Tuesday, November 24, 2015

Thank You Readers! ABA Journal Names CHL to Blawg 100 for Second Straight Year

For the second year, Cultural Heritage Lawyer has been chosen as one of the ABA Journal's BLAWG 100. That is only possible because of readers like you. Thank you!

Editors of the ABA Journal announced yesterday that they selected Cultural Heritage Lawyer as one of the top 100 best blogs for a legal audience.

“For us, at the ABA Journal, this isn’t just another award. We view our annual list as service to our readers, pointing them to a collection of some of the very best legal writing and commentary on the Web.”

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. The ABA is the largest voluntary professional membership organization in the world.

Text copyrighted 2015 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & PolicyResearch, Inc.

Tuesday, November 17, 2015

Exploiting Cultural Property is an "Important Revenue Stream" for ISIS

Dr. Michael Danti testifying on Capitol Hill about ISIS terror funding.
“ISIS has developed an organized and systematic approach for exploiting portable cultural property as an important revenue stream, especially ancient antiquities.” That is the assessment Dr. Michael Danti gave to members of the congressional Subcommittee on Terrorism, Nonproliferation, and Trade this afternoon.

Dr. Danti is part of the American Schools of Oriental Research Cultural Heritage Initiatives (ASOR CHI). In partnership with the U.S. State Department, the ASOR CHI project has been investigating cultural property crimes in Syria and northern Iraq.

Rep. Ted Poe (R-TX) chaired today's hearing, titled Terrorist Financing: Kidnapping, Antiquities Trafficking, and Private Donations.

Dr. Danti pointedly remarked that “all major belligerents operating in the conflict zone engage in cultural property crimes; however, all lines of evidence indicate ISIS ranks as the most egregious and brazen offender.”

When asked what we learned from the Abu Sayaff raid that we did not know before, Danti said that antiquities “were the functional equivalent to other resources." The military raid at a compound in eastern Syria in May killed the ISIS commander, and U.S. Special Operations Forces seized 700 cultural objects as well as documents showing that the terror group engages in antiquities trafficking.

CHL suggests that the best way to steer clear of purchasing conflict antiquities from Syria and Iraq right now is to avoid buying it.

Photo credit: House Foreign Affairs Committee

Text copyrighted 2015 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Tuesday, November 10, 2015

Due Diligence: INTERPOL's "Most Wanted" Stolen Tapestry Found in Auction Catalog, Seized by Feds

Increasingly commoditized and always discreet, today's art market perilously tempts the black market. Reforms are needed to shine a light on the trade. For now, the marketplace must remain vigilant against money launderersterrorist financiers, and fences who peddle hot art in the cool stream of legitimate commerce.

Steering clear of stolen art requires due diligence. That means that dealers, auction houses, collectors, and associated parties actually must do the investigative diligence required so that they are not directly or indirectly aiding criminal activity. Because the art market is opaque, diligence is needed to discover an object's true chain of custody, transfer, and ownership.

The latest court case demonstrating the need for due diligence is United States v. The Tapestry Known as "The Ambassadors of Rome Offering the Throne to Numa Pomplio."

Before the tapestry surfaced last year in Bonhams' Fine American and European Furniture, Silver Folk and Decorative Arts and Clocks auction, it debuted in 2007 on INTERPOL's "Most Wanted Works of  Art" list. The auction house apparently did not discover this information before it published the piece in its sales catalog.

Bonhams richly characterized the silk and wool textile as "[a]n important Flemish historical tapestry," and suggested that it was part of the "[t]he complete set of the Life of Numa Pompilius," which can be "attributed with certainty to the painter Abraham van Diepenbeeck (1596-1675)." Auction house writers were less descriptive about the ownership history, enigmatically chronicling the chain of title with the nondescript phrase, "Property of various owners."

Prosecutors in the southern district of New York articulated a more complete description of ownership. In a forfeiture complaint filed with the federal district court in Manhattan in May, they declared that it had been stolen--along with a second tapestry--from the home of an identified man in Satiago in October 2006. Chilean investigators reported the theft to INTERPOL, and the international police agency posted the tapestry to its Stolen Works of Art Database under registration number 2007/2882-1.1. 

