Monday, September 22, 2014

Stipulation Puts a Lid on Litigation Over Roman Sarcophagus Cover Featured in the Becchina Archive

The Roman sarcophagus lid. ICE
A marble Roman sarcophagus lid is expected to be forfeited and returned to Italy after federal prosecutors and the potential claimant signed a stipulation last week.

Litigation over the sculptured coffin cover--the so-called Defendant in rem--was avoided when the parties finalized their September 14 agreement over the stolen cultural object, which features in the Becchina archive.

The stipulation filed in the United States District Court for the Eastern District of New York recites in part:
WHEREAS, Mr. [Noriyoshi] Horiuchi [of Tokyo, Japan] states that, by and through agents, officers and employees of Art & Archaeology Inc. ("A&A"), an entity owned by Mr. Horiuchi, A&A obtained ownership of the Defendant in rem sometime in the late 1980s or early 1990s, after the Defendant in rem had been publicly exhibited in a Swiss museum in 1982 and 1983, and its exhibition had been published in an accompanying catalogue; 
WHEREAS, Mr. Horiuchi states that he relied in good faith on the representations made by the seller of the Defendant in rem and the fact that it had been publicly exhibited and presented in a publication during its exhibition in the Swiss museum in 1982 and 1983, to conclude that the Defendant in rem was not stolen; 
WHEREAS, Mr. Horiuchi, by and through his attorneys, agents, officers and employees, properly declared the Defendant in rem to the United States Customs Service upon the importation of the Defendant in rem into the United States in February 2001; 
WHEREAS, Mr. Horiuchi states that he believed in good faith that the Italian Government did not claim ownership to the Defendant in rem because, as Mr. Horiuchi further states, he previously had disclosed his acquisition and possession of the Defendant in rem to the Italian Government; 
WHEREAS, Mr. Horiuchi states that the Defendant in rem was transferred to him by A&A and that in approximately 2012 A&A was dissolved; 
WHEREAS, Mr. Horiuchi, upon his receipt of notice of the Defendant in rem's seizure in the United States and the claim of ownership by the Italian Government, cooperated with the United States Attorney's Office in the above-captioned forfeiture action; and 
WHEREAS, all parties now agree that the Defendant in rem should be forfeited with the intent that it be returned to Italy....
The U.S. Attorney’s Office in Brooklyn filed its forfeiture complaint on February 27, a case captioned as U.S. v. One Ancient Roman Marble Sarcophagus Lid With Sculpture of Reclining Woman.

Prosecutors wrote that the sculpted cover was in the possession of Gianfranco Becchina and his Basel, Switzerland gallery. A Manhattan gallery later displayed the $4 million lid in May 2013 before transferring it to a storage unit in Long Island City, NY in October that same year. Homeland Security Investigations uncovered the lid in its crate at the storage facility in February 2014.

Federal attorneys built their case around 19 U.S.C. § 1595a(c)(1)(A), the statute that prohibits stolen, smuggled, or clandestinely imported goods from being introduced into the U.S.

The district court in Brooklyn is expected to approve the stipulation.

In July, a federal district court in Albany, NY forfeited two other antiquities appearing in the Becchina archive in the unrelated case of United States v. One Attic Red-Figure Skyphos and One Apulian Red-Figure Bell Krater.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Sunday, September 21, 2014

Register Now for the Sixth Annual Cultural Heritage Law Moot Court Competition

The Lawyers’ Committee for Cultural Heritage Preservation and DePaul College of Law have opened registration for the Sixth Annual Cultural Heritage Law Moot Court Competition.

Chicago-Kent College of Law won the fifth annual event that focused on trafficked heritage. Who will win next?

The 2015 competition will argue constitutional challenges to the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106Awhich protects visual artists’ moral rights of attribution and integrity.

Oral Arguments are scheduled for February 27 and 28, 2015 at the United States Court of Appeals for the Seventh Circuit, in Chicago, Illinois.

The moot court is open to 26 two- and three-member student teams from ABA-accredited or provisionally accredited law schools. Schools may register up to two teams.

The registration deadline is November 20, 2014, and the fact pattern will be released on November 21, 2014 so it is important to register soon.

Visit the moot court website at to register a team.

Attorneys interested in serving as judges or brief graders should contact CLE credit may be available for attorneys who participate as judges.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Tuesday, September 16, 2014

Conservator's Records To Be Subpoenaed As Prosecutors Score Triple Victory in Peruvian Artifacts Forfeiture Cases

Federal prosecutors recently scored three court victories in two forfeiture actions and one subpoena case involving allegedly contraband Peruvian artifacts.

