Federal Public Defender.
Western District of New York
What should happen when the government knowingly introduces a witness’ false testimony in a trial. That question was recently before the Seventh Circuit in United States v. Freeman, No. 09-4043, ___ F.3d ___ (7th Cir. June 17, 2011). There, the panel affirmed the District Court’s order granting the defendant a new trial. While taking place in the Seventh Circuit, the panel’s holding serves as a reminder as to what defense counsel should do if you are faced with the government introducing testimony known to be false.
In Freeman, an individual charged in a multi-defendant drug conspiracy decides to cooperate, and testifies before the grand jury. He told the grand jury that he participated in the drug conspiracy by mixing and bagging up the drugs for one of the other defendants, and explains how the other defendants fit into the operation. He chronicles his meetings with the defendants and the occasions when he witnessed them together. He testifies to a specific time frame (2003) when he saw all of the defendants at a specific location known as the “penthouse.” That testimony was not true. It was undisputed that one of the defendants, Brian Wilbourn, was incarcerated during a three and a half year period (between 2002 and 2005) when the witness claimed he was present while the defendants were bagging drugs at a specific location.
Defense counsel reviews the witness’ grand jury testimony while preparing for trial. He notifies the government that his client could not have been seen with the other defendants as the witness claimed because his client was incarcerated. As the Seventh Circuit panel noted, “the government plowed ahead and still had [its witness] testify. It solicited testimony about Wilbourn’s presence at the penthouse; it even encouraged [its witness]to specifically detail Wilbourn’s participation in [the] operation there. . . . What’s more, when Wilbourn’s attorney began cross-examining [the witness] about the impossibility of Wilbourn being at the penthouse, the prosecutor objected, stating in the presence of the jury, ‘Objection. That’s not true.’” Freeman, 2011 WL 2417091, at *2-3.
Near the end of the trial the government stipulated that that Wilbourn was in prison from April 2002 until September 2005. Twelve days after the government’s witness testified, the stipulation was read to the jury. Notwithstanding the stipulation, the government relied on its witness’ testimony during its closing argument. According to the government, its witness did not lie during his testimony. Rather, the government argued that he was just imprecise or mildly mistaken about the dates on which some events occurred.
The District Court sustained several defense objections, and informed the government that its argument was both inaccurate and an attempt to bolster its witness’ testimony. The District Court later determined that this constituted prosecutorial misconduct. The defendants were ultimately found guilty of the conspiracy charge. However, the defendants moved for a new trial on the ground that the false testimony of the government’s witness violated their due process rights. The District Court agreed.
In Freeman, 2011 WL 2417091, a 7th Circuit panel affirmed the district court’s grant of a new trial. Relying on the Supreme Court’s holdings in Napue v. Illinois, 360 U.S. 264 (1959), United States v. Bagley, 473 U.S. 667 (1984), and United States v. Agurs, 427 U.S. 97 (1976), the panel upheld the district court’s determination that there was a reasonable likelihood that the false testimony could have affected the jury’s judgment and that if not for the improprieties, the defendants would have been acquitted.
More importantly, the panel extended the government’s duty beyond merely determining the accuracy of its claims. Now, the government must not forgo its duty to investigate its witnesses.
2011 WL 2417091 *5. (internal cites omitted).
In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court explained that the rule of Brady v. Maryland, 373 U.S. 83 (1963), applied in different situations. The first being those instances when the prosecution knew or should have known about perjured testimony. These situations are fundamentally unfair. Convictions obtained therein must be set aside. This requires a finding that there existed a reasonable likelihood that the false testimony could have affected the jury’s judgment. Agurs, 427 U.S. at 103.
The Second Circuit has applied the Agurs analysis to set aside convictions when the government’s witnesses have presented perjured testimony. See, United States v. Mele, 462 F.2d 918 (2d Cir. 1972) (the government’s deceit including untruthful testimony, deliberate excisions from reports, preparation of false reports and repeated misrepresentations required a new trial); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982) (the prosecution’s failure to provide the witness’ rap sheet to the defense after the witness denied any convictions which were recorded on his criminal history resulted in the granting of a writ of habeas corpus.); United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (the perjury of the government’s witness required a reversal of the convictions when the government in redirect and in closing argument made much of the witness’ motive for telling the truth.); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (the government’s use of business record evidence that it knew contained fictitious entries, and according to its author were false in their entirety, required reversal when the government conducted no further inquiry into the veracity of the records.); Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) (the prosecutor’s failure to correct the record in spite of the witness’ false testimony and her argument in summation relying on that false testimony was sufficient basis to grant a writ of habeas corpus); and Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (the prosecutor knowingly elicited false statements from a witness and did not correct the record when the witness testified falsely about conversations he had with the prosecutor - this was sufficient to grant a writ of habeas corpus.).
