Gala sponsored by Law Office of Inna Fershteyn for parents of children with Special Needs

 

Peruvian Artifacts Trafficking Prosecution is Worth Watching

A federal grand jury on Wedesday charged four defendants--Javier Abanto-Sarmiento and Alfredo Abanto-Sarmiento of Trujillo, Peru and Cesar Guarderas and Rosa Isabel Guarderas of West Valley City, Utah--with illegally smuggling and transporting Peruvian artifacts. An indictment is not a finding of guilt, and a defendant is presumed innocent unless proven guilty.

An undercover Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) agent cracked open the case last fall when he arranged the purchases of a dozen illegal Peruvian artifacts totaling $23,000, according to an amended complaint filed on March 25. The complaint explains that the purchases uncovered an alleged conspiracy:

Undercover telephone, email,and in-person discussions conducted concurrent to the purchaseof artifacts further corroborates [Javier] Abanto-Sarmiento's and [Cesar] Guarderas' conspiracyin trafficking of Peruvian artifacts. Several discussions have resultedin declarations of the following:Guarderas stating Abanto-Sarmiento has access to over one hundred (100) piecesof pottery in Peru and is willing to ship them to the U.S.; Abanto-Sarmiento statinghe bribes officials in Peru in order to get the artifactsout of Peru; Guarderas statingAbanto-Sarmiento knows where to look for potteryburied in the ground and that he acquires some of his pottery via this method; Guarderas stating Abanto-Sarmiento has a contactwith the Instituteof National Culture in Peru who providesAbanto-Sarmiento with authenticcertifications stating all of his pottery are replicas; and Guarderas statingAbanto-Sarmiento uses these authentic certifications  to illegally export genuineartwork out of Peru.

The present case differs from U.S. v. Perezwhere the defendant was found guilty of illegally importing artifacts from El Salvador in violation of the Cultural Property Implementation Act's (CPIA) import controls. An April 3, 2013 HSI news release recites, "In 1997, the United States and Peru entered into a bilateral agreement prohibiting the importation into the United States of specific cultural property originating from Peru, including artifacts and ethnological religious objects." But the cultural property import restriction on Peruvian cultural heritage--put in place by a Memorandum of Understanding (MoU) adopted pursuant to the CPIA--is not alleged to have been violated. Prosecutors have not charged the defendants with that section of 18 U.S.C. 545 that says "[w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law" is guilty of a crime. The current defendants instead are charged with knowingly and willfully smuggling "merchandise which should have been invoiced, or did make out or pass, or attempt to pass, through the customhouse any false, forged, or fraudulent invoice, or other document, or paper ...." The indictment does not allege further specifics.

HSI cultural property cases often follow a pattern of "seize and send,"whereby illegal cultural objects are seized by authorities and then sent back to their country of origin without criminal prosecution in the United States of the traffickers. In recent years, ICE's seize and send policy has repatriated several art and artifacts to Peru, including in 2012, 2011, and 2010, and 2009.  But it is not often that criminal charges are filed against alleged antiquities traffickers. That is why the Abanto-Sarmiento case is worth watching.

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.