A federal magistrate in New Mexico recommended that a conservator, who may have handled contraband objects, turn over his business records to prosecutors under subpoena, a decision that certainly will attract attention among conservation professionals since they are rarely the subject of cultural property claims filed by the government.

A federal judge in Miami, meanwhile, ruled that the two cases seeking to forfeit the Peruvian objects could not be halted by a parallel criminal investigation, if one even existed. The court also denied a request to dismiss the forfeiture cases in their entirety.

The Peruvian artifacts forfeiture cases began in 2010 when U.S. Customs and Border Protection (CBP) seized 33 objects from Jean Combe Fritz’s luggage. Authorities suspected Combe Fritz and his father of engaging in a smuggling ring, according to information supplied by court papers. The two made 21 trips to Miami in ten years, returning to Peru after one or two days’ stay, which caught customs officials’ attention.

Prosecutors alleged in court pleadings that “[i]n August 2010, Combe-Fritz attempted to smuggle thirty-two ancient Peruvian artifacts into the United States through the Miami International Airport. Because Customs officers could not confirm the authenticity of the apparently-ancient artifacts without an expert appraisal, Combe was released that day. The U.S. Attorney’s Office Major Crimes section subsequently declined to prosecute the criminal case because Combe had returned to Peru.”

Without the possibility of prosecution, federal attorneys decided to seek title to the objects through civil forfeiture with the intent to return the heritage objects to Peru.

Prosecutors filed a civil action in Miami federal district court on May 10, 2013 to forfeit 29 objects consisting of a Moche bone carving (pictured here), a 12 piece Inca burial bundle, an Early Horizon/Chavin stone carving, and more. They argued that the Convention on Cultural Property Implementation Act (CPIA) forbade their entry into the United States.

Prosecutors filed a second forfeiture complaint on July 18, 2013 seeking to forfeit three more objects, this time arguing that they should be forfeited under 19 U.S.C. § 1595a(c)(1)(A) because they were stolen, smuggled, or clandestinely introduced into the United States.

While it is rare for a claimant to step forward in a cultural property forfeiture case, Jean Combe Fritz did, and his lawyers have vigorously battled the government ever since.

They have argued that the CPIA does not apply, that the objects seized cannot be shown to be Pre-Columbian or Colonial, that it is not possible to determine whether Peru is the source country, that federal prosecutors violated due process, that federal attorneys brought the case to the wrong court, and that the items seized by CBP weren't even banned cultural property.

The case stalled for one year after federal attorneys attempted to depose Combe Fritz, an effort resisted by the claimant’s lawyers on grounds that the government cannot go searching for criminal evidence by using the civil court process. Prosecutors countered by accusing the claimant of delay.

Combe Fritz’s lawyers filed a motion to stay the civil forfeiture proceedings until federal authorities concluded their criminal investigation. But prosecutors objected, writing on July 10, 2014 that there was no criminal investigation and no possibility of prosecution. “The Government disclosed this fact to counsel early in the litigation,” they explained.

Notwithstanding this representation by the government, one day earlier, on July 9, federal prosecutors in New Mexico targeted the conservator who allegedly handled pre-Columbian artifacts brought to the U.S. by Combe Fritz. Prosecutors told the court that the conservator was not implicated in any wrongdoing, but that they wanted information from him to find out who was running Peruvian artifacts between Miami and New Mexico.

The claimant’s lawyers tried to convince the Miami federal court that the existence of the New Mexico case clearly revealed that a criminal investigation was underway. But the judge in Miami would not stop the forfeiture cases. The court even denied the claimant’s motion to dismiss the matters outright, not just delay them.

The federal magistrate in New Mexico, meanwhile, authorized a subpoena to be issued to the conservator for information relating to the Miami forfeiture cases despite his objections.

The conservator objected to turning over specific information to the government, stating that the information sought was irrelevant to the forfeiture cases in Miami; insisting that he had not received any material from Combe Fritz; protesting that the disclosure of business records would violate the confidentiality necessary to conduct conservation work for his clients; and complaining that retrieving company's records would be too burdensome.

The magistrate noted that the conservator was willing to provide some information and submit to deposition questioning about certain matters,” but that the conservator says “he does not know Combe Fritz, was never contacted concerning any of the 32 items at issue in the Florida cases, and has no reason to believe that any of his clients has anything to do with Combe Fritz or the 32 items.”

