In a pointed and efficient twenty page legal memorandum filed Monday, lawyers for the claimants in United States of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's charge federal prosecutors with having failed to allege that the statue was stolen, that it remained stolen, or that the claimants even knew that the statue was or remained stolen. They also accuse prosecutors of having wasted the court's time to the detriment of the claimants.
The case is a civil action by the U.S. Attorney for the Southern District of New York to forfeit a Khmer statue and repatriate it to Cambodia. Sotheby's auction house in Manhattan and consignor Decia Ruspoli di Poggio Suasa are the claimants trying to stop the forfeiture.
Last month federal prosecutors proposed an amended complaint to the court that raised new allegations in the case, including that the Duryodhana statue was stolen from Cambodia in 1972, was trafficked through Thailand, and that a scientist was fired after having concluded that the sculpture may have been broken for ease of transport. The claimants' Memorandum of Law in Opposition attempts to block the government’s request for permission to file the amended complaint. Below are highlights of the claimants’ arguments quoted from their memorandum:
"During oral argument on our motion to dismiss, the Court pressed the Government to identify 'clear ownership established by clear and unambiguous language.' 9/27 Tr. at 126. The Government was unable to do so. The French colonial decrees on which it relied simply do not clearly and unambiguously grant the state ownership of objects like the Statue, and the Government and its expert could not identify even one instance, in the eighty-seven years since the decrees were issued, in which anyone had interpreted those decrees as doing so.
"The proposed amended complaint ('PAC') does not solve this fatal weakness in the Government's case. The PAC does not identify some newly found law declaring Cambodia the owner of the Statue. Indeed, it does not identify any law beyond those already discussed in the Government's prior filings. Instead, the Government now relies on the inherent right of kings. The PAC claims that a Cambodian king a thousand years ago built the Prasat Chen temple where the Statue's feet were allegedly found, and asserts that the Statue--and anything else from Prasat Chen, no matter when or where found--therefore automatically belongs to the modern Cambodian state.
"No court has ever forfeited property on such a theory, which squarely conflicts with the settled and undisputed law articulated in [United States v.] McClain and [United States v.] Schultz. According to those cases, due process forbids applying the statutes on which this forfeiture case relies unless the foreign law invoked as the basis of ownership is both clear and unambiguous. There is no law at all, much less a clear and unambiguous one, declaring either that the ancient Cambodian king owned everything at Prasat Chen when it was built one thousand years ago, or that the modern state of Cambodia now owns everything from Prasat Chen that was abandoned to the jungle fifty generations ago."
"Specifically, the absence of such a [Cambodian patrimony] law also prevents the Government from calling into question the good faith of either Ms. Ruspoli or Sotheby's. Both were entitled to conclude from the absence of any clear law vesting ownership in Cambodia that the Statue was not stolen when removed from Cambodia. And both were certainly entitled to conclude that it did not remain stolen at the time of import into the United States, almost two decades after the period allotted by English law for Cambodia to make a claim had expired."
"The PAC strains to cast Sotheby's in a bad light by offering selective quotations from very limited portions of the documentary record. These attacks on Sotheby's are not just untrue; they are unfair, for they are fully rebutted by documents currently in the Government's possession. For example, the PAC alleges that Sotheby's was ‘inaccurate’ when it told ‘potential buyers, the Kingdom of Cambodia, and United States law enforcement’ that the Statue ‘had been seen in the United Kingdom in the late 1960s.’ PAC 43. But documents produced to the Government more than a year ago reflect that the Art Historian represented to Sotheby's, in writing, that she herself had ‘[f]irst seen' the Statue at 'Spink & Son ... in the late 1960's while visiting London.' Neiman Aff. Ex. 1 at SOTH-000196. Any inaccuracy cannot fairly be attributed to Sotheby's. So too, the PAC faults Sotheby's for 'omitting' the Collector's alleged prior ownership of the piece when it described the Statue's provenance. PAC 44. But the very document the Government cites--a May 2010 email--relates to an instance in which Sotheby's shared this information with representatives of a potential buyer. Neiman Aff. Ex. 2. That Sotheby's later stopped including this information in the Statue's provenance reflects not an effort to conceal an innocuous fact (the Collector is sufficiently well regarded in the field that his books have featured laudatory forwards by Cambodia's Minister of Culture and the Director of its National Museum, and there is no allegation that Sotheby's knew he was linked to a smuggling ring), but rather a change in its understanding of the facts: in June 20 1 0, the Collector himself, in writing, squarely denied prior ownership. Neiman Aff. Ex. 3."
"Discovery exchanged in this case reveals that the Government had in its possession the 'new' facts alleged in the PAC in mid-July of this year, more than a month before the Government filed its opposition to our motion to dismiss. Perhaps recognizing that these facts did not address the key problems with its Complaint, the Government made the tactical choice not to seek leave to amend, and instead to hint in its opposition brief that it had new information. It was only after the Court at oral argument on the motion to dismiss called its case '[not] the strongest,' 9/27 Tr. at 126, that the Government rethought that tactical choice and filed this motion. The unreasonable and unnecessary delay between when the Government had the information and when it sought leave to amend significantly burdened both the Court and Claimants, and provides an additional basis for denying leave to amend.
"The risk in a case like this is that the Government--even if it lacks any fair basis to proceed--can win simply by making the case more expensive to litigate than the property is worth."
"The Government has now had three full opportunities to state its case: in its opening complaint, in its brief in opposition to our motion to dismiss, and in its proposed amended complaint. The Government has failed all three times to identify a clear and unambiguous law granting Cambodia ownership of the Statue. It has instead responded with three different legal theories, each of which was constructed for this litigation but has-so far as one can tell from the Government's pleadings and the affidavit of its expert-never been applied before to any similarly situated object. None of these theories comes close to meeting the due process test.
Nor has the Government been able to identify facts challenging the good faith of Ms. Ruspoli or her husband, or a reasonable basis to believe that Sotheby's knew the Statue was and remained stolen. There is no reason to give the Government yet another chance. Leave to amend should be denied, and the Complaint dismissed with prejudice."
Hat tip: Gary Nurkin.
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