Do CPIA Import Restrictions Constitute an Embargo?

Do import restrictions derived from the Convention on Cultural Property Implementation Act (CPIA) constitute an embargo? That is a question that has resurfaced after reading Erik Smithweiss, "A Race To The Courthouse: Jurisdiction Over Customs Admissibility Decisions," 21 Tul. J. Int’l & Comp. L. 291 (2013) and Stephen C. Tosini, "The Embargo Upon Endangered Species: Accidental Jurisdiction In The Court of International Trade," 21 Tul. J. Int’l & Comp. L. 311 (2013).

CPIA import restrictions prohibit designated archaeological and ethnological objects from entering the United States. The prohibitions serve to safeguard endangered cultural heritage. Once the President determines that specific cultural material originating in a foreign nation is in jeopardy of pillage, protective import controls are put in place. U.S. Customs and Border Protection (CBP) agents are given authority to detain, seize, and forfeit the protected cultural objects. Should an importer choose to challenge a CBP decision, there may be a question about which court can hear the case depending on how once understands an "embargo."

U.S. Court of International Trade

The Court of International Trade (CIT), based in New York, possesses national jurisdiction over what its title suggests, namely international trade. The CIT is given exclusive jurisdiction by Congress under 28 U.S.C. § 1581(i)(3) over embargo enforcement actions covering "embargoes or other quantitative restrictions on the importation of merchandise for reasons other than the protection of the public health or safety." What constitutes an embargo is outlined by the U.S. Supreme Court's decision in K Mart Corp. v. Cartier, Inc., 485 U.S. 176, 185, aff’d in relevant part, rev’d in part, 486 U.S. 281 (1988), which explains that “the ordinary meaning of ‘embargo,’ and the meaning that Congress apparently adopted in the statutory language ‘embargoes or other quantitative restrictions,’ is a governmentally imposed quantitative restriction--of zero--on the importation of merchandise.” Congress, meanwhile, has also empowered all 94 federal district courts under 28 U.S.C. § 1356 with jurisdiction to hear import seizure cases. The district courts' decisions have the force of law over their designated geographic areas.

In the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection Agency, Department of Homeland Security et al., the ACCG filed a lawsuit challenging import restrictions on ancient Chinese and Cypriot coins in federal district court in Maryland. But Smithweiss points out, "It is quite possible that a district court could conclude that 19 U.S.C. § 2602 [the CPIA] imposes an embargo, in which case the CIT might properly exercise jurisdiction over an action challenging an admissibility decision [on the importation of cultural property] made pursuant to that statute." In fact, the federal district court itself questioned whether it had authority to hear the ACCG's lawsuit. The court concluded that it did, writing that its subject matter jurisdiction over "any seizure" was rooted in 28 U.S.C. § 1356, despite the tension raised by the CIT's exclusive jurisdiction over embargoes found in 28 U.S.C. § 1581(i). The fact that neither the government nor the ACCG objected to the federal district court's authority to hear the ACCG's legal challenge almost certainly helped the court reach the conclusion that the parties did not need to go to the CIT to resolve their differences. However, it is possible that another court would reach a different result.

Indeed, Tosini educates us about what has happened in the realm of endangered species, and his observations should offer parallels with regard to the protection of archaeological and ethnological objects in jeopardy of pillage. Import restrictions rooted in the Endangered Species Act (ESA) and similar laws that protect threatened wildlife, flora, fauna have been found to amount to embargoes. As a result, the Court of International Trade has been identified as the court possessing jurisdiction to hear several cases in this area. Tosini reflects:

There is currently significant confusion in the environmental arena, and even the splitting of jurisdiction within certain statutory schemes. Accordingly, although the Government may be subject to suit in the Court of International Trade, individual defendants would be sued in the district courts. Furthermore, some actions that involve international trade and commerce are relegated to district courts, whereas identical actions involving ESA-listed species may wind up before the Court of International Trade. Should there ultimately be a larger number of such cases, this confusion will only compound.

Tosini recommends that Congress clarify these jurisdictional issues. He favors outcomes that leave matters of “classification, valuation or rate of duty” to the CIT and that give "district courts ... exclusive jurisdiction with respect to environmental laws relating to the importation of wildlife."