The magistrate sided with the government, nevertheless, reasoning in his recommended disposition of August 29,
I agree with the United States that the information sought is relevant to its claims …. It is beside the point whether the government already has some evidence to prove its claims. There is no limit on the quantum of evidence that the government may amass—within the rules—to make its case as strong as possible. See Fed. R. Civ. P. 26(b)(1). I find that [the conservator’s] records and knowledge are reasonably calculated to lead to the discovery of evidence that is admissible and relevant to the elements that the government must prove …. 
The United States … argues that the information sought pursuant to the subpoena is relevant to the elements that it must prove…. The government's aim is not merely to identify the intermediary. Rather, the government's aim is to identify the intermediary and, more importantly, to secure his/her testimony as an "eyewitness[] to acts of the conspiracy and the persons involved in it, as would be the person who was to transport the textile from Miami to New Mexico[;] that information could be critical to the government's case." [Doc. 9] at 4.
The magistrate carefully reframed the government’s original subpoena to restrict overbroad language and to confine the document disclosures to narrowly tailored information about pre-Columbian textiles. Indeed, the conservator’s lawyer informed the district court that his client worked in textiles alone and not with other types of artifacts.

Approximately three weeks before the magistrate's recommendation to issue the subpoena, the federal district court in Miami ruled that the forfeiture cases would push forward despite the claimant’s request that the court process stop temporarily . The court wrote,
Claimant argues that "by engaging in discovery and offering evidence in support of his interest in the seized objects, he will be forced to incriminate himself in violation of his Fifth Amendment rights." (D.E. 74 at 2). The Government has not indicted Claimant and further states that no actual prosecution or criminal investigation is in progress.  
The mere existence of parallel criminal and civil proceedings does not compel a stay of the civil proceeding. 
Under the circumstances presented here, the Court finds that a stay is not warranted. Claimant has submitted no evidence that his invocation of the privilege against self-incrimination would compel an adverse judgment against him. . . . If "special circumstances" arise that Claimant believes warrants a stay during the course of litigation, then Claimant may re-file his motion.
The claimant’s attorneys raised “special circumstances” in their motion to reconsider dated August 16. They claimed that “new facts clearly reveal that the Government is using civil discovery in this case to further its criminal inquiry,” asserting that “new evidence will show that the criminal inquiry is active and ongoing, despite the Government’s unsubstantiated protestations to the contrary.”

The claimant’s lawyers said federal prosecutors’ efforts to compel the conservator to turn over documents “strongly supports Claimant’s position that the Government is improperly using civil discovery to supplement its ongoing criminal inquiry or as an improper substitute for an open and outright criminal investigation. Indeed, the non-party witnesses in New Mexico have corroborated this position and presented compelling, independent evidence in support of the same …[demonstrating] that the Government’s purported civil discovery demands were in fact issued in order to generate evidence of a criminal smuggling ring.”

The court rejected such claims and ruled on September 9 that "[e]ven if the Government is engaged in an active and ongoing criminal inquiry, the mere existence of parallel criminal and civil proceedings does not compel a stay of these civil proceedings.”

The court soon thereafter ruled against the Claimant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, Denial of Due Process of Law, and Failure to State a Cause of Action, a pleading that had been pending for one year. Judge Joan Lenard weighed both the claimant’s arguments and the government’s objection, which included the government’s position that “…smuggling protected cultural property is not ‘commercial trade’: it is criminal[] activity.

In its ruling against the motion to dismiss, the Miami federal district court first determined that it had jurisdiction to hear the case. “Because this action involves the forfeiture of property and does not involve the recovery of civil penalties, the recovery of a bond, or the recovery of customs duties, the Court has jurisdiction….,” the court wrote. The case was not required to be heard by the Court of International Trade as the claimant’s lawyers argued.

Second, the district court concluded that prosecutors sufficiently stated their claims in both the CPIA forfeiture complaint and the 15 U.S.C. § 1595a forfeiture complaint.

Citing in part Ancient Coin Collectors Guild v. U.S. Customs, Judge Lenard ruled that the CPIA forfeiture complaint “demonstrated that the artifacts in this action consist of Pre-Columbian perishable remains, lithics, metal objects, and textiles. (First Compl. ¶ 16). Such items are listed on a designated list within the meaning of the CPIA. See 19 C.F.R. 12.104g; Archaeological and Ethnological Material From Peru, 62 Fed. Reg. 31712-01 (June 11, 1997). Claimant has failed to demonstrate that the artifacts are legally importable by providing a State Party issued certification or any other documentation certifying that the artifacts may be legally imported into the United States.”

