The government's case is an attempt to seize, forfeit, and repatriate a statue (the so-called Defendant in rem) offered for auction by Sotheby's this past spring. Sotheby's and Decia Ruspoli di Poggio Suasa are the claimants who want the Duryodhana sculpture to remain under their legal control. Both claimants have vigorously contested the civil forfeiture action.
Federal lawyers, in their memorandum asking the court to accept the amended complaint, write that "[at the September 2012 hearing] the Court repeatedly inquired as to the facts the Government expected to be able to prove at trial with respect to the theft of the Defendant in rem from Prasat Chen, and Sotheby's knowledge that the Defendant in rem was stolen." The proposed amended complaint and the supporting memorandum filed on November 9 contain the government's response to the court's inquiry, supplementing information provided by prosecutors in their initial April 2012 court complaint.
is alleged by prosecutors|
to have passed through Bangkok (above).
[Author's sidebar: A companion statue to the Duryodhana, a Bhima sculpture, has been identified at the Norton Simon Museum in Pasadena, California. Meanwhile, two other related statues are reportedly located at the Metropolitan Museum of Art in New York. See e.g., PRI's The World.]
The government's memorandum further avers that the "Amended Complaint ... alleges additional facts regarding Sotheby's knowledge that the Defendant in rem was stolen. Among other things, the Amended Complaint alleges that (1) Sotheby's and Ruspoli were aware that the Collector had been the seller of the Defendant in rem in 1975; (2) that Sotheby's consulted with the Collector prior to the importation of the Defendant in rem and throughout the 2010-2011 sale process; (3) that Sotheby's never included information about the Collector's pre-1975 acquisition of the Defendant in rem, or his role as the seller in 1975, in the provenance information it disclosed to the public, potential buyers, the Kingdom of Cambodia, or United States law enforcement; and (4) Sotheby's provided inaccurate provenance information to potential buyers, the Kingdom of Cambodia, United States law enforcement, and others, specifically that the Defendant in rem had been seen in the United Kingdom in the late 1960s, at least three years prior to its actual removal from Prasat Chen. (Am. Compl. ¶ ¶ 21, 29-30, 37, 43-44.)"
The proposed amended complaint specifically claims that "in or around 1974, representatives of [a United Kingdom] Auction House conspired with the Collector and the Thai Dealer to fraudulently obtain export licenses for the Defendant in rem and other antiquities to be shipped to the Auction House in the future." The proposed complaint asserts that "prospective buyers were unwilling to purchase the Defendant in rem due to its lack of legitimate provenance and missing feet. The Auction House, however, ultimately succeeded in selling the Defendant in rem in 1975, with the torso and head now reattached, to a Belgian businessman, on behalf of a Belgian corporation he controlled. After a transfer to a second corporation, and the death of the businessman, the Defendant in rem was ultimately transferred to his widow, Decia Ruspoli di Poggio Suasa (“Ruspoli”), in 2000."
The amended complaint continues with allegations that an officer in Sotheby's Indian and Southeast Asian Art section "retained a professional art scientist (the 'Scientist') to prepare a report on the authenticity of the head of the Defendant in rem and the condition of the work done prior to the 1975 sale to rejoin it to the torso. The Officer informed the Scientist that the head had been separated from the torso 'in antiquity,' rather than in 1972." The proposed complaint cites an internal Sotheby's email that purports to describe the scientist's observation regarding "the perfect condition of the head compared to the distress suffered by the body." The email allegedly offers the scientist's explanation "that the sculpture was either forcibly broken for ease of transport from the find site and then put back together later OR that the head and torso do not belong together." The government writes that Sotheby's later"terminated the Scientist's engagement."
The government also alleges that Sotheby's agreed to contact the Cambodian government about the sale of the sculpture but advised that "this communication should not come from the senior Sotheby's officer" so as not to attract attention.
The claimant's will have an opportunity to respond to the pleadings filed by the U.S. Attorney's Office.
The New York Times reports that Sotheby's denies the claims made by federal attorneys.
The news outlet also writes, "Prosecutors say that in 2010, when the statue was being imported into the United States, the owner submitted an inaccurate affidavit to American customs officials, at Sotheby’s request, stating the statue was 'not cultural property' belonging to a religious site." This statement has prompted some confusion in the blogosphere, which is important to address here.
By way of background, federal prosecutors allege in both their original complaint and their proposed amended complaint the following:
"In or about late April 2010, Sotheby’s imported the Defendant in rem into the United States in order to offer it for sale at auction. In the commercial invoice prepared in connection with the importation, the Defendant in rem is identified as a 10th Century 'Khmer stone guardian' from Cambodia. The Defendant in rem arrived at JFK Airport on or about April 23, 2010.
"On or about April 26, 2010, at the request of Sotheby's, Ruspoli executed an affidavit that was submitted to United States Customs and Border Protection stating, among other things, '[t]o the best of my knowledge, the [Defendant in rem] is not cultural property documented as appertaining to the inventory of a museum or religious or secular monument or similar institution in Cambodia.'"
This information is not new to the proposed amended complaint. But some readers may have thought otherwise, given that the latest news in the forfeiture case is the government's petition to file a newly amended complaint. The New York Times story did not report that prosecutors petitioned to file a new complaint.
Meanwhile, The New York Times' description of the Ruspoli affidavit differs from what is reported by federal prosecutors in their proposed complaint quoted above. The newspaper's truncated description may have opened speculation that federal prosecutors might be attempting to build their forfeiture case on the basis of false statements made to U.S. Customs and Border Protection. But government lawyers thus far have not presented this argument either in their initial complaint nor in the proposed amended complaint.
Of the several legal grounds on which prosecutors seek forfeiture of the Cambodian sculpture, none is based on the contention that anyone entered false information on customs paperwork in violation of 18 U.S.C. § 542. That federal statute prohibits the import of goods by means of false statements, and that statute can serve as the basis for a forfeiture of illegally imported goods as it did in the famous case of United States v. An Antique Platter of Gold. While the government intends to support its forfeiture case by referencing the Ruspoli affidavit, it has not argued clearly how the affidavit should be weighed by the court. Prosecutors have been careful to not explicitly characterize the Ruspoli affidavit as either false or true. The government, nevertheless, strongly implies that the affidavit in some way supports its legal theory of forfeiture of the Duryodhana statue, but not under 18 U.S.C. § 542.
A final observation. Federal prosecutors are likely aware that the language contained in the Ruspoli affidavit parrots the Cultural Property Implementation Act (CPIA) at 19 USC § 2607, which states, "No article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution in any State Party [to the 1970 UNESCO Convention on cultural property] which is stolen from such institution after the effective date of this chapter, or after the date of entry into force of the Convention for the State Party, may be imported into the United States." It is important to observe that the government does not argue forfeiture of the Cambodian statue based on a CPIA violation.
This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com