U.S.-Belize MoU Signed

Belize's Institute of Archaeology and the National Institute of Culture and History are reporting on their Facebook page the signing yesterday of a Memorandum of Understanding (MoU) between the United States and Belize, which enacts import protections on endangered cultural property entering the U.S.

Signing of MoU between Belize and the United States.  Source: NICH

Belize petitioned the U.S. for an MoU seeking import restrictions pursuant to the Cultural Property Implementation Act (CPIA) and Article 9 of the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.  The Cultural Property Advisory Committee (CPAC) met in November 2011 to listen to public public comments regarding the adoption of import measures.

As of 5:00 p.m. on February 28, 2013, no notice or announcement describing the signing ceremony had been published in the Federal Register, posted on the U.S. State Department's Bureau of Educational and Cultural Affairs web site, or announced by the U.S. embassy in Belize.

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

First Circuit Rules in Favor of MFA and Harvard in Rubin v. Iran

The First Circuit Court of Appeals on February 27, 2013 decided in favor of the Museum of Fine Arts, Boston (MFA) and Harvard’s museums in the case of Rubin v. Iran.

The case involves victims of a 1997 Iranian-backed terrorist bombing who seek to satisfy a multi-million dollar default court judgment awarded to them in 2003. Since 2005 the Rubin plaintiffs have argued that approximately 2000 reliefs, sculptures, and other archaeological objects located at the MFA and Harvard are the property of Iran that can be seized.  The cultural institutions have been contesting that claim, and yesterday the First Circuit agreed.

The appeals court decision extended its sympathies to the the plaintiffs, saying “we are mindful of the incident that gave rise to the judgment here and the difficulty the plaintiffs are having collecting on that judgment ….”  But the justices upheld “the general rule … that foreign sovereign property in the United States is immune from attachment and execution” because of the Foreign Sovereign Immunity Act (FSIA). 28 U.S.C. § 1609.

The appeals court acknowledged that the Terrorism Risk Insurance Act of 2002 (TRIA) “carves out a narrow exception to that rule, applicable only to ‘blocked assets,’” but wrote that “the plaintiffs have failed to demonstrate that any of the antiquities in the Museums' possession fall within that exception.”

Photo credit: Persepolis by Mira Pavlakovic

The MFA and Harvard argued in the lower federal district court that Iran does not own the cultural objects. Even if they were owned by Iran, the MFA and Harvard maintained that the FSIA makes the objects immune from attachment.

The Rubin plaintiffs countered that “(1) the Museums did not have standing to assert sovereign immunity on behalf of Iran; (2) even if they did, the ‘commercial use’ exception to immunity under the FSIA would apply …; and (3) in any event, the plaintiffs could reach the antiquities under … the Terrorism Risk Insurance Act of 2002 (TRIA), …  which permits the attachment of certain ‘blocked assets of [a] terrorist party.’” In other words, the plaintiffs argued (1) that only Iran itself, not a third party, could claim in court that the archaeological objects at the MFA and Harvard were immune from attachment; (2) that the FSIA made an exception to the rule that foreign property in the U.S. is immune from attachment when that property is used commercially; and (3) that TRIA made an exception to the FSIA rule because “blocked assets” owned by Iran could be seized.

[Sidebar: “Blocked assets” mean property that has been seized or frozen by the U.S. government under the Trading With the Enemy Act or under the International Emergency Economic Powers Act. TRIA allows seizure of blocked assets to satisfy a court judgment “in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under [the FSIA] ….” Of special note is that Iranian “blocked assets” are those under the Iranian Assets Control Regulations (the U.S. Treasury’s Office of Foreign Assets Controls (OFAC) sanctions against Iran) that are uncontested assets, meaning that there is no dispute about whether Iran holds title.]

The federal district court ruled that FSIA's “commercial use” exception did not apply to the case, but that TRIA would apply if the Rubin plaintiffs proved that Iran owned the antiquities in the possession of the MFA and Harvard.

The lower court then transferred three issues to the appeals court for review: the issue of standing, the applicability of TRIA, and the FSIA’s “commercial use” exception.  But the First Circuit appeals court sent the case back to the district court, explaining that it would hear the matter only after the district court decided who owned the cultural objects.  Once the district court in Boston found that the Rubin plaintiffs failed to show that Iran owned the property, the court of appeals accepted the case.

