Government Petitions to Dismiss Charges in Korean Currency Case

Prosecutors in Detroit, Michigan on Friday moved to dismiss the receiving and transporting stolen property charges against Wong Young Youn.  Earlier this year it was reported that the defendant was cooperating with authorities in the Korean currency plate case as officials pursued similar charges against Midwest Auction Galleries owner James Amato. Now U.S. Attorney Barbara McQuade (right) seeks to dismiss Youn's case without prejudice.

A defendant is presumed innocent unless the prosecution proves guilt beyond a reasonable doubt

Police arrested the pair for their alleged role in the possession and sale of a an 1893 Hojo currency plate, claimed by prosecutors to be stolen from Korea and to be one of only three plates in existence. The government has not yet cited the legal authority that supports Korea's ownership of the plate. Details of the two year investigation can be found in a prior January 2013 blog post.

Prosecutors write in last weeks' court filing that they require additional time to prepare the case in order

(1) to develop and obtain evidence sufficient to establish defendant’s guilt beyond a reasonable doubt;  

(2) to investigate the full extent of the offense(s) in question and identify all other individuals who should be held criminally responsible for the offense(s); or 

(3) to decide whether criminal prosecution of defendant for the offense(s) in question is in the public interest.

The dismissal of Youn's case would leave Amato as the only one charged in the pending in the case. A dismissal without prejudice, nevertheless, would allow the government to reinstate criminal charges against Youn at a future date.

[UPDATE May 22, 2013:  The court on May 13, 2013 granted the dismissal of the charge without prejudice.]

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

Cambodian Statue Forfeiture Case Moves Forward - Sotheby's Motion to Dismiss is Denied

The federal district court for the southern district of New York today allowed federal prosecutors to amend their forfeiture complaint in the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture Currently Located at Sotheby's.  The court also refused Sotheby's request to dismiss the case.

Prosecutors have accused the New York auction giant with issuing misinformation to prospective sellers; skirting claims that the statue was stolen from Cambodia in 1972 and trafficked to Thailand; and making unsubstantiated assertions. Sotheby's has countered that federal prosecutors failed to allege that the statue was stolen, that it remained stolen, or that the claimants even knew that the statue was or remained stolen.  They have also accused prosecutors of having wasted the court's time to the detriment of the claimants.

In today's 18 page decision, Judge George Daniels sided with the government at this pre-trial stage of the case, writing:

“Each of the federal statutes under which the Government has brought this forfeiture action requires an underlying violation of the NSPA [National Stolen Property Act].  Thus, to establish that the property is subject to forfeiture, the Government must allege that (1) the Statue was stolen, (2) the Statue remained stolen at the time of import into the United States, and (3) Claimants knew the Statue was stolen.

…

“The Government's allegations in the PAC [Proposed Amended Complaint] support a reasonable belief that the Government will be able to demonstrate by a preponderance of the evidence that the Statue was stolen.

…

“Claimants' argument that the PAC is deficient because it does not contain factual allegations that Cambodia ever enforced the Colonial Decrees also fails. 

…

“The Government's allegations in the PAC support a reasonable belief that the Government will be able to demonstrate by a preponderance of the evidence that the Statue remained stolen at the time of import into the United States. 

…

“The Government has sufficiently pled facts regarding Sotheby’s knowledge that the Statue was stolen at the time of import into the United States.  According to the PAC, Sotheby's was aware of the origin of the Statue, that it had been broken off at the ankles, and it first appeared on the international art market during a period of rampant looting of antiquities from Koh Ker. Sotheby's has a particular expertise in works from India and Southeast Asia, including extensive experience in the sale of Khmer artifacts. Sotheby's consulted regularly with the Collector and knew him to be the original seller of the Statue in 1975. The Collector knew that the Statue had been looted from Koh Ker, and had trouble selling it in 1975 because many prospective buyers were unwilling to purchase it due to its lack of legitimate provenance and missing feet. Subsequent to import, Sotheby's was expressly advised that the Cambodians had clear evidence that the Statue was definitely stolen. Sotheby's is alleged to have provided inaccurate provenance information and omitted information about the Collector who acquired the Statue in Sotheby's communications with potential buyers, the Kingdom of Cambodia, and United States law enforcement. Accepting all of these fact as true for the purposes of the parties' motions gives rise to a reasonable inference that Sotheby's knew that the Statue was stolen at the time of import and thereafter. The Government need not provide unassailable proof to demonstrate Sotheby’s knowledge at this stage in the case. Claimants have also not offered any legal support for their argument that the Government need plead facts demonstrating Claimant's actual knowledge of foreign patrimony law for the complaint to survive a motion to dismiss.”