The United States Attorney in Manhattan wanted the stolen tapestry back to return it to the owner, so his office commenced a civil action to seize the tapestry and forfeit its title to the U.S. government. The legal pleading, verified by the FBI agent working on the case, provided sharp details surrounding the consignment and offer for sale of the tapestry, known formally as the Defendant in Rem:
On or about September 27, 2013, a private art dealer (the "Dealer"), a resident of Santiago, Chile, contacted Bonhams New York Gallery located at 580 Madison Avenue, New York, New York ("Bonhams") via email and inquired into selling the Defendant in Rem at Bonhams.  The email included a color photograph of the Defendant in Rem. 
On or about October 3, 2013, a representative from Bonhams replied to the Dealer's email and advised that Bonhams would be willing to sell the Defendant in Rem at auction with an estimated appraised value between $30,000 to $50,000. 
On or about October 7, 2013, the Dealer agreed to consign the Defendant in Rem to Bonhams in order to be sold at auction on January 23, 2014. 
On or about October 10, 2013, the Dealer mailed the, Defendant in Rem from Santiago, Chile to Bonhams' New York Gallery via DHL Express. On a DHL commercial invoice, the Dealer declared that he was exporting a "carpet" with an approximate value of "$700." 
On or about January 2, 2014, the Dealer executed a consignment agreement with Bonhams under which the Dealer consigned the Defendant in Rem to Bonhams for sale at auction. The Defendant in Rem was included as Lot 1201 in the auction catalogue (the "Catalogue") .... 
On or about January 10, 2014, Bonhams' representative emailed the Dealer advising him that they had received a request for information as to the Defendant in Rem's provenance. 
On or about January 13, 2014, the Dealer responded to Bonhams' January 10, 2014, email stating, in sum and substance, that he purchased the Defendant in Rem from an art dealer in Santiago, Chile in approximately March 2002. 
On or about February 19, 2014, agents of INTERPOL questioned the Dealer in Santiago, Chile regarding his ownership and provenance of the Defendant in Rem. In response to these inquiries the Dealer stated, in substance and in part, and in contravention of his email to Bonhams, that he had purchased the Defendant in Rem in late 2006 or early 2007 from two individuals in Santiago, Chile. The Dealer claimed that he could not state the names of either individual and that he no longer had any documentation regarding these individuals or this transaction in his possession.
The U.S. Attorney's Office accused the dealer of having "knowingly imported the Defendant in Rem into the United States knowing that it had been stolen, converted, or taken by fraud, and facilitated the transportation, concealment, or sale of the Defendant in Rem, knowing the same to have been imported or brought into the United States contrary to law."

The forfeiture pleading alleged violations of 18 U.S.C. § 545 (fraudulent importation of merchandise into the United States), § 2314 (interstate and foreign transport of stolen merchandise), § 2315 (concealment, storage, and sale of stolen property), and/or 19 U.S.C. § 1595a (introduction of merchandise contrary to law).

With the assent of prosecutors, the district court on September 8 ordered the release of the tapestry to the true owner. Today the case serves as another reminder of why conducting a meaningful due diligence investigation into an artwork offered for sale is vital.

Photo credit: Verified complaint, U.S. Attorney for the Southern District of New York

Text copyrighted 2015 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, cultural heritage policy, art law, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, October 22, 2015

Watch Live: Monuments Men Awarded Congressional Gold Medal

The Monuments Men will be awarded the Congressional Gold Medal today. Watch it live beginning at 3 p.m. today by clicking on the video box below.

UPDATE - The broadcast is now archived in the video below. The recording has intermittent audio and video problems. Please be patient.

Senate and House leaders of both political parties will bestow Congress's highest civilian award to the team of men and women who, during World War II, sought to preserve cultural heritage from destruction.

Both legislative chambers on Capitol Hill passed the Monuments Men Recognition Act in May 2014, which the president enacted into law on June 9, 2014.

Congresswoman Kay Granger (R-TX-12) was a primary sponsor of the legislation. Some of the lawmaker's remarks to members of the House appear in the video below.

Text copyrighted 2015 by Cultural Heritage Lawyer, a blog commenting on matters of cultural heritage law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Sunday, October 18, 2015

2016 National Cultural Heritage Law Moot Court Competition: Registration is Now Open!

The Lawyers’ Committee for Cultural Heritage Preservation and DePaul University College of Law once again will host the annual National Cultural Heritage Law Moot Court Competition. Registration is now open.

Oral arguments will be held on February 26 and 27 at the United States Court of Appeals for the Seventh Circuit in Chicago, Illinois.

The 2016 Competition will focus on the Foreign Sovereign Immunities Act and other procedural issues raised by a lawsuit brought by the Acropolis Museum against the British Museum seeking restitution to Greece of the Elgin Marbles/Parthenon Marbles.

The competition is open to 26 two- and three-member law student teams The registration deadline is November 19, 2015.

Visit the competition website at go.depaul.edu/chmoot for additional details or to register a team. Contact the Competition Board at chmoot@gmail.com with any questions.

Attorneys interested in serving as judges or brief graders should contact chmootjudges@gmail.com. CLE credit is available for attorneys who participate as judges.

Photo credit: Patrik Rzezwicki

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, October 15, 2015

Fossil Smuggler Sentenced

Microraptor fossil recovered by ICE.
Fossil smuggling has been an area of law enforcement success for Homeland Security Investigations (HSI). The investigative arm of Immigration and Customs Enforcement (ICE) rarely generates heritage trafficking cases that lead to prosecutions. But court cases against Jun Yang, Eric Prokopi and John Richard Rolater have been noteworthy exceptions.

HSI's latest achievement is a plea deal concluded by the U.S. Attorney's Office in Wyoming with Charles Magovern of Boulder, Colorado, who was convicted of fossil smuggling.

Following the terms of the agreement, a federal district court last week sentenced Magovern to probation for illegally importing dinosaur specimens into the United States from China and Mongolia.