The importance of the Freeman decision is the imposition of a duty on the prosecutor to investigate his/her witnesses. The government’s counsel may no longer contend “I didn’t know,” or “the witness was simply mistaken,” or “the defense attorney had a sufficient opportunity to cross examine the witness.” Defense counsel should put the government on notice of a witness’ perjury, record proper objections, and challenge the government’s failure to correct the record. Building on the Supreme Court decisions and adding the direction in Freeman, counsel should argue the government’s failure to fully investigate its witnesses is a sufficient basis to set aside a conviction, obtain a new trial or otherwise secure a dismissal in the appropriate criminal prosecution.
Mark D. Hosken, Supervisory Assistant Federal Public Defender.
Western District of New York
What should happen when the government knowingly introduces a witness’ false testimony in a trial. That question was recently before the Seventh Circuit in United States v. Freeman, No. 09-4043, ___ F.3d ___ (7th Cir. June 17, 2011). There, the panel affirmed the District Court’s order granting the defendant a new trial. While taking place in the Seventh Circuit, the panel’s holding serves as a reminder as to what defense counsel should do if you are faced with the government introducing testimony known to be false.
In Freeman, an individual charged in a multi-defendant drug conspiracy decides to cooperate, and testifies before the grand jury. He told the grand jury that he participated in the drug conspiracy by mixing and bagging up the drugs for one of the other defendants, and explains how the other defendants fit into the operation. He chronicles his meetings with the defendants and the occasions when he witnessed them together. He testifies to a specific time frame (2003) when he saw all of the defendants at a specific location known as the “penthouse.” That testimony was not true. It was undisputed that one of the defendants, Brian Wilbourn, was incarcerated during a three and a half year period (between 2002 and 2005) when the witness claimed he was present while the defendants were bagging drugs at a specific location.
Defense counsel reviews the witness’ grand jury testimony while preparing for trial. He notifies the government that his client could not have been seen with the other defendants as the witness claimed because his client was incarcerated. As the Seventh Circuit panel noted, “the government plowed ahead and still had [its witness] testify. It solicited testimony about Wilbourn’s presence at the penthouse; it even encouraged [its witness]to specifically detail Wilbourn’s participation in [the] operation there. . . . What’s more, when Wilbourn’s attorney began cross-examining [the witness] about the impossibility of Wilbourn being at the penthouse, the prosecutor objected, stating in the presence of the jury, ‘Objection. That’s not true.’” Freeman, 2011 WL 2417091, at *2-3.
Near the end of the trial the government stipulated that that Wilbourn was in prison from April 2002 until September 2005. Twelve days after the government’s witness testified, the stipulation was read to the jury. Notwithstanding the stipulation, the government relied on its witness’ testimony during its closing argument. According to the government, its witness did not lie during his testimony. Rather, the government argued that he was just imprecise or mildly mistaken about the dates on which some events occurred.
The District Court sustained several defense objections, and informed the government that its argument was both inaccurate and an attempt to bolster its witness’ testimony. The District Court later determined that this constituted prosecutorial misconduct. The defendants were ultimately found guilty of the conspiracy charge. However, the defendants moved for a new trial on the ground that the false testimony of the government’s witness violated their due process rights. The District Court agreed.
In Freeman, 2011 WL 2417091, a 7th Circuit panel affirmed the district court’s grant of a new trial. Relying on the Supreme Court’s holdings in Napue v. Illinois, 360 U.S. 264 (1959), United States v. Bagley, 473 U.S. 667 (1984), and United States v. Agurs, 427 U.S. 97 (1976), the panel upheld the district court’s determination that there was a reasonable likelihood that the false testimony could have affected the jury’s judgment and that if not for the improprieties, the defendants would have been acquitted.
More importantly, the panel extended the government’s duty beyond merely determining the accuracy of its claims. Now, the government must not forgo its duty to investigate its witnesses.
The government’s duty to assure the accuracy of its representations has been well stated many times before. . . . This means that when the government learns that part of its case may be inaccurate, it must investigate. . . . It cannot simply ignore evidence that its witness is lying. . . . Here, the government abdicated its responsibility by failing to investigate and determine whether (the defendant) could have been (where the witness) claimed he was.
