Discovery Delay Asserted by Government as Sotheby's Seeks Preliminary Court Hearing on Cambodian Ownership

Sotheby's wants a preliminary hearing to argue the law, and the government wants more discovery from Sotheby's to argue the facts. That continues to be the posture of the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture Currently Located at Sotheby's.

Yesterday federal prosecutors criticized Sotheby's and Decia Ruspoli di Poggio Suasa, claimants in the forfeiture case, for "yet another effort to delay discovery in the case." The U.S. Attorney's Office for the Southern District of New York objected to a letter recently submitted by the claimants that requests a pre-discovery hearing to discuss the meaning of Cambodia's cultural property ownership law.

Prosecutors write that the claimants “should not be permittedto delay [the case] further by being granteda hearing on an issue that will not resolvethe case.” They argue that "the appropriate course of action is to continue and complete fact discovery on all issues in the case.”

The claimants disagree, explaining that the issue of whether Cambodia's law declares ownership over the statue is a matter the court should consider before the claimants provide further information to prosecutors.  In their May 10 letter to the federal district court, Sotheby's and Decia Ruspoli di Poggio Suasa write that the issue of whether Cambodia owns the statue is a matter of law, not fact, which the judge must address rather than a jury.

But federal lawyers counter that the question of whether the Duryodhana sculpture from the Prasat Chen temple at Koh Ker is owned by Cambodia and was stolen from that nation turns on the facts as well as the law.

Prosecutors make the two-pronged assertion that "Cambodia declared itself the owner of the Statue through its clear and unambiguous national ownership laws" and that "Cambodia acquired the Statue in the 'general manner' and that the Statue was then stolen from Cambodia 'in the commonly used sense of the word.'"

The McLain/Schultz doctrine, the prosecutors argue, supports the proposition that a cultural patrimony law is one way by which a nation can own cultural material.  And Cambodia’s national ownership law is clear, they maintain. “Claimants disputeonly that Koh Ker and the Prasat Chen temple were, in fact, part of the national or colonial domain.” This dispute, prosecutors stress, “involve[s] factual questions that are mattersfor summary judgmentor trial.”

Prosecutors also assert that the second way that Cambodia owns the Duryodhana statue is through the general understanding of what it means to steal:

But Schultz and McClain certainly do not stand for the proposition that a state can never "own" an object in the absence of a national ownership law. Rather, McClain makes clear that a state can come to own property either by "declar[ing] itself the owner" through a national ownership law, or by "acquir[ing] such property in the general manner by which private persons come to own property."  McClain, 545 F.2d at 1002. And Schultz, in adopting the reasoning of McClain, plainly contemplated that an object could be "stolen" not only by virtue of having been "possessed or disposed of by an individual in violation of a national patrimony law," but also "'stolen' in the commonly used sense of the word, for instance, where an object is taken from a museum or a private collection." 333 F.3d at 399.

Prosecutor allege that the monuments of Koh Ker were built by Cambodia state under Jayavarman IV, that the state never transferred Koh Ker or the statue to anyone, that looters stole the statue in 1972 and trafficked it in pieces to Thailand, and that a well-known collector purchased it knowing that it was stolen. “These factual allegations … do not depend upon an analysis of Cambodia's national ownership laws ….,” the prosecutors contend.

In an effort to press for disclosure of information from Sotheby’s, the U.S. Attorney’s Office avers that

it would be most efficientto conduct discovery on all factualissues in this action simultaneously, as the discoverywill be largely overlapping.  Evidence regardingthe Collector, for instance, will be relevantnot only to the issue of whetherthe Statue was stolen from Cambodia, but also to the issueof Sotheby's knowledge  of the theft,as the Amended Complaint allegesthat Sotheby's "consulted regularly with the Collector regardingthe sale of the [Statue]," that Sotheby's "knowingly omitted the Collector's acquisition of the [Statue]from the provenance information it provided,” and that Sotheby’s was informed by “a scholar of Khmer art closely associated with the Collector (the "Scholar")" that the Statue was stolen.

The claimant’s, however, are resisting this push.  That is why they request that “the Court schedule a pretrialconference pursuant to Rule 16 of the Federal Rules of Civil Procedure to discuss appropriate procedures for reaching resolution on what is likely to be the dispositive issue in this case: whether any of the French colonial decrees the Government has identified clearly and unambiguously declare Cambodiato be the owner of the statue at issue in this case."

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

"Claimants Deny Knowledge," Affirmative Defenses Raised in Sotheby's Cambodian Sculpture Case

"Claimants deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in ... the Verified Complaint." That is the refrain found in 23 paragraphs of answers filed by Sotheby's and Decia Ruspoli di Poggio Suasa in the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture.

In reply to the government's amended forfeiture complaint--first proposed in November 2012 and filed with the Manhattan federal district court in April 2013--the claimants' May 6 pleading denies knowledge that the Duryodhana statute was stolen. The claimants say that Decia Ruspoli di Poggio Suasa and her husband purchased the statue "in good faith and for a fair price" in 1975, explaining

Sotheby's arranged importation of the Statue from Belgium to the United States and that prior to doing so, Sotheby's obtained documented provenance (in the form of a 1975 invoice from an auction house that speaks for itself and to whose contents Claimants refer the Court) establishing that the Statue had been sold in London in 1975, a time when Cambodia had enacted no clear and unambiguous laws declaring itself the owner of all antiquities in Cambodia.

