Statues From New York's Met Museum Repatriated to Cambodia

Video source: AFP

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

It's Time to Talk About Repatriation Options for the Private Collector

Last weeks' decision by the Metropolitan Museum of Art to repatriate two 10th century Khmer statues to Cambodia prompted a thoughtful response from Professor Patty Gerstenblith that focuses on the important matter of private collectors and repatriation.

In an opinion letter published by The New York Times, the director of the Center for Art, Museum and Cultural Heritage Law at DePaul University College of Law writes, "The Met is leading the way, along with other museums ... in deciding that restitution accompanied by cultural property agreements establishes mutually beneficial relationships that allow the world’s cultural heritage to be shared with the American public in ways that ensure the objects’ authenticity and impart knowledge as well as beauty."

Prof. Gerstenblith pointedly adds, "While public institutions can benefit from these agreements, it is less clear that the private collector can do so. The challenge now is to create incentives for private restitution that can produce comparable mutual benefits."

Creating safe and easy repatriation options for private collectors who discover that they are in possession looted, stolen, or smuggled cultural property is an important matter for discussion. No mechanism currently exists that smoothly facilitates the repatriation of contraband cultural heritage without exposing innocent collectors or good faith purchasers to potential legal and financial risks. There is no equivalent "Gun Buy Back Program" or "National Prescription Drug Take-Back Day" for archaeological, paleontological, ethnological or other cultural heritage items. That is why a conversation among policymakers, archaeologists, collectors, dealers, auction houses, and other stakeholders needs to take place.

Photo credit: Gytizzz

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

The Law of Repatriation under "The Great Giveback"

Hugh Eakin's New York Times  commentary titled "The Great Giveback" is flawed.  The opinion piece argues that museums "are supposed to be in the business of collecting and preserving art from every era, not giving it away."  But Lee Rosenbaum and several others have correctly highlighted many of the article's problems.  Some legal observations are worth mentioning here.

"The Great Giveback" overlooks the general principle that stolen property cannot be owned lawfully or that contraband antiquities (smuggled antiquities) are legitimate. The article instead appears to encourage museums to retain tainted antiquities so long as they "have not been compelled by any legal ruling to give up the art."  This assertion is fraught with risk for museums.

Waiting for a court order to demand the repatriation of stolen or smuggled artifacts when potential settlement options are available disrespects the rule of law and undercuts a museum’s reputation.  Attorneys, museum directors and trustees, museum donors, the general public, and the courts likely would not support the courtroom clashes resulting from "The Great Giveback's" call to legal arms.  Museums are highly respected, and there is an expectation that they will "do the right thing" by finding acceptable legal solutions before initiating or inviting litigation that might result in the forced return of stolen or smuggled property.

Etruscan kalpis returned to Italy.  ICE

Few museums welcome judicial oversight, which is a rare occurrence.  But it happened recently in a matter involving an illicit kalpis purchased in good faith by the Toledo Museum of Art (TMA).  Reported delays slowing the resolution of that case prompted the intervention of federal prosecutors. The matter concluded last year with a federal court order from the northern district of Ohio compelling the TMA--with the museum's assent--to forfeit the Etruscan jug to Italy.  Both the museum's lawyer and its new director agreed to "the seizure of the Kalpis by HSI [U.S. Homeland Security Investigations], the judicial forfeiture of the Kalpis pursuant to 19 U.S.C. § 1595a(c)(1), and the return of the Kalpis to the Italian Government following forfeiture to the United States," according to the June 22, 2012 order.  The court ordered the seizure and forfeiture of the kalpis from the TMA because the jug constituted stolen property unlawfully imported into the United States.  This example offers a mild preview of Eakin's sought after "legal ruling to give up the art," which museums themselves should not hope for unless their trustees desire judicial supervision.

Eakin, meanwhile, maintains that unnamed "[c]ultural property lawyers say it is doubtful that foreign governments could have successfully claimed in court most of the works museums have handed over to them." This assertion is specious.

Looking once again at the TMA kalpis case, federal prosecutors likely would have been successful had they litigated the matter under 19 U.S.C. § 1595a(c)(1)(A).  That law authorizes forfeiture when "[m]erchandise ... is introduced or attempted to be introduced into the United States contrary to law," specifically when the merchandise "is stolen, smuggled, or clandestinely imported or introduced."  The "probable cause" or "proof by a preponderance of the evidence"standards of proof used in civil forfeiture cases are lower than "proof beyond a reasonable doubt." "Probable cause" would simply require federal attorneys to show that the jug’s import more probably than not violated the law, which is not a high standard.  "Preponderance of the evidence" asks on whose side is the greater weight of the evidence.  Investigators in the kalpis collected compelling evidence for a jury to readily conclude that the Etruscan jug was stolen, smuggled, and clandestinely imported into the United States.  The Ohio district court's final order outlines the following information:

"1) an export license from Italy’s Ministry of Culture does not exist for the Kalpis which was alleged to have been originally purchased in 1935 by a private Swiss collector after Italy’s cultural patrimony laws originally took effect in 1909,

2) a Polaroid photograph was discovered amongst the entire Becchina archive of documents, invoices and photographs seized during a search warrant in Basel, Switzerland on February 23, 2002,

...