The felony information filed by Assistant United States Attorney Stuart Healy, III charged Magovern with willfully and knowingly importing paleontological material "by means of false statements and false papers, to wit, customs import declarations ... were false and fraudulent in that they did reflect as the purchase price of said merchandise a value which was less than the purchase price of said merchandise." Magovern, along with "fossil retailer" John Richard Rolater and another conspirator, "did knowingly aid and abet each other in the commission of this offense," the information further charged. The violations constituted offenses against 18 USC §§ 542 and 2.

ICE reported that the illegal imports were concealed "within legitimate cargo."

According to a press release issued by the agency, the smuggled objects included fossils dating as far back as 151 million years. They consisted of:
Anchiornis fossil recovered by ICE.
Part of the sentence included Magovern's agreement to forfeit "fossils already provided by the defendant" to ICE.

Magovern appears to have cooperated with authorities given his waiver of grand jury indictment, the quickness between the filing of the criminal complaint in July to the time of sentencing, and the actual terms of the sentence.

Photo credits: ICE

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Wednesday, October 14, 2015

Full Video: $5 Million Reward Announced at Conflict Antiquities Symposium Focused on ISIS Terror Funding

Evidence seized during a raid in May by U.S. Special Operations Forces on the compound of an ISIS leader shows that the terror organization engages in antiquities trafficking. The cultural objects recovered from the raid, in part, prompted CHL to post "Steering Clear of ISIS Loot: Don't Buy, Apply Strict Due Diligence."

Last week at the Metropolitan Museum of Art in New York City, the State Department revealed more direct evidence acquired from that raid and announced a reward of up to $5 million dollars for credible information leading to the significant disruption of the illegal trade in antiquities that benefits ISIS.

Robert Hartung, Deputy Assistant Secretary for Diplomatic Security and Assistant Director for Threat Investigations and Analysis Directorate, announced the reward at a symposium held on September 29 and titled "Conflict Antiquities: Forging a Public/Private Response to Save the Endangered Patrimony of Iraq and Syria." Video of that symposium is now available and can be watched below.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Tuesday, October 6, 2015

State Department Extends Cultural Property MoU with Nicaragua Despite AAMD Opposition

Earlier this year the Association of Art Museum Directors (AAMD) shifted its stance on bilateral agreements authorized by the Cultural Property Implementation Act (CPIA) when the group decisively opposed the renewal of U.S. import restrictions covering endangered archaeological material coming from Nicaragua. The State Department disagreed with the AAMD, and today backed a fresh memorandum of understanding (MoU) that extends these protective trade barriers for another five years.

Writing in opposition to Nicaragua's petition for a rejuvenated MoU, the AAMD argued in January that the Central American nation "simply fails to protect its own cultural property in the manner required by the CPIA."

The CPIA is the federal law that authorizes the enactment of heritage protection measures consistent with the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

"Refusing to extend the MOU could be the very wake-up call Nicaragua needs to undertake real and substantial efforts at a critical time in its history," the AAMD contended in a statement submitted to the Cultural Property Advisory Committee (CPAC), the group that reviews MoU requests.

The State Department's Assistant Secretary for Educational and Cultural Affairs, however, "determined that factors continue to warrant the imposition of import restrictions and no cause for suspension exists," the Federal Register reported. "Accordingly, these import restrictions will remain in effect for an additional 5 years, and the CBP [Customs and Border Protection] regulations are being amended to reflect this extension until October 20, 2020."

The import controls cover pre-Hispanic artifacts including ceramics, vessels, statues, mace heads, jewelry, and more. Similar barriers were first erected fifteen years ago in an effort to deter the looting of archaeological objects.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Wednesday, September 30, 2015

Antiquities Trafficking Investigation Reveals Suspected Ties to Terrorism and Money Laundering -- "Seize and Send" Outcome Flags Need for Special Prosecutors

cultural heritage law enforcement and prosecutions
ICE returned smuggled antiquities to Afghanistan
during a photo-op held in Washington, DC in 2013.
No prosecutions resulted from the case.
Newly obtained documents released by Immigration and Customs Enforcement (ICE) reveal that ICE Homeland Security Investigations (HSI) investigated a suspicious shipment of cultural heritage objects imported into the United States in 2011. U.S. Customs and Border Protection (CBP) and the HSI New York El Dorado Task Force (EDTF) seized the falsely labeled package, which bore the hallmarks of antiquities trafficking.

ICE investigators voiced concern about the possibility of money laundering, ties to terrorism, and how the same importers already had been involved in previous investigations. Meanwhile, they openly spoke about artifacts pouring out of Afghanistan and Pakistan.

Authorities seized the goods on the basis of violations of federal law, including the commission of felony crimes. Yet the investigation produced no arrests, no indictments, no prosecutions, and no convictions even for those who lied on the customs forms. In fact, the newly released documents confirm that no prosecutor was assigned to the case.

ICE is the investigative arm of the Department of Homeland Security (DHS). It is tasked with conducting criminal investigations; combating transnational crimes that exploit legitimate trade, travel and financial systems; enforcing the customs and immigration laws; and protecting the nation against criminal and terror organizations. HSI was formed in 2010 through the unification of ICE's former Offices of Investigations, Intelligence and International Affairs.

