Claimant Steps Forward in Peruvian Artifacts CPIA Forfeiture Case

It is noteworthy when a claimant steps forward to challenge a cultural property forfeiture complaint filed in federal district court. It does not happen often. But it happened yesterday when lawyers for Jean Combe Fritz filed a petition to recover Peruvian objects seized at Miami International Airport in Florida.

Many forfeiture cases are rooted in the claim that cultural property was brought to the United States in violation of a federal criminal law. That can alarm claimants who may find it easier to walk away from the allegedly stolen or smuggled goods rather than risk facing potential criminal charges or paying expensive lawyers' fees. The dinosaur forfeiture case of Eric Prokopi is a good example of a claimant's forfeiture challenge resulting in a criminal conviction.

Where the government alleges a violation of a Convention on Cultural Property Implementation Act (CPIA) import restriction, claimants may feel that they are on sturdier legal ground to make an ownership claim. There is an argument that CPIA seizures and forfeitures allow for the added remedy of a criminal prosecution against an individual wrongdoer, and U.S. v. Perez is a supporting case. But there is a competing view that the CPIA's civil remedy of forfeiture is exclusive, precluding possible criminal prosecution.

U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru is one forfeiture case based on a violation of the CPIA. Fritz says the Peruvian objects are his, and he has filed a pleading in the southern district of Florida to reclaim the cultural goods seized by customs authorities. We shall watch to see what happens next.

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

Justice Department Files Brief in SLAM Mummy Mask Appeal, Claiming "Clear Abuse of Discretion"

One year after the U.S. Attorney filed a notice of appeal in the St. Louis Art Museum (SLAM) mummy mask case, the Justice Department yesterday submitted an appellate brief critical of the the U.S. District Court, Eastern District of Missouri. The government faults the lower court for refusing to allow prosecutors to file an amended forfeiture complaint after the court ruled that the original complaint was legally insufficient.

"The court’s orders constitute a clear abuse of discretion," the government's brief contends. "The district court cited no basis for departing from the principle that a party should be given at least one opportunity to amend a complaint whose allegations have been found deficient."

Litigation to reclaim the Ka Nefer Nefer mummy mask began in February 2011 when SLAM sued the U.S. government in order to assert ownership over the artifact. The government responded immediately by filing an in rem action against the mask to forfeit it, later arguing in July 2011 that the mask constituted illegal contraband that could not be possessed. But Judge Henry Autrey brought the government’s case to a seeming end in April 2012 when he concluded that the government's forfeiture complaint failed to specifically articulate how the mask was stolen and smuggled, or how it was brought into the U.S. contrary to law.

The U.S. Attorney's Office filed a motion to reconsider the judge's order, arguing that its forfeiture complaint did not need to be more specific. But in May 2012, the government revealed a wealth of new information, which it said it would enter in a new amended complaint.  Judge Autrey denied the motion. 

Federal prosecutors then proposed an amended complaint in June 2012. The government's lawyers more forcefully alleged that the parties either knew the mummy mask was stolen, unlawfully exported, or illegally imported, or that they were willfully blind to the fact that the mask's "purported provenance was fictional." Just weeks later the court repeated that the case was dismissed, and federal lawyers filed their notice of appeal.

The case remained on hold from June 2012 through April 2013 as all sides reportedly engaged in talks to settle the matter out of court.  Those negotiations failed, and yesterday's court filing renews the litigation.

The U.S. government's attorneys argue, "A dismissal for want of adequate allegations is generally without prejudice, and a party is customarily permitted to amend its complaint at least once to cure deficiencies." "The court denied the motion to file the amended complaint out of hand without addressing any of its new allegations" raised by the proposed amended complaint.

Federal lawyers add,

Even following dismissal, leave to amend should be freely given, and “an outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). The First Amended Complaint specifically addressed the deficiencies cited by the district court in the original complaint, and the court abused its discretion in summarily rejecting the filing without considering its allegations.

The attorneys complain that the "district court denied the United States’ repeated requests for leave to file an amended complaint, without evaluating the legal sufficiency of the substantial new allegations in the proffered amended complaint that sought to cure the deficiencies the district court identified in the initial complaint."

The government's lawyers cite Federal Rule of Civil Procedure 15(a)(2)'s recommendation that "[t]he court should freely give leave [to amend a pleading] when justice so requires." They want the district court to assess their allegations that an archaeologist excavated the mask in 1952 in Saqqara, Egypt; it remained under the custody, control, and ownership of Egypt; the mask was discovered missing in 1973; and there was no authorization that it could be sold or transferred, so SLAM could not have acquired valid title to the Ka Nefer Nefer mask when it purchased it in 1998 from Phoenix Ancient Art, S.A.

SLAM is expected to file a reply brief in the near future.