There may not be enough cultural property cases winding their way through the judicial system to spark interest about whether CPIA's import prohibitions amount to an embargo. But the topic deserves consideration. That is because future litigants will undoubtedly confront the issue. For example, what if a CBP seizure of an archaeological artifact in Chicago compels a claimant to file a civil action 800 miles away in the CIT rather than at the local courthouse sitting in the northern district of Illinois? Will that distance deter the legal action? Or what if a federal district court in Wyoming hears a cultural property import case of national significance? Should the federal court's decision simply be cited authoritatively in the "Cowboy State" alone, or should the decision instead be made by the CIT, which has national authority? Alternatively, shouldn't a local CBP decision made at the Natrona County Airport in Casper be reviewed by a federal judge sitting in Cheyenne?

Of equal importance is the framing of cultural heritage policy discussions. The K Mart decision identifies an embargo as a restriction that protects public health, safety, or morality or that advances foreign affairs, law enforcement, or ecology. In contrast, we might call an import restriction that is not "a governmentally imposed quantitative restriction--of zero--on the importation of merchandise" a non-tariff barrier. There are those at one edge of the cultural property spectrum who view import restrictions on archaeological material from the perspective of trade regulations that govern consumer products in the marketplace. This view considers how import prohibitions could adversely affect U.S. art and antiquities sellers by denying dealers and auction houses the opportunity to trade in goods that may be bought and sold by consumers elsewhere. Proponents of this viewpoint might describe CPIA import restrictions as being part of a broader range of trade regulations codified under Title 19 - Customs Duties. Defining CPIA import restrictions as non-tariff barriers may advance this line of reasoning.  At the other end of the spectrum are those who see import prohibitions on archaeological artifacts as protective measures designed to safeguard culture and preserve historical and scientific evidence contained within archaeological sites. This viewpoint focuses on curtailing illegal antiquities trafficking, preserving archaeological evidence, and protecting culture from looting and vandalism. And calling CPIA import protections an embargo may advance this argument in policy discussions.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Reply Filed by ACCG in Ancient Coins Test Case

The test case challenging import controls over ancient Chinese and Cypriot coins moved a step forward this week as the Ancient Coin Collector's Guild (ACCG) submitted its answer to a forfeiture complaint filed by proseuctors last month in Maryland federal district court.

The legal battle initially began in 2009 when the ACCG transported the coins from London to Baltimore, declaring that they were from China and Cyprus and had no known provenance or find spots. Customs officials seized the coins. Since then, the ACCG has lost rounds to retrieve the cultural items in the federal district court, the circuit court of appeals, and the supreme court. The ACCG continues to search for a legal victory.

In its latest June 19 pleading, the ACCG asserts several affirmative defenses to the government's forfeiture complaint. Among the group's arguments are claims that

• European Union law does not consider ancient coins to be "archaeological objects" subject to export controls,
• China allows export of ancient coins through Hong Kong and Macao,
• the government cannot prove that the coins were first discovered in either China or Cyprus,
• no government expert has confirmed that the coins of the types subject to import controls,
• American import restrictions are "the product of bureaucratic bias and/or prejudgment and/or ex parte contact," and
• the coins can be reclaimed under an innocent owner defense.

The ACCG seeks a jury trial on these issues.

The ACCG's publicly reported expenses in the ancient coins test case have thus far totaled $49,973 according to the group's 2009 and 2010 Form 990-EZ tax filings, the most recent ones available online. ACCG board member Attorney Peter Tompa and his Washington, DC based law firm have been handling the case since its inception.

The ACCG is a 501(c)(4) social welfare organization, created as a public benefit corporation in Missouri in 2004. Papers filed with the Missouri secretary of state describe the nonprofit's stated mission to "promote and nurture the free and independent collecting of coins from antiquity" and "to foster an environment in which the general public can acquire and hold coins of historical interest."

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Federal Forfeiture Complaint Filed in ACCG Baltimore Test Case

The United States Attorney's Office for the District of Maryland has filed a complaint to seize and forfeit ancient Chinese and Cypriot Coins. The Ancient Coin Collector's Guild (ACCG) attempted to import the coins into Baltimore on April 16, 2009 in defiance of import regulations restricting the protected cultural objects under the Convention on Cultural Property Repatriation Act (CPIA).

The ACCG flew the coins in from London on British Airways and told U.S. Customs and Border (CBP) that they were from China and Cyprus, dated between 400 B.C. and 220 A.D., had no known provenance, and had no known find spots. CBP seized the coins, and the ACCG filed a lawsuit soon thereafter, before federal officials brought a formal forfeiture action.