The § 1595a forfeiture complaint was also sufficient, the court explained:
Here, the artifacts were stashed in Claimant’s luggage. CBP officers located the artifacts in Claimant’s luggage only after conducting a secondary examination. When questioned about the artifacts, Claimant made false statements regarding how he came to possess the artifacts, his purpose for bringing the artifacts into the United States, and the individuals to whom he intended to deliver the artifacts. Additionally, Plaintiff alleges that the introduction of the artifacts into the United States was a violation of Peruvian law. Based on these facts set forth in the Second Complaint, the Court finds that there is probable cause to believe that Claimant clandestinely introduced the artifacts into the United States contrary to law.
The forfeiture cases have been captioned as U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru and U.S. v. Three Artifacts Constituting Cultural Property of Peru.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Sunday, September 14, 2014

CPAC to Hold Hearing on El Salvador's MoU Extension Request

The government of El Salvador has asked for an extension of its Memorandum of Understanding (MoU) with the United States.

The MoU would authorize five more years of U.S. import controls under the Convention on Cultural Property Implementation Act to protect jeopardized archaeological and ethnological heritage originating from the central American nation.

The Cultural Property Advisory Committee (CPAC) will consider El Salvador's request during a public hearing that is scheduled for October 7 at 10:30 a.m. at 2200 C St. NW., Washington, DC (pictured here). To attend the hearing, call the State Department at 202-632-6301.

Public comments may be submitted to CPAC by clicking here.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Monday, September 8, 2014

Allegations of False Declarations and Altered Trade Papers: Forfeiture Complaint Says $250,000 Dinosaur Skull Isn't from France and Isn't a Cheap Replica

In a civil forfeiture complaint published today and filed last Friday, the U.S. Attorney’s office for the Eastern District of New York told a federal district court that a fossilized dinosaur skull over 65 million years old isn’t a cheap replica and isn’t from France.

Prosecutors alleged in their complaint that a French fossil dealer attempted to unlawfully import the Alioramus dinosaur head into the United States by failing to disclose that it was real, that it originated from Mongolia, or that it was valued at a quarter million dollars.

This latest case appears to be part of a trend by U.S. and Mongolian authorities to focus attention on illegal imports of dinosaur fossils. The smuggling convictions U.S. v. Rolater and U.S. Prokopi are examples of recent criminal prosecutions. No criminal prosecution has been announced in the present case, which is an in rem action against the object that is captioned as U.S. v. One Alioramus Dinosaur Skull.

Assistant U.S. Attorney Karin Orenstein wrote in the verified civil complaint that the dinosaur skull must be forfeited under 19 U.S.C. § 1595a because the skull is considered stolen property according to the terms of the National Stolen Property Act 18 U.S.C. § 2314. The prosecutor also asserted that the head was smuggled into the U.S. in violation of 18 U.S.C. § 542 and/or § 545.

The AUSA recited the following allegations in support of the lawsuit to take title to the fossil and repatriate it to Mongolia:

In January 2014, Geofossiles shipped an Alioramus dinosaur skull via UPS from France to Newark, New Jersey. U.S. Customs intercepted and detained the shipment. “Attached to the customs declaration was an invoice dated January 9, 2014 for ‘fossil cast dinosaur bones from France’ with a sales price of 2,500 Euros plus fees. At the time, 2,500 Euros could be exchanged for approximately $3,400.”

Geofossiles petitioned Customs to reclaim the dinosaur head but provided conflicting paperwork that declared that the head was actually of Mongolian origin. Geofossiles attached to its petition "a different invoice, dated March 18, 2014, describing the Defendant in rem as 'Fossil dinosaur bones 70% and 30% cast' with a purchase price of $250,000, indicating that the shipment contained a genuine fossil.”

The prosecutor’s complaint outlined how Mongolian authorities uncovered allegedly altered information during an examination of export paperwork:
Geofossiles attached to the Petition documents which purported to show that the Defendant in rem was reported to the Mongolian government and allowed to leave Mongolia in 2006. 
The documents supplied by Geofossiles were reviewed by Mongolian authorities who located their original counterparts in their records. The Mongolian authorities determined that the copies provided by Geofossiles were altered versions of records pertaining to the export of four Mongolian  ger” sets in 2006. A ger is a moveable, circular dwelling that is a traditional residential structure in Mongolia. 
The original Mongolian Certificate of Origin lists only the gers. By comparison, the copy of the Mongolian Certificate of Origin supplied by Geofossiles lists the same gers, but has been altered to add, in a different font, four paleontological terms, including tarbo[]saurus.
The French dealer, or any other valid party that chooses to assert title to the Alioramus skull, will have an opportunity to challenge the allegations made by the U.S. Attorney’s office.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Wednesday, August 20, 2014

A Healthy Trade, A Black Market Temptation: Latest Figures Show U.S. Leadership in Art and Antiquities Exports and Imports

The latest trade figures show that the United States is the leading exporter and importer of fine art, antiquities, and other cultural goods. Dealers and consumers are thriving in this robust marketplace where billions of dollars are exchanged annually. Yet the market remains susceptible to criminal penetration.