2011 WL 2417091 *5. (internal cites omitted).
In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court explained that the rule of Brady v. Maryland, 373 U.S. 83 (1963), applied in different situations. The first being those instances when the prosecution knew or should have known about perjured testimony. These situations are fundamentally unfair. Convictions obtained therein must be set aside. This requires a finding that there existed a reasonable likelihood that the false testimony could have affected the jury’s judgment. Agurs, 427 U.S. at 103.
The Second Circuit has applied the Agurs analysis to set aside convictions when the government’s witnesses have presented perjured testimony. See, United States v. Mele, 462 F.2d 918 (2d Cir. 1972) (the government’s deceit including untruthful testimony, deliberate excisions from reports, preparation of false reports and repeated misrepresentations required a new trial); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982) (the prosecution’s failure to provide the witness’ rap sheet to the defense after the witness denied any convictions which were recorded on his criminal history resulted in the granting of a writ of habeas corpus.); United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (the perjury of the government’s witness required a reversal of the convictions when the government in redirect and in closing argument made much of the witness’ motive for telling the truth.); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (the government’s use of business record evidence that it knew contained fictitious entries, and according to its author were false in their entirety, required reversal when the government conducted no further inquiry into the veracity of the records.); Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) (the prosecutor’s failure to correct the record in spite of the witness’ false testimony and her argument in summation relying on that false testimony was sufficient basis to grant a writ of habeas corpus); and Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (the prosecutor knowingly elicited false statements from a witness and did not correct the record when the witness testified falsely about conversations he had with the prosecutor - this was sufficient to grant a writ of habeas corpus.).
The importance of the Freeman decision is the imposition of a duty on the prosecutor to investigate his/her witnesses. The government’s counsel may no longer contend “I didn’t know,” or “the witness was simply mistaken,” or “the defense attorney had a sufficient opportunity to cross examine the witness.” Defense counsel should put the government on notice of a witness’ perjury, record proper objections, and challenge the government’s failure to correct the record. Building on the Supreme Court decisions and adding the direction in Freeman, counsel should argue the government’s failure to fully investigate its witnesses is a sufficient basis to set aside a conviction, obtain a new trial or otherwise secure a dismissal in the appropriate criminal prosecution.
Thứ Sáu, 19 tháng 8, 2011
Seized Cultural Property Identified in Khouli + 3 Case
A specific description of objects and papers in the possession of federal authorities is now available in the criminal case involving Mousa "Morris" Khouli, Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan. They are charged with participating in an alleged antiquities smuggling ring. (See this blog's July 16, 2011 post for background.)
Included are objects from ancient Egypt, Iraq, and Iran. Some of the descriptions are reprinted below, quoted from August 11, 2011 discovery letters issued by the United States Attorney, Eastern District of New York:
• set of three nesting Egyptian wood sarcophagi, bearing the name “Shesepamutayesher” and the title “Lady of the House,” circa 664-111 B.C., including: (a) one Egyptian wood inner sarcophagus seized on or about September 8, 2009 from defendant Khouli’s residence in Brooklyn, New York; (b) one Egyptian wood inner sarcophagus seized on or about November 4, 2009 at the Port of Newark, New Jersey; and (c) one Egyptian wood outer sarcophagus lid seized on or about November 4, 2009 at the Port of Newark, New Jersey;
• one Greco-Roman style Egyptian sarcophagus seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia;
• one set of Egyptian funerary boats seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia; and
• one set of limestone figures seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia.
• [T]wo wood horses and multiple pieces of wood furniture seized on or about November 4, 2009 at the Port of Newark, NJ;
• approximately thirty-seven (37) “Luristani bronze” objects seized on September 8, 2009;
• approximately eighteen (18) Iraqi glass vessels seized on February 12, 2010;
• approximately twenty-one (21) Iraqi clay relief plaques seized on February 12, 2010; and
• approximately sixty-five (65) stone flat face antiquities seized on September 8, 2009 and February 12, 2010.
• Photographs of a shipment of Luristani bronzes en route to Khouli in October 2006 (KHOULI 2094-2099);
• Trocadero.com printouts for the Windsor Antiquities storefront and sale of a terre-crue head (KHOULI 2100-03);
• Photographs of terre-crue head after excavation at Isin excavation site in May 2003 (KHOULI 2104-07).