The ACCG's suit failed in the federal district court, the court of appeals, and the U.S. Supreme Court.

Following the supreme court's March 25, 2013 rejection to hear the case, prosecutors filed a formal forfeiture complaint in the federal district court on April 22.  The forfeiture action brings a new opportunity for the ACCG to relitigate the matter.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

U.S. Supreme Court Rejects ACCG's Coins Case

Photo credit: David Lat

The Ancient Coin Collectors Guild (ACCG) suffered another defeat as the U. S. Supreme Court declined to hear the trade organization's appeal. The case of ACCG v. U.S. Customs and Border Protection Agency, Department of Homeland Security et al. (docket 12-996) challenged America's import controls over Chinese and Cypriot cultural property.  The ACCG lost in both the federal district court and the circuit court of appeals before filing a petition for certiorari in the nation's highest court. The Supreme Court reviewed the ACCG's case on Friday and issued a ruling this morning denying certiorari.

The ACCG began the case in order to challenge the government's application of the Cultural Property Implementation Act (CPIA), the federal law that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. The trade organization imported ancient coins from a London dealer in 2009 that were minted in China and Cyprus. But they had no provenance and no description of their find spots. U.S. Customs and Border Protection (CBP) detained the coins under authority of CPIA import controls restricting ancient Chinese and Cypriot coins of a certain type. The ACCG then filed suit to challenge the cultural property import protections.

Today's Chasing Aphrodite interview with Peter Tompa, attorney for the ACCG, offers additional information about the ACCG's test case.

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

ACCG Files Cert Petition in U.S. Supreme Court

Bronze doors inside the U.S. Supreme Court.
Photo by David Lat.

Following losses in the district and appellate courts, the Ancient Coin Collectors Guild (ACCG) has brought another court action against the executive branch, this time in the U.S. Supreme Court. The case of ACCG v. U.S. Customs and Border Protection Agency, Department of Homeland Security et al. (docket 12-996) challenges America's import controls over Chinese and Cypriot cultural property.

The U.S. government initiated import controls on ancient coins from China and Cyprus after finding that the cultural objects required protection from pillage and illegal trafficking under the Convention on Cultural Property Implementation Act (CPIA). The ACCG designed a test case in 2009 to contest these import restrictions by attempting to bring ancient Chinese and Cypriot coins into Baltimore from abroad.  U.S. Customs seized the coins, and the ACCG sued.

The ACCG failed to win its case in federal district court in 2011 and appealed.  But the fourth circuit court of appeals struck down the case unanimously in October 2012. The ACCG then filed a petition for rehearing, which the appeals court also rejected.

The ACCG has now filed a petition for certiorari in the U.S. Supreme Court, arguing that the appeals court committed legal errors.  The U.S. Solicitor General has by March 15, 2013 to reply before the justices vote on whether to hear the ACCG's case.

It is not likely that the case will be accepted since the supreme court rejects almost three quarters of petitions for cert.

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

4th Circuit Court Denies ACCG's Request for Rehearing

"The court denies the petition for rehearing en banc."  That was the order of the Fourth Circuit Court of Appeals on December 18 in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs.

The ACCG set up a test case in 2009 to challenge import restrictions covering ancient Chinese and Cypriot coins.  The import controls were enacted pursuant to the Convention on Cultural Property Implementation Act (CPIA).  The Guild failed to win its case in federal district court in 2011 and appealed.  The federal appeals court thereafter struck down the ACCG's challenge in October.  The ACCG, in response, filed a petition in November for a rehearing on the matter.  The appellate court denied the request, and on Tuesday issued a mandate to effect its October 22 ruling.


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

The Cultural Property Importer's Responsibility

When cultural material is brought into the United States from abroad, the country of origin must be listed accurately on customs import forms. See 19 U.S.C. 1304. There are some, nevertheless, who argue that this duty and many other import mandates are too difficult to bear.  It has even been claimed in some instances that these requirements should be shifted from cultural property importers to customs officials. But such interpretations of federal law are incorrect. Three cases this year, in fact, reinforce the notion that cultural property import requirements are borne by importers, particularly--as one appeals court judge observed--because they possess the most knowledge about the goods that they seek to import.