While the police agency routinely announces numerous arrests and prosecutions in cases ranging from child exploitation, illegal narcotics, human trafficking, financial crimes, contraband cigarettes, and more, ICE rarely generates criminal prosecutions in cultural property cases.

CHL readers will recall, for example, the highly publicized return of an Assyrian limestone head fragment earlier this year when ICE ambiguously reported "one arrest" related to Operation Lost Treasure--a police program focused on antiquities smuggling--but announced no arrests, indictments, prosecutions, or convictions connected with the illegal importation of the $1.2 million head from Iraq. The object had been brought to the United States illegally in 2008 from the United Arab Emirates.

This "seize and send" policy is starkly revealed in ICE's 2011 antiquities trafficking investigation as well, the details of which have now been revealed by documents disclosed under the Freedom of Information Act (FOIA). CHL filed the FOIA request in September 2013.

ICE's investigation was part of the touted Operation Lost Treasure program. In place of grand jury indictments, ICE held a photo-op ceremony in Washington, DC in September 2013, returning the evidentiary fruits of its investigative work to Afghanistan.

The carefully redacted and cherry-picked documents released on July 31, 2015 show that authorities intercepted a small shipment passing through New Jersey's international airport during March 2011. The package contained a pitcher and ancient gold objects, and HSI had reason to suspect a link to terrorism.

After the shipment arrived at the Central Air Cargo Examination Facility (CACEF) at Newark Liberty International Airport, CBP notified the HSI Special Agent in Charge New York (HSI SAC/NY), "requesting assistance with the importation of possible smuggled cultural property via express consignment (Fed Ex)," according to a police report dated April 21, 2011.

The customs paperwork accompanying the package obscurely declared, "Brass Jug, Plated Pendants, Unmanifested Gold Pieces" from Great Britain. "No Antique Statement nor provenance supplied," a CBP officer noted.

According to a document titled "Case Agent Cultural Property Art and Antiquities Repatriation Checklist," the import consisted of more than simple housewares and jewelry from England. Instead, there were cultural heritage objects that included:
Oinochoe seized by ICE and sent to Afghanistan.
1. A late Roman oinochoe, or wine pitcher, 5th-8th century A.D. of ovoid form with reeded body and central band of figures within arched reserves, shaped handle Height 4 (sic) 
2. Three (3) Scythian gold repousse, foil appliques. 5th century B.C., each depicting Antelopes. Height of each: 4 inches. Width of each: 3-1/4 inches 
3. Two (2) antique coiled gold ornaments, possibly 17th century. Height of each 3.8 inches. Weight of each: 2 ounces (approximate)
Authorities retained an appraiser who found that the retail values of the objects totaled $29,000 USD, almost 30 times greater than the trifling £650 GBP ($1,048.94 USD) claimed by the importer on the customs paperwork.

The objects had been devalued significantly, probably to bypass the formal customs entry, the kind of entry typically used when importing goods for commercial or resale purposes and the kind of entry that would have required more oversight. The importer likely knew that devaluing the objects below $2000 would cause the shipment to be less eye-catching. The value threshold today for an informal customs entry is $2500.

According to the appraiser, the values that should have been listed on the customs form were:
  • Oinochoe, Fair Market: $4,000; Retail: $8,000
  • 3 Gold Repoussé, Fair Market, $6,000; Retail: $12,000
  • 2 Gold Ornaments, Fair Market, $6,000; Retail: $9,000
A federal investigator confirmed, "It is ... suspected from prior case experience ... that this shipment is being imported improperly as an informal entry versus a formal entry. ... Cultural Property smugglers often utilize this tactic to avoid having their express consignments garner added scrutiny. Formal entries are required to have Harmonized Tariff Schedules, proper provenance or affidavits, invoices, shipping documentation, etc. The failure to provide adequate paperwork also makes this shipment subject to seizure and forfeiture according to 19 CFR 145.11 and 145.1218 USC 54218 USC 54519 USC 1595a (c) 1(a)." Such forfeitures are predicated on individuals committing illegal conduct, especially prosecutable crimes.

An email sent by the CBP Supervisory Officer assigned to Newark Liberty International Airport and dated April 22, 2011 explained that officials actually seized two shipments in March 2011. In addition to the oinochoe and the gold objects, which the customs officer initially believed to have been from the first century, authorities seized Iranian artifacts
On April 21, 2011 Officer from CACEF-FedEx/UPS along with Special Agents from SAC/NY, El Dorado Task Force (EDTF) Financial Group VI seized two cultural property shipments. 
In one shipment UPS officers targeted and examined a shipment listed as ''Antique Decorative Persian Metalwork". Research by CBPO ... and ICE SA ... determined that the items were from around the 12th century and the actual origin of the shipment to be Iran. The items were being shipped in violation of the 1987 United States Executive Order 12613 imposing an import embargo on Iranian origin goods and services.
In the second shipment FedEx officers targeted and examined a shipment coming from Great Britain that was manifested as "BRASS JUGS PLATED PENDANTS". 
Examination of the shipment revealed a brass jug, gold colored embossed plates and two gold colored pieces. Research by CBPO ..., ICE SA ... determined that these items were being brought in with a false country of origin, undervalued and were from approximately 100 B.C. These items were seized for being violation of 18 USC 545 - Smuggling Goods into the United States." 
Supervisory Special Agent  
Intellectual Property Art and Antiquities Investigations 
Department of Homeland Security
The released documents reveal nothing further about the Iranian objects.