American international trade in fine art and antiquities is very large. UN Comtrade and U.S. International Trade Commission (ITC) data reveal that America imported over $9 billion in art, collectors’ pieces, and antiques last year. It also exported the same types of goods in 2013—classified by Harmonized Tariff Schedule (HTS) 97—in an amount valued at $7.7 billion, crowning America as the global leader in both exports and imports of art and cultural heritage material by monetary value.

To put these cash amounts into perspective, $9 billion could purchase a fleet of 35 Boeing 747 aircraft or buy 530,000 Ford Focus automobiles.

The U.S. was also a top country in 2013 for imports and exports of HTS 9705 goods, an important subcategory of HTS 97 that includes collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest. America was the second highest importer by value, bringing in roughly $263 million worth of HTS 9705 commodities from around the world. The U.S., in turn, exported nearly $192 million in HTS 9705 material, taking the third-place spot among nations.

This large and healthy trade in art and antiquities can be tempting to the black market because money laundering, smuggling, and fencing stolen objects are more easily disguised when smaller drops of dirty cash and contraband get lost in a vast ocean of legal commerce. In fact, the 2012 Basel Art Trade Guidelines cautioned that the market “faces a higher risk of exposure to dubious trade practices ... due to the volume of illegal or legally questionable transactions, which is noticeably higher in this sector than in other globally active markets.”

Organized crime can over-value or under-value invoices to disguise money transfers, a practice called trade based money laundering. Smugglers can create shell import and export companies to hide the origins and transfers of illegally trafficked cultural goods. And many other techniques can be used to hide criminal conduct that piggybacks on legitimate trade. Such methods may explain why $6.8 billion in art and antiquities shipped between the United Kingdom and the United States over the last five years remainmissing.

To peel away the black market that camouflages crimes of traffickingmoney laundering, and possibly terrorist financing requires rigorous initiatives that will shore up vulnerabilities existing within the broader white market. Industry transparency and due diligence are critical elements to any defense. Moreover, intensified law enforcement efforts directed at investigating and prosecuting cultural heritage trafficking and money laundering must be supported.

Photo credit: Jon Syverson

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Tuesday, August 5, 2014

Bagpipes Seizure by U.S. Customs May Spur Police Involvement in Ivory Ban Debate

This week’s seizure by U.S. Customs and Border Protection (CBP) of two teenagers’ vintage bagpipes may serve to increase public opposition against the current blanket ban on the movement and trade of ivory. This time among police officers.

Pipes | Drums reported the confiscation of the teens’ heirloom bagpipes, writing that the 17 year olds from Massachusetts possessed CITES permits (permits under the Convention on International Trade in Endangered Species of Wild Fauna and Flora) for the ivory that ornamented their 1936 and 1958 pipes. The pair crossed into Canada for a competition, only to have federal customs officials take away their musical instruments at the Vermont-Canada border on the way back.

The story of the bagpipe seizure has now spread among police officers on social media because many officers throughout the country are part of police associations' pipe and drum corps. While federal officials eventually returned the bagpipes to the teens, a local news report intimated that the return may only have come in response to intervention by a U.S. senator's office. 

Elephant poaching is a transnational crime that slaughters thousands of elephants each year. In fact, monitoring the Killing of Elephants (MIKE) reported that 22,000 were killed illegally in Africa in 2012. That devastation to endangered wildlife is why the United States and the international community strongly support measures to combat ivory trafficking.

But the unilateral administrative ban on the transfer of ivory, promulgated by the White House in February, remains an immoderate response that serves only to build public dissatisfaction since the ban covers more than just illegal modern-day ivory. The ban essentially forbids the complete commercial sale of elephant ivory objects and restricts many imports and exports regardless of their age or legal acquisition. More importantly, it has instantly turned many innocent owners of old ivory into current possessors of contraband when the focus of domestic enforcement should be on transnational smuggling networks, dealers and collectors who operate illegally, and the muddied ivory market with its links to the opaque antiquities market.