In the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection et al., the fourth circuit court rejected the ACCG's claim that information requirements concerning ancient coins from China and Cyprus should be placed on the customs officials who enforce the Cultural Property Implementation Act's (CPIA) import restrictions. One judge during oral argument commented that there is only a "slight burden" placed on importers to explain where regulated coins would have been located during the last few years. A unanimous court ultimately pointed out that importers bear responsibility for complying with customs rules, writing that "CBP [U.S. Customs and Border Protection] need not demonstrate that the [Chinese and Cypriot] articles are restricted; rather, the [CPIA] statute 'expressly places the burden on importers to prove that they are importable.'"

The case of United States v. One Tyrannosaurus Bataar Skeleton also advanced the proposition that the cultural property importer has legal responsibilities that cannot be shirked.  In upholding the sufficiency of the government's complaint to forfeit imported dinosaur bones, the New York federal district court disagreed with the dinosaur importer's "conten[tion] 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.'"  The court wrote that "[t]he prohibition in [the anti-smuggling statute] 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."

US Customs House, New Orleans. Courtesy  CBP

Meanwhile, an October 2012 Customs and Border Protection (CBP) tariff classification ruling (N233501), which addressed ancient coins, affirmed that cultural property importers bear the burden to comply with legal requirements. (The case also demonstrates the mechanism by which U.S. Customs can help importers who seek assistance with compliance).  In this case, the goods reviewed by CBP's National Commodity Specialist Division were "a collection of 12 ancient Greek coins ... obtained from different places and spanning different periods of time" and collectively labeled "The Ancient Greek World – 12 Silver Coin Collection." Also examined were "The Roman Love," described as two coins from the Roman Empire bearing portraits of Antonius Pius and Faustina I.

The customs ruling explained the importer's duty under 19 CFR 134.1(b) to declare the coins' "country of origin," accurately describing the country of manufacture or production. The ruling proposed the following sound advice to help the petitioning importer comply with the law: "Ionia (ancient Greek) is an ancient region of central coastal Anatolia in present-day Turkey. As such, it would not be unreasonable that some or all of the coins in The Ancient Greek World – 12 Silver Coin Collection be marked with country of origin Turkey and the 2 coins in The Roman Love in Genuine Silver (Pius and Faustina I) be marked with country of origin Italy.  If evidence exists that the coins were made in multiple modern day countries, but uncertain as to which specific country or countries, then list all possible countries in which the coins could have been made."

What these cases demonstrate is that cultural property importers who bring goods into the United States must openly and accurately--to the best extent possible--disclose where cultural objects come from as well as any other legally required information. Arguments to the contrary will continue to be rejected by legal officials.  That is because importers are in the best position to describe their products to customs officers, who often must rely on importers' declarations to either permit or stop goods from entering the country.

More on this topic can be found by reading Importing Cultural Objects Legally.


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

Appeals Court Sides with Federal Attorneys in ACCG Baltimore Coin Case

The Fourth Circuit Court of Appeals today sided with the United States in the Ancient Coin Collectors Guild (ACCG) Baltimore test case.   We "have reviewed the Guild's various claims and find them to be without merit," the judges wrote in their October 22 decision.

The court's unanimous decision in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs, rejected the invitation to "engage in a searching review of the government's implementation of CPIA import restrictions on Chinese and Cypriot cultural property."  The judges exercised restraint, cautioning that "[a]ccepting such an invitation ... would draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries, injecting the courts into an area of law covered by statutorily conferred executive discretion and congressional oversight."  The court added that "[s]uch judicial interference would be especially problematic because Congress has already prescribed civil forfeiture as a vehicle through which importers can challenge the seizure and detention of articles allegedly covered by CPIA restrictions."

The ACCG initiated the court action in order to challenge the federal government's application of the Cultural Property Implementation Act (CPIA). The CPIA is the law that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.  The ACCG imported ancient coins from a London dealer in 2009, transporting them to Baltimore, Maryland on a British Airways flight.  The coins were minted in China and Cyprus, but they had no provenance and no description of their find spots. U.S. Customs and Border Protection (CBP) detained the coins, sanctioned by the import restrictions placed on Chinese and Cypriot ancient coins.  The import restrictions were enacted pursuant to bilateral agreements negotiated between those countries and the United States under the authority of the CPIA.