4) the Polaroid photograph appears to show mud on the Kalpis itself along with dirt on the actual photograph which demonstrates that the Kalpis was photographed in a non-institutional setting long after 1935, its alleged original sale date to the private Swiss collector,

5) similar Polaroid photographs of the Kalpis were seized during a search warrant executed in Geneva, Switzerland on September 12, 1995 at the offices/warehouse of Giacomo Medici (“Medici”), a known Italian art smuggler, who was convicted and sentenced in December 2004 by the Tribunal of Rome for violating Italy’s law of criminal association with the intent to receive stolen archaeological artifacts illegally removed from Italy’s cultural patrimony,

6) Medici’s sentencing document states that the Kalpis was sold by Medici to Becchina,

7) Medici’s sentencing document directly contradicts the information contained in the provenance and invoice provided by Becchina to the Museum at the time of purchase on August 26, 1982, that the Kalpis was (a) purchased by a private Swiss collector in 1935 at an art market and (b) sold by Karl Haug (“Haug”), the alleged son and heir of the private Swiss collector, to the Becchinas in 1980,

...

9) Ursula Becchina provided evidence after her arrest establishing that Gianfranco Becchina collected artifacts illegally in Italy from diggers and from Medici and provided fake documentation to create a provenance for the artifacts including other vases from southern Italy,

10) Ursula Becchina also provided evidence after her arrest establishing that she and Becchina used fake documents to create false provenances for other illegally obtained artifacts attesting to Haug as owner, and

11) the Kalpis, despite its high quality and worth, did not appear in any scientific publication until 1981, one year before the Museum acquired it."

A museum that is in the business of collecting and preserving legitimately excavated and imported antiquities, and in the business of following the law, could not keep the ancient Etruscan kalpis. So was the TMA case one of needless restitution?  Could this case have been won in a hard-fought and expensive court battle?  No.  That is why "The Great Giveback" should reexamine its opinion about the legal issues surrounding the repatriation of stolen and smuggled cultural heritage.

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

Dinosaur Claimant Files Motion to Dismiss in New York Federal Court

Attorneys for Eric Prokopi on Friday filed a motion to dismiss in federal district court in the southern district of New York. The lawyers argue in the case of United States of America v. One Tyrannosaurus Bataar Skeleton that the government cannot seize and forfeit an dinosaur skeleton on both policy and legal grounds. Prokopi is the claimant seeking the return of the Tyrannosaur skeleton, which he assembled.  It was seized by Immigration and Customs Enforcement (ICE) on June 22, 2012.

Courtesy ICE

The matter came to the attention of law enforcement officials after chairman and curator of paleontology at the American Museum of Natural History in New York raised concerns about the piece advertised for sale at an auction. The auction site listed the object as "SUPERB TYRANNOSAURUS SKELETON, Tyrannosaurus bataar, Late Cretaceous, Central Asia." U.S. Attorney Preet Bharara in Manhattan filed a forfeiture action alleging that the import paperwork for the dinosaur bones misstated the country of origin as Great Britain, not Mongolia; undervalued the skeleton at $15,000; and improperly described the bones as fossil reptile heads, a fossil lizard, and other incorrect items. See the June 26, 2012 blog post for additional background.

In their 28 page legal memorandum urging dismissal of the case, the claimant's lawyers set the stage for their argument to the court:

"Eric Prokopi purchased several groups of fossils on the open market and spent a year of his life and considerable expense identifying and compiling component parts of, and then restoring and mounting, the Tyrannosaurus bataar fossil (the “Display Piece”) so that it could be sold at auction. Prokopi thought he had recouped his considerable investment . . . when the Display Piece sold for $1.05 million at Heritage Auctions (“Heritage”) in New York. But then, a media campaign stirred up by academic paleontologists prompted Mongolia’s President to demand that the Display Piece be sent to Mongolia because it 'must have been stolen from there.' Prokopi and Heritage had entered into negotiations with Mongolia’s President in order to settle the dispute, when on June 18, 2012, the United States filed a Civil Forfeiture Complaint in rem (“Complaint”) seeking forfeiture of the Display Piece." (footnotes omitted)

The claimant's August 17, 2012 memorandum of law argues that the government should not set policy regulating dinosaur bones through the courts. The claimant's advocates write that the "Motion to Dismiss should be granted, not only to ensure that the fruits of his labor are rightly returned to him but to encourage the Government to regulate fossil collecting – if at all  – prospectively through the legislative and regulatory process rather than retroactively through this unprecedented forfeiture action."