The Obama administration recently relaxed the ban for the benefit of museums and holders of antiques, but only after pressure had been exerted by interest groups. State, county, and local police officers may be the next group of citizens to pressure the White House.

In the meantime, if police pipers or others plan to travel with bagpipes that have any amount of ivory in them, U.S. Fish and Wildlife has a permit process that must be followed. It is described on the agency’s web site.

Photo credit: D. Carlton

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Thursday, July 31, 2014

Assyria to Iberia Exhibition Highlights Legal and Public Policy Issues Surrounding Foreign Lending

The ancient Assyrian Empire and Phoenician city-states fascinate museum-goers. But when visitors view Assyria to Iberia at the Dawn of the Classical Age in New York starting this September, few will be aware of the many legal and public policy issues that surround the Metropolitan Museum of Art’s exhibition. Two are worth highlighting.

On the legal front, the museum has secured immunity from judicial seizure of the foreign objects on temporary loan that are expected to be displayed. Given that the Met bills the showing as a landmark exhibitionthat will present“some 260 works of art on loan" that have been “brought together from some four dozen museums in 13 countries,” this immunity is important to protect the artifacts from possible legal entanglements once inside America’s borders. The U.S. State Department granted that immunity and published its decision on July 10.

Congress passed a statute in 1965 called IFSA, the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display 22 USC § 2459. Lawmakers wrote the statute in order to promote the importation of fine art, encouraging foreign art lenders to feel confident that their cultural works would not be taken away as a result of any potential U.S. court action.

The statute protects objects of cultural significance intended for temporary, nonprofit exhibition. The law also prevents a civil litigant from seizing temporarily imported fine art to satisfy a judgment in a lawsuit, for example. (For a discussion of the current controversy surrounding the statute and a congressional attempt to resolve the problem, see earlier CHL posts here and here.)

The immunity given by IFSA is not automatic, which is why the Met petitioned the State Department, the agency responsible for reviewing immunity requests. The State Department granted the Met’s request because the agency found, as required by the statute, that the objects included for exhibition in Assyria to Iberia qualify as objects of cultural significance, imported pursuant to loan agreements with foreign owners or custodians, and will be displayed by the museum in the national interest.

The immunity covers the specific artifacts on loan to the Met and does not give the museum itself immunity from any possible lawsuits.

The kind of foreign lending encouraged by IFSA and exhibitions like Assyria to Iberia supports the wider policy goals associated with the foreign cultural exchange of artifacts. Not only does foreign lending of heritage objects enlighten minds and hearts, it also offers a possible solution to the problem of transnational antiquities trafficking by increasing exchanges between reputable cultural and archaeological institutions, thereby decreasing American museum accessions of undocumented artifacts from the often opaque art and antiquities market.

Assyria to Iberia also serves to support smaller cultural heritage centers like Almuñecar, Spain. Euro Weekly News reports that the Met has asked the cultural heritage department for its Apofis vase and two onyx marble vases discovered from archaeological sites to display in the New York exhibition. Olga Ruano, Councilor for Culture of the town is quoted as saying “Our cultural heritage attracts prestigious institutions, so it is our duty to protect, preserve and promote it.”

If you visit Assyria to Iberia at the Dawn of the Classical Age later this year, keep in mind the law and public policy located in the backdrop.

Photo: Alex Bruda

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Thursday, July 24, 2014

UPDATED > Calling Attention to the Destruction of Heritage in Iraq

Greed often motivates cultural heritage trafficking. The illegal looting, smuggling, laundering, and sale of heritage objects is typically undertaken to earn cash. But a far more insidious crime is cultural heritage assault, which targets the identity of a community by attempting to obliterate its history and culture.

Cultural heritage assault takes the form of politically or religiously motivated iconoclasm, theft, and vandalism. Its purpose is to cause psychological distress or to incite racial, ethnic, or religious hatred. Assaults on heritage target monuments, art, religious institutions, and symbols and usually accompany acts of genocide or ethnic or religious cleansing.

History, unfortunately, is replete with examples of assaults on culture, flourishing because of silence or indifference. That is why people of goodwill are urged today to pay particular attention to the destruction of heritage occurring in Iraq.

Dr. Abdulamir al-Hamdani of Stony Brook University spoke about the demolition of Iraq’s heritage last week at the Iraqi Cultural Center. SAFE | Saving Antiquities for Everyone has published slides from his talk on its web site, which chronicle relentless assaults on archaeological sites, museums, monuments, churches, shrines, and more.

Deliberate attacks targeting religious groups pose the greatest concern. The radical Islamic State of Iraq and Syria (ISIS), for example, has caused significant destruction to Christian heritage. The extremist fighters, who have spilled out from the Syrian conflict into northern and western Iraq with the avowed purpose to create a new “caliphate,” have forced the exodus of thousands of Christians occupying the area since the beginnings of Christianity. The imposed resettlement prompted Pope Francis to express public support for the community of believers as they abandoned their homeland under threat of persecution. Patriarch of the Syrio-Catholic bishopric in Mosul, Ignace Joseph III Younan has spoken about the plight of Christians and told Vatican Radio, “With regret, we announce that our bishopric has been completely burnt down: manuscripts and the library have gone.”

Shia religious centers have also been destroyed as bulldozers and explosives in the northern Iraqi province of Nineveh have toppled shrines and mosques according to reports from the BBC and other news agencies.

Human Rights Watch, meanwhile, has listed Turkmen, Shabaks, and Yazidis as additional minority groups whose lives and culture have been caught in the crosshairs.

Calling attention to the attacks on heritage in Iraq is vital so that government leaders, lawyers, and policymakers everywhere can take a vocal stand against such wanton destruction.

UPDATED: The Euronews video below shows footage of ISIS blowing up "Jonah's Tomb" on July 24.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Wednesday, July 23, 2014

Another Due Diligence Lesson as Becchina Archive Produces U.S. Court Forfeiture of Antiquities from Italy

Yesterday’s order of forfeiture in the case of United States v. One Attic Red-Figure Skyphos and One Apulian Red-Figure Bell Krater provides another example of why dealers and collectors must exercise stringent due diligence when acquiring antiquities.

The case involved the seizure and forfeiture of the two archaeological objects that were alleged to have been the fruits of the Gianfranco Becchina antiquities trafficking ring. The forfeiture order issued by the federal district court in northern New York resulted from a stipulation between American and Italian authorities to turn over the archaeological material to the Italian people

The U.S. Attorney in Albany filed a seizure and forfeiture complaint this past April when information from Customs and Border Protection (CBP), Homeland Security Investigations (HSI), and the Italian Carabinieri Command for the Protection of Cultural Heritage (TPC) revealed that the two antiquities, valued at $55,000 in total, entered America’s border illegally. They were bound from Canada to Christie’s auction house in New York City.

American officials seized the objects from Walter M. Banko Enterprises, Ltd. Of Montreal on grounds that they were stolen, smuggled, and clandestinely imported merchandise brought into the U.S. contrary to law pursuant to 19 U.S.C. § 1595a(c)(1)(A). They were first seized in 2011 after the TPC notified HSI that the objects had been taken unlawfully from Italy.

Federal prosecutors alleged in their complaint for forfeiture that false statements were used to illegally import the antiquities into New York.  They also contended that the artifacts were stolen from Italy and referenced Italian statutes asserting title to the pieces, specifically Italian Law number 364 of 1909 governing the ownership and export of any “unmovable or movable items that have a historic, archaeological, paleontological or artistic interest” and Italian Law number 1089 of 1939 covering “moveable and immoveable property with artistic, historic, archeological or ethnographic value.”

Banko made no legal claim to the items in federal district court for the Northern District of New York. Italy did, however, so that the nation could reclaim the looted artifacts.

The prosecutors claimed that convicted antiquities trafficker Becchina had possession of the skyphos and krater. The lawyers wrote in court papers, “Banko falsely claims on the documentation provided at the time of importation to the United States that the Skyphos was acquired from the Swiss collection of Dr. Elie Borowski in Basel in 1968, adding “Becchina’s warehouse and gallery contained images of the Skyphos and documents referencing the Skyphos dated from 1982….”

Prosecutors further argued in their court complaint that the krater appeared in the Becchina archive, a dossier retrieved in 2001 by Swiss law enforcement officials containing thousands of records and Polaroids cataloging looted antiquities.