The ACCG filed a civil action in federal district court attacking the import controls over ancient coins and lost.  It appealed the decision, and both the government and ACCG filed briefs before making oral arguments on September 19, 2012.  The court of appeals issued its written decision today.

While agreeing with the idea that "[c]oins are portable objects," the appeals court remarked "that is not the whole story." "The often worn and mysterious beauty of ancient coins renders them invaluable cultural artifacts, helpful not only in dating archaeological finds but in revealing how distant civilizations once conducted their civic and commercial life. Whether coins (or sculptures or pottery) should be exempted from coverage as cultural property presents a lively policy debate, but the tension is resolved for us through the medium of law."

In its decision, the appeals court provided a primer on the law supporting the CPIA regime and highlighted that the judiciary should only reluctantly insert itself in diplomatic negotiations or congressional action:

"Congress set out an elaborate statutory scheme for promulgating import restrictions on culturally sensitive items and gave the Executive Branch broad discretion in negotiating Article 9 [bilateral] agreements with foreign states. Congress itself retained oversight of the CPIA process ... and placed significant responsibility in the hands of CPAC [the Cultural Property Advisory Committee], a body composed of experts in the fields of archaeology and ethnology. Congress also provided forfeiture procedures through which importers could challenge any seizures made pursuant to the CPIA. The conclusions to be drawn from the entirety of this statutory scheme are clear. The federal judiciary has not been generally empowered to second-guess the Executive Branch in its negotiations with other nations over matters of great importance to their cultural heritage, to overrule CPAC in its conclusion that import restrictions on coins were necessary to protect the cultural patrimonies of Cyprus and China, or to challenge Congress in its decision to channel CPIA disputes through forfeiture proceedings."

The ACCG argued that the import restrictions placed on Chinese and Cypriot  ancient coins as well as their execution by the government were ultra vires (extralegal).  The coin collectors group also asserted that the government violated the Administrative Procedures Act (APA) and that it transgressed the First and Fifth Amendments of the U.S. Constitution.  The appellate court rejected each of these assertions.

The court of appeals, like the federal district court below, found that the conduct of the government had not been been ultra vires or extralegal as the ACCG had alleged.  Citing established case law, the court explained that the government only acts outside in an extra legal fashion when it "'is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden.'" (Citation omitted).  The court emphasized that it would not probe the foreign relations functions of the executive and congressional branches of government, writing:

"The [CPIA] statute . . . involves a sensitive area of foreign affairs where Congress itself has delegated the Executive Branch significant discretion.  Given that approach, a searching substantive review of the State Department's diplomatic negotiations or CPAC's application of its archaeological expertise would be singularly inappropriate in this forum."

The federal appeals court pointed to specific examples of how authorities followed the CPIA appropriately with regard to Chinese import restrictions, and the fourth circuit sided with the lower federal district court by repeating  that the State Department "complied with the statutory requirements in placing import restrictions on Cypriot coins."

Despite compliance with the CPIA, the fourth circuit judges considered the ACCG's allegation that China did not make a request for bilateral protection of ancient coins--an assertion disputed by the government. The court looked beyond this charge, writing "In making this argument ... the Guild seeks to add a provision to the statute that is simply not there, namely a requirement that a request ... 'include a detailed accounting of every item eventually covered by an ... agreement.'"  (Citation omitted). The court made clear that a request by a foreign government for U.S. protection of cultural property under the CPIA "need not include a comprehensive list" of every archaoelogical and ethnological object included in a final bilateral agreement. To say otherwise, the court wrote, is a burden that "Congress nowhere mentioned ...."

By the same rationale, the appeals court rejected any contention that the State Department was required to publish in advance a detailed list of every cultural object that might have been considered for import protections under the CPIA. "To scrutinize the adequacy of the State Department's publication and require a verbatim publication of a foreign request would involve the judiciary in the very early stages of the CPIA process and place upon the State Department a burden that Congress did not intend," the court wrote.  The appeals court judges observed that the "detail required by the statute at the conclusion of the process is altogether different from the level of detail required before negotiations between our country and another nation have even so much as begun," making note that "Congress sought to strike a balance here between the need for notice and transparency on the one hand, and the need for confidentiality in sensitive matters of diplomacy on the other."

The court addressed the ACCG's further complaint "that State and CBP acted ultra vires by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were 'first discovered within' China or Cyprus."  The court disagreed by explaining that "State and CBP are under no obligation to list restricted items with more specificity than the statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice."