Additionally, the lawyers contend that Prokopi did not commit any violations of federal import regulations because he did not have notice of U.S. rules regarding how to list the country of origin or value a paleontological object. "Here, Prokopi could have no fair notice of the 'country of origin' or valuation rules for fossils because none exist," the attorneys submit.  They maintain that in "May of 2006, CBP issued a revised Informed Compliance Publication which included guidance on the proper tariff classification of fossils, but failed to issue guidance on how to determine the country of origin or value of fossils or even of archaeological objects. . . . Since no regulatory guidance exists on how to apply this definition, there is no way for an importer of fossils to know how to proceed."

[Sidebar: Where a cultural property importer has a question about the proper tariff classification, country of origin, or even valuation it can be good practice to file a request for a binding U.S. Customs ruling pursuant to 19 C.F.R. 177.  A rulings letter can provide an official interpretation of the law regarding a specific object to be imported.  See the U.S. Customs web site discussing rulings letters.  See also the CROSS database of rulings letters, which which can also help importers of cultural property comply with applicable regulations.]

The claimant's legal counsel further argue that Prokopi did not have fair notice of Mongolian law "because they are not readily available to the general public much less to attorneys who practice in the 'cultural property' field."  Even if he had knowledge of Mongolian law, the lawyers declare that the dinosaur skeleton could not be considered stolen because current Mongolian law does not clearly define fossils to be owned by Mongolia.  The country, moreover, does not enforce its title vesting law, they aver.  In any case, the claimant's attorneys assert that there is no evidence to support that the bones came from Mongolia or were removed from that country without authority. The attorneys argue that the government cannot show that Prokopi knew the Tyrannosaur bones were stolen.

The claimant's lawyers end their memorandum with the following conclusion:

"It may or may not be time to regulate fossil collecting like antiquities collecting, but surely any such regulatory effort should only be accomplished prospectively through the legislative or administrative process rather than retroactively through a forfeiture action prompted by a media frenzy and foreign politics. The Government should not be allowed to seize property based upon obscure foreign laws or unwritten interpretations of 'country of origin' or valuation rules for fossils. Moreover, the Government has not alleged sufficient facts to establish a reasonable basis to believe that it could meet its burden to prove that the Display Piece was 'stolen.'

The claimant seeks to dismiss the government's forfeiture complaint pursuant to the Supplemental Rule for Admiralty or Maritime Claims and Asset Forfeiture Actions G(8)(b)(i) and Federal Rule of Civil Procedure 12(b)(6).

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

Homeland Security Investigations Returns Artifacts to Nigeria - No Arrests or Indictments Announced

Nok statues repatriated to Nigeria.  ICE

U.S. Immigration and Customs Enforcements (ICE) officials found themselves busy in New York today.  ICE raided a Manhattan storage area linked to an alleged antiquities trafficking network.  Meanwhile, Homeland Security Investigations (HSI) repatriated ten Nok statues and one carved tusk to Nigeria.

James T. Hayes Jr., special agent in charge of HSI New York, commented on the return of the Nigerian cultural objects seized by U.S. Customs and Border Protection:  "Smugglers who thrive on greed place very little interest in the preservation of cultural property when they plunder ancient artifacts to sell to the highest bidder."  No arrests or indictments were announced.

ICE reported in a press statement that "HSI special agents at John F. Kennedy International Airport (JFK) first learned of the stolen Nok statues in April 2010 after receiving information from French customs officials. . . . HSI Chicago had also previously seized two Nok statues and a carved ivory tusk at Chicago O'Hare International Airport.  After an investigation with assistance from French authorities, the Louvre in Paris, Interpol and the International Council of Museums, HSI special agents determined the Nok statues were in fact antiquities and not just handicrafts and personal effects as was diclosed on the importation documents provided to U.S. authorities."

Nigerian Consul General Habib Baba Habu pledged that the "ten figurines and one carved tusk will be returned to the national museum for display, at a ceremony to be presided by the minister of foreign affairs."

Nigeria does not have a bilateral agreement with the United States under the Cultural Property Implementation Act.

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

Dinosaur Forfeiture Case Rescheduled as Court Waits for Claimant's Verified Claim

HSI seizes the dinosaur bones.

Today's court conference in the matter of United States of America v. One Tyrannosaurus Bataar Skeleton (2012-cv-04760) was rescheduled to September 5 after federal prosecutors issued a gentle reminder that the government remained the sole party in the case.  In a letter submitted to the southern district court of New York, prosecutors wrote:

"This is a forfeiture matter and at the present time the only party to the action is the Government. In order for an individual or entity to become a party to the action, they are required to file a Verified Claim.  As of the date [of] this letter there have been no Verified Claims filed with the Court and the time period for filing has not yet expired. The time period to file a Verified Claim expires on August 26, 2012."