U.S. authorities seek title to the Duryodhana sculpture in order to repatriate it to Cambodia. Prosecutors allege that the cultural object is from the Prasat Chen temple at Koh Ker, and that it's feet remain in Cambodia. Despite efforts by the claimants to dismiss the case, the court refused their request on March 29.

Several affirmative defenses are raised in the claimants' latest pleading. They include the defenses of failure to state a claim, an innocent owner defense, laches and a second time-based defense, estoppel, Fifth Amendment due process, desuetude (lapse of a law because of lack of enforcement), and adverse possession. Other affirmative defenses raised seek to attack the French Colonial decrees on which the prosecution's current amended complaint relies. The claimants claim that the relevant colonial laws in effect in Cambodia did not provide fair notice of Cambodia's ownership to the statue, were "not drafted with sufficient clarity to survive translation into terms understandable by and binding upon American citizens," are not laws that have not been enforced, and never vested ownership of the statue in Cambodia.

Hat tip: Gary Nurkin

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 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

"Maintaining Plausible Deniability": Prosecutors in Sotheby's Duryodhana Case Charge Sotheby's with Avoiding Mention of the Alleged Theft of the Cambodian Statue

Prosecutors rebuked Sotheby's last Friday, accusing the New York auction house in a reply memorandum of failing to disclose information it knew about a Duryodhana statue offered for sale this past spring.  Prosecutors charge 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 in its last court filing.

Governments lawyers write that "Sotheby's behavior is that of a company seeking to sell an artwork it knew was stolen, while maintaining plausible deniability should the true owner or the authorities become aware of the truth.  Accordingly, it supports the reasonable inference that Sotheby's knew the Statue was stolen, or at least suspected it and closed its eyes to the truth."

The U.S. Attorney's Office for the Southern District of New York filed the reply memo on December 14 to rebut arguments made recently by Sotheby's and Decia Ruspoli di Poggio Suasa, the claimants in United States of America v. A 10th Century Cambodian Sandstone Sculpture.  Readers will recall that federal prosecutors in November filed a petition to amend their original forfeiture complaint after the district court expressed skepticism.  The government seeks to forfeit and repatriate the statue to Cambodia, a sculpture originally from the Prasat Chen temple at Koh Ker and now sitting at the Sotheby's auction house in Manhattan.  

Daniel Patrick Moynihan Courthouse
Creative Commons: Americasroof

The claimants oppose the forfeiture.  They insist that the statue is not stolen property that must be forfeited.  Prosecutors disagree, arguing in their reply memo that "Prasat Chen was ...  the property of Cambodia in exactly the same way that the Daniel Patrick Moynihan United States Courthouse is the property of the United States."  Federal lawyers add, "If Sotheby' s wishes to argue that it was duped ... as a result of a negligent failure to investigate the representations of obviously self-interested parties regarding a statue with numerous indicia of theft, that is an entirely valid argument on the merits."

The prosecutors argue  in their reply memorandum to the court:

"The [government's] proposed amended Complaint adds crucial new allegations that go to the heart of this action.  Most importantly, it contains allegations regarding the theft of the Defendant in rem (the "Statue") from Koh Ker in 1972 by an organized looting network, which transferred it to Thailand. There, it was knowingly acquired from the looting network by a well-known collector of Khmer antiquities (the "Collector").  The Collector in turn sold the Statue in 1975 to the former husband of Claimant Decia Ruspoli di Poggio Suasa ("Ruspoli") on the international art market through an auction house which was also entirely aware of its illicit origin.  These allegations conclusively answer the arguments previously advanced by Claimants Sotheby's Inc. ("Sotheby's") and Ruspoli that the Statue could have been stolen by anyone at any time in the last thousand years.  Moreover, the new allegations in the Amended Complaint demonstrate that Sotheby's communicated closely with the Collector during the sale process, knowing him to be the original seller of the Statue, but failing to disclose that information to other interested parties, while also inaccurately informing such parties that the Statue had been seen by numerous people in the United Kingdom in the late 1960s, at least three years before it was stolen from Koh Ker.

"Claimants fail to acknowledge the significance of these new allegations, and indeed go to great lengths to avoid mentioning the facts concerning the 1972 theft of the Statue in their Memorandum of Law in Opposition to the Motion ("Clmt's Br.").  Instead, Claimants largely focus on various documents and unsupported attorney assertions regarding Sotheby' s supposed intentions that they themselves admit are entirely improper for the Court to consider. (See Clmt's Br. at 2 n.1 (Claimants "do not ask the Court to rely on emails" they attach); 13 (Claimants "do not ask the Court to rely on materials" they go on to discuss at length).)  The Court should, of course, disregard these sections of Claimant's brief entirely.

"As to their actual bases for denial of the motion, Claimants argue that the Motion is futile because it would not survive a motion to dismiss on three grounds.  First, Claimants argue that the Statue was not actually owned by Cambodia at time of the theft.  As described in detail below, the Statue was owned by Cambodia in 1972 pursuant to clear and unambiguous national ownership laws.  Second, Claimants again assert their frivolous argument that British law rendered the Statue no longer stolen six years after the 1975 sale.  As made clear by their very own expert in British law, Claimants bear the burden of proof on the relevant issue even if British law actually applies, and so they cannot prevail on a motion to dismiss.  Third, Claimants continue to assert that the allegations regarding their knowledge that the Statue was stolen are insufficient.  The factual allegations in the Amended Complaint are more than sufficient to show that Claimants knew the Statue was stolen, or at least that they consciously avoided learning the truth about the theft of the Statue.