The wine vessel was not from any authorized Italian archaeological excavation, the federal lawyers wrote. “In the documents provided by Banko to HSI, Banko indicated that the Krater was acquired in the 1960s from the personal collection of Andre Matton. [Yet] Becchina’s warehouse and gallery contained images of the Krater and documents referencing the Krater dated from 1992….” The attorneys added in some detail,
Documents recovered from the search of Becchina’s gallery and warehouse reveal the occurrence of the following events: in February of 1992, Becchina purchased the Krater, in fragments, from Raffaele Monticelli. On or about October 24, 1992, Becchina delivered the Krater to Ettore Bruno who was to restore the Krater. On or about July 15, 1993, Ettore Bruno sent a photograph of the restored Krater to Becchina. On or about August 10, 1993, Robert Guy answered Becchina regarding the Krater’s attribution and the scientific study of the Krater. Ettore Bruno returned the Krater to Becchina in March of 1994. Becchina paid 8,490 Swiss francs for the restoration of the Krater. On May 1, 1994, Bechina noted that the Krater was then located in his warehouse at Porto Franco di Basilea (Switzerland). 
An export certificate issued by the Ministry of French Culture accompanied the Krater during its exportation from France into Canada on March 10, 2011. The certificate makes no reference to the origin of the Krater and does not provide documentation supporting the Krater’s origins. 
Nowhere on Banko’s shipping documents does Banko say that either of the two defendant properties was acquired from or ever owned by Becchina.
Dealers and collectors should continue to be on the lookout for any other objects linked to the Becchina archive by getting meaningful answers to two basic due diligence questions:

Where did this object come from?
How and when did it get to the United States?

Photo credit: Jason Morrison.
Hat tip: Gary Nurkin

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Monday, July 14, 2014

Dinosaur Cases Offer Due Diligence Lesson

Cultural property attorneys should inform their dealer and collector clients that due diligence and a transparent marketplace are necessary to steer clear of contraband heritage that is offered for sale. That is an important lesson taught by the cases of U.S. v. Eric Prokopi and United States v. One Tyrannosaurus Bataar Skeleton.

The companion cases involved the criminal prosecution of Prokopi for fossil smuggling and the seizure and forfeiture of dinosaur bones. They allowed Manhattan’s top federal attorney on Thursday to repatriate an astonishing 18 trafficked dinosaur skeletons to the Mongolian people.

Prokopi’s cooperation helped to wrap up a two-year law enforcement investigation into fossil trafficking networks, which stripped irreplaceable paleontological evidence from the Gobi Desert and inserted black market fossils into the stream of legitimate commerce.

Some of the paleontological material returned to Mongolia
by U.S. officials last week. Courtesy ICE
The items returned included the bones of two Tyrannosaurus bataars. Federal officials repatriated another virtually complete Tyrannosaurus bataar last year following Prokopi’s 2012 guilty plea to conspiracy, unlawful import of goods by means of false statements, and transportation of goods converted and taken by fraud.

The cases remind observers that even though a seller may claim to offer artifacts legally, that does not necessarily mean the goods are legitimate. They must be checked out.

To discover the truth about whether artifacts have been stolen, illegally exported, or smuggled requires buyers and the marketplace as a whole to ask pointed questions and to demand credible documentation. That is why finding out where cultural objects originated from and obtaining their shipping and import documents must be an important function of cultural property attorneys who advise dealers and collectors about due diligence. To counsel clients otherwise may be unwise.

For example, Prokopi’s lawyers in the federal forfeiture case told the court in 2012 that government officials and “a media campaign stirred up by academic paleontologists” combined to unjustly target their small business clients. The attorneys, who regularly represent the interests of ancient coin dealers and collectors, wrote in pleadings filed with the court that the “commercial paleontologist” properly bought fossil bones on the open market, devoted time and expense to restoring and mounting the bones and, for this trouble, was unfairly targeted by the justice system.

They raised claims similar to those used to bolster the undocumented transnational trade of ancient coin artifacts:
  • The dinosaur bones were not stolen.
  • U.S. officials failed to publish proper country of origin and valuation rules for fossils.
  • The bones could not be proven to have actually originated from Mongolia.
  • It could not be proven that the bones were taken without the Mongolian government’s permission.
  • Mongolian law was ambiguous and unenforced.
Despite the arguments, the cases resulted in the production of information verifying that the fossils were in fact stolen, smuggled, and bound for the highest bidders, presumably to be bought by individuals who would not ask where the objects came from or how they made their way to the market. That prompted Homeland Security Investigation’s Special Agent-in-Charge James Hayes, Jr., to issue a statement last week warning that HSI will not allow the illicit greed of some to trump the cultural history of an entire nation.”

Cultural property lawyers can help dealers and collectors avoid entanglements with heritage traffickers and their illegal goods by promoting strict due diligence practices to investigate the origins and transportation of cultural artifacts. Attorneys can also take the lead to protect cultural heritage by supporting legislative reforms that would shine a spotlight on the black trade. This would be a significant step in the right direction now that the fossil smuggling cases in New York have come to a successful conclusion.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.