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: www.culturalheritagelawyer.com

HSI Alleges Receiving Stolen Korean Currency Plate Was Like "Winning a Lottery"

Michigan authorities have charged Wong Young Youn with violations of the National Stolen Property Act (NSPA) for allegedly receiving and transporting a stolen Hojo currency plate purchased for the price of $35,000.

A charge is simply a mechanism for initiating the criminal court process.  A person is presumed innocent of violating 18 USC 2314 and 2315 (the NSPA) unless the prosecution proves that the defendant is guilty beyond a reasonable doubt of receiving and transporting in interstate commerce an item valued more than $5000 knowing that the item was stolen.

An unsealed affidavit filed on December 19, 2012 by a special agent of Immigration and Customs Enforcement's Homeland Security Investigations (HSI) makes the following factual allegations:

• In April 2010, a Michigan internet auction house listed an "Exceptional Inscribed Korean Bronze Plaque."  Both the South Korean embassy and the U.S. Department of State alerted the auctioneer that the plaque could have been taken from the Republic of Korea illegally.  HSI identified the bidder, who was a woman from Flushing, New York.
• The Cultural Heritage Administration in Korea in December 2010 provided information that the plaque was a Hojo currency note--a plate used to produce money--from the 19th century Joseon Dynasty, an item of heritage whose "legitimate export would have been 'hardly likely.'"
• HSI received information in August 2012 from an expert at a Georgia college that the currency plate was "historically and culturally significant not only because of its place in the modern transformation of the Korean monetary system but also because it is a tangible artifact of the extremely difficult socio-cultural transformations of nineteenth and twentieth-century Korean society ...." The professor found a YouTube video of the plaque.  HSI identified the man in the video with the currency plate as Youn.
• HSI contacted the purchaser in late 2012 and learned that she opened accounts on internet web sites to buy Korean objects on behalf of Youn.  Youn reimbursed the purchaser.
• The purchaser gave HSI a statement in December 2012 saying that she bought the currency plate at Youn's request and with Youn sitting at her side during the auction.  She reported that the Korean consulate in Washington, DC soon contacted her and told her not to pay the $35,000 price since the currency plate was under investigation.  The purchaser called Youn, who said he would respond to the consulate. Youn then approached the purchaser and was excited.  "Youn likened the plaque to winning a lottery because a price could be negotiated with the Korean Government as the Korean government was interested in returning the plaque to Korea," according to HSI's affidavit. Youn reportedly learned that the object was likely stolen by a soldier during the Korean War.
• The purchaser told HSI that she wired partial payment to the auctioneer and that Youn himself delivered the final payment when he picked up the plate.  Youn then contacted the media and did an interview with a Korean television station in May 2010.

HSI charged Youn in the Eastern District Court of Michigan.  The court set the defendant's conditions of release on January 29, 2013 and scheduled a preliminary hearing for February 13.

The government has thus far sketched the factual basis to argue that the currency plate was stolen property.  It has not yet described the Korean ownership law violated that would support the present prosecution under the NSPA.

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 Weiss Ancient Coin Prosecution and What to Watch For

Federal prosecutions involving international theft or trafficking of cultural objects are rare.  State prosecutions are novel.  That is why the current case against Arnold-Peter Weiss, involving New York state law, is worth watching.