"Finally, Claimants argue that the Government delayed unduly in filing this Motion, despite being entirely unable to point to any case where a Court found undue delay in similar circumstances.  The Government appropriately filed the Amended Complaint to include facts gathered in the course of its post-Complaint investigation which could 'aid the court in assessing both the adequacy of the complaint and Defendant's remaining arguments in its motion to dismiss.' Michael Miller Fabrics, LLC v. Studio Imports Ltd., Inc., No. 12 CV 3858 (KMW), 2012 WL 4513546, *2 (S.D.N.Y.  October 1, 2012).  Accordingly, leave to file the Amended Complaint should be granted and Claimants' motion to dismiss should be denied as moot.  ld. at *2-3.

....

"The Amended Complaint has clearly alleged sufficient facts to support a reasonable belief that the government will be able to meet its burden of proof at trial by showing that Sotheby' s either knew or consciously avoided learning that the Statue was stolen when it imported it into the United States and attempted to sell it."

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

Acknowledgement: Gary Nurkin

"The Government Now Relies on the Inherent Right of Kings," Says Sotheby's in Cambodian Statue Forfeiture Case

In a pointed and efficient twenty page legal memorandum filed Monday, lawyers for the claimants in United States of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's charge federal prosecutors with having 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 also accuse prosecutors of having wasted the court's time to the detriment of the claimants.

The case is a civil action by the U.S. Attorney for the Southern District of New York to forfeit a Khmer statue and repatriate it to Cambodia.  Sotheby's auction house in Manhattan and consignor Decia Ruspoli di Poggio Suasa are the claimants trying to stop the forfeiture.

Last month federal prosecutors proposed an amended complaint to the court that raised new allegations in the case, including that the Duryodhana statue was stolen from Cambodia in 1972, was trafficked through Thailand, and that a scientist was fired after having concluded that the sculpture may have been broken for ease of transport.  The claimants' Memorandum of Law in Opposition attempts to block the government’s request for permission to file the amended complaint.  Below are highlights of the claimants’ arguments quoted from their memorandum:

"During oral argument on our motion to dismiss, the Court pressed the Government to identify 'clear ownership established by clear and unambiguous language.' 9/27 Tr. at 126. The Government was unable to do so. The French colonial decrees on which it relied simply do not clearly and unambiguously grant the state ownership of objects like the Statue, and the Government and its expert could not identify even one instance, in the eighty-seven years since the decrees were issued, in which anyone had interpreted those decrees as doing so.

"The proposed amended complaint ('PAC') does not solve this fatal weakness in the Government's case.  The PAC does not identify some newly found law declaring Cambodia the owner of the Statue.  Indeed, it does not identify any law beyond those already discussed in the Government's prior filings.  Instead, the Government now relies on the inherent right of kings.  The PAC claims that a Cambodian king a thousand years ago built the Prasat Chen temple where the Statue's feet were allegedly found, and asserts that the Statue--and anything else from Prasat Chen, no matter when or where found--therefore automatically belongs to the modern Cambodian state.

"No court has ever forfeited property on such a theory, which squarely conflicts with the settled and undisputed law articulated in [United States v.] McClain and [United States v.] Schultz.  According to those cases, due process forbids applying the statutes on which this forfeiture case relies unless the foreign law invoked as the basis of ownership is both clear and unambiguous.  There is no law at all, much less a clear and unambiguous one, declaring either that the ancient Cambodian king owned everything at Prasat Chen when it was built one thousand years ago, or that the modern state of Cambodia now owns everything from Prasat Chen that was abandoned to the jungle fifty generations ago."

"Specifically, the absence of such a [Cambodian patrimony] law also prevents the Government from calling into question the good faith of either Ms. Ruspoli or Sotheby's.  Both were entitled to conclude from the absence of any clear law vesting ownership in Cambodia that the Statue was not stolen when removed from Cambodia. And both were certainly entitled to conclude that it did not remain stolen at the time of import into the United States, almost two decades after the period allotted by English law for Cambodia to make a claim had expired."

"The PAC strains to cast Sotheby's in a bad light by offering selective quotations from very limited portions of the documentary record.  These attacks on Sotheby's are not just untrue; they are unfair, for they are fully rebutted by documents currently in the Government's possession.  For example, the PAC alleges that Sotheby's was ‘inaccurate’ when it told ‘potential buyers, the Kingdom of Cambodia, and United States law enforcement’ that the Statue ‘had been seen in the United Kingdom in the late 1960s.’ PAC 43.  But documents produced to the Government more than a year ago reflect that the Art Historian represented to Sotheby's, in writing, that she herself had ‘[f]irst seen' the Statue at 'Spink & Son ... in the late 1960's while visiting London.' Neiman Aff. Ex. 1 at SOTH-000196. Any inaccuracy cannot fairly be attributed to Sotheby's.  So too, the PAC faults Sotheby's for 'omitting' the Collector's alleged prior ownership of the piece when it described the Statue's provenance. PAC 44.  But the very document the Government cites--a May 2010 email--relates to an instance in which Sotheby's shared this information with representatives of a potential buyer. Neiman Aff. Ex. 2. That Sotheby's later stopped including this information in the Statue's provenance reflects not an effort to conceal an innocuous fact (the Collector is sufficiently well regarded in the field that his books have featured laudatory forwards by Cambodia's Minister of Culture and the Director of its National Museum, and there is no allegation that Sotheby's knew he was linked to a smuggling ring), but rather a change in its understanding of the facts: in June 20 1 0, the Collector himself, in writing, squarely denied prior ownership.  Neiman Aff. Ex. 3."