Photo credit: creationc

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

Reply Filed by ACCG in Ancient Coins Test Case

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

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

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

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

The ACCG seeks a jury trial on these issues.

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

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

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

Illegal Gambling and Money Laundering Prompt Forfeiture Complaint for Artwork

Prosecutors have filed a complaint in federal district court in Oklahoma City to forfeit artwork and other property allegedly connected with illegal gambling and money laundering.

Court papers filed on June 7, 2013 reveal that the Federal Bureau of Investigation (FBI) probed an enterprise based in Panama City, Panama, which allegedly conducted illegal internet gaming in the United States. Prosecutors claim that nine pieces of unspecified artwork seized by authorities in April are connected with the millions of dollars generated from the operation.

An FBI affidavit describes the alleged racket as having "established a number of business payment services, and financial schemes to help hide the nature of the gambling activity and to launder the money utilized to operate the illegal gambling enterprise."

Thirty-four defendants from the U.S., Canada, and Panama have been indicted in the Western District of Oklahoma on charges of illegal gambling, money laundering, and Racketeer Influenced and Corrupt Organization (RICO).

Besides art, other property singled out for forfeiture include money, real estate, jewelry, champagne, and memorabilia located in Arizona, Alabama, California, and Colorado.

Photo credit: sabercat

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

Black or White? Carved Rhino Horns Sold at Auction, Targeted for Forfeiture

Carved rhinoceros horns sold at auction are now the subject of a federal forfeiture complaint. The U.S. Attorney's office in New Jersey recently filed papers in federal district court claiming that the carved horn cups are legally banned objects subject to seizure and forfeiture.

Prosecutors allege in U.S. v. Two Black Rhinocerso (Diceros Bicornis) Horn Carvings that I.M. Gallery in Beverly Hills, California sold the horns to an overseas buyer for $220,000. They claim the objects are subject to forfeiture under the Endangered Species Act (ESA) and the Lacey Act, which regulate endangered wildlife species possessed, purchased, or offered for sale. The lawyers also argue that the horns are subject to forfeiture as "contrary to law" under 19 U.S.C. § 1595a(d).

The government writes in its May 21st complaint, "The price of libation cups made from rhinoceros horns has increased greatly in recent years." They are highly coveted in a "thriving black market" as rhinos continue to face extinction.

Federal prosecutors allege I.M. Chait Gallery featured the carved horns on the cover of the gallery's catalog for the 2011 Asian and International Fine Arts Auction. The pieces were described as Chinese, “PAIR ANTIQUE CARVED RHINO HORN VESSELS." The gallery claimed that the objects were made from a white rhinoceros, according to the complaint.

U.S. Fish and Wildlife (USFWS) investigated the horns as the shipper prepared the objects for delivery. Export paperwork listing confused information about age ("antique" but "less than 100 years old") and species identification (white rhinoceros) led authorities to test the items. The National Fish and Wildlife Forensics Laboratory "positively identified them as carved from black rhinoceros (Diceros bicornis) horn."

The black rhinoceros is listed among the most protected endangered species in the appendix of the Convention on International Trade in Endangered Species. That treaty is implemented in the U.S. by the ESA.

Federal prosecutors explain that "a special agent of the USFWS received a voicemail message from I.M. Chait, who stated, in substance, that he was not certain what species of rhinoceros horn the carvings were made from, [and that] he (Chait) knew they were 200 years old, and therefore considered antique." The government adds to its complaint that "I.M. Chait further stated that since the carvings were antique, the specific rhinoceros species should not matter."

The buyer contacted authorities to explain, "Had I known these are the Black Rhinoceros Carvings, I would never never have risked my hard earned money from my personal savings (over $200,000) to buy them. . . . I would really appreciate if you could return these items to me. However, I am also comfortable to keep these items in US as my personal collection in [the] future in case you and US Customs think they can't be shipped out of US. But to confiscate them will be devastating to my personal finance and my life in general."

Photo credit: mordoc

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

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

U.S. Attorney Files Complaint to Forfeit Peruvian Artifacts Seized at Miami International Airport

Federal prosecutors in Miami on Friday filed a complaint to forfeit ancient artifacts from Peru. The office of U.S. Attorney Wilfredo Ferrer (right) alleges that Peruvian citizen Jean Combe Fritz transported 29 banned heritage objects on a flight to Miami International Airport on August 21, 2010. U.S. Customs and Border Protection (CBP) detained the items following a secondary examination of Combe's luggage that revealed "ancient indigenous artifacts."

The court pleading cites a violation of the Convention on Cultural Property Implementation Act (CPIA). The CPIA is the federal law that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Under the terms of the CPIA's Memorandum of Understanding (MoU) between the U.S. and Peru, designated cultural heritage materials from Peru are restricted from America's shores unless authorized.