The circuit court acknowledged that there will be cultural objects imported into the U.S. without provenance or export permits, but that there is a process that allows importers to show that the objects are legal: "In those cases, the statute expressly provides that CBP may seize the articles at the border: 'If the [importer] of any designated archaeological or ethnological material is unable to present to the customs officer' the required documentation, the 'officer concerned shall refuse to release the material from customs custody . . . until such documentation or evidence is filed with such officer.' 19 U.S.C. § 2606(b). In short, CBP need not demonstrate that the articles are restricted; rather, the statute 'expressly places the burden on importers to prove that they are importable.'" (Citation omitted).

The court implied that the burden of proof imposed on importers by the CPIA is not as high as might be suggested because "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import."  The court commented that "the Guild need not have documented every movement of its coins since ancient times. To comply with § 2606 [of the CPIA], the Guild need demonstrate only that the Cypriot coins left Cyprus prior to 2007 and that the Chinese coins left China prior to 2009. It never so much as attempted to do so."

Attending to the ACCG's argument that the Administrative Procedures Act was violated, the court rejected this claim.  "We have emphasized throughout the restricted scope of judicial review when it comes to the statutory discretion Congress has conferred upon the Executive Branch in carrying out the international obligations of the United Sates under the Convention. These cautions are nowhere more pertinent than where this nation's protection and recognition of another's cultural patrimony is involved. Congress recognized that the CPIA 'is important to our foreign relations, including our international cultural relations,' and it enacted the statute to ensure that the United States did not become an illegal market for foreign cultural property, a development that would have 'severely strain[ed] our relations with the countries of origin, which often include close allies.' S. Rep. 97-564, at 23 (1982)."  The court added, "Even were we to assume that State was fully subject to the APA, none of its actions were remotely arbitrary or capricious."  The court concluded that CBP acted appropriately as well.

The appeals court also took up the constitutional issues raised by the ACCG.  It relied on the district court's conclusion, in part, that "'the government's interest in combating the pillage of archaeological materials is unrelated to the suppression of free expression.'"  Moreover, due process claims would be addressed by forfeiture proceedings where the government would be required to outline its arguments supporting the seizure of the imported cultural objects, and where the "Guild must then demonstrate that its coins are not subject to forfeiture in order to prevail."

UPDATE 11/14/12: The ACCG filed a petition on November 13, 2012 for rehearing en banc in the matter.  A rehearing before the full court of appeals (en banc) is usually rejected unless the case is of great significance.


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

Cultural Property Cases Roundup - Khouli et al., Sandstone Cambodian Sculpture, Weiss, and ACCG Appeal [UPDATED]

September is a busy month for cultural property law cases.  More activity is expected in the case of United States v. Mask of Ka Nefer Nefer soon, a case that involves the U.S. government's attempt to forfeit a mummy mask from the St. Louis Art Museum and repatriate it to Egypt.   [UPDATE 9/25/12: The 8th circuit has lately granted an order permitting the government to file its brief in the case on October 26 rather than in September].  Thus far there has been activity in four other important cases.

The case of U.S. v. Khouli et al. saw the submission of legal memoranda by defendants Joseph Lewis, II and Salem Alshdaifat urging the court to dismiss the criminal charges against them.  A grand jury alleges that the pair had roles in trafficking antiquities.  Lewis and Alshdaifait vigorously deny the charges.  A third co-defendant, Mousa Khouli pleaded guilty in April 2012.

On September 18, 2012 the eastern federal district court in New York ruled on Lewis' arguments.  Judge Edward R. Korman denied the Motion to Dismiss but the omnibus motions remain.  The court on September 10, meanwhile, granted Alshdaifat's request to travel to England to meet with overseas business partners and to attend the Coinex London 2012 numismatics show.  The prosecution objected to the request.  According to Alshdaifat's lawyer in a September 5 letter to the court, Alshdaifat "has a joint venture with a business in London, called Roma Numismatics."  It appears, however, that the joint venture is actually Athena Numismatics Ltd., which is listed on VCoins.

In the southern district New York federal court, Sotheby's and Ms. Ruspoli di Poggio Suausa filed a reply memorandum on September 17 to bolster their June 5, 2012 motion arguing that the government cannot forfeit a statute in the case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's.  The claimants' reply brief was filed in response to the government's pleading submitted last month.

