Sunday, September 30, 2012

CPIA Cultural Property MoU with Guatemala Renewed and Expanded

Endangered Maya carved bone subject to import restrictions.  U.S. State Dept.
The U.S. government has renewed and expanded its bilateral agreement with Guatemala protecting jeopardized cultural heritage.  Friday's Federal Register reports that, after a review of the recommendations of the Cultural Property Advisory Committee (CPAC), the U.S. State Department's Assistant Secretary for Educational and Cultural Affairs "determined that the cultural heritage of Guatemala continues to be in jeopardy from pillage of certain archaeological objects and is also in jeopardy from pillage of certain ecclesiastical ethnological materials dating to the Conquest and Colonial Periods of Guatemala (c. A.D. 1524 to 1821)."   The decision by the State Department follows a public hearing held by CPAC in April.

The adopted import restrictions are authorized by the Cultural Property Implementation Act (CPIA) and are effective until September 29, 2017.  The Memorandum of Understanding (MoU) renews import controls on Pre-Columbian archaeological artifacts from Guatemala dating from 2000 B.C. to 1524 A.D.  Moreover, the bilateral agreement  has been broadened to include ecclesiastical objects from approximately 1524 to 1821 A.D.

The United States originally enacted emergency import protections in 1991 and 1994, covering Maya archaeology from Guatemala's Petén region.  The U.S. and Guatemala entered into a bilateral agreement in 1997 that covered pre-Columbian archaeological material. The countries later extended this MoU in 2002 and 2007.

Cultural objects covered by the bilateral agreement may legally pass through the American border when they have either an export permit or proof showing "that they left Guatemala prior to the effective date of the restriction: April 15, 1991, for archaeological material from Petén, and October 3, 1997, for archaeological material from throughout Guatemala," and September 29, 2012 for ecclesiastical material dating from the Conquest and Colonial Periods of Guatemala.

The 1973 Pre-Columbian Monumental or Architectural Sculpture or Murals Statute, meanwhile, also remains in effect.  That federal law forbids importation of designated Pre-Columbian cultural heritage into the U.S., except that monumental or architectural sculpture or murals may be imported when there is either an authorized export license or paperwork showing departure from the source nation before June 1, 1973.

Endangered cultural items protected by either CPIA import controls or the  Pre-Columbian Monumental or Architectural Sculpture or Murals Statute may be detained, seized, and forfeited by American authorities as contraband unless accompanied by an export permit or appropriate proof.  Criminal smugglers may also face potential prosecution.

It is best to speak with a cultural property attorney and/or seek a U.S. Customs ruling when importing cultural heritage from Guatemala.


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

Friday, September 28, 2012

Toledo Museum Sued for Non-Payment into Protective Services Officers' Pension Fund

The Toledo Museum of Art faces another legal challenge this year.  A lawsuit has been filed in federal court against the museum to recover employer contributions owed to a pension fund.

The plaintiff in the case of Central States Funds v. Toledo Museum of Art (12-cv-2780) says that an audit revealed that the museum failed to make contributions to an employee benefit plan on behalf of its protective services officers (PSO).  The complaint adds that the museum subcontracted PSO work in violation of its collective bargaining agreement.

The lawsuit will be heard in the United States District Court of Illinois, Northern District.

This case comes on the heels of a successful effort by federal prosecutors to have the Toledo Museum return an Etruscan kalpis to Italy, smuggled out of that country after being illegally unearthed.  The repatriation agreement of June 2012 was initiated by the U.S. Attorney's Office, Northern District of Ohio.  The museum purchased the pot in 1982 from art dealers Gianfranco and Ursula Becchina.  Convicted antiquities trafficker Giacomo Medici reportedly sold it to the Becchinas.


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

Arguments Made in Sotheby's Cambodian Statue Case on Motion to Dismiss

The federal district court in Manhattan yesterday heard arguments in the matter of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York.  The United States is seeking the forfeiture of the Duryodhana statue, claimed to have been removed illegally from the Prasat Chen Temple in Koh Ker, Cambodia.

Sotheby's attempted to sell the artifact last spring on behalf of the consignor, Ms. Ruspoli di Poggio Suasa.  But the U.S. government now seeks to repatriate the statue to Cambodia.

Yesterday's argument before Judge George B. Daniels was expected to address the claimants' motion to dismiss and the government's objection.  The court is anticipated to rule on the matter.


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

Hearing Scheduled in Antiquities Trafficking Case - U.S. v. Khouli et al.

Source: US District Court, Eastern District of New York
The U.S. District Court for the Eastern District of New York has scheduled an important hearing in the alleged antiquities trafficking case involving Joseph A. Lewis, II and Salem Alshdaifat, known as U.S. v. Khouli et al.