Photos: US Immigration and Customs Enforcement
Included are objects from ancient Egypt, Iraq, and Iran. Some of the descriptions are reprinted below, quoted from August 11, 2011 discovery letters issued by the United States Attorney, Eastern District of New York:
• set of three nesting Egyptian wood sarcophagi, bearing the name “Shesepamutayesher” and the title “Lady of the House,” circa 664-111 B.C., including: (a) one Egyptian wood inner sarcophagus seized on or about September 8, 2009 from defendant Khouli’s residence in Brooklyn, New York; (b) one Egyptian wood inner sarcophagus seized on or about November 4, 2009 at the Port of Newark, New Jersey; and (c) one Egyptian wood outer sarcophagus lid seized on or about November 4, 2009 at the Port of Newark, New Jersey;
• one Greco-Roman style Egyptian sarcophagus seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia;
• one set of Egyptian funerary boats seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia; and
• one set of limestone figures seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia.
• [T]wo wood horses and multiple pieces of wood furniture seized on or about November 4, 2009 at the Port of Newark, NJ;
• approximately thirty-seven (37) “Luristani bronze” objects seized on September 8, 2009;
• approximately eighteen (18) Iraqi glass vessels seized on February 12, 2010;
• approximately twenty-one (21) Iraqi clay relief plaques seized on February 12, 2010; and
• approximately sixty-five (65) stone flat face antiquities seized on September 8, 2009 and February 12, 2010.
• Photographs of a shipment of Luristani bronzes en route to Khouli in October 2006 (KHOULI 2094-2099);
• Trocadero.com printouts for the Windsor Antiquities storefront and sale of a terre-crue head (KHOULI 2100-03);
• Photographs of terre-crue head after excavation at Isin excavation site in May 2003 (KHOULI 2104-07).
Photos: US Immigration and Customs Enforcement
Thứ Tư, 17 tháng 8, 2011
Seizure of Mexican Figurine Prompts Question of CBP's Legal Authority
United States Customs and Border Protection (CBP) announced in a new(s) release on July 28, 2011 that it seized a Pre-Columbian artifact en route from Indiana to British Columbia. A buyer in Canada reportedly purchased the small orange Nayarit figure of a woman through an auction, and CBP agents intercepted the package in April during routine checks at Chicago's O'Hare Airport. CBP said that the shipment was "manifested as containing an artifact."
CBP and Immigration and Customs Enforcement-Homeland Security Investigations (HSI) had the Chicago Field Museum examine the object, concluding it "to be an authentic Pre-Columbian artifact of West Mexico dating to the early first millennium AD." The Consulate General of Mexico, meanwhile, claimed that the object was unlawfully exported from that country.
CBP seized the four inch tall Nayarit figurine under Title 19, Chapter 14 of the customs laws. The statute is commonly referred to as the Convention on Cultural Property Implementation Act (CPIA), meant to implement the well-known 1970 UNESCO Convention that covers cultural property. Federal agents in Chicago took the ancient Mexican artifact into their possession under Section 2609 of the CPIA, which permits seizure of protected cultural artifacts covered by import regulations promulgated under section 2606 (as well as stolen objects that had been documented in the institutional collection of a state party to the convention). Import restrictions enacted under Section 2606 result when the United States enters into an agreement with another nation under the authority of the CPIA. Many readers of this blog are familiar with the CPIA process and know that several nations have bilateral agreements with the United States pursuant to CPIA. Mexico, however, is not one of those nations.
So how can CBP take away an ancient Mexican cultural object from its possessor by using the CPIA? I called CPB to find out. The agency's representatives were polite and responsive to calls, but the replies were not helpful. A CBP Associate Chief Counsel said that "we don't comment on anything like this," adding that "we limit any of our comments about the law and our interpretation on the law to our client itself, which is, of course, the agency." Such a closed response from a government agency that actively sought public attention to this seizure and freely declared the legal basis for the seizure is unsatisfactory. CBP issued a public press release announcing the taking of the Nayarit figurine and broadcasted that "[t]he artifact will be returned to the Mexican government in an upcoming CBP and ICE-HSI repatriation ceremony." And while the agency claims the matter is under investigation, CBP's desire to return potential evidence to Mexico, coupled with its early public release of information relevant to the case, does not signal a meaningful commitment to maintain the integrity of the investigation.
We are left to speculate about what CBP may have been thinking when it seized the object. Federal officials could not have seized the Mexican artifact under a legal theory involving the National Stolen Property Act because the NSPA requires an item to have a value of $5000 or more before it is considered stolen under that law. The Mexican artifact was purchased at auction for $550, far less than $5000. So CBP had to look for other legal authority to take the artifact into custody.