Ancient coin dealer advocates and attorneys Michael McCullough and Peter Tompa filed court appearances in June announcing their representation of Eric Prokopi, the purported claimant seeking the dinosaur bones' return.   They are expected to file a Verified Claim arguing why the dinosaur bones should be awarded to Prokopi.

The U.S. Attorney for the Southern District of New York filed a forfeiture complaint this spring alleging that the dinosaur skeleton was illegally imported into this country in March 2012.  Federal prosecutors seek to repatriate the bones to Mongolia, the country of origin.

More details regarding this seizure and forfeiture case may be found here.

CONTACT: www.culturalheritagelawyer.com

No Arrests Announced as ICE Officials Seize and Send Cultural Objects to Peru

ICE: Artifact returned to Peru on July 12.

United States Immigration and Customs Enforcement (ICE) reported no arrests or indictments during a repatriation ceremony yesterday that returned stolen and smuggled cultural objects to Peru. 

In a press statement, ICE’s Homeland Security Investigations (HSI) said that it mounted an “undercover Internet operation” and recovered the artifacts “in five separate investigations in . . .  New York; West Virginia; Wilmington, Delaware; and Austin and Houston, Texas.”  HSI concluded that the objects were illegally imported into the United States in violation of U.S. customs laws after having been illegally removed from Peru.

ICE agent watching over a monstrance.

With assistance from the U.S. Department of Justice and INTERPOL, HSI seized and sent to Peru nine 18th century religious paintings, pre-Columbian pottery, an Andean textile, a monstrance, a Moche jar, and a tumi blade.

ICE Director John Morton observed that "[t]he plundering of cultural property is one of the oldest forms of organized cross-border crime and has become a world-wide phenomenon that transcends frontiers.” Deputy Attorney General James Cole added, "Like other criminal acts, cultural property crimes are borderless and require a coordinated law enforcement response among countries.... [The objects] were stolen by those whose selfish acts and greed sought to deprive a people and the public of their cultural treasures."

No mention was made during Thursday's public ceremony held in Washington, DC of any arrests, grand jury investigations, indictments, or continued law enforcement probes into the alleged criminal activity.  HSI's seize and send policy has been critiqued because of its disproportionate focus on the repatriation of cultural objects over needed efforts to deter transnational cultural heritage crime by prosecuting antiquities traffickers when they violate U.S. law.

HSI outlined details of its investigation in its press statement:

“Of the objects returned July 12, two of the Cusco oil paintings – Saint Ignatius of Loyola, and Virgin and Child – were sold at an auction house in Austin. Seven other Peruvian antique paintings were being sold from a Houston gallery. The pre-Columbian Chimu-Inca whistling pot and Andean textile were being sold on eBay. In an undercover Internet operation, HSI special agents in West Virginia targeted sellers of illicit pre-Columbian artifacts operating from this Internet site. The monstrance was listed for sale at Christie's auction house in New York and HSI special agents discovered it was consigned by an art collector associated with museums in Puerto Rico and Denver. HSI's investigation revealed that the monstrance had been stolen from Saint Stephen the Martyr, a small Catholic church in Yaurisque, located in the Cusco region of Peru. The Moche ceramic jar and the bronze ceremonial knife were consigned by an estate trust in order to be sold at an auction house in Madison, N.J., and necessitated grand jury subpoenas issued by the U.S. Attorney's Office for the District of Delaware.”

Assistant United States Attorney David Hall from the Delaware U.S. Attorney's Office was responsible for investigating two of the Cusco school paintings involved in the case, according to a statement released by that office.  An image of one of the paintings appears at right.  Hall is a 2010 SAFE (Saving Antiquities for Everyone) Beacon Award winner.

The repatriation ceremony comes one month after the United States renewed import controls covering Peruvian cultural property determined to be in jeopardy from plunder.

CONTACT: www.culturalheritagelawyer.com

Dinosaur Forfeiture Complaint Now Published in New York Court as Coin Dealer Lawyers File Appearance to Free Arrested Mongolian Tyrannosaurus

Today the federal district court in the southern district of New York electronically published the federal government's forfeiture complaint against a dinosaur skeleton.  And an ancient coin dealers' attorney and lobbyist has filed an appearance as co-counsel on behalf of a claimant who wants the bones back.