The evidentiary hearing will focus on the admissibility of the Alshdaifat's statements to law enforcement as well as the portions of the defendants' omnibus motions that have not been dismissed already.

A summary of the government's written arguments can be found here.  A summary of the defendants' written arguments can be found here: Part I and Part II.

The hearing will take place before Senior District Judge Edward R. Korman on November 19, 2012 at 11:30 a.m.

Lewis and Alshdaifat were charged by a federal grand jury in 2011.  They are presumed innocent unless the government proves guilt beyond a reasonable doubt.  Another defendant in the case, Mousa Khouli, pleaded guilty to charges in April.  A fourth alleged conspirator, Ayman Ramadan, remains a fugitive. 


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

Thursday, September 27, 2012

Court Denies Motion to Dismiss in Tyrannosaurus Bataar Forfeiture Case

"The motion [to dismiss] is denied as moot," wrote the Federal District Court for the Southern District of New York in the case of United States v. One Tyrannosaurus Bataar Skeleton.

Courtesy US Homeland Security
Claimant Eric Prokopi argued in his motion to dismiss that the Manhattan U.S. Attorney's seizure and subsequent attempt to forfeit assembled dinosaur bones should be stopped because the government failed to allege a proper claim.  The court, in response, raised questions about the forfeiture action, but gave permission to federal attorneys to cure any legal problems in a new verified complaint.

The U.S. Attorney filed a First Amended Complaint on September 21, 2012. That complaint has yet to be emailed to the court for publication in the public record. Based on the filing of the new complaint, nevertheless, the court yesterday struck down the claimant's request to dismiss the forfeiture case.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Monday, September 24, 2012

Ivory Smuggler Pleads Guilty in U.S. v. Gordon

Ivory seized by federal authorities. Photo USFWS.
Federal prosecutors in the eastern district of New York last week secured a conviction in the case of United States v. Victor Gordon. Gordon entered a plea of guilty on September 18 to a substituted charge of smuggling elephant ivory under the African Elephant Conservation Act 16 U.S.C. 4223 et seq.

A federal grand jury indicted the Philadelphia art dealer in July 2011, charging him with conspiracy to smuggle elephant ivory, four counts of smuggling, and five Lacey Act violations. See here for further background.

The plea agreement calls for the uncontested forfeiture of hundreds of ivory tusks, ivory carvings, and at least $150,000 in cash.

Darren LaVerne handled the plea hearing for the prosecution.  Sentencing is scheduled for April 23, 2013.

[UPDATE: The court date for sentencing has been changed to August 2013].
[UPDATE: Sentencing has been rescheduled to October 2013].
[UPDATE: Sentencing has been rescheduled to February 2014].
[UPDATE: Sentencing has been rescheduled from February 2014 to a future date].
[UPDATE: Sentencing took place on June 4, 2014.  See here.]

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Saturday, September 22, 2012

New Complaint Filed in Dinosaur Forfeiture Case

The United State Attorney in Manhattan submitted a newly amended complaint on Friday in the forfeiture case of United States v. One Tyrannosaurus Bataar Skeleton.  The complaint was filed in response to questions raised by the southern district of New York federal court.  It has not been published by the court as of this writing.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Thursday, September 20, 2012

MoU with Mali Extended

The United States yesterday renewed the extension of import restrictions covering archaeological material from Mali.  Click here for a description of the rule.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Cultural Property Cases Roundup - Khouli et al., Sandstone Cambodian Sculpture, Weiss, and ACCG Appeal [UPDATED]

September is a busy month for cultural property law cases.  More activity is expected in the case of United States v. Mask of Ka Nefer Nefer soon, a case that involves the U.S. government's attempt to forfeit a mummy mask from the St. Louis Art Museum and repatriate it to Egypt.   [UPDATE 9/25/12: The 8th circuit has lately granted an order permitting the government to file its brief in the case on October 26 rather than in September].  Thus far there has been activity in four other important cases.

The case of U.S. v. Khouli et al. saw the submission of legal memoranda by defendants Joseph Lewis, II and Salem Alshdaifat urging the court to dismiss the criminal charges against them.  A grand jury alleges that the pair had roles in trafficking antiquities.  Lewis and Alshdaifait vigorously deny the charges.  A third co-defendant, Mousa Khouli pleaded guilty in April 2012.

On September 18, 2012 the eastern federal district court in New York ruled on Lewis' arguments.  Judge Edward R. Korman denied the Motion to Dismiss but the omnibus motions remain.  The court on September 10, meanwhile, granted Alshdaifat's request to travel to England to meet with overseas business partners and to attend the Coinex London 2012 numismatics show.  The prosecution objected to the request.  According to Alshdaifat's lawyer in a September 5 letter to the court, Alshdaifat "has a joint venture with a business in London, called Roma Numismatics."  It appears, however, that the joint venture is actually Athena Numismatics Ltd., which is listed on VCoins.

