19 U.S.C. §1595a(c). Prosecutors alternatively say that the statue is subject to forfeiture under the criminal anti-smuggling law 18 U.S.C. § 545 because there is probable cause to believe that the statue "has knowingly been brought into the United States contrary to law." And prosecutors maintain that the statue may be forfeited as proceeds of a theft crime under 18 U.S.C. § 981(a)(1)(C) and the National Stolen Property Act.
Ms. Ruspoli di Poggio Suasa says that her husband bought the Cambodian statue in 1975 in London "in good faith in an arms-length, open market transaction" and that "[t]he couple brought the Statue to their home in Belgium, [where] it remained on display until it was shipped to New York in 2010 to be sold at auction by claimant Sotheby’s, Inc." Both Sotheby's and Ruspoli di Poggio Suasa are the named claimants in the government's forfeiture action.
The claimants' June 5 motion to dismiss makes the three-pronged argument that "[t]he Government has not alleged sufficient facts to establish a reasonable basis to believe it could meet its burden of proof at trial to show that the Statue was stolen from Cambodia, that it remained stolen at the time of import, and that it was known to be stolen by either Sotheby’s or Ms. Ruspoli."
The claimants challenge the prosecution's assertion that the statue was stolen from Cambodia. They contend that colonial laws from 1900 and 1925, arguably vesting ownership of the statue in Cambodia, are ambiguous. "Because the Colonial Decrees do not clearly and unambiguously declare that Cambodia owns the Statue, as a matter of law the removal of the Statue from Cambodia did not render the Statue stolen property," the claimants' attorneys argue.
The decrees were not even enforced, the attorneys suggest: "The [government's] Complaint is silent on whether Cambodia has ever before, in any context, enforced the Colonial Decrees as granting the state ownership of antiquities. Emails incorporated by reference in the Complaint reflect that Cambodia’s Culture Minister did not intend to seek to reclaim objects that left Cambodia 'years ago,' . . . before Cambodia’s 1992 law expressly nationalized antiquities. Another document incorporated by reference in the Complaint shows that Cambodia recognizes that the Companion Statue—which is similarly situated with regard to the Colonial Decrees cited by the Government—'belongs to' a Los Angeles museum [the Pasadena based Norton Simon Museum]." (Citations omitted).
The claimants argue that "[e]ven an apparently clear foreign law does not vest ownership if the foreign state has not actually enforced its own law as granting it title. . . . This rule prevents a country unwilling to take the politically unpopular step of seizing antiquities from its own people from asking this country [the U.S.] to do so on its behalf. It also prevents a country from 'rediscovering' laws that have previously not been enforced, thereby unsettling the reasonable expectations that have developed about the meaning of those laws."
The claimants additionally contend that there is no evidence showing that the statue was taken without Cambodia's permission. "An essential element in proving that the Statue is stolen is establishing that its removal was without the permission of appropriate government authorities." They compare the case to the government's failed effort in federal district court to forfeit the mummy mask of Ka Nefer Nefer located at the St. Louis Art Museum: "In Ka-Nefer-Nefer, the Government at least had evidence that the statue was once in the foreign state’s actual possession and that there was no record of a subsequent sale or gift. Here,the Government has not alleged that the Statue was ever in the actual possession of the Cambodian government, and the Government makes no allegation of the absence of gift or sale records. Nor, in any event, would the absence of such records be probative, given the passage of time, the intervening turmoil in Cambodia, and the widespread destruction of property records."
The claimants further declare that the government is unable to show that the statue was in Cambodia at the time the colonial decrees vesting title of the statue in Cambodia were enacted. "The Colonial Decrees on which the Government relies are only relevant if the Statue was still in Cambodia after 1900. . . . The Complaint, however, cites and incorporates powerful evidence that the Statue was not in Cambodia at the relevant time." (Citations omitted). That evidence is the Parmentier survey. The claimants' attorneys write that "[t]he Parmentier Survey, published in 1939, devotes five pages to a detailed description of the Prasat Chen temple, including the Western Gopura where the Statue supposedly stood, but contains no reference at all to the large and imposing stone Statue (or its companion). The only reasonable conclusion is that the Statue was not at Koh Ker when the Parmentier Survey was conducted."
