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 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 these same types of goods—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 in 2013.

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 can be disguised by placing smaller drops of dirty cash and contraband among a larger 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 remains missing.

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 of 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 Archives Produce 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 archives, 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.

Thursday, July 10, 2014

UPDATED > Dinosaur Track Defendant Pleads Guilty to PRPA Charge in Utah Federal Court

A federal district court in Utah has accepted a guilty plea from a man accused of violating the Paleontological Resources Preservation Act (PRPA).

A grand jury in March indicted 35 year old Jared Ehlers for taking a three-toed dinosaur track from a trail near Moab and then discarding the ancient footprint. Federal prosecutors accused the construction company owner of violating PRPA as well as stealing public property, damaging federal property, and destroying evidence.

Ehlers pleaded guilty yesterday to the PRPA crime. In exchange, the U.S. Attorneys' Office dropped the rest of the charges.

As part of the swiftly concluded plea agreement reached with the defendant's lawyer, prosecutors will recommend a sentence that includes one year of probation, six months home confinement (which allows for the defendant to leave home for work), and $15,090.44 in restitution costs. 

The restitution amount reflects the expense incurred by the Grand County Sheriff's Office and the Utah Department of Safety, whose officers unsuccessfully searched the Colorado River for the 190 million year old dinosaur track discarded by the defendant.

The defendant admitted to several facts in papers filed with the court on Wednesday, including the following:
a. On or about February 17, 2014, I knowingly excavated and removed a paleontological resource, to wit: a 150 pound rock containing a trace fossil of a three-toed dinosaur track 
b. from the Sand Flats Recreation Area which is located on public lands administered by the United States Bureau of Land Management; and 
c. that the value of the paleontological resource, together with the cost of its restoration and repair exceeded $500. 
d. On or about March 3, 2014, I knowingly concealed and covered up the paleontological resource by throwing it into the Colorado River. 
The case of U.S. v. Ehlers might be the first direct, non-conspiracy conviction under PRPA, a law that took effect just five years ago.

One should still take note of the groundbreaking case of U.S. v. Franz, involving a stolen ivory mammoth tusk from Alaska. That case resulted in convictions in 2012 for both conspiracy and theft of government property. The conspiracy conviction explicitly referenced the unauthorized removal of a paleontological resource under PRPA and resulted in a sentence that included a $100,000 fine.

Other known cases have cited PRPA, but they have not resulted in direct convictions under that statute. In 2011 the U.S. Attorney in Utah pursued the case of United States v. Cowan, a PRPA prosecution that also involved the unlawful taking of a dinosaur track. Prosecutors ultimately dismissed the charge on March 12, 2013 after the defendant satisfied a pre-trial diversion program, according to court records. And in the companion case to U.S. v. Franz known as U.S. v. Jettmar, a grand jury originally charged Franz's co-conspirator with a PRPA count, but the defendant entered a plea agreement resulting in a misdemeanor conviction under a separate criminal statue.

The federal district court is expected to sentence Ehlers at a hearing scheduled for October 20.

Photo credit: Wilson Souza

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 9, 2014

Support the Cultural Heritage Lawyer Blog

Show your appreciation for the Cultural Heritage Lawyer blog. The American Bar Association is judging which law blogs will make its 8th Annual Blawg 100. Time is short, so click on the link here to nominate the Cultural Heritage Lawyer blog. Thank you for your support!

Wednesday, June 25, 2014

SLAM Dunks Declaratory Judgment Action, Leaving Feds With No Forum to Claim That Ka Nefer Nefer is Stolen

Judge James Loken hinted during oral arguments in January that the federal government's effort to forfeit the Ka Nefer Nefer mummy mask still might have life even if the Eighth Circuit Court denied the government’s appeal. But now the federal government's case is truly dead.

Two weeks ago the court of appeals ruled against federal lawyers, halting their effort to forfeit the mummy mask on procedural grounds. And now district court Judge Henry Autrey has signed off on the St. Louis Art Museum’s (SLAM) notice to dismiss the museum’s separate declaratory judgment action.

Readers will recall that the declaratory judgment case was the initial SLAM mummy mask case, whereby the museum petitioned to establish exclusive title to the artifact. Before the U.S. government filed a forfeiture complaint in March 2011, SLAM started its own civil action for declaratory relief in federal district court, seeking to quiet the title of the 19th Dynasty Egyptian mask. The museum's February 2011 petition stated that the
Museum respectfully seeks declaratory relief to declare the respective rights of the parties with regard to the Mask, specifically that (1) the right of the United States to seek seizure and/or forfeiture pursuant to the provisions of the Tariff Act of 1930 (“Tariff Act”) is foreclosed by the applicable statute of limitations set forth in 19 U.S.C. § 1621, and (2) the provisions of Egyptian Law No. 215 [on the Protection of Antiquities] do not establish the Mask is Egypt's property, nor can the Defendants establish reasonable cause to believe the Mask was 'stolen, smuggled, or clandestinely imported or introduced' into the United States pursuant to 19 U.S.C. § 1595a.
During oral arguments about the forfeiture case, the Eighth Circuit suggested that the government could still argue the forfeiture claim as a defense in the declaratory judgment action. But with SLAM’s voluntarily withdrawal of the declaratory judgment suit last week, federal authorities are now left with no forum to argue their claim that the mask is stolen property that cannot be owned by SLAM.