Trustees should do more for disabled beneficiary: judge

  NEW YORK, Jan 8 (Reuters) - On her final day as Manhattan Surrogate, Kristen Booth Glen issued a "clarion call" for trustees who oversee funds for beneficiaries with mental and physical disabilities, saying they must use trust money to improve the beneficiaries' lives.
In ordering two trustees to account for a multimillion-dollar trust for a severely disabled man referred to in the ruling as Mark, Glen criticized them for failing to take affirmative steps to assess Mark's needs and failing to spend money to improve his life.
  "This history, and the legal consequences that flow from it ... should provide a clarion call for all fiduciaries of trusts whose beneficiaries are known to have disabilities," she said in a Dec. 31 decision. "It is not sufficient for the trustees to simply safeguard the Mark Trust's assets; instead, the trustees have a duty to Mark to inquire into his condition and to apply trust income to improving it."
  Mark, who has spent most of his adult life in institutional care, was isolated and wholly dependent until a few years ago, when Glen ordered the trustees to hire a care manager to evaluate him, she wrote. Since then, he has gone from a non-communicative, aggressive patient to someone who can manage daily tasks like rinsing dishes and walking for exercise, progress both "extraordinary" and "heartwarming," she wrote.
  An experienced estate lawyer, who is identified only by his initials, H.J.P., in the ruling, served as one trustee; Chase Manhattan Bank served as the other.
  Even though the trustees had "absolute discretion" to decide how to spend the money, Glen said they abused that discretion by failing to act. As a result, she said, their commissions should be denied or reduced for the period of time during which they took no action.
  Bernard Krooks, who was not involved in the case and whose firm Littman Krooks specializes in estate planning, said it was the first case he could recall in which a judge took it upon herself to investigate whether a fiduciary was taking sufficient action. Trustees are now "on notice," he said.
  "What's interesting about this case is it imposes an affirmative obligation. If you're appointed a trustee, you can't just sit back and pay the bills -- you have an affirmative obligation to find out where the beneficiary is living, what his or her needs are, and make payments to improve their life," Krooks said.

ABUSE OF DISCRETION

  Mark's mother died of cancer in 2005, leaving behind approximately $10 million to be divided into two trusts, one for Mark and one for his brother, Charles. Before her death, she placed Mark in a residential care facility.
  In 2006, H.J.P. applied to become Mark's guardian under Article 17-A of the Surrogate's Court Procedure Act.
  H.J.P. submitted assessments from healthcare providers that Mark suffered from autism and severe retardation, engaged in frequent aggressive behaviors and required assistance in daily tasks, according to the decision.
  An attorney for Mental Hygiene Legal Services, which represented Mark for the purposes of the application, reported that effective communication with Mark was impossible and that he was non-verbal.
  At a hearing on the application in 2007, Glen chastised H.J.P. and Chase for not visiting Mark to ascertain his needs for themselves or spending any money from his trust in the years since his mother's death, according to the ruling.
  She told them to hire a certified care manager, who eventually suggested that various items such as electronics and a playground that would help Mark's behavior be purchased with trust money.
  In the years since, Glen wrote, Mark has made significant progress. The case, she said, demonstrates that trustees who have discretion to decide whether to spend funds must also take steps to exercise their discretion.
  "Courts will intervene not only when the trustee behaves recklessly, but also when the trustee fails to exercise judgment altogether," she wrote. "The trustees abused their discretion by failing to exercise it."
  Glen said there was little case law on inactive fiduciaries but cited a 1931 Appellate Division, Fourth Department, decision, In re Van Zandt's Will, in which the court ruled that executors had to approve payments to a needy beneficiary despite having discretion over spending.
  "As in Van Zandt, it was not sufficient for the trustees merely to prudently invest the trust corpus and to safeguard its assets," Glen wrote. "Both case law and basic principles of trust administration and fiduciary obligation require the trustees to take appropriate steps to keep abreast of Mark's condition, needs, and quality of life, and to utilize trust assets for his actual benefit."
  Roy Carlin, a lawyer for H.J.P., declined to comment. A lawyer representing Chase could not be reached. A Chase spokesman did not have an immediate comment.
The decision ordered the trustees to provide an updated accounting of Mark's trust fund, as well as the other trust fund.

Glen stepped down on Dec. 31 after reaching the mandatory retirement age of 70.

The case is Matter of JP Morgan Chase Bank N.A. (Marie H.), Surrogate Court, New York County, No. 2006-1307.

For H.J.P.: Roy Carlin.
For Chase: Jennifer McCarthy of Davidson, Dawson & Clark.

Source: http://newsandinsight.thomsonreuters.com/Legal/News/2013/01_-_January/Trustees_should_do_more_for_disabled_beneficiary__judge/

NYS Senator Malcom Smith and City Councilman Dan Halloran Are Arrested For Bribing GOP County Chairs

Here we go again....teflon Smith. The only way to stop this is to stop them.

FBI Arrests State Sen. Malcolm Smith, Councilman Dan Halloran For Mayoral Election Bribery Plot

Smith                           Halloran

 State Senator, City Councilman Arrested in Alleged Mayoral Ballot Bribery Scheme

By Jonathan Dienst, Joe Valiquette and Shimon Prokupecz

|  Tuesday, Apr 2, 2013

 

 

LINK

A prominent Democratic state senator and a Republican city councilman from Queens were arrested Tuesday in an alleged plot to get the senator onto the New York City mayoral ballot by paying off GOP county chairmen, authorities said.

Democratic State Sen. Malcolm Smith, City Councilman Dan Halloran and four others were arrested by the FBI Tuesday morning.

U.S. Attorney Preet Bharara said Smith "tried to bribe his way to a shot at Gracie Mansion."

Bharara said Smith conceived the plot and Halloran "quarterbacked that drive by finding party chairmen who were wide open to receiving bribes."

NBC 4 New York's calls and emails to offices and attorneys of those arrested were not immediately returned. 

Any candidate seeking to be added to a ballot needs to be approved by three of the five county chairmen for a particular party.

Two Republican county chairmen -- Joseph Savino, of the Bronx, and Vincent Tabone, of Queens -- were among those arrested Tuesday.

Smith was elected to the State Senate in 2000 in a special election. He was elected minority leader in 2007, succeeding David Paterson.

Halloran assumed office in 2010 and represents the 19th district in Queens, succeeding Tony Avella.

He garnered widespread attention that year when he said five municipal employees told him that workers had engaged in a deliberate slowdown in clearing snow following the Christmas blizzard.

The Department of Investigation said later that an exhaustive probe found no evidence of such a slowdown.

Federal officials announced other arrests Tuesday; those expected to be charged are Democrat Noramie Jasmin, mayor of Spring Valley in Rockland County, and her deputy mayor, Joseph Desmaret.

Malcolm Smith And Dan Halloran Arrested For Trying To Rig NYC Mayoral Election, According To Report

  |  Posted: 04/02/2013 8:02 am EDT

 LINK

By Aidan Gardiner, DNAinfo Reporter/Producer

QUEENS — Prominent Queens politicians Malcolm Smith and Dan Halloran were arrested early Tuesday for attempting to rig this year's mayoral election, according to a published report.

Agents of the Federal Bureau of Investigation took State Senator Smith and City Councilman Halloran into custody at their homes about 6 a.m., the New York Postreported.

Halloran told a reporter outside his home that he "had no idea" why he was being arrested, the Post reported.

“I’m sure the truth will come out once I have an opportunity to find out what’s going on,” Halloran added.

The pair allegedly formed an alliance to place Smith, a Democrat who represents Queens Village, St. Albans and Jamaica, onto the Republican mayoral ballot by enlisting the support of major GOP leaders through bribes, according to the Post.

Smith needed the support of three boroughs to get the Republican nod without having to change party affiliation, the newspaper reported.

Halloran, a Republican representing northeastern Queens, was tasked with setting up those meetings and handling bribes totaling thousands of dollars, thePost reported.

The bribes were masked as legal and accounting services, the paper added.

Halloran has also been accused of pocketing bribes from a consultant in exchange for $80,000 in City Council funding, the newspaper said.