With regard to the shipment containing the jug and gold items, not only did the importer provide bogus descriptions and phony values on the customs paperwork, the importer also misleadingly claimed that the goods originated from Britain. Because the package had been shipped from the Walthamstow neighborhood in London, the importer probably hoped that he could get away with this misrepresentation.

An April 21, 2011 investigative report expounded on this legal violation. "On April 18, 2011, the SME [subject matter expert] further elucidated that none of the items in this shipment could have had Great Britain as a country of origin." As a result, the report recorded that "[t]his importation contained a material false statement related to the country of origin," It pointedly added, "Individuals who smuggle cultural property often utilize false countries of origin to avoid Customs scrutiny in order to import controlled antiquities. Listing a false country of origin is a violation of 18 USC 542 (Material False Statement). If this shipment was destined to an antiquities dealer, they should know and would be responsible to know the country of origin. In this instance [it] is suspected that the false country of origin listed as Great Britain was a known false statement and a violation of 18 USC 545 (Smuggling). The shipment would be subject to seizure under 19 USC 1595 a (c) (Introduction Contrary to Law)."

The oinochoe and gold pieces were supposed to be delivered to a man living in New York City who resided at the same address as a registered New York corporation, referred to here simply as "Bactrian Global Enterprises" (BGE). DHS investigative report number 20 dated October 11, 2011, classified "BGE" as "a business that is suspected of antiquities smuggling and money laundering."

Concerns about smuggling, money laundering, and ties to terrorism almost certainly should have prompted a prosecutor to be assigned to the case. But the documents released by ICE reveal that no prosecutor was assigned. Whether ICE failed to ask for one or whether a U.S. Attorney's Office declined to assign one is unknown. What is known is that no prosecuting attorney was attached to a case flagged as one involving transnational felony conduct. A May 9, 2011 reply to an email sent a few days earlier from a chief CBP paralegal in the Office of Fines Penalties & Forfeitures explicitly confirmed that no attorney had been designated. The Paralegal Specialist asked if there was an Assistant U.S. Attorney involved. "No AUSA" was the dispiriting reply given.

By way of contrast, wildlife trafficking crimes, which are typically investigated by special agents of the U.S. Fish and Wildlife Service (USFWS), have designated prosecutors at the Justice Department's Environmental Crimes Section (ECS) available for consultation. Following the best practice of assigning a prosecuting attorney to a serious or complicated felony-level investigation, the Justice Department points out, "An ECS prosecutor often gets involved early in an investigation, such as when the investigator swears out a search warrant or when a grand jury’s investigative power is needed.  Once the necessary evidence is collected, the prosecutor presents the case to the grand jury for indictment. After indictment, the prosecutor guides the case through complex white collar and environmental law issues and prepares it for trial." ECS prosecutors also partner and coordinate with front-line prosecutors based at U.S. Attorneys' offices.

Repouseé gold foil applique depicting antelope
seized by ICE and sent to Afghanistan
Because ICE failed to arrest, indict, prosecute, or convict any individuals connected with the 2011 investigation, CHL will not identify the names of those who imported the cultural heritage objects or disclose the specific address where the shipment was bound.

With that said, ICE agents paid a visit on September 16, 2011 to the Manhattan address of "BGE" on the pretense of hand-delivering a property seizure notice prepared by a paralegal specialist four days earlier. Delivering it "would be a perfect excuse for an interview," a September 2, 2011 email divulged.

Two federal agents arrived at the Chelsea residence and found an unassuming building, the kind of four-story low-rise that New Yorkers walk by each day and never take a second look. Inside were unspecified antiquities. An agent summarized the encounter in a report dated October 11, 2011. (ICE redacted references to any names in the original report):
On September 16, 2011, Special Agents [   ] and [   ] conducted an interview with [   ] located at [BGE] located at [   ] New York, NY 10011. The interview contained but was not limited to the following topics of conversation: Special Agents [   ] identified themselves [   ] and asked permission to enter… Permission was granted and agents observed the address to be a basement level apartment of approximately two large rooms. One room was set-up as a residential space where two people appeared to be living. The second room appeared to be a large storage room with a computer. Stored in the room there appeared to be large quantities of crafts, jewelry and antiquities. [   ] stated that he lived at the address with his cousin and that the apartment was the location of a jewelry and craft business, and a real estate business. … [   ] relayed that he and his father are in the business known as [BGE] together and he was able to produce a business card attesting to this fact. The card also listed [   ] the cousin living at the address, as an employee of [BGE]. [   ] explained that the business is set-up to predominantly sell costume jewelry and textiles. 
SA [   ] stated he was there to deliver a seizure notice regarding an importation previously destined for [   ] at the address. [   ] stated that he was aware of it but that only his father knows about that specific shipment. [   ] stated that the merchandise for [BGE] comes from Pakistan. When asked specifically where the antiquities come from [   ] interrupted the conversation and stated that the antiquities were all from central Asia. [   ] was able to provide that their Customs Broker's name is [   ]. [   ] also stated that the shipment was sent to his father to sell on consignment and that his father didn't know much about it. SA [   ] explained to [   ] about the seizure notices and the accompanying paperwork and had him sign a sheet acknowledging receipt of the hand carried mail.
That no one knew anything of consequence is a fair summary of this same interview as memorialized by an HSI special agent's supplemental email dated October 5, 2011:
• He and his father are in the business together. They sell costume jewelry and textiles. 
• The father is the one that knows about the shipment.
• He did not know anything about the shipment.
• [   ] is their [customs] broker.
• There was another individual that was a real estate business partner of the father but not with ["BGE"]. Subject name was [   ] unknown proper spelling.
• [   ] stated that the shipment was sent to sell on consignment and that the father didn't know much about it."
Shortly after the interview, and for reasons not explained in the released documents, government information networks rang with alarm. Documents confirm that on Wednesday, October 5, 2011 computer terminals at U.S. border entry points flashed warnings over the Treasury Enforcement Communications System (TECS):