In the southern district New York federal court, Sotheby's and Ms. Ruspoli di Poggio Suausa filed a reply memorandum on September 17 to bolster their June 5, 2012 motion arguing that the government cannot forfeit a statute in the case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's.  The claimants' reply brief was filed in response to the government's pleading submitted last month.

New York state court, meanwhile, scheduled the case against Arnold Peter Weiss for sentencing on September 17.  Weiss pleaded guilty in July to attempted criminal possession of stolen property in the fourth degree.  Terms of his sentence, pursuant to the plea agreement, are outlined here.  As part of the sentence, Weiss published an essay titled "Caveat Emptor: A Guide to Responsible Coin Collecting" in American Numismatic Society Magazine.

In Virginia, oral argument in the fourth circuit court of appeals took place on September 19 before judges J. Harvie Wilkinson, III, Stephanie D. Thacker and Michael F. Urbanski in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs.  The ACCG appealed their August 2011 loss in the lower federal district court in Baltimore.  The organization submitted its written arguments in October 2011, and the federal government replied in January 2012.

The attorneys' oral arguments in the ACCG case can be heard in their entirety here.  In sum, Judge Wilkinson appeared unwilling to involve the judiciary in foreign affairs decisions of the executive branch, which can be overseen by the legislative branch. He had apparent trouble finding that  the U.S. State Department acted arbitrarily or capriciously when implementing import controls over ancient coins under the Cultural Property Implementation Act (CPIA). "Why should we jump into this and make it a tri-cornered mess," asked the court in its apprehension of being drawn into a matter that involves the two other branches of government.

The court appeared to believe that there is a "slight burden" placed on the importer--not on the government--to show where ancient Chinese and Cypriot coins have been in the past few years; the inquiry is not where the coins have traveled in ancient times. And this burden, which is  "not a huge hurdle to surmount," should be placed on importers because importers have the most knowledge.

[Hat tip to Nathan Elkins for highlighting the Weiss article in ANS Magazine].


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Sunday, September 9, 2012

New York Federal Court Raises Questions in US v. Tyrannosaurus Bataar Skeleton

The federal district court, southern district of New York, has raised doubts about the facts asserted in the case of United States v. One Tyrannosaurus Bataar Skeleton.  Claims made by Eric Prokopi's lawyers prompted the questions.

Prokopi seeks the return of the Tyrannosaur skeleton, which he assembled and consigned for sale at Heritage Auctions in New York.  Immigration and Customs Enforcement (ICE) seized the skeleton in June, and the U.S. Attorney in Manhattan filed a court action to forfeit the bones and repatriate them to Mongolia.

On September 7, 2012 Judge P. Kevin Castel issued an order concluding that "the proceedings held on September 5, 2012 call into question some of the assumptions in the government's Verified Complaint."

Judge Kastel observes:

"The representations made on the record on September 5 by claimant's counsel call into question whether the Defendant Property [the dinosaur bones] was ever valued on a customs declaration as $15,000 . . . . The $15,000 figure (or $19,000 as stated by claimant's counsel) appears to have been the valuation for one of four shipments into the United States of dinosaur bones some of which were encased in non-organic material and required extensive and difficult cleaning. According to claimant's counsel, approximately 50% of the organic material comprising the Defendant Property had been previously acquired by the claimant in the United States. The nearly complete skeleton (80% of the head and 75% of the body) depicted in the government's evidence and sold at auction does not, according to claimant's counsel, come from a single Bataar. Claimant's counsel asserts that the four shipments together with the 50% material acquired in the United States were assembled by the claimant, Eric Prokopi, using his time, experience and talent, which greatly enhanced the value of the individual shipments."

The court also asks whether the dinosaur skeleton actually originated from Mongolia, as the government alleges in its initial complaint.  Judge Kastel writes:

"There is also a serious question of whether the government has alleged sufficiently detailed facts supporting a reasonable belief that the Defendant Property originated in the nation of Mongolia and was removed in violation of Mongolian law. The Bataar is said to be native to Nemegt Basin in the Gobi Desert in Mongolia. The Nemegt Basin is in the Ömnögovi province of Mongolia which borders with China. There is nothing before this Court which speaks to whether 70 million years ago it would have been implausible for the Bataar to have roamed the bordering territory, including present-day China, or whether geological formations in China (or other nearby nations) would have been conducive to preservation of such skeletons. The government represented that, thus far, substantially complete skeletons of Bataars have not been found outside of Mongolia but did not dispute claimant's counsel's representation that bones of Bataars—less than a full skeleton-- have been found elsewhere."