"Discovery exchanged in this case reveals that the Government had in its possession the 'new' facts alleged in the PAC in mid-July of this year, more than a month before the Government filed its opposition to our motion to dismiss.  Perhaps recognizing that these facts did not address the key problems with its Complaint, the Government made the tactical choice not to seek leave to amend, and instead to hint in its opposition brief that it had new information.  It was only after the Court at oral argument on the motion to dismiss called its case '[not] the strongest,'  9/27 Tr. at 126, that the Government rethought that tactical choice and filed this motion.   The unreasonable and unnecessary delay between when the Government had the information and when it sought leave to amend significantly burdened both the Court and Claimants, and provides an additional basis for denying leave to amend.

"The risk in a case like this is that the Government--even if it lacks any fair basis to proceed--can win simply by making the case more expensive to litigate than the property is worth."

"The Government has now had three full opportunities to state its case: in its opening complaint, in its brief in opposition to our motion to dismiss, and in its proposed amended complaint. The Government has failed all three times to identify a clear and unambiguous law granting Cambodia ownership of the Statue. It has instead responded with three different legal theories, each of which was constructed for this litigation but has-so far as one can tell from the Government's pleadings and the affidavit of its expert-never been applied before to any similarly situated object. None of these theories comes close to meeting the due process test.

Nor has the Government been able to identify facts challenging the good faith of Ms. Ruspoli or her husband, or a reasonable basis to believe that Sotheby's knew the Statue was and remained stolen.  There is no reason to give the Government yet another chance. Leave to amend should be denied, and the Complaint dismissed with prejudice."

Hat tip: Gary Nurkin.

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

New Allegations Raised in Sotheby's Forfeiture Case: Cambodian Statue Stolen in 1972 - Trafficked through Thailand with Head Removed - Scientist Fired [UPDATED]

Federal prosecutors on Friday filed a motion 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 in New York, New York.  The U.S. Attorney's Office for the Southern District of New York filed the petition in Manhattan federal district court following a September 27 hearing on the claimants' motion to dismiss.

The government's case is an attempt to seize, forfeit, and repatriate a statue (the so-called Defendant in rem) offered for auction by Sotheby's this past spring. Sotheby's and Decia Ruspoli di Poggio Suasa are the claimants who want the Duryodhana sculpture to remain under their legal control.  Both claimants have vigorously contested the civil forfeiture action.

Federal lawyers, in their memorandum asking the court to accept the amended complaint, write that "[at the September 2012 hearing] the Court repeatedly inquired as to the facts the Government expected to be able to prove at trial with respect to the theft of the Defendant in rem from Prasat Chen, and Sotheby's knowledge that the Defendant in rem was stolen."  The proposed amended complaint and the supporting memorandum filed on November 9 contain the government's response to the court's inquiry, supplementing information provided by prosecutors in their initial April 2012 court complaint.

The  Duryodhana is alleged by prosecutors
to have passed through Bangkok (above).

The government's latest memorandum contends that the Duryodhana statue "was stolen from Prasat Chen in 1972, with the head removed first and the torso afterwards, and acquired by a well­ known collector of Khmer antiquities (the "Collector"), via an organized looting network. (Am. Compl. ¶  17-18). The Amended Complaint further alleges that the 1975 sale of the Defendant in rem was conducted for the Collector by an auction house which had full knowledge of its illicit origin. (Id. 19-20)."  The amended complaint specifically claims that the Duryodhana and a companion piece, termed "the Museum Statue," were transited through Thailand. "The heads of the statues were removed and transported first, followed by the torsos, and ultimately delivered to a Thai dealer based in Bangkok (the 'Thai Dealer'). The Defendant in rem and the Museum Statue were then obtained by a well-known collector of Khmer antiquities ('the Collector'). At the time of this purchase, the Collector knew that the statues had been looted from Koh Ker," write the government's lawyers.

[Author's sidebar: A companion statue to the Duryodhana, a Bhima sculpture, has been identified at the Norton Simon Museum in Pasadena, California.  Meanwhile, two other related statues are reportedly located at the Metropolitan Museum of Art in New York.  See e.g., PRI's The World.]

The government's memorandum further avers that the "Amended Complaint ... alleges additional facts regarding Sotheby's knowledge that the Defendant in rem was stolen. Among other things, the Amended Complaint alleges that (1) Sotheby's and Ruspoli were aware that the Collector had been the seller of the Defendant in rem in 1975; (2) that Sotheby's consulted with the Collector prior to the importation of the Defendant in rem and throughout the 2010-2011 sale process; (3) that Sotheby's never included information about the Collector's pre-1975 acquisition of the Defendant in rem, or his role as the seller in 1975, in the provenance information it disclosed to the public, potential buyers, the Kingdom of Cambodia, or United States law enforcement; and (4) Sotheby's provided inaccurate provenance information to potential buyers, the Kingdom of Cambodia, United States law enforcement, and others, specifically that the Defendant in rem had been seen in the United Kingdom in the late 1960s, at least three years prior to its actual removal from Prasat Chen. (Am. Compl. ¶ ¶ 21, 29-30, 37, 43-44.)"