YOUR PRACTICE: Consoling clients who have 'gifting remorse'

  An unexpected tax break for the wealthiest Americans has some of them wondering if they were too generous during the final weeks of 2012.
  Last year Americans were able to gift up to $5.12 million tax free to family and friends over a lifetime as part of their estate, an amount separate from the tax-free amount anyone could annually give per person, $13,000 last year.
  Most tax advisers and their wealthy clients expected the $5.12 million to drop to $3.5 million or even lower on Jan. 1 - leading to a scramble among the wealthy to make big gifts before the end of 2012.
  But, in a surprise to estate planners and lawyers, who scrambled to help clients give money, property and business interests before the clock struck midnight on Dec. 31, the "fiscal cliff" deal, hammered out by the U.S. Congress at year end, retained the $5.12 million exemption level, even tossing in an extra bump to account for inflation.
  That made the new year a bit bittersweet, leaving some people with what financial and tax advisers call a case of "gifting remorse." Some wealthy clients have told their advisers they felt they had rushed into giving too much or too soon, decisions made under the then very real threat of leaving heirs with a heavy tax burden down the road.
  Clients who want to undo their gifts are probably out of luck, several tax experts said, because in order for them to get the tax benefit in the first place, the gift had to be irrevocable. But for them, advisers say, there's still a solid silver lining - getting estate planning out of the way.
  "After they get over the shock ... it was something they should have done regardless," said Leigh Griffith, head of the tax practice group at the Nashville, Tennessee-based law firm Waller.
  Among the perks for having made a gift last year: the money is better positioned for heirs, and if it is in a trust, it is protected from creditors and could still potentially be indirectly accessed by the benefactor. And the grantor may have even found a good way to test their heirs' ability to handle a windfall - allowing time to adjust future decisions about whether to give more.

THE BRIGHT SIDE

  Mary Schmidt, a Boston-based trust and estates lawyer, was mingling at a New Year's Eve party when she found herself comforting a friend who was second-guessing a decision to give away $5 million.
  The friend regretted his rush to gift the sum to his children, questioning whether it was necessary. She talked the man down - something more than a few advisers may be doing these days - explaining how the gift would benefit his estate.
  The biggest benefit: the wealthy and the gift recipients get more bang for their buck by giving early. Say the client gave 50,000 shares of stock worth $5 million. If the client had waited a few years, and the stock appreciated, he or she wouldn't have been able to gift as many shares, leading to a bigger tax bill later.

A few other benefits:

- Most people made their gifts via trusts, where the assets are better protected from creditors. So if, say, the giver gets into legal trouble, the gift can't get tied up in a lawsuit.
- Clauses in some trusts give the benefactor some control over the money. For instance, many people took advantage of spousal access trusts, meaning their spouse is a beneficiary of the gift along with other heirs. As long as they remain married and the spouse is alive, the benefactor can indirectly access the money via the funds that flow to their spouse.
- Many trusts also come standard with a "right of substitution clause," so that if a person regrets giving a particular asset, they can replace it with something else of equal value.
 
  That clause may come in handy for Rob Romanoff, managing partner at the Chicago-based law firm Levenfeld Pearlstein, who has a client who wants to undo the $5 million gift he made to his wife and children after the exemption level stayed the same.
  Romanoff quickly discovered that the client didn't regret the bulk of the gift, given through a spousal access trust, but instead wanted to regain control of a $75,000 stake in a tech start-up he expects to take off. If the man continues to feel this way, Romanoff will help him take out that stake and replace it with $75,000 in cash or another equivalent asset.

FRINGE BENEFITS

  The gifts may also provide benefactors with a glimpse of how well their heirs may one day handle a windfall.
  Griffith, the lawyer, worked with a couple last year who were initially reluctant to give several million dollars to their grandchildren, who had never handled such a large sum.
  The couple eventually did so, with a twist that could teach the grandchildren some investing lessons. They set up a trust that encourages the grandkids, who are in their late 20s and early 30s, to provide investing recommendations to the trustees. The couple has been getting calls from their grandchildren, asking them for investing advice ever since.
  If nothing else, giving in 2012 helped clients focus on the fact that they got this planning out of the way.
  "It's nice to have the luxury of the bulk of the planning in place, and now, going forward, to improve upon it," said Jennifer Immel, senior wealth planner at Philadelphia-based PNC Wealth Management.

Source: http://www.reuters.com/article/2013/01/14/gifting-remorse-idUSL1E9CAC1320130114

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