The U.S. Attorney's verified complaint recites that Dr. Carol Damien Ferrer, Pre-Columbian art expert at Florida International University, concluded that the cultural objects were the kind of archaeological and ethnological material covered by the MoU. Luis Chang, Minister Counselor of the Embassy of Peru, also confirmed that the MoU covered the detained items.

Ferrer's office subsequently filed a forfeiture action in the U.S. District Court for the Southern District of Florida, asserting:

the United States has a reasonable basis to believe: that the defendant artifacts were produced by indigenous tribal people in Peru during the Pre-Columbian period, or in the Colonial period; that they are important to the cultural heritage of the Peruvian people; that they are designated Pre-Columbian and Colonial  textiles, metals, lithics, and perishable remains as listed in 19 C.F.R. 12.104(g) and are thus subject to export control by Peru.

The Defendant Artifacts were imported into the United States without any certification from Peru that the exportation of the artifacts from Peru was lawful under Peruvian law, as required by the CPIA, 19 U.S.C. § 2606(a).

The objects seized by CBP include a Moche bone carving (left), a 12 piece Inca burial bundle, an Early Horizon/Chavin stone carving, a Moche copper and bronze spatula, a Nazca mantle, and a Chimu weave fragment.


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

Failed Negotiations Put Ka Nefer Nefer Forfeiture Case Back on the Docket

The U.S. Attorney in St. Louis today told the Eight Circuit Court of Appeals that negotiations have failed in the case of United States v. Mask of Ka Nefer Nefer. Federal authorities are attempting to seize and forfeit the mummy mask from the St. Louis Art Museum and hope to return it to Egypt.

The federal district court in St. Louis twice dismissed the case last year before prosecutors filed an appeal to the higher court. But prosecutors told the appeals court in a January 17, 2013 status report that negotiations might resolve the matter. "It is the hope of the parties that this meeting will result in the parties and the Republic of Egypt coming to terms that will settle this matter in its entirety, such that no further appellate proceedings will be required," the report explained.

Today's report, in contrast, closes the door on any negotiated settlement. It announces:

"In the interim between the United States’ last status report and the present date, the parties have continued to confer in good faith in an attempt to reach an amicable resolution of this case. Unfortunately, the parties’ attempts have so far been unsuccessful, and the United States no longer believes that a nonjudicial resolution of this case is likely in the foreseeable future."

The case will be placed back on the court docket and proceed to appellate litigation.

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  Photo credit woofwoof.

Prosecutors Seize and Petition to Forfeit Artworks Linked to Money Laundering

U.S. Attorney Paul Fishman

Federal prosecutors have seized and petitioned to forfeit 14 crates of art allegedly used to launder money. In the case of U.S. v. Various Pieces of Artwork, U.S. Attorney Paul Fishman filed an in rem action in New Jersey federal district court on February 22, 2013 targeting 2,251 items, mostly photographs.

Between 2007 and 2012, the CEO of Green Diesel and Fuel Streamers and associates "fraudulently created and sold credits for renewable fuels that were never produced," declares the U.S. Attorney's forfeiture complaint. The parties "laundered the proceeds of their fraudulent activities by layering the proceeds through multiple bank accounts and by purchasing artwork, some of which was shipped to Newark, New Jersey, as part of an effort to hide the proceeds of the fraud and remove the proceeds from the United States ...."

The purchases totaled $18 million, say prosecutors, adding that "a substantial amount of artwork" was to be moved to Spain via the Netherlands after having been transported to Houston, Texas, and Newark, New Jersey.

Federal attorneys cite financial records showing purchases from seven dealers and galleries, including Sotheby's, Heritage Auction Galleries, and Swann Galleries. No wrongdoing is alleged to have been committed by any sellers.

The pieces targeted for forfeiture include photographs by André Kertész, Edward Weston, Eugène Atget, and Alfred Stieglitz.

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

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

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

Photo credit: David Lat

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

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

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

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

New York Prosecutors Seek to Forfeit Ancient Egyptian Artifacts

­­­The U.S. Attorney’s Office for the Eastern District of New York on March 20 filed a complaint in federal court seeking to forfeit five ancient Egyptian objects. U.S. Customs and Border Protection (CBP) seized the items in 2010. The artifacts include:

• 

  Amarna-style carving in Egypt.  Photo credit: PocketAces

  An Amarna Period sunken limestone relief of offering bearers with an appraised fair market value of $18,000.
• A Late Period fragment block statue made of gray schist, having an appraised fair market value of $12,000.
• A New Kingdom limestone relief displaying the arms of offering bearers, appraised at $2,000.
• A New Kingdom limestone relief depicting a man, valued at $5,000.
• A Middle Kingdom funerary boat valued at $20,000.

Government lawyers write that the archaeological material arrived in a FedEx shipment on August 20, 2010 at Newark's Liberty International Airport. The ancient Egyptian objects "were sold in and exported from Dubai, UAE by Hassan Fazeli Trading Company, LLC (‘Fazeli Trading’). [They] were purchased and imported by [Salem] Alshdaifat, by and through Holyland [Numismatics],” allege the prosecutors.