The litigants then submitted arguments to the First Circuit, summarized by Wednesday’s appeals court’s decision:

“The plaintiffs’ main argument on appeal is that TRIA preempts state property law, and, when read in conjunction with certain Treasury Department regulations, gives the plaintiffs (in their words) the right to levy against ‘any interest of Iran, even if that interest is less than a full ownership interest.’ They further claim that Iran has an interest in the antiquities under Iranian law that is sufficient to make them attachable under TRIA.

“The Museums, for their part, counter that TRIA does not displace the traditional rule that a judgment creditor may execute only against assets that a judgment debtor owns, and that the district court was correct in concluding that Iranian law does not vest title to the antiquities in Iran. However, the Museums also challenge the district court's finding that the antiquities qualify as ‘blocked assets’ within the meaning of TRIA—a prerequisite for that statute to apply. See TRIA § 201(a). Finally, the Museums urge us to find that, even if Iran owns the antiquities and they are theoretically attachable under TRIA, the plaintiffs' claim is barred under Massachusetts law by the three-year statute of limitations and the Museums' adverse possession of the objects.”

[Sidebar: The MFA and Harvard asserted that they could legally claim title to the cultural objects—if Iran did, in fact, own them—by claiming adverse possession. Adverse possession is the process of dispossessing another of their property legally, and without compensation, through hostile, open, notorious, exclusive, and continuous possession.]

“Also before us is the position of the United States Department of the Treasury's Office of Foreign Assets Control (OFAC), which is responsible for administering and enforcing economic and trade sanctions, including promulgating the regulations at issue here. The United States has filed an amicus brief articulating OFAC's views regarding two aspects of this case. First, OFAC urges us to find that TRIA authorizes the attachment only of those assets that are owned by the relevant terrorist party. Second, providing its own interpretation of the Treasury Department regulations, OFAC argues that the antiquities are not ‘contested’ within the meaning of those regulations, which, if correct, would make TRIA inapplicable here.”

Notwithstanding the complex legal issues briefed by the parties and, at times, the peculiar oral argument made before the three justice panel, the appeals court simply held:

“Because we agree with OFAC that the antiquities are not ‘contested,’ and thus conclude that they cannot qualify as ‘blocked assets’ under TRIA, we need not reach the broader questions of whether TRIA preempts state law, what kind of ownership interest suffices for an asset to be attachable under TRIA, whether Iranian law vests title to these antiquities in Iran, or whether the plaintiffs' claims are foreclosed by the Massachusetts statute of limitations or the adverse possession doctrine.”

The court went on to write, “We therefore defer to OFAC's reasonable position that an asset can be ‘contested’ for purposes of [Iranian Assets Control Regulations] only if Iran itself has claimed an interest in the asset … Iran has never made such a claim with regard to the antiquities in the Museums' possession. Thus, even if we assume that those antiquities qualify as ‘assets of’ Iran under section 201(a) of TRIA, they would be ‘uncontested’ assets that were unblocked in 1981 … Because the plaintiffs have relied on no other authority to support their claim that the antiquities are ‘blocked’ within the meaning of TRIA, we conclude that the antiquities are not attachable under [TRIA].”

The First Circuit’s decision may be appealed by the Rubin plaintiffs to the U.S. Supreme Court. Meanwhile, trial preparations continue in the federal district court in Chicago. That case, involving the plaintiffs' efforts to attach ancient Iranian artifacts located at Chicago's Field Museum and the University of Chicago, was restarted after the U.S. Supreme Court in June 2012 declined to hear the Rubin plaintiffs' appeal of the Seventh Circuit's ruling against them.

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

Using a Driver's Mental State to Disprove a NYS DWI Refusal?

Gotta Love Joaquin, from latimesblogs.latimes.com

Recently Coke launched an advertising campaign built on the power of their brand's OPTIONS. You can have your cake AND eat it too so to speak. The commercials highlighted people asking for things by using the "AND" word as a question? Clever, and a reminder that laws are written and applied using the same principle.

In the world of NYS DWI defense the word "and" has equal power and significance. Under our case law (remember NYS is a common law state) the definition of intoxication is defined, interpreted, and applied as "physical and mental" incapacity to operate a car as a reasonably prudent driver. The power of "and" strikes again.

The two prominent cases (without BACs) on how to define "intoxication" in NYS DWI are People v. Cruz, 48 NY 2nd 419, and People v. Bradford, 408 NYS 2nd 1013. Both these cases shed some much needed light on how the Courts apply this legal standard "to and in" the real world of mental and physical human conduct (behavior).

Without a BAC (blood alcohol concentration) from blood or breath a NYS DWI will need to be proved by the driver's behavior.