The proposed amended complaint specifically claims that "in or around 1974, representatives of [a United Kingdom] Auction House conspired with the Collector and the Thai Dealer to fraudulently obtain export licenses for the Defendant in rem and other antiquities to be shipped to the Auction House in the future."  The proposed complaint asserts that "prospective buyers were unwilling to purchase the Defendant in rem due to its lack of legitimate provenance and missing feet. The Auction House, however, ultimately succeeded in selling the Defendant in rem in 1975, with the torso and head now reattached, to a Belgian businessman, on behalf of a Belgian corporation he controlled. After a transfer to a second corporation, and the death of the businessman, the Defendant in rem was ultimately transferred to his widow, Decia Ruspoli di Poggio Suasa (“Ruspoli”), in 2000."

The amended complaint continues with allegations that an officer in Sotheby's Indian and Southeast Asian Art section "retained a[] professional art scientist (the 'Scientist') to prepare a report on the authenticity of the head of the Defendant in rem and the condition of the work done prior to the 1975 sale to rejoin it to the torso. The Officer informed the Scientist that the head had been separated from the torso 'in antiquity,' rather than in 1972."  The proposed complaint cites an internal Sotheby's email that purports to describe the scientist's observation regarding "the perfect condition of the head compared to the distress suffered by the body." The email allegedly offers the scientist's explanation "that the sculpture was either forcibly broken for ease of transport from the find site and then put back together later OR that the head and torso do not belong together." The government writes that Sotheby's later"terminated the Scientist's engagement."

The government also alleges that Sotheby's agreed to contact the Cambodian government about the sale of the sculpture but advised that "this communication should not come from the senior Sotheby's officer" so as not to attract attention.

The claimant's will have an opportunity to respond to the pleadings filed by the U.S. Attorney's Office.

_________________
UPDATE 11/15/2012

The New York Times reports that Sotheby's denies the claims made by federal attorneys.

The news outlet also writes, "Prosecutors say that in 2010, when the statue was being imported into the United States, the owner submitted an inaccurate affidavit to American customs officials, at Sotheby’s request, stating the statue was 'not cultural property' belonging to a religious site."  This statement has prompted some confusion in the blogosphere, which is important to address here.

By way of background, federal prosecutors allege in both their original complaint and their proposed amended complaint the following:

"In or about late April 2010, Sotheby’s imported the Defendant in rem into the United States in order to offer it for sale at auction. In the commercial invoice prepared in connection with the importation, the Defendant in rem is identified as a 10th Century 'Khmer stone guardian' from Cambodia. The Defendant in rem arrived at JFK Airport on or about April 23, 2010.

"On or about April 26, 2010, at the request of Sotheby's, Ruspoli executed an affidavit that was submitted to United States Customs and Border Protection stating, among other things, '[t]o the best of my knowledge, the [Defendant in rem] is not cultural property documented as appertaining to the inventory of a museum or religious or secular monument or similar institution in Cambodia.'"

This information is not new to the proposed amended complaint.  But some readers may have thought otherwise, given that the latest news in the forfeiture case is the government's petition to file a newly amended complaint.  The New York Times story did not report that prosecutors petitioned to file a new complaint.

Meanwhile, The New York Times' description of the Ruspoli affidavit differs from what is reported by federal prosecutors in their proposed complaint quoted above. The newspaper's truncated description may have opened speculation that federal prosecutors might be attempting to build their forfeiture case on the basis of false statements made to U.S. Customs and Border Protection.  But government lawyers thus far have not presented this argument either in their initial complaint nor in the proposed amended complaint.

Of the several legal grounds on which prosecutors seek forfeiture of the Cambodian sculpture, none is based on the contention that anyone entered false information on customs paperwork in violation of 18 U.S.C. § 542.  That federal statute prohibits the import of goods by means of false statements, and that statute can serve as the basis for a forfeiture of illegally imported goods as it did in the famous case of United States v. An Antique Platter of Gold.  While the government intends to support its forfeiture case by referencing the Ruspoli affidavit, it has not argued clearly how the affidavit should be weighed by the court.  Prosecutors have been careful to not explicitly characterize the Ruspoli affidavit as either false or true. The government, nevertheless, strongly implies that the affidavit in some way supports its legal theory of forfeiture of the Duryodhana statue, but not under 18 U.S.C. § 542.

A final observation. Federal prosecutors are likely aware that the language contained in the Ruspoli affidavit parrots the Cultural Property Implementation Act (CPIA) at 19 USC § 2607, which states, "No article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution in any State Party [to the 1970 UNESCO Convention on cultural property] which is stolen from such institution after the effective date of this chapter, or after the date of entry into force of the Convention for the State Party, may be imported into the United States."  It is important to observe that the government does not argue forfeiture of the Cambodian statue based on a CPIA violation.