[Sidebar: Alshdaifat, owner of Holyland Numismatics, pleaded guilty on December 21, 2012 to a reduced charge of misdemeanor accessory after the fact in the cultural property case of U.S. v. Khouli et al. The present forfeiture case, however, is not directed against Alshdaifat as it is a civil matter naming the ancient Egyptian artifacts as the defendants in rem.]

The government argues that the objects should be forfeited because of false statements regarding the reported values of the cultural artifacts, false statements about the country of origin, and false declarations made to customs regarding their descriptions.

Prosecutors cite four legal grounds. First, they argue that the objects must be forfeited under 18 U.S.C. § 545 (smuggling) because the archaeological material "are goods or merchandise smuggled, clandestinely introduced into the united States, imported contrary to law ....” Second, the artifacts constitute unlawfully imported merchandise under 18 U.S.C. § 545 and/or 18 U.S.C. § 542 (false statements). Third, they "were imported into the United States without the merchandise invoices setting forth accurate information necessary for proper appraisement, examination and classification” in violation of 19 U.S.C. § 148.  Fourth the cultural items "were not imported into the United States with reasonable care to make entry therefore by filing with the CBP documentation and information necessary to determine whether the  [objects] may be released from custody of Customs and Border Protection” contrary to 19 U.S.C. § 1484 (a)(1).

The forfeiture complaint alleges that the value of the goods was understated. The government hired National Appraisal Consultants, LLC, who estimated the fair market value of the archaeological objects to be $57,000. But the import value reported to CBP was below that figure.

The government, meanwhile, claims that discrepant values were placed on customs forms and invoices. Prosecutors write, "The value declared on the FedEx airwaybill and the Fazeli Trading invoice to Holyland was $17,500. The value declared on the Customs Form 3461 was $1,334. The value declared on the Customs Form 7501 was $17,881, broken down into one line item valued at $17,500 and a second line item valued at $381. No invoice was provided for the second line item.” Moreover, “The Fazeli Trading invoice lists four items sold to Holyland: one 'Ancient Egyptian Wooden Boat' ... for $3,500 and three 'Ancient Egyptian Stone Fragment[s]' for $14,000, for a total of $17,500. This information is repeated on the Commercial Invoice supplied to FedEx Brokerage. Although the shipment contained four stone fragments, both invoices state that there were only three stone fragments sold. Neither invoice reflects an object sold for $381."

The government's complaint also argues the listing of a false country of origin. While prosecutors point out that “[t]he Fazeli Trading invoice and Commercial Invoice describe the Defendants inrem as ‘Ancient Egyptian,’” the lawyers add that “the Commercial Invoice listed the ‘country of manufacture’ as ‘Turkey.’” Government attorneys additionally say that “the documents available to Customs upon the shipment's arrival … did not list Egypt as the country of origin or country of manufacture ….” Prosecutors specify that “[t]he country of manufacture declared on the FedEx airwaybill was Turkey, [t]he country of origin declared on the Customs Form 3461 was the UAE, [t]he country of origin declared on the Customs Form 7501 was ‘Multi.’”

The government's complaint additionally alleges false descriptions, arguing "The Fazeli Trading invoice and Commercial Invoice list only three stone fragments, while there were in fact four stone pieces in the shipment...." The complaint also claims that the import description of "Stone Wooden Antique Lime" was inadequate. Morevoer, the listed Harmonized Tariff Schedule (HTS) 9703 number, which designates original sculptures and statuary, was off target say the prosecutors.  The government alleges that when CBP detained the archaeological objects the importer of record supplied a new HTS number of 9706.00.0060, which covers antiques over 100 years old. The objects should have been classified as HTS 9705.00.0070, argue prosecutors.  HTS 9705.00.0070 covers collections and collectors' pieces of archaeological, historical, or ethnographic pieces.

 The government's complaint states that Alshdaift filed a response to the CBP seizure, writing

"Alshdaifat and Holyland submitted a petition for remission through counsel dated September 23, 2010. In his petition, Alshdaifat claimed that he 'conducted his due diligence' to ensure that the [objects] 'were not stolen from Egypt.' In particular, Alshdaifat averred that he had asked Hassan Fazeli, proprietor of Fazeli Trading, about the origin ... to which Fazeli responded that [they] had been part of a private Turkish collection of decorative antiques that he purchased in 2008. Alshdaifat also submitted a copy of Fazeli's export commercial invoice and UAE Customs declaration which purportedly established Fazeli' s purchase and importation of the private collection.”  The forfeiture complaint notes that “none of the items described in the export commercial invoice for Fazeli's purchase correspond to the [objects]."

The forfeiture case is docketed as 13-CV-1462.

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