SLAM's attorneys describe two kinds of contraband. They explain that there is contraband per se, which include items illegal to possess under any circumstance (author's note: think of counterfeit money) and which can be automatically confiscated by the government without a hearing. They also say that there is derivative contraband, which include lawful items that are forfeitable because they are connected with a crime (author's note: think of a car used in drug trafficking). SLAM argues that if the mask is in fact contraband, then it must be characterized as derivative contraband that is not automatically forfeitable. Because the mask is not automatically forfeitable contraband per se, SLAM argues that the government must present evidence that the object is forfeitable as an item that derives from a criminal act.
SLAM writes in its August 3, 2011 pleading (some citations omitted):
"The Government’s evolving positions with respect to the ownership issue seem to be at war with themselves. First, it admitted in its own pleadings that there are several bases under [Egypt’s patrimony] Law No. 215 which would provide for private ownership of artifacts such as the Mask. Now it argues that Egyptian Law No. 215 forecloses property rights in artifacts such as the Mask and renders them contraband per se, akin to cocaine or an illegal whiskey still. In fact, Egyptian Law No. 117, which was enacted in 1983, after Law No. 215, specifically acknowledges that artifacts such as the Mask could be privately owned. United States v. Schultz, 333 F.3d 393, 401-02 (2d Cir. 2003). In that seminal case, the Second Circuit went on to recognize that Law No. 117 was the first Egyptian law declaring illegal any private ownership of all antiquities found in Egypt after 1983. The Mask, therefore, clearly cannot be considered contraband per se in the way that such items as narcotics are intrinsically unlawful to possess."
By making the claim that the mummy mask arguably can be characterized contraband derived from a crime, SLAM tries to reinforce its assertion that the burden of proving the forfeiture is on the government.
Meanwhile, it should be noted that the issue of whether the statute of limitations forecloses the government's seizure action is an argument that SLAM continues to raise. SLAM's lawyers write:
"The Museum has consistently taken the position that the Government’s claim is barred from the outset by the statute of limitations and that its forfeiture claim must fail because the Government is unable to prove the Mask was stolen. In raising the arguments it does, the Government is attempting to delay or avoid the consideration of those questions by confusing the standard for constitutional standing and making the bizarre suggestion that the Court pretend that the Museum claims an interest 'not of a centuries old Egyptian mask, but rather a kilogram of cocaine.'"
The United States Attorney's Office counters SLAM's latest assertions in a pleading filed August 4, saying that SLAM failed to make arguments about the contraband issue when it was supposed to. The government’s lawyers contend that SLAM never before raised the distinction of contraband per se and derivative contraband, writing that the museum only now “disputes whether private ownership of the Mask is authorized under Egyptian law.”