Authorities arrested Dr. Arnold-Peter C. Weiss in January for allegedly attempting to sell an ancient coin claimed to belong to Italy.  A New York County District Attorney's investigator alleges that he saw Weiss possess a Tetradrachm and observed Weiss offer the ancient silver coin for sale at the Waldorf-Astoria Hotel for $300,000.  The attempted sale took place at the 40th annual New York International Numismatic Convention.

A past New York prosecution involving cultural artifacts is the famous case of U.S. v. Frederick Schultz.  That federal case resulted in the conviction of a widely know Manhattan art dealer for conspiracy to violate the National Stolen Property Act (NSPA).  The evidence showed that Schultz was part of a scheme that trafficked antiquities from Egypt, to England, and then to the United States.  The case applied federal law, argued by federal prosecutors, who litigated in federal courts.  The current case against Weiss involves state law prosecuted by a state district attorney in a state court.

Weiss is reportedly charged with violating Criminal Posession of Stolen Property (CPSP) statue, New York Penal Law 165.52.  The charge is a class “C” felony punishable by up to a maximum of 15 years in prison. The statute reads: "A person is guilty of criminal possession of stolen property in the second degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds fifty thousand dollars.” A person charged with a crime is innocent unless proven guilty by proof beyond a reasonable doubt in a court of law.

Matthew Bogdanos

Chasing Aphrodite reports that Attorney Matthew Bogdanos is the prosecutor assigned to the case. Holding a masters in classical studies from Columbia University  and serving as the Marine Corps colonel who investigated the looting of the Iraq National Museum in Baghdad, Bogdanos is a person familiar with cultural heritage matters.

States are the traditional venues where property issues are handled.  State courts regularly handle claims of title to property as well as stolen property prosecutions.  Moreover, the states have well developed laws on the books covering property crimes, which articulate generally accepted common law property principles.

Two issues to look out for as the Weiss case moves forward in the New York State criminal justice system include the following:

Criminal knowledge
The New York law, like many state receiving stolen property statutes, requires the prosecution to prove that a defendant have two mental states: knowingly and intentionally.  The prosecution must prove that a person knowingly was in possession of stolen property and that the defendant intended to benefit himself or another from that possession or intended to impede the recovery by the owner of the property.  "Knowingly" in this context means that the person was aware that the property was stolen.  "Intent" means that it was the person's conscious object to benefit himself or another or to impede recovery of the property by the true owner.

About 1/4 of the states, including New York, have laws that presume criminal knowledge in certain circumstances. New York Penal Law 165.55 states: "A person who knowingly possesses stolen property is presumed to possess it with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof."  The statute also presumes criminal knowledge for certain property dealers: "[A] person in the business of buying, selling, or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it."

The federal NSPA does not articulate the presumptions contained in New York's CPSP.  However, the appeals court in Schultz supported the application of a widely adopted principle of law known as conscious avoidance, willful ignorance, or the ostrich rule.  "[A] defendant may not purposefully remain ignorant of either the facts or the law in order to avoid the consequences of the law," is the rule as explained in the instruction given to the jury in the Schultz case.  This ostrich instruction has been used in other cases too, including the Enron fraud prosecutions in 2006 against Jeffrey Skilling and Kenneth Lay.  The CPSP statute takes the ostrich rule further by articulating the presumptions described above, and a jury may--not must--infer guilty knowledge based on the applicable presumptions.   Of particular interest in the Weiss case will be whether the dealer presumption is invoked by the prosecution.

Stolen property
The Schultz case spent much time resolving whether Egypt's patrimony law declaring ownership over cultural objects was sufficient to give valid legal title to another such that Frederick Schultz was in knowing receipt of stolen property under U.S. law.  Both the jury and the appeals court answered affirmatively.  The Schultz Doctrine essentially holds that a person may be convicted for receipt of stolen property under the NSPA when a foreign patrimony law clearly declares ownership of the cultural object and the artifact stolen was after the date of the enactment of the patrimony law.  The Schultz Doctrine does not label as stolen a cultural object that simply was unlawfully exported from a foreign nation.  The foreign nation must declare clear title to the object, not just regulate its export.