Cultural property watchers are aware of the dinosaur's seizure last week when the federal government took legal action against a Tyrannosaurus bataar skeleton offered for sale at auction. The U.S. Attorney for the Southern District of New York filed a forfeiture complaint explaining that the dinosaur bones were illegally imported into this country on March 27, 2012 from Great Britain.  Federal prosecutors allege criminal wrongdoing in their complaint, writing in part:

Source: ICE

"The Customs Importation documents for the Defendant Property [Tyrannosaurus bataar] contain several misstatements. First, the country of origin for the Defendant Property was erroneously listed on the Customs Entry Form as Great Britain rather than Mongolia. Second, the Defendant Property was substantially undervalued in the Customs Importation documents. The importation documents list the value of the Defendant Property as $15,000 contrary to the $950,000 - $1,500,00 value listed in the Heritage Auctions May 20, 2012 Natural History Auction catalog and the actual auction sale price of $1,052,500. Third, the Defendant Property was incorrectly described in the Customs Importation documents as '2 large rough (unprepared) fossil reptile heads;' '6 boxes of broken fossil bones;' '3 rough (unprepared) fossil reptiles;' '1 fossil lizard;' '3 rough (unprepared) fossil reptiles;' and '1 fossil reptile skull.'

Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) assisted with the case. "As alleged, criminal smugglers misrepresented this fossil to customs officials when they illegally imported it into the United States," commented ICE Director John Morton in a press statement.  While authorities allege specific unlawful acts surrounding the Tyrannosaurus bataar's import, federal officials have thus far only arrested the dinosaur bones.

The U.S. Attorney's stated goal is to seize and forfeit the Tyrannosaurus bataar for repatriation to Mongolia.  Court records do not indicate that law enforcement sought a search warrant to seize the dinosaur for potential evidence as part of a criminal investigation.

The government's complaint lists "commercial paleontologist" Eric Prokopi as the consignor of the dinosaur bones.  Washington, DC based attorney Peter Tompa, who litigates and lobbies on behalf of the Ancient Coin Collectors Guild (ACCG), filed a court appearance today announcing his representation of Prokopi.  Tompa is co-counsel along with Brooklyn cultural property lawyer and ancient coin dealer advocate, Michael McCullough.  McCullough's LinkedIn profile lists him as past associate counsel at Sotheby's.  Experienced cultural property forfeiture prosecutor Sharon Cohen Levin is lead attorney for the government.

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

Homeland Security's Seize and Send Policy on Display at Repatriation Ceremony

Artifact returned to Italy by ICE.
Courtesy ICE

Immigration and Customs Enforcement (ICE) this week announced successful efforts to combat crime in the United States.  In the last few days, ICE's Homeland Security Investigations (HSI) directorate headlined these results:

• "9 suspects arrested in HSI probe targeting Fresno-area phony document mills"

• "637 gang members and associates arrested during Project Nefarious" 

• "5 indicted for allegedly selling counterfeit goods" 

Yesterday, however, the federal agency announced something other than arrests or indictments.  An April 26, 2012 press release proclaimed, "ICE returns stolen and looted art and antiquities to Italy."

While many of ICE's powerful investigative arms probe violations of federal law and pursue justice through the criminal court system, the Cultural Property, Art and Antiquities Program at HSI continues to repossess artifacts, hold repatriation ceremonies, and ship potential court evidence overseas. Arrests are infrequently announced, and indictments for violating federal smuggling, theft, false statement, or wire transfer laws are rare.

The contrast between ICE's typical approach to cultural property crimes and its customary handling of forfeited documents, human trafficking, counterfeit goods, and other illegal activities is striking.  A few of this week's press releases illustrate:

• After arresting the nine men for trafficking in forfeiting documents, special agent Clark Settles said that the  "goal in these investigations is to identify and ultimately dismantle the criminal organizations behind these highly lucrative schemes."

• After 637 gang members and associates were arrested, HSI Executive Associate Director James Dinkins announced that "[t]he goal of Project Nefarious was to identify, locate, arrest, prosecute and remove gang members and associates affiliated with human smuggling and trafficking organizations."

• After a grand jury indicted five people for selling counterfeit goods, ICE announced that it "plays a leading role in targeting criminal organizations responsible for producing, smuggling and distributing counterfeit products. HSI focuses not only on keeping counterfeit products off our streets, but also on dismantling the criminal organizations behind such illicit activity."

Marble sculpture returned to Italy.
Courtesy ICE

But yesterday's press announcement proclaiming the repatriation of looted and stolen antiquities to Italy simply describes a "ceremony" to return "[t]wo 2,000-year-old ceramic vessels, one Roman marble sculpture, one Renaissance painting and three music sheets from choir books dating back to the 13th century ...."  Authorities did not announce any arrests or indictments despite descriptions of criminal activity by the use of terms such as "looted," "illegally imported," "smuggled," " illicit trafficking," "organized crime," and "stolen."

In other criminal investigations, HSI agents investigate cases, work with prosecutors to develop and sift through evidence, present the results to grand jurors, and hold lawbreakers accountable.  In illegal antiquities trafficking cases, however, Homeland Security Secretary Janet Napolitano said it best during Thursday's ceremony, "We will continue to work to ensure cultural artifacts and treasures that were stolen and entered this country illegally are recovered and returned to their rightful home nations."