Before HSI agents actually conducted their interview in Manhattan, they made an effort to secure a search warrant for "BGE." But they never got one. That likely sparked the idea of serving the property seizure notice as a justification for visiting the importer.

Interestingly, ICE went outside the jurisdiction for help with getting a search warrant. Based on the both the substance and style of a conversation archived in an email string sent on the afternoon of May 10, 2011, one unidentified party, who could be an investigative agent based in the jurisdiction of the Southern District of New York (probably Manhattan), and the other unidentified party, who could be a federal prosecutor in the Eastern District of New York (probably Brooklyn), spoke about the matter.

The email string revolves around a request for an email search warrant. The presumed agent wrote that he or she learned that the suspect(s) already had been investigated for possible terrorism ties to Afghanistan, smuggling, and money laundering. Those cases were closed, and now there was a request for a fresh warrant. The emails offer the following exchange:

Agent: "I received this email a couple of months ago from a source and the pieces being offered are straight out of the ground. I recently seized a package in Newark destined for the address of ["Bactrian Global"] but the ultimate consignee was [    ]. When I inspected the shipment in person, the box (not the shipping label) was addressed to [   ] the principle behind ["Bactrian Global Enterprises"].

"The shipment was seized because it contained a false C/O [country of origin], and contained golden antiquities that were not declared. The shipment was seized on 4/21/2011.

"Would this all be recent and good enough for an email S/W [search warrant] in your opinion? If so, would you do it or could you recommend someone? I can send the ROI [report of investigation] related to the seizure and pictures if interested."

Prosecutor: "Is there any connection to the EDNY [Eastern District of New York]? How much do you think these pieces are worth? True CDO [country of declared origin]?"

Agent: "True C/O [country of origin] is most likely Iraq or somewhere in the middle east[,] the expert couldn't give one country 100% but she was 100% certain it was not GB [Great Britain]. Attached is the report. No estimate on value yet, but we are pretty certain it is more than declared because they failed to declare much of the shipment.

"Just learning that the principles (sic) have prior (failed and closed) investigations into them for money laundering, Cult. Prop. [cultural property] smuggling, and possible terrorism ties to Afghanistan.

"Does the same source who worked the UC op [undercover operation] that took place via JFK [Airport in New York] work [in order to form some legal tie to the Eastern District of New York]? Also, most of their shipments are via JFK. This one wasn't but it also used the wrong name on the shipping label."

Prosecutor: "I don't think we have venue here... I hate that there's dirt caked on them. Though it's so dirty, it makes you wonder if they're trying to increase value by faking a find."

Under the circumstances, a search warrant probably was not issued from the Eastern District of New York because the suspects were located in Manhattan, in the Southern District of New York. A specially assigned heritage trafficking prosecutor based at the Department of Justice in Washington probably could have facilitated this search warrant request by coordinating with the appropriate right U.S. Attorney's office. But no such specialist prosecutor exists.

So what looked like a criminal investigation into antiquities trafficking quickly turned into a seize and send case. Instead of holding the evidence and building the investigation for possible grand jury review, indictment, and conviction after trial or plea, ICE sought title to the antiquities through the forfeiture process, eventually sending the cultural heritage objects back to their country of origin. This seize and send disposition effectively terminated any chance of successfully prosecuting those responsible for lying on the customs entry paperwork.

An email dated January 25, 2012 from a Supervisory Legal Specialist at CBP 's Office of Fines, Penalties, and Forfeitures touched on this administrative process: "Please be advised that the cultural property in FP&F Case #: [   ] associated with OI #: [   ] has been administratively forfeited. I have attached the appraisal conducted on the seizure of this merchandise so you can determine the repatriation of these items to their rightful nations as per the seizure narrative of this case."

"Please send the seizure notice and Hold Harmless to [   ] Cultural Attache[,] The Embassy of Afghanistan...," requested an HSI SAC/NY special agent in an email dated April 5, 2013.