The claimants' lawyers argue that "[e]ven if the Government has pleaded sufficient facts to establish that the Statue’s removal from Cambodia constituted theft (which it has not), the Complaint must still be dismissed for the independent reason that the Government has not met its burden of alleging facts showing the Statue remained stolen at the time of import." The attorneys maintain that Sotheby's imported the statue legally, saying that "the assertion that Sotheby’s imported property it knew was stolen is, on its face, wholly implausible. Sotheby’s, after all, fully and accurately described the Statue to the U.S. Customs Service at the time it was imported, put the Statue on the cover of the auction catalogue it circulated publicly around the world, accurately described the Statue’s provenance in that catalogue, and disclosed its intent to sell the Statue to the Cambodian Minister of Culture months in advance of the planned sale. Those are hardly the acts of a 'fence' knowingly selling stolen loot." (Citations omitted). The attorneys add:
"[Sotheby's] would have to have known at the time of import into the United States that Cambodian law in effect when the Statue was still in Cambodia gave that country title to the Statue. That is, Sotheby’s would have had to anticipate that Cambodia and the U.S. Government would take the position that a tangled, unclear patchwork of French colonial texts—no longer anywhere on the code books of the modern nation of Cambodia—decreed the Statue to be state property within the rules set down by McClain and Schultz. Yet the Colonial Decrees the Government cites are sufficiently obscure that even the Government has been unable to locate a fully legible version of the central decree on which it relies—the 1900 Colonial Decree—which it appears in any event was itself subsequently declared illegal."
[Author's sidebar: the McClain and Schultz cases stand for the proposition that a foreign patrimony law that clearly vests legal title in a cultural object may be used as a basis to trigger prosecution in the United States under the National Stolen Property Act in cases involving those who criminally receive property of another.]
Finally, the claimants object to the assertion that they knew the statue was currently stolen. The government cited a June 1 email by a scholar who advised Sotheby's that the statue was "definitely stolen." The attorneys for the claimants express that "the Government bears the burden of proving its case by a preponderance of the evidence. The June 1 email, however, is insufficient to create the required reasonable basis to believe the Government will be able to meet its burden at trial." The lawyers argue:
"First, the view expressed in the Art Historian’s email—that the Statue is 'definitely stolen' because the feet of the Companion Statue were found at Prasat Chen—is a non sequitor as a legal matter. As the law set forth above makes clear, knowing the place of origin is but one piece of a complex puzzle necessary to assessing whether an antiquity is stolen in the legal sense. It is hardly reasonable to think that Sotheby’s—which the Complaint alleges (at ¶ 18) had both a Worldwide Compliance Department and a Worldwide Legal Department tasked with dealing with such issues—would have formed its belief about whether this Statue was stolen based on the unsolicited opinion of a free-lance Art Historian who offered no view on such critical questions as when the Statue left Cambodia, who owned it under Cambodian law at that time, or what was the significance of the 1975 London sale. And, more importantly, even if the June 1 email had some modest force standing alone, it is completely undercut when one considers the subsequent emails incorporated by reference in the Complaint regarding what the Art Historian said and did shortly thereafter."
Further arguing their point, the claimants' attorneys submit::
"In late June, after traveling to Cambodia and speaking to Cambodia’s Minister of Culture, the Art Historian changed her opinion and retracted her concern that the Statue was stolen. As the Art Historian’s emails to Sotheby’s reflect, the Minister of Culture advised her that his focus was 'to stop anything from being exported from Cambodia now, not to go after pieces that left years ago when there were no restrictions.' He also assured her that Cambodia had no intention of seeking to reclaim the Companion Statue—a telling fact since (a) the Cambodians knew the Companion Statue’s feet had been found at Prasat Chen, and (b) the Companion Statue had a similar known provenance, having been sold by Spink [the London antiquities dealer] several years after the Statue. This new information both revealed that Cambodia was not actively enforcing the Colonial Decrees as vesting title . . . (because they did not plan to attempt to reclaim a work with similar provenance), and undermined any characterization of the Statue as stolen (since it was removed 'years ago when there were no restrictions'). It is hardly surprising that the Art Historian changed her mind, stating that: 'I think that Sotheby [sic] can therefore go ahead and plan to sell' the Statue, and that she 'think[s] that legally and ethically [Sotheby’s] can happily sell the piece.' Repeatedly thereafter, the Art Historian reiterated via email her view that Sotheby’s could lawfully sell the Statue, including: 'It was acquired legally, there should be no problem' and 'The piece was legally obtained, so can be legally sold.'" (Citations omitted).
The claimants conclude by saying that "the Government may not seize property by inventing new interpretations of colonial laws long since consigned to dusty archives, while ignoring the archeological record, settled law, and compelling indicia of good faith."
UPDATE August 2012: See the government's objection to the motion to dismiss.