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

Arguments Made in Sotheby's Cambodian Statue Case on Motion to Dismiss

The federal district court in Manhattan yesterday heard arguments in the matter of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York.  The United States is seeking the forfeiture of the Duryodhana statue, claimed to have been removed illegally from the Prasat Chen Temple in Koh Ker, Cambodia.

Sotheby's attempted to sell the artifact last spring on behalf of the consignor, Ms. Ruspoli di Poggio Suasa.  But the U.S. government now seeks to repatriate the statue to Cambodia.

Yesterday's argument before Judge George B. Daniels was expected to address the claimants' motion to dismiss and the government's objection.  The court is anticipated to rule on the matter.


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

Federal Attorneys File Motion in Support of Cambodian Statue's Forfeiture from Sotheby's, Arguing the "Signs of Theft Should Have Been Obvious"

"In this case, the signs of  the Statue's theft should have been obvious to a major international art dealer like Sotheby's."  That is what the United States Attorneys Office, Southern District of New York, contends in its objection filed yesterday in the case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York.  A June 5 motion submitted by Sotheby's auction house and Ms. Ruspoli di Poggio Suasa--the claimants--urges the federal district court in Manhattan to dismiss the case.  Federal attorneys have now filed their objection.

The United States government is seeking the seizure and forfeiture of the statue claimed to have been removed illegally from the Prasat Chen Temple in Koh Ker, Preah Vihear Province, Cambodia.  Sotheby's attempted to sell the artifact on behalf of the consignor, Ms. Ruspoli di Poggio Suasa, this spring when prosecutors filed their civil lawsuit against the sculpture, known as the Duryodhana.  The government seeks to repatriate the statue, whose carved feet remain in Cambodia.

Calling the claimant's motion to dismiss a "thinly-disguised effort to circumvent discovery ... and argue the ultimate merits before the Government has had an opportunity to obtain further evidence of their wrongdoing," the federal attorneys, led by Sharon Cohen Levin, forcefully explain that the government's complaint is more than sufficient to justify a forfeiture action.  The lawyers argue, in part, that Cambodian law clearly vests title of the statue in the hands of Cambodia, that the statue was taken from Cambodia unlawfully, and that Sotheby's knew that the statue was stolen.

"Cambodian national ownership laws, in fact, are clear and unequivocal," write the prosecutors, and the laws that award title of cultural property to Cambodia have existed since the 1900's.  Counsel for the United States reject the implication that "the archaeological treasures at Koh Ker were abandoned property, free for the taking by anyone willing and able to cut them off their pedestals."

The government also rejects the claimant's argument regarding Cambodia's alleged lack of enforcement of national ownership laws, arguing that there is no requirement to brief such facts at this stage of the litigation.  Nevertheless, the government points out that it "has gathered substantial additional evidence that Cambodia has enforced its laws, which has also revealed that Sotheby's is intimately familiar with Cambodia's enforcement efforts" because there have been "instances where Cambodia has sought to recover its cultural property from Sotheby's, specifically."

Federal prosecutors assert that the Duryodhana was looted without Cambodia's permission, and they distinguish the case from the Ka Nefer Nefer mask case: "In Mask of Ka-Nefer-Nefer, the district court dismissed the Government's civil forfeiture complaint because the complaint, rather than alleging that the mask was stolen, merely stated that the mask was found to be 'missing' from Egypt in 1973." The attorneys reaffirm that the Duryodhan was stolen from Cambodia at a time when Cambodia's patrimony laws were in operation.

The prosecutors contend that "the allegations demonstrate that Sotheby's was well aware that the Statue had been removed from a temple at the Koh Ker archaeological site." As "a sophisticated participant in the Southeast Asian art market" with a Worldwide Compliance Department, prosecutors allege that "Sotheby's either knew that it was stolen from Cambodia, or 'was aware of a high probability that [it] was stolen and deliberately looked the other way,' either of which would meet the Government's burden."  In fact, the attorneys declare that the auction house's actions, which followed a scholar's warning that the statue was stolen, was part of "behavior of a company trying to sell artwork it knows to be stolen if it can figure out how to get away with it."

Sotheby's will have a chance to respond to the government's claims by September.

All quotes are taken from the Memorandum of Law in Support of the Government's Opposition to Claimants' Sotheby's, Inc. Ms. Ruspoli di Poggio Suasaof's Motion to Dismiss.  Citations have been omitted.

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

Federal Attorneys and Sotheby's Agree to Keep Designated Information Confidential in U.S. v. A 10th Century Cambodian Sandstone Sculpture

Image courtesy of officeclipart.com. 

Attorneys for both Sotheby's and the United States have signed a stipulation dated June 29 to keep designated information confidential.  Published on July 2 in the forfeiture case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's, the stipulation says that relevant documents can be kept secret in pleadings and hearings if the information reveals Sotheby's:

• potential, current, or past clients,
• any consignment agreements or sales,
• proprietary aspects of the auction house's compliance program, and/or
• its sales strategies.

The stipulation allows Sotheby's to mark such information "CONFIDENTIAL," and the government may challenge the designation.

Specific documents that are to be kept confidential include a "Family Agreement" and a "Sales Agreement for Works of Art" supplied by Decia Ruspoli di Poggio Suasa, the reported consignor of the Cambodian sculpture to Sotheby's.

Meanwhile, lawyers for the United States may request that Sotheby's produce non-confidential documents with confidential information redacted.  At the conclusion of the case, secret information shall be returned or destroyed according to the terms of the stipulation.