How Afghanistan and not Iraq or Pakistan came to be identified as the true country of origin remains unknown from the FOIA-released paperwork. Iraq had been mentioned as a possible country of origin in the police reports, and a special agent from HSI SAC/NY mentioned Pakistan in an email dated April 4, 2013, which pointed to the smuggling problem originating from South Asia. "You should see how much Afghan and Pakistani material we have from the [   ] case," the agent exclaimed. An unclassified but redacted email dated April 2, 2013 by an unknown government official echoed this troubling sentiment, "So much material is flowing out of Afghanistan and Pakistan; it really is a shame."

Although the repatriation essentially concluded the case, one undated document from HSI's Office of International Affairs insisted on the continuing nature of ICE's probe:
HSI New York's Operation Lost Treasure is an ongoing investigation targeting an organization smuggling items of world cultural heritage into the United States. The objects enter the antiquities market and the proceeds are laundered. Antiquities have been traced to Afghanistan, Iraq, Greece, Italy, Egypt and Iran and the funds have been traced to Dubai and London. To date, approximately 50 objects have been recovered with an estimated value of $2.5 million.
Whether ICE has probed this four year old case recently is unknown. What is known is that, according to NYS Department of State Division of Corporations Records, "BGE" today lists its principal office on the Upper West Side in New York City. "BGE," formed in 2006, is listed in the Yellow Pages as a home furnishings business that provides arts and crafts supplies. The company is a likely outgrowth of a preceding import/export company begun in the 1980's and now dissolved. Persons connected with "BGE'" and the 2011 investigation appear to use aliases that are subtle variations of their names, and the Manhattan address where HSI agents once visited currently houses at least four registered real estate corporations and an unregistered soft drink/grocery business, according to open source records. As of last month, an apparent relative of "BGE's" owner appears to have formed a brand new company at that address, which seems to be in the same type of business as"BGE."

HSI Assistant Director John Connolly emphasized during the repatriation ceremony of the artifacts to Afghanistan how HSI is "beating back this illicit trade through dedicated law enforcement efforts." But such a declaration remains inconsequential so long as crimes are committed and no perpetrators are brought before the courts. The participation of prosecutors are needed to do that. A designated group of specialist prosecutors working with HSI on their investigation may even have averted another "failed and closed investigation[]," as ICE put it, of cultural property trafficking.

Wildlife trafficking investigations should serve as a model for cultural heritage trafficking prosecutions. Because successful inroads have been made to combat this transnational crime, now more is being done. For the last five years, specialist prosecutors at ECS and their counterparts across the globe have been supported in their mission by the International Consortium on Combating Wildlife Crime (ICCWC), a group of five international organizations--including INTERPOL and the World Customs Organization. The ICCWC's mission is "to usher in a new era where perpetrators of serious wildlife and forest crime will face a formidable and coordinated response, rather than the present situation where the risk of detection and punishment is all too low." USFWS notes that the consortium "was formed to increase prosecution and punishment for caught smugglers and poachers."

Cultural heritage traffickers need to be prosecuted and punished too, and the inside look into ICE's 2011 seize and send case illustrates the point.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch CulturalHeritage Law & Policy Research, Inc.

Thursday, August 13, 2015

The Night Before the Theft at the Isabella Stewart Gardner Museum

The Concert
Who went to the Isabella Stewart Gardner Museum the night before the notorious theft of over a dozen artworks?

Carmen Ortiz, United States Attorney for the District of Massachusetts, and the FBI released a video last week seeking an answer to this question. “With the public’s help, we may be able to develop new information that could lead to the recovery of these invaluable works of art,” Ortiz announced.

The Storm on the Sea of Galilee
Twenty-five years ago, thieves in Boston stole Vermeer’s The Concert and Rembrandt’s The Storm on the Sea of Galilee among several other pieces. The case remains unsolved a quarter century later.

The poor quality security tape (displayed below) shows a car parked at the rear entrance of the museum. The FBI says that “[t]he car matches the general description of a vehicle that was reported to have been parked outside the Museum moments prior to the theft on March 18, 1990.”

According to agency officials, “The video also shows an unidentified man exiting the automobile and then being allowed inside the Museum, against Museum policy, by a security guard. That event occurred at 12:49 p.m. on March 17, 1990, almost exactly 24 hours before the thieves entered the museum through the same door.

Anyone who has information about the theft or the events captured on the security video should call the FBI at 617-742-5533 or the Isabella Gardner Museum at 617-278-5114.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Monday, August 3, 2015

Nominate CHL to the Annual Blawg 100

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Thursday, July 30, 2015

Steering Clear of ISIS Loot: Don't Buy, Apply Strict Due Diligence

Ancient artifact collectors share a passion for history, culture, and aesthetics. The best collectors embrace their role as stewards of heritage by dutifully caring for cultural material through conservation, storage, display, and study. But as fighting in Syria and Iraq intensifies, principled collectors are asking how to avoid purchasing "blood antiquities."