New York's jury instruction regarding "stolen property " advises juries that it "is property that has been wrongfully taken, obtained, or withheld from an owner by a person who did so with the intent to deprive another of such property or to appropriate such property to himself or herself or a third person."  Latching on to the federal legal holding of Schultz, New York state prosecutors may cite the case as persuasive authority to assert that Weiss possessed "stolen property," arguing that Italy's patrimony law declares ownership of the ancient silver coin(s) allegedly possessed by Weiss.  Furthermore, the state prosecutors will likely also rely on  New York Penal Law 165.60, which says that it is no defense to a criminal possession of stolen property case that "the larceny [or theft, which is the term used in jury instructions] of the property did not occur in this state."

Italy's patrimony law, adopted in 1909 and renewed in 2004, is known as the Code of the Cultural and Landscape Heritage.  Articles 10, 91, and other provisions arguably define and declare ownership of cultural artifacts.  Article 91 states:

"The things indicated in article 10, found underground or in sea beds by whomsoever and howsoever, shall belong to the State and, depending on whether they be immovable or movable, shall become part of government property or of its inalienable assets, pursuant to articles 822 and 826 of the civil code."

Weiss' next court date is July 3, 2012.

Reference:
http://www.nycourts.gov/cji/2-PenalLaw/165/165-45(3).pdf

CONTACT: www.culturalheritagelawyer.com

Ancient Greek Coins From Italy Reportedly Seized in New York - Arrest Made

An article appearing in Coin World reports that law enforcement officials on January 3, 2012 seized two ancient Greek coins from Italy before they were sold at a New York International Numismatic Convention event held in Manhattan. The article states that the owner of the coins, Dr. Arnold-Peter Weiss, was detained.

New York Criminal Court records reveal that authorities on January 3, 2012 at 2:15 p.m. arrested and charged a man named Arnold Peter C. Weiss, born 1960, with Criminal Possession of Stolen Property (CPSP) valued at over $50,000.  The court set bond in the amount of $200,000 and scheduled the next court date for March 21, 2012.

As of this writing, the NY County District Attorney's Office has not released any official statement confirming that this arrest and charge are related to the coin seizures reported by Coin World.  However, Chasing Aphrodite is reporting a connection.

A violation of the CPSP statue, New York Penal Law 165.52, is a class “C” felony punishable by up to a maximum of 15 years in prison. The statute states: "A person is guilty of criminal possession of stolen property in the second degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds fifty thousand dollars.” A person charged with a crime is innocent unless proven guilty by proof beyond a reasonable doubt in a court of law.

Assuming that New York state law is being used to prosecute a theft of ancient coins from Italy, such a prosecution would be new. At a conference in 2005 and then in a paper in 2007, I argued that state law could be employed in the same way as the federal National Stolen Property Act (NSPA) to tackle international cultural property crime. An excerpt from the 2007 paper, entitled International Antiquities Trafficking: Theft By Another Name, illustrates:

"District and county attorneys can rely on receiving stolen property statutes to target culpable receivers and sellers of antiquities .... Every state has enacted a receiving stolen property statute in some form. These laws prohibit a person from receiving property of another when the person knew the property was stolen. Many of these same statutes also criminalize situations where the person should know, had reason to know, had reason to believe, or simply believed that the property was stolen or probably stolen .... While state receiving stolen property laws are fundamentally similar to the federal NSPA, many provide distinct advantages to prosecutors.

First, several state statutes establish lower mental states. The NSPA requires proof that a person knew the received property was stolen, but several states only require proof that the actor should know, had reason to know, had reason to believe, or simply believed that the property was stolen or probably had been stolen. Thirty six states and the District of Columbia have enacted laws with a lesser mens rea.

Second, almost one quarter of the states possess some form of dealer provision, making it easier to prosecute antiquities traders. Where a dealer takes possession of an item and either (a) does not reasonably gather information about whether the item was lawfully sold or delivered to the dealer, (b) acquires the item for payment far below reasonable value, or (c) purchases or sells the item outside of the regular course of business, these statutes generally declare that the dealer is presumed to have known that the item was stolen. The New York Penal Law serves as an illustration of scenario “a”: 'A … person in the business of buying, selling or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it (§ 165.55(2)).'

Third, state receiving stolen property statutes provide criminal penalties for defendants who possess property of most any value as compared with the NSPA’s $5,000 threshold.

The legal advantages of lower mental states, dealer presumptions, and decreased value thresholds make prosecuting antiquities trafficking under state law an appealing option, particularly when targeting receivers or sellers."

David Gill, Paul Barford, and the Chasing Aphrodite authors are acknowledged for bringing attention to this developing story.

CONTACT: www.culturalheritagelawyer.com

Reclaiming Trafficked Egyptian Cultural Objects: US Seizure Laws and How to Make a Report to Customs and Border Protection

The Egyptian people have displayed admirable concern for cultural heritage by protecting museums and archaeological sites while courageously expressing their hope for self-determination. It is a credit to the people that the intact Egyptian Museum remains a centerpiece of news images coming from Tahrir Square.

There are naturally reports of theft, vandalism, and looting during this time of upheaval, prompting calls to international law enforcement to remain on the lookout for Egyptian antiquities illegally trafficked from the country.

Some have asked how United States authorities can seize Egyptian antiquities spotted crossing the American border. Others have asked how to report suspected illegal activity. Some answers are briefly provided here.

CBP Officer Herbert Kercado stands near
an illegally imported Egyptian sarcophagus
he discovered in Miami, Florida.
Photo courtesy CBP, March 2010.

US Customs and Border Protection (CPB) of the Department of Homeland Security is the front-line agency primarily responsible for the initial detention of contraband that arrives on American soil. Its officers, and other agents of Homeland Security--such as Immigration and Customs Enforcement (ICE) officers and ICE Homeland Security Investigations (HSI) officers--rely on federal rules that authorize the seizure of illegally imported cultural property. Some of these rules are described here.  Meanwhile, reports regarding import/export violations can be made to CPB as described below.

NSPA Seizure

Customs officers have authority to seize a stolen Egyptian antiquity under the National Stolen Property Act (NSPA) when:

• it is valued at $5000 or more,

• is known to have been stolen,

• is covered by Egypt’s patrimony Law No. 117 of 1983, amended by Law No. 3 of 2010, and

• is transported over the American border.

Under this scenario, authorities would rely on Titles 19 and 18 of the federal code in conjunction with the McClain/Schultz doctrine. Title 19 is the portion of federal law that contains the customs statutes, in particular the Tariff Act of 1930, 19 U.S.C. §1595a(c)(1)(A). Title 18 contains the criminal code, which includes the National Stolen Property Act (NSPA), 18 U.S.C. §2314. The McClain/Schultz doctrine, meanwhile, is a court defined rule that takes into account a foreign nation’s patrimony law. United States .v Schultz, 333 F.3d 393 (2nd Cir. 2003).

By way of explanation, the third element of the NSPA seizure rule depends on Egypt having a strong patrimony law. A federal court in the case of United States v. Schultz determined that Egyptian Law on the Protection of Antiquities (Law 117) is a patrimony law that asserts Egyptian public ownership of antiquities—as of 1983—and restricts private possession or ownership of cultural property. Law 117 was later strengthened by Law 3 in 2010, and this revision would not likely affect the Schultz court's conclusion.

There may also be a claim of forfeiture made under 18 U.S.C. § 981, applying to property “derived from proceeds traceable to a violation of” a statute such as the NSPA.