New York state court, meanwhile, scheduled the case against Arnold Peter Weiss for sentencing on September 17.  Weiss pleaded guilty in July to attempted criminal possession of stolen property in the fourth degree.  Terms of his sentence, pursuant to the plea agreement, are outlined here.  As part of the sentence, Weiss published an essay titled "Caveat Emptor: A Guide to Responsible Coin Collecting" in American Numismatic Society Magazine.

In Virginia, oral argument in the fourth circuit court of appeals took place on September 19 before judges J. Harvie Wilkinson, III, Stephanie D. Thacker and Michael F. Urbanski in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs.  The ACCG appealed their August 2011 loss in the lower federal district court in Baltimore.  The organization submitted its written arguments in October 2011, and the federal government replied in January 2012.

The attorneys' oral arguments in the ACCG case can be heard in their entirety here.  In sum, Judge Wilkinson appeared unwilling to involve the judiciary in foreign affairs decisions of the executive branch, which can be overseen by the legislative branch. He had apparent trouble finding that  the U.S. State Department acted arbitrarily or capriciously when implementing import controls over ancient coins under the Cultural Property Implementation Act (CPIA). "Why should we jump into this and make it a tri-cornered mess," asked the court in its apprehension of being drawn into a matter that involves the two other branches of government.

The court appeared to believe that there is a "slight burden" placed on the importer--not on the government--to show where ancient Chinese and Cypriot coins have been in the past few years; the inquiry is not where the coins have traveled in ancient times. And this burden, which is "not a huge hurdle to surmount,"should be placed on importers because importers have the most knowledge.

[Hat tip to Nathan Elkins for highlighting the Weiss article in ANS Magazine].


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

DC Court Dismisses Ancient Coin Collectors' FOIA Case as Baltimore Test Case Presses Forward

Cypriot coin subject to U.S. import restrictions.

"Unfortunately for the plaintiffs, I agree with the State Department's decision."  That is the opinion of Judge Richard Leon of the United States District Court for the District of Columbia in his ten page decision dismissing the case of Ancient Coin Collectors Guild et al. v. U.S. Department of State.

The Ancient Coin Collectors Guild (ACCG), the International Association of Professional Numismatists, and the Professional Numismatists Guild together filed a Freedom of Information Act (FOIA) lawsuit against the State Department in 2007.  The federal district court dismissed the case in 2009, but the court of appeals in 2011 reversed in part, sending the case back to the district court for further review.  The district court reviewed the matter and decided on May 28, 2012 (opinion published on June 11, 2012) to dismiss the suit.

The plaintiffs sought information from the State Department related to the review process of the Cultural Property Advisory Committee (CPAC), which advises the President about enacting import controls to protect cultural property in jeopardy.  Congress fashioned the CPAC process as an integral component to America's implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Cultural Property.

The plaintiffs wanted the Bureau of Educational and Cultural Affairs at the State Department to turn over any information relative to U.S. import controls placed on ancient coins originating from China, Italy, and Cyprus.  In response, the State Department released 109 out of 128 found documents, including 70 full documents and 19 redacted documents.  The balance of the papers were not disclosed based on legal grounds.

When the appeals court sent the case back for reconsideration, the federal district court's task was to assess the redactions contained in a series of emails between an archaeology professor and a State Department employee.  The court's other task was to review whether the State Department sufficiently scoured its files to locate FOIA materials.  The court found that the redacted portions of the emails could be kept confidential because there was a "demonstrated expectation of confidentiality between the parties" under the FOIA law.  The court also found that "the State Department conducted a search reasonably calculated to uncover all the email records responsive to the plaintiffs' FOIA requests."  Therefore, the court dismissed the case.

Meanwhile, the Fourth Circuit Court of Appeals scheduled oral argument in the matter of ACCG v. US Customs and Border Protection et al.  The court selected dates between September 18 and September 21.  This case began when the ACCG hoped to challenge cultural heritage import protections enacted by the Cultural Property Implementation Act (CPIA) on Chinese and Cypriot coins.  The ACCG appealed the case following its dismissal in the Maryland federal district court in 2011.

Photo: U.S. State Department.  Hat tip to Paul Barford and Peter Tompa for publicizing news of the FOIA decision. 

CONTACT: www.culturalheritagelawyer.com