Three elements have resulted in convictions for DWI Refusal Cases:

1. Both have reckless driving that either resulted in an accident or could have (substantial likelihood)

AND

2. Both have inability to lack of physical coordination (inability to balance, inability to walk steadily)

AND

3. Both have lack of a rational mental state (can't answer questions intelligibly)

My focus in many Court hearings is on showing that my client was able to walk, talk, answer questions, and follow directions normally.

Rational mental state is a critical factor in disproving intoxicated operation and opening the door for a plea to impaired driving (VTL 1192 (1) DWAI Driving While Ability Impaired).

To assess my DWI cases I follow the same line of thought and reasoning as if assessing a patient's mental status. My Chiropractor days forever emerge in my proving a client's rational mental state at the time of driving, and disproving a DWI.

The Mental Status Exam

 The MSE is a clinical assessment process. It is a structured way of observing and describing a patient's (driver's) current state of mind, under the following categories:

1. Appearance (person and clothing)

Physical aspects such as the appearance of a patient (the driver), including manner of dress and grooming, and odor. Are they disheveled? Unkempt? Have they been rolling on the sidewalk/grass?

2. Attitude

This refers to the patient's (driver's) approach to the interview process and the interaction with the examiner (the police officer). Were they cooperative vs. combative, belligerent, angry? Or were they polite, respectful, and cooperative?

3. Behavior

The patient's (driver's) eye contact and gait (ability to walk). Did they establish eye contact? Walk, talk, and respond normally?

4. Mood and Affect

Mood: neutral, euthymic, dysphoric, euphoric, angry, anxious or apathetic (responsive vs reactive)

Affect may be described as appropriate or inappropriate to the current situation

Was their mood and affect normal to the police investigation?

5. Speech

Was their speed understandable and normal? This is the production of speech not the content of their speech.

Police love to state in their reports (narratives) "slurred" speech BUT was their speech unintelligible? 

Break down their speech into the following categories:

·         Rate of speech: Rapid, slow, ordinary

·         Flow of speech: Hesitant, expansive, rambling, halting, stuttering, lilting, jerky,

long pauses, forgetful.

·         Intensity of volume: Loud, soft, ordinary, whispered, yelling, inaudible.

·         Clarity: Clear, slurred, mumbled, lisping, rambling, relevant, incoherent.

·         Liveliness: Lively, dull, monotonous, normal, intense, pressured, explosive.

·         Quantity: Responds only to questions; offers information; scant; mute; verbose, repetitive.

6. Thought Process/Pattern

Was their thinking in proper quantity, tempo (rate of flow) and form (or logical coherence) of thought, retarded or inhibited thinking?

Thought Patterns

·         Clarity:  Coherent, incoherent, cloudy, confused, vague

·         Relevance / logic:  Logical, illogical, relevant or irrelevant to topic being discussed.

·         Flow:  Excited, flight of ideas, tangentiality, poverty of thought, word salad, clang associations, slow, normal or rapid reactions to questions, doubting, indecision, loose association, blocking, perseveration, spontaneous, continuity of thought.

7. Thought content

Were their responses to questions, instructions, and directions appropriate?

8. Perception

There are three broad types of perceptual disturbances: hallucinations, pseudohallucinations and illusions.

Was there any distortion of the patient's (driver's) sense of time and place?

9. Cognition

What was the patient's (driver's) level of alertness, orientation, attention, memory, visuospatial functioning, language functions and executive functions

 Alertness is a global observation of level of consciousness i.e. awareness of, and responsiveness to the environment, and this might be described as alert, clouded, drowsy, or stuporose (in a stupor, daze).

Orientation is assessed by asking the patient where he or she is (for example what building, town and state) and what time it is (time, day, date).

Attention and concentration are assessed by the serial sevens test (or alternatively by spelling a five-letter word backwards), and by testing digit span.

Memory is assessed in terms of immediate registration (repeating a set of words), short-term memory (recalling the set of words after an interval, or recalling a short paragraph), and long-term memory (recollection of well known historical or geographical facts).

Visuospatial functioning can be assessed by the ability to copy a diagram, draw a clock face, or draw a map of the consulting room.

Language is assessed through the ability to name objects, repeat phrases, and by observing the individual's spontaneous speech and response to instructions

10. Insight

Ability to understand and follow thought patterns and now where things are going. Proper anticipation and participation. 

11. Judgment

The patient's (driver's) capacity to make sound, reasoned and responsible decisions.