Stolen Egyptian artifacts may be seized by customs pursuant to an NSPA seizure, but artifacts can slip by. For example, an object that is extremely valuable to archaeologists as evidence of Egyptian’s history may be worth less than $5000, and determining whether an object is “stolen” can present a challenge.

CPIA Seizure

Other seizure authority may be found in Title 19’s Cultural Property Implementation Act (CPIA). The CPIA states that “[n]o article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution . . . which is stolen from such institution [after April 12, 1983] . . . may be imported into the United States.” 19 U.S.C. §2607. Items that were inventoried and then stolen from Egyptian museums, churches, monuments, etc. may therefore be seized and forfeited by customs officials under a CPIA seizure. 19 U.S. C. §2609. (Note that there may be a legal argument against this reasoning, however.)

A CPIA seizure of this kind is different from an NSPA seizure. The customs officer does not have to worry about whether an object is valued at $5000, for instance. The CPIA’s focus is on whether a cultural object is stolen from an institution or monument, whether it is part of a documented inventory, and whether it is considered to be cultural property. Cultural property is broadly defined as “property which, on religious or secular grounds, is specifically designated by each State [Party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970] as being of importance for archaeology, prehistory, history, literature, art or science . . . .” Cultural property can include anything described in Article 1 of the 1970 UNESCO Convention, including rare fauna, paleontological artifacts, archaeological objects, dismembered historical monuments, and more. 19 U.S.C. §2601.

There are problems with CPIA seizures. For instance, cultural property that is freshly looted from the ground is not part of a documented inventory. Objects secretly dug up from Saqqara, Abusir, or other historic site in Egypt could slip through these seizure rules. Additionally, Egyptian government leaders might be reluctant to declare that thieves stole artifacts from their institutions or sites for political or security reasons, and US customs officials would not be expected enforce federal law under these circumstances.

ARPA Seizure

There is an argument to be made that seizure of Egyptian antiquities could also be made under the Archaeological Resources Protection Act (ARPA). Under 16 U.S.C. §470ee(c) and criminal seizure rules, archaeological resources could be seized if they were trafficked in foreign commerce in violation of state or local law. But a seizure of Egyptian antiquities under this statute can be complicated and perhaps legally uncertain. Indeed, it should be noted that this type of seizure is not listed as an option in customs agents’ Seized Asset Management and Enforcement Procedures Handbook. But it has been used successfully in the past, and ARPA search warrant procedures are taught at the Federal Law Enforcement Training Center. §470ee(c) was once used to seize and forfeit Etruscan pottery in NY that violated NY’s receiving stolen property law, for example.

Complementary Legislation

Existing cultural property seizure rules may not be enough to secure all illicit Egyptian cultural artifacts potentially coming across the border. If there is critical concern that cultural objects from Egyptian museums or archaeological sites have been stolen or looted, and if there is further concern that these objects are being trafficked outside Egypt, then US lawmakers should seriously contemplate adopting additional measures of protection. The passage of an Emergency Protection of Egyptian Cultural Antiquities Act, enacted pursuant to 19 U.S.C. § 2603 of the CPIA, could prove useful to a determined effort designed to tackle the problem. Such a law could more clearly focus the attention of law enforcement and the public on Egyptian cultural heritage at risk. It could also provide due process requirements while permitting the seizure of Egyptian cultural objects regardless of whether they were known to have been stolen from a cultural institution, looted from the ground, or had any monetary value.

Reporting Illegal Egyptian Cultural Property Imports

If you suspect that a cultural object from Egypt has been looted, stolen, or trafficked you should report it to US Customs and Border Protection. It is easy over the internet. Just fill out the secure form at https://apps.cbp.gov/eallegations/. You can also make a report by telephone by calling 1-800-BE-ALERT.

Understanding Federal Law Enforcement's Heritage Protection Efforts

The Archaeoligical Institute of America in August 2010 posted a description of how federal law enforcement approaches heritage protection. It describes in greater detail the interaction between the various laws described here and the federal agencies that enforce them. Read it at http://www.archaeological.org/news/advocacy/2564.