Perhaps they erringly looked to a treaty for legal authority? The United States and Mexico entered into a Treaty of Cooperation on March 24, 1971, which provides for the recovery and return of stolen archaeological, historical, and cultural properties. The treaty, which is in force today, permits the United States "to employ the legal means at its disposal to recover and return from its territory stolen archaeological, historical and cultural properties that are removed after the date of entry into force of the Treaty from the territory of the requesting Party." But this agreement was not enacted into law under the terms of the CPIA, meaning there are no import restrictions on Mexican cultural property that derive from Section 2606 of the CPIA to justify a Section 2609 seizure of the Nayarit figurine by CBP.
So what exactly was CPB's legal authority to seize the Nayarit figurine? We have no explanation about why a Section 2609 seizure was the proper legal basis to take away the ancient Mexican artifact.
Federal officials must take great care when using unexplained interpretations of the law to promote seizures of property. While CBP may be commended for taking action to detect trafficked cultural heritage, federal authorities should exercise their authority in a reasonable, intelligent, and open fashion. No citizen should be left guessing about how exactly he or she can comply with the law so as to avoid the loss of property. Clear and reasonable applications of the customs laws, and plain explanations to back them, can build public support for America's effort to protect and secure at-risk cultural property. By contrast, offering questionable or undisclosed legal positions in cases where property may be seized—particularly in cases involving potentially innocent possessors—does little to garner confidence in public authorities.
Photo: Chicago CBP
CBP seized the four inch tall Nayarit figurine under Title 19, Chapter 14 of the customs laws. The statute is commonly referred to as the Convention on Cultural Property Implementation Act (CPIA), meant to implement the well-known 1970 UNESCO Convention that covers cultural property. Federal agents in Chicago took the ancient Mexican artifact into their possession under Section 2609 of the CPIA, which permits seizure of protected cultural artifacts covered by import regulations promulgated under section 2606 (as well as stolen objects that had been documented in the institutional collection of a state party to the convention). Import restrictions enacted under Section 2606 result when the United States enters into an agreement with another nation under the authority of the CPIA. Many readers of this blog are familiar with the CPIA process and know that several nations have bilateral agreements with the United States pursuant to CPIA. Mexico, however, is not one of those nations.
So how can CBP take away an ancient Mexican cultural object from its possessor by using the CPIA? I called CPB to find out. The agency's representatives were polite and responsive to calls, but the replies were not helpful. A CBP Associate Chief Counsel said that "we don't comment on anything like this," adding that "we limit any of our comments about the law and our interpretation on the law to our client itself, which is, of course, the agency." Such a closed response from a government agency that actively sought public attention to this seizure and freely declared the legal basis for the seizure is unsatisfactory. CBP issued a public press release announcing the taking of the Nayarit figurine and broadcasted that "[t]he artifact will be returned to the Mexican government in an upcoming CBP and ICE-HSI repatriation ceremony." And while the agency claims the matter is under investigation, CBP's desire to return potential evidence to Mexico, coupled with its early public release of information relevant to the case, does not signal a meaningful commitment to maintain the integrity of the investigation.
We are left to speculate about what CBP may have been thinking when it seized the object. Federal officials could not have seized the Mexican artifact under a legal theory involving the National Stolen Property Act because the NSPA requires an item to have a value of $5000 or more before it is considered stolen under that law. The Mexican artifact was purchased at auction for $550, far less than $5000. So CBP had to look for other legal authority to take the artifact into custody.
Perhaps they erringly looked to a treaty for legal authority? The United States and Mexico entered into a Treaty of Cooperation on March 24, 1971, which provides for the recovery and return of stolen archaeological, historical, and cultural properties. The treaty, which is in force today, permits the United States "to employ the legal means at its disposal to recover and return from its territory stolen archaeological, historical and cultural properties that are removed after the date of entry into force of the Treaty from the territory of the requesting Party." But this agreement was not enacted into law under the terms of the CPIA, meaning there are no import restrictions on Mexican cultural property that derive from Section 2606 of the CPIA to justify a Section 2609 seizure of the Nayarit figurine by CBP.
So what exactly was CPB's legal authority to seize the Nayarit figurine? We have no explanation about why a Section 2609 seizure was the proper legal basis to take away the ancient Mexican artifact.
Federal officials must take great care when using unexplained interpretations of the law to promote seizures of property. While CBP may be commended for taking action to detect trafficked cultural heritage, federal authorities should exercise their authority in a reasonable, intelligent, and open fashion. No citizen should be left guessing about how exactly he or she can comply with the law so as to avoid the loss of property. Clear and reasonable applications of the customs laws, and plain explanations to back them, can build public support for America's effort to protect and secure at-risk cultural property. By contrast, offering questionable or undisclosed legal positions in cases where property may be seized—particularly in cases involving potentially innocent possessors—does little to garner confidence in public authorities.
Photo: Chicago CBP
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