Federal attorneys told the court of appeals earlier this year, "It was the museum that precipitated a judicial intervention by filing the declaratory judgment, explaining ""Our preference was to reach a mediated solution to this dispute ...."  But SLAM has now beaten the forfeiture case and, predictably, the institution has no interest arguing title.

What’s next? Perhaps nothing. Statutes of limitations may close the door on several legal alternatives. It is difficult to know what federal, state, legal, mediated, or political options are being discussed at this time, if any. But if such discussions are taking place, one would expect that SLAM’s governing structure is being probed as a possible requisite for action by private parties or public authorities (e.g., the Missouri attorney general). The museum is funded by property tax dollars, governed by a politically appointed board, and receives financial assistance from a supporting nonprofit organization. For now, however, the Ka Nefer Nefer case will stay in the afterlife.

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 is prohibited. CONTACT INFORMATION:

Tuesday, June 24, 2014

ABA Journal: How countries are successfully using the law to get looted cultural treasures back

The American Bar Association Journal has published an interesting cover story about looted cultural treasures that is well worth reading. View the full article here.

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 is prohibited. CONTACT INFORMATION:

Wednesday, June 18, 2014

Maryland District Court Rejects ACCG's Attempt to Relitigate Matters Already Decided in Ancient Coins Case

The United States District Court for the District of Maryland has said no to the Ancient Coin Collectors Guild’s (ACCG) request to challenge issues previously argued in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection.

Judge Catherine Blake, writing a June 3 memorandum opinion in the matter of U.S. v. Three Knife-Shaped Coins Et al., rejected the ACCG’s plea to relitigate a challenge to the validity of import regulations authorized by the Cultural Property Implementation Act (CPIA). Her decision also halts a repeat of arguments concerning the decision made by U.S. authorities to enact import protections covering ancient Chinese and Cypriot coin artifacts in jeopardy of pillage, saying this matter had already been addressed.

In fact, the Fourth Circuit Court of Appeals decided in 2012 that the federal government properly identified Chinese and Cypriot coins subject to U.S. import restrictions under the CPIA and that the detention of the coins by customs officials was proper. The appeals court pointed out that, under these circumstances, the burden shifted to the ACCG to prove that the import of the coins was lawful.

Judge Blake’s two page opinion declared that “it is abundantly clear that the claimant, Ancient Coin Collectors Guild (“the Guild”) seeks to expand the scope of this [federal district court] forfeiture action well beyond the limits set by the Fourth Circuit …. The Fourth Circuit’s opinion forecloses any further challenge to the validity of the regulations.” The judge added:
As the government notes in its motion to strike the initial answer, much of the [ACCG’s] answer and most if not all of the affirmative defenses seek to relitigate issues concerning the validity of the regulations and the government’s decision to impose import restrictions on certain Cypriot and Chinese coins. For example, in its Surreply opposing the motion to strike, the Guild suggests that the government will be required to establish that the coins were “first discovered within” and  “subject to the export control” of either Cyprus or China. (Surreply, ECF No. 18, at 1-2.) The Guild is not correct. This argument also is foreclosed by the Fourth Circuit’s opinion. Ancient Coin Collectors, 698 F.3d at 181-82.
The ACCG has responded by filing a motion to reconsider. In court papers filed this week, the Guild has contended that the “first discovered” argument is central to due process and must be litigated:
Due process afforded under the U.S. Constitution, the governing statute, and general principles of forfeiture law, all place the burden on the government to establish a factual basis for its contention that the coins at issue were “first  discovered within” and “subject to the export control” of either Cyprus or China.
The ACCG’s “first discovered” claim maintains that the U.S. State Department and CBP acted outside their authority by placing CPIA import restrictions on coins of certain types without initially showing that they were "first discovered" within their countries of origin. The Fourth Circuit has already struck down this claim, saying “We are not persuaded,” explaining that "State and CBP are under no obligation to list restricted items with more specificity than the [CPIA] statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.”

The battle of U.S. v. Three Knife-Shaped Coins traces its roots to 2009 when the Guild transported ancient coins from London to Baltimore to start a test case. The ACCG declared to U.S. Customs and Border Protection (CBP) that the coins were from China and Cyprus but failed to offer information about any known provenance. CBP took custody of the coins, and the Guild started litigation to challenge the validity of the CPIA’s cultural heritage import protections. After the ACCG lost, the U.S. Attorney in Maryland filed a forfeiture complaint in May 2013 to retain the coins. The ACCG filed a response soon thereafter.

The Maryland federal court is expected to rule on the ACCG’s motion to reconsider once a reply is offered by the government. The court will also set a discovery schedule as the case proceeds to trial.

Meanwhile, the ancient coin lobby has raised the possibility of a "coin looter's exemption" being proposed by Congress while the present district court action continues. Such an exemption to the CPIA could potentially affect the current litigation. The Lawyer's Committee for Cultural Heritage Preservation and the Archaeological Institute of America have issued calls to action in response.

A copy of the court's decision and the ACCG's motion to reconsider may be found on the Guild's web page here.

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 is prohibited. CONTACT INFORMATION:

Sunday, June 15, 2014

Congressional Gold Medal Authorized for Monuments Men

The president last week signed into law the Monuments Men Recognition Act of 2014 to award the Congressional Gold Medal to the men and women who fought to preserve cultural heritage during World War II.

Rep. Kay Granger (R-TX-12) and Senator Roy Blunt (R-MO) spearheaded the legislative effort along with other members of the House and Senate.

Congresswoman Kay Granger’s remarks on the House floor last month (video below) highlight the importance of the new law.

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 is prohibited. CONTACT INFORMATION: