New York Federal Court Denies Prokopi's Motion to Dismiss Dinosaur Forfeiture Case

Dinosaur seized by ICE.  Source: ICE.

Judge P. Kevin Castel yesterday denied Eric Prokopi's motion to dismiss in the case of United States v. One Tyrannosaurus Bataar Skeleton. Prokopi's lawyers petitioned the federal district court in Manhattan to quickly consider the motion following Prokopi's October 17 arrest for alleged illegal dinosaur bone importation and sales.

Prokopi is the claimant seeking the return of a Tyrannosaur Bataar skeleton (the "Defendant Property"), which Immigration and Customs Enforcement (ICE) seized on June 22, 2012 on grounds that the bones are stolen property.  The American government seeks to repatriate the bones to Mongolia.

Prokopi's lawyers argued that the government cannot forfeit the dinosaur skeleton as a matter of law and policy.  The federal court itself raised doubts about federal prosecutors' forfeiture arguments, but permitted the government to file a new complaint.  The claimant thereafter filed a renewed motion to dismiss.

The district court now concludes that the amended complaint filed by the U.S. Attorney's Office for the Southern District of New York "contained sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial."

The court notes that "the amended complaint alleges that Prokopi is a commercial paleontologist who has excavated skeletons in Mongolia before. This, coupled with Prokopi's alleged attempts to obscure the Defendant Property's country of origin on importation paperwork, raises a reasonable inference that Prokopi knew the Defendant Property was stolen from the Mongolian state."

Judge Kastel makes the following conclusions in his 19 page order:

• "Prokopi contends that the failure of the government to provide regulatory guidance on determining the proper country of origin or value of fossils leaves importers 'hard-pressed to respond to a customs broker's inquiry about the country of origin of a dinosaur fossil that existed millions of years before the emergence of Homo sapiens and even longer before the concept of a 'country' was established.' (Cl. Br. 14-15.) This argument fails because the statutes in violation of which the Defendant Property is alleged to have been imported do not prohibit the importation of paleontological objects in contravention of certain regulations, vague or otherwise (and indeed, Prokopi submits that there are no applicable regulations). Instead, they prohibit importation by way of knowingly false statements. 18 U.S.C. § 542. The prohibition in Section 542 against importation by means of 'any false statement' is not vague or ambiguous, and it does not make reference or in any way depend upon regulatory guidance concerning the proper country of origin or value of fossils."

• "The amended complaint alleges facts that ... suggest that the Defendant Property was unearthed, not millions of years ago, but between 1995 and 2005 (Compl. ¶ 44), and that, based on its size and coloration, the Defendant Property came from the Gobi Desert in Mongolia. (Id. ¶ ¶ 42-44, 58-65.) The amended complaint also raises a plausible inference that Prokopi's statements in connection with importation of the Defendant Property were knowingly false."

• "The amended complaint alleges that Prokopi erroneously listed the country of origin as Japan and Great Britain on importation paperwork when in fact the Defendant Property was from Mongolia. (Id. ¶ ¶ 38,51-54.) The amended complaint further alleges that Prokopi is a commercial paleontologist who had excavated fossils in Mongolia's Nemegt Formation himself before. (Id. ¶ ¶ 82-84.) These facts give rise to a plausible inference that Prokopi unearthed the Defendant Property himself in Mongolia, or, even if he did not, that he had reason to know that such fossils likely carne from Mongolia. The inference of knowing wrongdoing is buttressed by the allegation that Prokopi changed the country of origin on the March 22, 2007 shipment from Mongolia to Japan. (Id. ¶ ¶ 52-53.) There may be an innocent explanation for this change, but on its face the allegation suggests Prokopi's awareness of illegality and his attempt to avoid detection."

• "The same goes for the value of the Defendant Property. Collectively, the three shipments identified in the amended complaint had a stated value of $69,000, whereas the Defendant Property was listed at auction as having a value between $950,000 and $1,500,000. (Id. ¶ ¶ 38, 51, 54.) While it may be the case that Prokopi's efforts in assembling the contents of the shipments into a single display piece constituting the Defendant Property significantly increased the value of the fossils contained in the shipments, it is not implausible that the declared values--which appear to have understated the value of the Defendant Property by more than an order of magnitude--constituted knowing misstatements, and it is reasonable to draw an inference of wrongdoing on these facts at the pleading stage.

• "Prokopi's fair notice argument concerning Mongolian law also fails. It may be, as Prokopi contends, that 'fossil collectors could have no fair notice of Mongolia's laws cited in the Complaint,' as these are 'not readily available to the general public' (Cl. Br. 15), or perhaps that Mongolian law itself is impermissibly vague, but this does not appear on the face of the well-pleaded complaint and hence is not appropriate for consideration on a motion to dismiss."

• "Finally, Prokopi argues that the Defendant Property is not stolen property for purposes of any of the statutory bases of forfeiture because the amended complaint fails adequately to allege that Prokopi knew the Defendant Property was taken from Mongolia without that state's permission, and further because Mongolian law does not make fossils the property of the state. Although this argument raises a question of foreign law that the Court could decide on a motion to dismiss, the Court declines to make a final determination as to the content of Mongolian law in this interlocutory order, finding it sufficient to hold that the amended complaint states a claim for relief ...."

Hat tip: Gary Nurkin

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com