The court, moreover, wonders whether criminal laws were actually violated when importing the dinosaur bones. The order states:

"Finally, certain of the statutes on which the government premises forfeiture have specific mens rea  [i.e. criminal knowledge] requirements. For example, the anti-smuggling provision requires the person who fraudulently or knowingly imports or brings the property into the United States—or receives it, must “know[] the same to have been imported or brought into the United States contrary to law. . . .” The prohibitions on transportation or receipt of stolen goods require the person to “know[] the same to have been stolen. . . .” 18 U.S.C. §§ 2314 & 2315 [of the National Stolen Property Act]. The Verified Complaint must set forth a basis for believing that some person who engaged in the prohibited conducted—not necessarily the claimant — had the requisite knowledge."

Given the above, the court is permitting government lawyers to file an amended complaint by September 21 if they wish.

It is helpful to note that Heritage Auctions advertised the sale of the dinosaur skeleton, in part, in the following manner:

"This is an incredible, complete skeleton, painstakingly excavated and prepared, and mounted in a dramatic, forward-leaning running pose. The quality of preservation is superb, with wonderful bone texture and delightfully mottled grayish bone color. In striking contrast are those deadly teeth, long and frightfully robust, in a warm woody brown color, the fearsome, bristling mouth and monstrous jaws leaving one in no doubt as to how the creature came to rule its food chain. Equally deadly and impressive are the large curving claws, with pronounced blood grooves. The body is 75% complete and the skull 80%, and it is mounted on a discreet gray-painted armature. Measuring 24 feet in length and standing 8 feet high, it is a stupendous, museum-quality specimen of one of the most emblematic dinosaurs ever to have stalked this Earth. Bone map and restoration details available upon request."

[Sidebar: A federal forfeiture action applying federal law does not involve questions of whether New York State consumer protection laws or state criminal statutes were or were not followed.]

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Thursday, September 6, 2012

The Return of Cultural Objects: A Symposium


DePaul's Center for Art, Museum, & Cultural Heritage Law will present
a symposium that addresses the legal, ethical, and moral issues
surrounding the repatriation and restitution of cultural objects.

The keynote address will be given by Lynn Nicholas,
author of The Rape of Europa.

The program will take place

October 29, 2012

DePaul University College of Law
DePaul Center
1 East Jackson Boulevard
Room 8005
Chicago, IL

Lawyers attending may receive six CLE credits.

Online registration is available here.
Questions about the conference may be directed here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Tuesday, September 4, 2012

Rigorous Due Diligence: Tax and Appraisal Forms May Supply Important Information to Museums Regarding Antiquities

Object donated to the Walters Art Museum.
Source: AAMD Object Directory

Donated cultural artifacts listed in the annual reports of museums or on the Association of Art Museum Directors (AAMD) Object Registry do not always report the same information that the Internal Revenue Service (IRS) demands when a donor files for the tax deduction offered.  Sometimes the gift of a cultural object is made by a donor to his or her nonprofit foundation first and then to a qualified nonprofit museum, and sometimes the gift is made by the donor directly to the museum.  In either situation, there should be appraisal and tax records available upon request to a museum, which can examine these sources of information when conducting a rigorous due diligence collecting history investigation to determine whether to accession the cultural artifact.

IRS Publication 526 discusses charitable contributions in general and explains how donating property such as art and antiquities to a qualified organization can provide an income tax deduction to the donor.  A donor may also steer clear of capital gains taxes on appreciated assets by donating antiquities.

IRS Publication 561 discusses paintings, antiques, and other art objects.  Any antiquities that are worth $5001 or more "should be supported by a written appraisal from a qualified and reputable source." An appraisal is mandatory for any cultural object valued at $20,000 or more. The IRS writes, "If you claim a deduction of $20,000 or more for donations of art, you must attach a complete copy of the signed appraisal to your return. For individual objects valued at $20,000 or more, a photograph of a size and quality fully showing the object, preferably an 8 x 10 inch color photograph or a color transparency no smaller than 4 x 5 inches, must be provided upon request." The determination of authenticity for tax purposes is made by a qualified appraiser.

The IRS gives examples of what information should be included in a description of donated property, including:
  • the name of the artist or culture,
  • the approximate date of creation,
  • the cost of acquisition,
  • the date of acquisition,
  • the manner of acquisition,
  • a history of the item,
  • proof of authenticity, and
  • the facts on which the appraisal was based.
The donation information is placed by the donor on IRS Form 8283, submitted with the donor's regular income tax form.

These appraisal and tax forms may supply important authenticity and collecting history information to a museum's provenance curator or other official as a museum determines whether to accept the gift of an antiquity from a donor.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com