The U.S. Attorney for the Southern District of New York petitioned a federal district court in April to seize and forfeit the temple statue, alleging that it was "illicitly removed from the Prasat Chen Temple at the historic and archeological site of Koh Ker, Preah Vihear Province, Cambodia."  Sotheby's filed a motion to dismiss the claim in June.  A hearing on the motion is currently scheduled for September 27.

Given that the forfeiture case is a public matter launched by federal officials and not a lawsuit between private parties; given that the case involves alleged violations of the federal customs law rather than violations of terms of a private contract; and given that compliance methods with respect to public laws on import and/or penal matters are at issue in the case as opposed to trade secrets, the stipulation will perhaps be the subject of debate by observers of the case.

CONTACT: www.culturalheritagelawyer.com
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Sotheby's Asks Federal Court to Dismiss Forfeiture Case Against Cambodian Statue

Sotheby's auction house and Ruspoli di Poggio Suasa yesterday filed a motion to dismiss the forfeiture case against a Khmer statue.  U.S. Attorney Preet Bharara brought the seizure and forfeiture action of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York on April 4. The government's complaint alleges that the statue, which was put up for sale at the auction house this spring, was "illicitly removed from the Prasat Chen Temple at the historic and archeological site of Koh Ker, Preah Vihear Province, Cambodia."  The case is in the federal district court for the southern district of New York.

Prosecutors cite alternative theories to advance their forfeiture claim. They write that "there is probable cause to believe that the [statue] is stolen property introduced into the United States contrary to law" in violation of customs law 19 U.S.C. §1595a(c).  Prosecutors alternatively say that the statue is subject to forfeiture under the criminal anti-smuggling law 18 U.S.C. § 545 because there is probable cause to believe that the statue "has knowingly been brought into the United States contrary to law."  And prosecutors maintain that the statue may be forfeited as proceeds of a theft crime under 18 U.S.C. § 981(a)(1)(C) and the National Stolen Property Act.

Ms. Ruspoli di Poggio Suasa says that her husband bought the Cambodian statue in 1975 in London "in good faith in an arms-length, open market transaction" and that "[t]he couple brought the Statue to their home in Belgium, [where] it remained on display until it was shipped to New York in 2010 to be sold at auction by claimant Sotheby’s, Inc."  Both Sotheby's and Ruspoli di Poggio Suasa are the named claimants in the government's forfeiture action.

The claimants' June 5 motion to dismiss makes the three-pronged argument that "[t]he Government has not alleged sufficient facts to establish a reasonable basis to believe it could meet its burden of proof at trial to show that the Statue was stolen from Cambodia, that it remained stolen at the time of import, and that it was known to be stolen by either Sotheby’s or Ms. Ruspoli."

The claimants challenge the prosecution's assertion that the statue was stolen from Cambodia.  They contend that colonial laws from 1900 and 1925, arguably vesting ownership of the statue in Cambodia, are ambiguous.  "Because the Colonial Decrees do not clearly and unambiguously declare that Cambodia owns the Statue, as a matter of law the removal of the Statue from Cambodia did not render the Statue stolen property," the claimants' attorneys argue.

The decrees were not even enforced, the attorneys suggest: "The [government's] Complaint is silent on whether Cambodia has ever before, in any context, enforced the Colonial Decrees as granting the state ownership of antiquities. Emails incorporated by reference in the Complaint reflect that Cambodia’s Culture Minister did not intend to seek to reclaim objects that left Cambodia 'years ago,' . . . before Cambodia’s 1992 law expressly nationalized antiquities. Another document incorporated by reference in the Complaint shows that Cambodia recognizes that the Companion Statue—which is similarly situated with regard to the Colonial Decrees cited by the Government—'belongs to' a Los Angeles museum [the Pasadena based Norton Simon Museum]." (Citations omitted).

The claimants argue that "[e]ven an apparently clear foreign law does not vest ownership if the foreign state has not actually enforced its own law as granting it title. . . . This rule prevents a country unwilling to take the politically unpopular step of seizing antiquities from its own people from asking this country [the U.S.] to do so on its behalf. It also prevents a country from 'rediscovering' laws that have previously not been enforced, thereby unsettling the reasonable expectations that have developed about the meaning of those laws."

The claimants additionally contend that there is no evidence showing that the statue was taken without Cambodia's permission.  "An essential element in proving that the Statue is stolen is establishing that its removal was without the permission of appropriate government authorities." They compare the case to the government's failed effort in federal district court to forfeit the mummy mask of Ka Nefer Nefer located at the St. Louis Art Museum:  "In Ka-Nefer-Nefer, the Government at least had evidence that the statue was once in the foreign state’s actual possession and that there was no record of a subsequent sale or gift. Here,the Government has not alleged that the Statue was ever in the actual possession of the Cambodian government, and the Government makes no allegation of the absence of gift or sale records. Nor, in any event, would the absence of such records be probative, given the passage of time, the intervening turmoil in Cambodia, and the widespread destruction of property records."