We as DWI defense attorneys must overcome the hurdle of dis-proving Lack of rational mental state by exploring on cross examination of the police each of these areas.

Lawrence Newman, D.C., Esq.

Doctor of Chiropractic

Attorney and Counselor at Law

Ithaca, NY 

607-229-5184

http://www.ithacadwi.com

Spotlighting Fake Antiquities with Record Keeping Laws

Fraudulent antiquities are sold in the same way that knockoff jeans, counterfeit medicines, and fraudulent sports merchandise are peddled to consumers.  The goal of the sellers is to maximize profits by selling worthless goods.

Fake Meryet Amun statue placed into evidence in U.S. v. Schultz.

Fake antiquities can be found on internet auction sites and other sales venues.  Moreover, there have been prominent cultural property cases featuring fakes, including the Arnold Peter Weiss case, where the convicted defendant possessed forged ancient coins, and the seminal case of U.S. v. Schultz, where a smuggler possessed a statue of the Egyptian princess Meryet Amun, which was a fake.

Just as record keeping laws can spotlight black market antiquities and bleach them from the legitimate marketplace, so too can the same laws protect consumers by helping authorities uncover fakes and forgeries offered for sale. A full description of the proposed statutes have been described in a prior blog post.  In brief, the laws would require auction houses, dealers, galleries, shops, and other entities engaged in the antiquities trade to maintain records of the following:

• Descriptions of the names and addresses of the parties involved in a transaction, a description of the cultural object, and the amount of money exchanged.

• All available import documents and export permits connected with the object.

• A description of the provenance/chain of custody/collecting history of the object known to the seller or consignor along with supporting documents, photos, affidavits, and the like when available.

• Any condition reports associated with conservation reports, insurance documents, shipping paperwork, etc.

Such record keeping would help identify fraudulent merchandise and uncover falsely created documents that purport to "authenticate" cultural objects. The information would assist consumer protection authorities located at the Federal Trade Commission and at state attorneys general offices to more easily investigate and prosecute suspected fraudulent merchants.

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

Prosecutorial Misconduct: Naming Names (Again)

As readers of this blog know, I have long and repeatedly advocated that an effective means for reducing the incidence of prosecutorial misconduct, without having to reverse the conviction -- which appellate courts are understandably reluctant to do where there is strong evidence of guilt but improper conduct by the prosecutor -- is to name the prosecutor in its decision condemning the misconduct, but affirming the conviction (see  and see). Yet, with exceptions, appellate courts still appear reluctant to do so. For example, this week, in a statement regarding the denial of certiorari in  Calhoun v United States (568 US __ [2/25/13]), Justices Sotomayor and Breyer condemned the racial  argument of the Assistant United States Attorney,  but did not name the attorney:

It is deeply disappointing to see a representative of theUnited States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice. In discharging the duties of his office in this case, the Assistant United States Attorney for the Western District of Texas missed the mark.

I call your attention to two excellent posts  (here and here) regarding the Court's failure to name the offending prosecutor and which rectify this failure by naming him (Samuel L. Ponder).









http://blog.simplejustice.us/2013/02/26/what-sam-ponder-said.aspx?

Restraining Orders Threaten Their Recipients

Talking back to restraining orders

THEY'RE NOT JUST ABUSED; THEY'RE ALSO ABUSIVE

 

LINK

Knotty, Knotty: False Allegations and Restraining Orders

Posted on February 21, 2013

1

Whoever came up with restraining orders must have been a marvel at Twister.

Though they’re billed as civil instruments, restraining orders threaten their recipients with criminal consequences and may be based on allegations of a criminal nature, for example, stalking, sexual harassment, the threat of violence, or assault.

The standard of substantiation applied to criminal allegations is “proof beyond a reasonable doubt.”

Since restraining orders are “civil” instruments, however, their issuance doesn’t require proof beyond a reasonable doubt of anything at all. Approval of restraining orders is based instead on a “preponderance of evidence.” Because restraining orders are issued ex parte, the only evidence the court vets is that provided by the applicant. This evidence may be scant or none, and the applicant may be a vicious sociopath. The “vetting process” his or her evidence is subjected to by a judge, moreover, may very literally comprise all of five minutes.

Based on allegations leveled in this hiccup of time by a person with an obvious interest in seeing you suffer, you are now officially recognized as a stalker, batterer, and/or violent crank and will be served at your home with a restraining order (and possibly evicted from that home) by an agent of the nanny state: “Sign here, please” (“and don’t let the door hit you on your way out”).