Like archaeologists, heritage preservationists, and the concerned public, collectors have seen the disconcerting satellite images of looters' pits that confirm severe damage to the archaeological record, and they have listened to assessments by law enforcement officials pointing out that ISIS/ISIL/Da’esh engages in the looting and sale of antiquities. They are also cognizant of the U.N. Security Council's unanimous decision in February to adopt Resolution 2199, which plainly expresses that terrorists "are generating income from engaging ... in the looting and smuggling of cultural heritage items ... in Iraq and Syria...." And today they learn that the U.S. Senate Foreign Relations Committee will take up S.1887, legislation that is similar to H.R. 1493, which authorizes emergency protections for endangered Syrian cultural property.

To steer clear of collecting potential ISIS loot, Richard Stengel, Under Secretary of State for Public Diplomacy and Public Affairs, recently tweeted this judicious guidance, “Don't sell; don't buy. That's one solution." Collectors would be well advised to heed this recommendation and avoid purchasing cultural heritage objects that appear to have surfaced from war-torn Syria or Iraq.

Yet a number of undaunted collectors will continue to shop the nubilous marketplace, optimistic that they will discover authentic and legal artifacts that, hopefully, do not contribute to terrorist funding or money laundering. For them, caveat emptor should remain the guidepost and strict due diligence the rule, particularly since mounting evidence offers abundant reasonable suspicion that would compel an ethical collector of ordinary caution to demand clear answers from a dealer about the exact origins, export, import, transshipment, and chain of possession of art, artifacts, or antiquities believed to have originated from the Middle East.

The justifiable suspicion that heritage trafficking funds terrorism received added confirmation in May when U.S. Special Operations Forces seized 700 cultural objects during a raid on an ISIS compound in the al-Amr region of eastern Syria. That area borders Iraq's Anbar and Nineveh provinces. The Department of Defense (DoD) implicated the owner of the collection in ISIS combat operations and asserted that the man, known only as Abu Sayaff, "helped direct the terrorist organization's illicit oil, gas, and financial operations as well."

The captured trove reportedly included bronze coins with Greek, Latin, and Arabic inscriptions (top); silver dirhams (right); copper bracelets (bottom left); gold dinars; cylinder seals; and more. As is typical with the black market trade, the genuine articles appear to have been mixed together with reproductions.

U.S. Ambassador to Iraq, Stuart Jones, offered the opinion that the raid revealed more than the ordinary measure of evidence. He contended, during a ceremony repatriating the objects, “These artifacts are indisputable evidence that Da’esh—beyond its terrorism, brutality, and destruction—is also a criminal gang that is looting antiquities from museums and historical sites and selling them on the black market."

Given the totality of data uncovered over the last several years linking trafficked heritage with terrorism, war, and money laundering, the largest community of collectors—museums—have taken steps to warn the public about the proliferation of the black trade. The International Council of Museums (ICOM) in September 2013 published a Red List spotlighting Syrian cultural objects at risk of plunder, and just last month the organization distributed a refreshed Red List covering Iraqi artifacts. The Red Lists help readers identify the kinds of artifacts looted from archaeological sites, stolen from museums, or smuggled across borders so that the distribution and sale of these precious heritage objects can be stopped.

The Red Lists signal extreme caution, and collectors of all stripes would gain peace of mind by provisionally abstaining from the purchase of objects that are believed to have originated from Syria or Iraq. Curbing consumer demand at the present time would have the added benefit of sending a message to suppliers that even the slightest hint of conflict-related commodities will not be tolerated in the legitimate stream of commerce.

Collectors determined to remain in the market, meanwhile, should employ a strict due diligence strategy to sharply limit the chances of acquiring possible contraband or facilitating money laundering. One suggested due diligence guideline—authored by individual collectors and presented to the pro-collecting Ancientartifacts forum in 2009—is titled A Code of Ethics for Collectors of AncientArtifacts. It remains a useful resource today, admonishing collectors to:
  • protect archaeological heritage and uphold the law
  • check sources,
  • collect sensitively,
  • recognize the collector’s role as custodian,
  • keep artifacts in one piece and consider the significance of groups of objects,
  • promote further study, and
  • dispose of artifacts responsibly.
To achieve these goals, the ethics code highlights common sense due diligence and acquisitions advice, including:
  • "Ask the vendor for all relevant paperwork relating to provenance, export etc."
  • "Take extra care if collecting particular classes of object which have been subjected to wide-scale recent looting.”
  • "Verify a vendor’s reputation independently before buying. Assure yourself that they are using due diligence in their trading practices, and do not support those who knowingly sell fakes as authentic or offer items of questionable provenance."
  • "Do not dismember any item, or acquire a fragment which you believe to have been separated from a larger object except through natural means."
  •  "Consider the implications of buying an item from an associated assemblage and the impact this could have on study."
  • "Liaise, where possible, with the academic and broader communities about your artifacts."
Collecting can play a constructive role in the stewardship of legally acquired and suitably documented artifacts. But in today's conflict-ridden environments in Syria and Iraq, guarding against criminal trafficking and the facilitation of terrorist financing is a heightened concern, which should prompt collectors to effectuate appropriate safeguards. "Don't buy" is the best protective measure, while strict due diligence remains a secondary, yet imperfect, line of defense for those willing to assume the risks in the traditionally opaque marketplace.

Photo credit: U.S. Department of State

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.