This "seize and send" strategy requires rethinking to coincide with the "investigate and indict" mission that other HSI investigations pursue to dismantle and deter criminal activity.

ICE Director John Morton said yesterday that "ICE is serious about reining in art and antiquity thieves, smugglers, and traffickers."  Yet antiquities thieves, smugglers, and traffickers must be brought to trial.  And while ICE poignantly warned in Thursday's press release that anyone "involved in the illicit trafficking of cultural property, art and antiquities can face prison terms of up to 20 years, fines and possible restitution to purchasers of the items," criminals must first be indicted before they can face such consequences in a U.S. district court.  Only then can the "antiquity thieves, smugglers, and traffickers" who are targeted by ICE be held to account for violating federal criminal laws.

CONTACT: www.culturalheritagelawyer.com

Seize and Send v. Investigate and Indict: Focusing on Cultural Heritage Criminal Investigations and Prosecutions

ICE and CBP return an illegally
imported artifact to Guatemala.
Courtesy ICE.

Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) held a press conference on February 24 to publicly display the return of pre-Columbian objects to the Guatemalan foreign minister. The objects were recovered both in Houston, Texas in 2009 and from an auction house in Massachusetts in 2011. WJZ television in Baltimore reported that “[n]o arrests in the smuggling cases have been made, although federal agents say investigations are ongoing.”

Authorities are to be lauded for detecting and seizing illegally imported archaeological objects. But the claim that federal officials are continuing their investigation remains to be seen. That is because the primary evidence of possible smuggling has now been returned to Guatemala. The artifacts are no longer preserved for criminal analysis, they are not kept in safekeeping for use in court proceedings, and they are not available for inspection by potential criminal defendants who have a constitutional right to view the government’s evidence in a criminal case.

There appears to be no US Attorney involvement in this case, which is a sign that the matter likely is not being reviewed for possible criminal charges. And Homeland Security does not mention in its official press release that it is pursuing a criminal investigation. At best the agency cautions that “[t]hose involved in the illicit trafficking of cultural property, art and antiquities can face prison terms of up to 20 years, fines and possible restitution to purchasers of the items.“

Those who follow cultural property cases closely are aware that Homeland Security generally implements a seize and send policy with regard to cultural artifacts. While the agency boasts in its latest press statement and elsewhere that “[s]ince 2007, HSI [Homeland Security Investigations] has returned more than 2,500 artifacts to 23 countries …”it is silent about successful cultural property prosecutions. Such prosecutions are rare.

The Cultural Property, Art and Antiquities Investigations Program is carried out by HSI. The program describes its mission on ICE’s web site: “Returning a nation’s looted cultural heritage or stolen artwork, promotes goodwill with foreign governments and citizens, while significantly protecting the world’s cultural heritage and knowledge of past civilizations.” The emphasis is on sending cultural objects to home countries, not on developing cases for criminal prosecution.

It could very well be that the lack of financial or human resources prevents the development of cultural property smuggling cases. It could be too that politics affects agency decision making. Indeed, it may be noteworthy that on the same day of the repatriation of artifacts to Guatemala, Homeland Security Secretary Janet Napolitano announced that she would be traveling to Guatemala City and other Latin American destinations between February 27 and 29. Perhaps prosecutors are rejecting these cases for review. Whatever issue prevents ICE from doing its job to investigate and prepare cases for presentation to a federal grand jury and subsequent criminal prosecution must be resolved.

ICE Director John Morton is right to note “the exceptional investigative work HSI is doing to stop the pilfering and illicit trading of precious art and antiquities from around the world.” ICE has talented investigators. But more must be done to bring the talents of these federal agents to the next level so that their cases serve to provide a meaningful deterrent to archaeological smuggling. Investigators must be permitted to conclude their cases by submitting them to receptive US Attorneys for review and possible indictment. Cases concluded through seizure, forfeiture, and repatriation alone do not have a similar impact on criminal activity.

Sources:
Homeland Security press releases
http://www.ice.gov/news/releases/1202/120224washingtondc.htm
http://www.dhs.gov/ynews/releases/20120224-statement-on-napolitano-trip-to-central-america.shtm

WJV TV
http://baltimore.cbslocal.com/2012/02/24/stolen-ancient-mayan-artifacts-being-returned-to-guatemala/

CONTACT: www.culturalheritagelawyer.com

Court Forfeits Cristo Portacroce After Italy Does Not File A Claim

The forfeited Cristo Portacroce.
Courtesy ICE

The United States District Court for the Northern District of Florida has ordered the forfeiture of the painting, the Cristo Portacroce Trascinato Da Un Manigoldo.  The court issued the default judgment once the previous possessors, Italy and its Brera Art Gallery, failed to make a claim for the return of the artwork.

The court's ruling was brief:  "Upon Application of the Plaintiff(s) in the above styled cause and having examined the records and there appearing to be no responsive pleadings filed by the defendant(s), default is hereby entered against the Italian Republic, Ministry of Culture, and the Pinacoteca di Brera, on January 3, 2012."

The painting will likely be handed over to the heirs of Federico Gentili di Giuseppe, who filed a claim on December 14, 2011 arguing that they were the lawful owners.  Prosecutors submitted information to the court that the painting was taken from the family by the Nazis during World War II.  Click here for details.

Federal officials seized the Cristo Portacroce in November 2011, which the Mary Brogan Museum of Art and Science in Florida had on loan.  See here for background.

Court papers filed by government lawyers show that the Italian's were aware that the painting's ownership was in dispute.  But the records do not explain why the Italy-Brogan loan agreement did not contemplate legal protection from seizure under the federal law known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display.

CONTACT: www.culturalheritagelawyer.com

Stolen Art Repatriated to Poland Following Default Judgment in U.S. v. One Julian Falat Painting Entitled “Off to the Hunt” and One Julian Falat Painting Entitled “The Hunt”

U.S. Immigration Customs and Enforcement’s (ICE) Homeland Security Investigations (HSI) and the U.S. Attorney’s Office for the Southern District of New York repatriated two Julian Falat paintings on September 22, transferring them to President Bronisław Komorowski of Poland in a ceremony held at the Polish Consulate in New York. American and Polish officials said that the Nazis stole “The Hunt” and “Off to the Hunt” from Warsaw’s Polish National Museum during the era of World War II.

In 2006, the Polish government found the paintings at two auction houses in New York, which removed them from sale when notified. Authorities acquired the paintings this past August after a federal district court in Manhattan entered a default judgment in the U.S. government’s favor. Federal officials then turned the paintings over to Poles.

"No one can ever provide just compensation to the victims of the Nazis' atrocities, but it is very gratifying for our office to play a role in returning the art that they looted during World War II to its rightful owners," said U.S. Attorney Preet Bharara in a statement. "After 60 years, these national treasures will finally be returned to the Polish Government—a repatriation that would not have been possible without their help."

The U.S. Attorney’s Office filed an in rem forfeiture action against the paintings on December 13, 2010 in order to acquire the artworks. (In a court proceeding for civil forfeiture, the defendant is the property, not a person.) In its complaint, the prosecution alleged that there was probable cause for forfeiture. Assistant US Attorney Kan Nawaday specifically described how “Off to the Hunt” was removed from the National Museum without its frame during World War II. A frame for the artwork originally contained an inked inventory mark, the number 345, when the Society for the Encouragement of Fine Arts in Warsaw placed it there in 1904. The frame survives. “The Hunt,” meanwhile, was also transferred to the National Museum when the German SS confiscated the painting. A catalog record and photograph of the artwork still exists.

The Polish government published a catalog of looted art in 1951 following the Second World War. It described both paintings. Since 1989, the Polish government continued to post the loss of “Off to the Hunt” and “The Hunt” on the internet. The paintings surfaced when Christie’s and Doyle New York, respectively, offered them for auction.

The federal complaint explained that an HSI agent spoke with the consignor of “Off to the Hunt,” whose name was supplied to the Polish government by Christie’s. The consignor had no purchase records and no import paperwork, according to the complaint. Additionally, HSI’s own search of customs records could not find any information related to the import.

HSI was also in contact with the attorney for the consignor of “The Hunt.” The federal complaint described how HSI “spoke with employees of Doyle . . . who informed them that the consignor . . . had brought the painting in for appraisal unframed and wrapped in an old sheet. Additionally . . . employees advised that [the consignor] had provided conflicting stories about how she came in possession of the painting.” HSI itself could find no importation records relating to the painting, according to court papers.

The federal forfeiture complaint stated that each Falat painting was valued at $50,000.

The U.S. Attorney’s Office argued that the paintings could be lawfully forfeited under four alternative legal theories. First, the works of art could be forfeited under 18 USC 981(a)(1)(C) because they were proceeds arising from a violation(s) of the National Stolen Property Act. Second, they could be forfeited under 19 USC 1497(a)(1) because there was no declaration of entry made on any customs form when imported into the United States. Third, they could be forfeited pursuant to 19 USC 1595a(C)(1)(a) because there was probable cause to believe that they were imported in violation of the federal smuggling law or the National Stolen Property Act. Fourth, the paintings could be forfeited because there was “probable cause to believe that they were brought to the United States contrary to law, the possessors of the Defendant Paintings [were] aware that they were stolen and are attempting to offer the Defendant Paintings for sale . . . .”

The government won its case by default after the paintings’ possessors failed to contest the forfeiture complaint. The court granted judgment on August 3, 2011.

"Those paintings are two magnificent and very important pieces of art," said Bogdan Zdrojewski, minister of culture and national heritage of Poland. "If you think about all the Falat paintings, these two are definitely the most interesting and most valuable ones," the minister was quoted as saying in a September 22, 2011 ICE press release.

But at least one of the paintings is not one that the Nazis looted, according to assertions made in a July 1, 2011 letter and attachments sent to the federal court by the possessor of “Off to the Hunt.” She wrote that “a technical analysis of my painting put[s] into severe doubt that my painting and [the Polish government’s] lost painting were one and the same.” She objected to the “far-from-thorough ICE investigation and . . . U.S. Civil laws designed to trap criminals and not good-faith possessors of disputed objects . . .” She also wrote of her inability to enlist her insurer or an affordable attorney to help defend the court action.

In letters addressed to NY Senator Charles Schumer dated June 23 and Secretary of State Hillary Clinton dated June 27 (both contained in the public court file) the possessor made a variety of statements, including the following:

• she was the daughter of a Holocaust survivor,

• she inherited “Off to the Hunt” from her father who bought it in Paris before transporting it to the USA in 1948,

• the “lost painting and mine are two originals by the same painter,” and

• it was improper for the government to imply that she and/or her father may have been “bad faith” possessors of the work.

HSI Executive Associate Director James Dinkins, meanwhile, said in a September 2011 press statement that his agency was “deeply gratified to be able to return these cherished paintings that were taken from the people of Poland so long ago.”

Photo courtesy of ICE.

Contact: http://www.culturalheritagelawyer.com/.

Changing Course: Enhancing Homeland Security's Policy of Seizure and Repatriation with Investigation and Prosecution

Illegal antiquities trafficking is a global business, linked to major transnational crimes such as money laundering. Additionally, cultural property crimes target humanity’s heritage and spirit. In order to successfully tackle crimes against cultural heritage, federal officials must pursue a strategy of investigation and prosecution.

The current policy of seizure and return does not go far enough. To seize a stolen or smuggled artifact at the American border and return it to its country of origin only serves to repatriate the object. Its confiscation and return does little to deter antiquities trafficking since there is minimal consequence to the perpetrators or accomplices. Building legal cases that lead to arrests and prosecutions would provide both specific deterrence and general deterrence.

The seize and return policy maintained by Department of Homeland Security (DHS) recently came into public view when Customs and Border Protection (CPB) and DHS investigators seized two Chinese artifacts illegally crossing America's border at Newark Liberty International Airport around March 3. Eight days later DHS announced the return of fourteen cultural objects to China, many obtained as a result of an enforcement initiative titled Operation Great Wall. The objects repatriated apparently included one of the artifacts seized at Newark Airport, specifically a Tang Dynasty horse. At least four other Chinese cultural objects that were seized in the New York metropolitan area over the past year were returned to China as well.

Typically when law enforcement officials seize the fruits of a crime or contraband they secure the evidence in anticipation of a prosecution. The return of the Tang Dynasty horse sculpture only a few days after federal officials seized it illustrates how smuggled cultural objects are not treated as criminal case evidence. That is to be expected when the primary mission of DHS is to seize and return, not to investigate and prosecute.

US Customs Director Robert Perez articulated this seize and return policy, declaring that federal authorities are "dedicated to intercepting [cultural] items and ensuring their safe return to their rightful owners." DHS’s news release about the repatriation of Chinese artifacts supports this view, highlighting that “2,300 artifacts have been returned to 18 countries since 2007.” While DHS touts the number of seizures and returns of cultural property, its press statement does not boast of any prosecutions or convictions against looters, smugglers, fences, or receivers of illegally stolen or trafficked cultural heritage.

Combating crimes against cultural heritage requires authorities to investigate and prosecute trafficking rings. Effective law enforcement is characterized by thoughtful investigation, careful handling of physical evidence, and assembly of evidence for review and use by prosecutors. While seizing and repatriating illegally smuggled artifacts serves some purpose to curb antiquities trafficking, federal officials cannot be credited with performing a thorough job if this remains the sole accomplishment.

Immigrations and Customs Enforcement investigators and Customs and Border Protection agents are skilled law enforcement officers who are capable of combating antiquities trafficking effectively. We need to call on DHS policymakers to directly engage illegal antiquities networks by adopting a policy of investigation and prosecution that enhances the existing policy of seizure and repatriation.

Sources:
www.ice.gov/news/releases/1103/110311washingtondc.htm

http://articles.cnn.com/2011-03-03/justice/new.jersey.artifacts.seized_1_newark-airport-antiquities-chinese-government?_s=PM:CRIME