The application of a standard of proof to restraining order allegations is circumvented entirely: what a plaintiff claims you are becomes the truth of you. The loophole is neatly conceived (and it’s exploited thousands of times a day). Your record may be corrupted by criminal allegations like those enumerated above based on crocodile tears and arrant lies spilled on a boilerplate bureaucratic form. And these allegations may tear your life apart.

Abuse of restraining orders for malicious ends is a court-catered cakewalk.

How easily it’s exploited for foul purposes, in fact, is the restraining order process’s claim to distinction from other judicial procedures. Even by veteran officers of the court, false allegations made in restraining order petitions are routinely accepted at face value. The reasons for this are manifold:

1. Judges are trained to regard women’s plaints as legitimate and may never question this prejudice, because it’s shared by the society at large. And to appear to be fair, a judge may apply the same prejudice to allegations brought by men against women.
2. No judge wants to be the one who refused a restraining order to someone who later comes to harm, because (a) he will have failed a constituent in need and be perceived as having had a hand in her (or his) injury; and (b) because he will be publicly vilified, likely fired or forced to resign, and possibly sued.
3. Innocent plaintiffs never succeed in making a stink that would put a judge’s career in jeopardy: erring on the side of a plaintiff poses no threat to a judge’s job security, while erring on the side of a defendant may cost him not only his job but considerably more.
4. It’s in the financial interests of local jurisdictions and their judges to appear to be “cracking down” on society’s bad eggs.

Lying to obtain a restraining order, therefore, is a cinch. Any lowlife can do it.

Disinterest (a.k.a. objectivity, fairness, impartiality, yadda-yadda-yadda) is the essential canon of judicial ethics. Since it’s one that clearly doesn’t obtain in the restraining order process, this judicial procedure is also distinguished from others by its inherent corruptness.

This corruptness is obscured from public awareness by yet another knot. Innocent defendants, in endeavoring to extricate themselves from false allegations—for example, as this author has by clamoring in a blog—cannot help but appear to be the fixated “deviants” that those false allegations represent them to be. The more they resist the allegations, the more they seem to corroborate them.

Appearances are not only the predominant grounds for restraining orders; appearances are what motivated their sketchy conception in the first place (“We’ve got to show we care”), andappearances are what preserve the corrupt process from which they issue from being recognized for the disgrace that it is.

Copyright © 2013 Todd Greene

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Tagged: abuse of process, abuse of restraining orders, bureaucracy, due process, false allegations, false orders of protection, false restraining orders, false testimony, fraud, fraud on the court, fraudulent restraining orders, fraudulent testimony, judicial abuse of power,legislative reform, lying to the court, lying under oath, malicious prosecution, orders of protection, perjury, protection order, protection order fraud, protection orders, reform of restraining orders, restraining order, restraining order fraud, restraining order legislation,restraining order reform, restraining orders, social justice

Posted in: Restraining order abuse

← Report of Gross Misconduct by Dr. Tiffany Bredfeldt to the DHHS Inspector General

Defendant Cooperates in Korean Currency Plate Case

Wong Young Youn, charged with violations of the National Stolen Property Act (NSPA) for allegedly receiving and transporting a stolen Korean Hojo currency plate, is cooperating with federal authorities. His testimony supported the February 12, 2013 arrest of James Amato in Michigan. Amato is the owner of Midwest Auction Galleries. Both defendants' cases are before the federal district court in Detroit.

Amato is charged with two counts of violating the National Stolen Property Act (NSPA 18 U.S.C. § 2314 and 18 U.S.C. § 2315) and with making a materially false statementand providing a falsedocument knowing the same to contain a materially  false,fictitious,or fraudulent statementsor entry in violationof 18 U.S.C. § 1001.

 

The Hojo currency plate is said to be one of three currency plates in existence from the 1890's.

Court records allege that Amato sold the currency plate in 2010 to Youn for $35,000 despite efforts by the Korean Embassy and the U.S. State Department to warn them that the sale could violate the NSPA.

U.S. Immigration and Customs Enforcement's Homeland Security Investigations (HSI) issued a customs summons to Midwest Auction Galleries on June 29, 2012. In response, the gallery "provided an invoice stating the item  was  purchased  by  'Weng Liang' of 'Hunan, China,' for $9,990, according to an HSI affidavit filed with the court this month. The affidavit reveals that Youn allegedly told HSI officials in January that he himself bought the currency plate and that he does not know a person named Weng Liang.

All defendants are presumed innocent unless and until the prosecution proves guilt beyond a reasonable doubt.

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