The claimants further declare that the government is unable to show that the statue was in Cambodia at the time the colonial decrees vesting title of the statue in Cambodia were enacted. "The Colonial Decrees on which the Government relies are only relevant if the Statue was still in Cambodia after 1900. . . . The Complaint, however, cites and incorporates powerful evidence that the Statue was not in Cambodia at the relevant time." (Citations omitted).  That evidence is the Parmentier survey.  The claimants' attorneys write that "[t]he Parmentier Survey, published in 1939, devotes five pages to a detailed description of the Prasat Chen temple, including the Western Gopura where the Statue supposedly stood, but contains no reference at all to the large and imposing stone Statue (or its companion). The only reasonable conclusion is that the Statue was not at Koh Ker when the Parmentier Survey was conducted."

The claimants' lawyers argue that "[e]ven if the Government has pleaded sufficient facts to establish that the Statue’s removal from Cambodia constituted theft (which it has not), the Complaint must still be dismissed for the independent reason that the Government has not met its burden of alleging facts showing the Statue remained stolen at the time of import."  The attorneys maintain that Sotheby's imported the statue legally, saying that "the assertion that Sotheby’s imported property it knew was stolen is, on its face, wholly implausible. Sotheby’s, after all, fully and accurately described the Statue to the U.S. Customs Service at the time it was imported, put the Statue on the cover of the auction catalogue it circulated publicly around the world, accurately described the Statue’s provenance in that catalogue, and disclosed its intent to sell the Statue to the Cambodian Minister of Culture months in advance of the planned sale. Those are hardly the acts of a 'fence' knowingly selling stolen loot." (Citations omitted). The attorneys add:

"[Sotheby's] would have to have known at the time of import into the United States that Cambodian law in effect when the Statue was still in Cambodia gave that country title to the Statue. That is, Sotheby’s would have had to anticipate that Cambodia and the U.S. Government would take the position that a tangled, unclear patchwork of French colonial texts—no longer anywhere on the code books of the modern nation of Cambodia—decreed the Statue to be state property within the rules set down by McClain and Schultz. Yet the Colonial Decrees the Government cites are sufficiently obscure that even the Government has been unable to locate a fully legible version of the central decree on which it relies—the 1900 Colonial Decree—which it appears in any event was itself subsequently declared illegal."

[Author's sidebar: the McClain and Schultz cases stand for the proposition that a foreign patrimony law that clearly vests legal title in a cultural object may be used as a basis to trigger prosecution in the United States under the National Stolen Property Act in cases involving those who criminally receive property of another.]

Finally, the claimants object to the assertion that they knew the statue was currently stolen.  The government cited a June 1 email by a scholar who advised Sotheby's that the statue was "definitely stolen."  The attorneys for the claimants express that "the Government bears the burden of proving its case by a preponderance of the evidence. The June 1 email, however, is insufficient to create the required reasonable basis to believe the Government will be able to meet its burden at trial."  The lawyers argue:

"First, the view expressed in the Art Historian’s email—that the Statue is 'definitely stolen' because the feet of the Companion Statue were found at Prasat Chen—is a non sequitor as a legal matter. As the law set forth above makes clear, knowing the place of origin is but one piece of a complex puzzle necessary to assessing whether an antiquity is stolen in the legal sense. It is hardly reasonable to think that Sotheby’s—which the Complaint alleges (at ¶ 18) had both a Worldwide Compliance Department and a Worldwide Legal Department tasked with dealing with such issues—would have formed its belief about whether this Statue was stolen based on the unsolicited opinion of a free-lance Art Historian who offered no view on such critical questions as when the Statue left Cambodia, who owned it under Cambodian law at that time, or what was the significance of the 1975 London sale. And, more importantly, even if the June 1 email had some modest force standing alone, it is completely undercut when one considers the subsequent emails incorporated by reference in the Complaint regarding what the Art Historian said and did shortly thereafter."

Further arguing their point, the claimants' attorneys submit::

"In late June, after traveling to Cambodia and speaking to Cambodia’s Minister of Culture, the Art Historian changed her opinion and retracted her concern that the Statue was stolen. As the Art Historian’s emails to Sotheby’s reflect, the Minister of Culture advised her that his focus was 'to stop anything from being exported from Cambodia now, not to go after pieces that left years ago when there were no restrictions.' He also assured her that Cambodia had no intention of seeking to reclaim the Companion Statue—a telling fact since (a) the Cambodians knew the Companion Statue’s feet had been found at Prasat Chen, and (b) the Companion Statue had a similar known provenance, having been sold by Spink [the London antiquities dealer] several years after the Statue. This new information both revealed that Cambodia was not actively enforcing the Colonial Decrees as vesting title . . . (because they did not plan to attempt to reclaim a work with similar provenance), and undermined any characterization of the Statue as stolen (since it was removed 'years ago when there were no restrictions'). It is hardly surprising that the Art Historian changed her mind, stating that: 'I think that Sotheby [sic] can therefore go ahead and plan to sell' the Statue, and that she 'think[s] that legally and ethically [Sotheby’s] can happily sell the piece.' Repeatedly thereafter, the Art Historian reiterated via email her view that Sotheby’s could lawfully sell the Statue, including: 'It was acquired legally, there should be no problem' and 'The piece was legally obtained, so can be legally sold.'" (Citations omitted).

The claimants conclude by saying that "the Government may not seize property by inventing new interpretations of colonial laws long since consigned to dusty archives, while ignoring the archeological record, settled law, and compelling indicia of good faith."

UPDATE August 2012: See the government's objection to the motion to dismiss.

CONTACT: http://www.culturalheritagelawyer.com/