Thursday, October 25, 2012

Cassirer Case Stays the Dispute Between The Getty and Armenian Church over the Zeyt'un Gospel Pages


The Los Angeles County Superior Court has agreed to follow a joint stipulation filed by the Getty Museum and the Western Prelacy of the Armenian Apostolic Church of America by ordering a suspension of the court case between the parties.

In June 2010 the Armenian Church sued the J. Paul Getty Museum for the return of seven missing pages from an illuminated Bible created in 1256.  The court last year ordered the parties to mediate the dispute. As recently as August 8, the parties told the court that they needed additional time to mediate. The parties earlier informed the court that they were discussing a possible solution to the Zeyt'un Gospel pages controversy, saying that a May 10, 2012 mediation session resulted in "substantial progress . . . toward a potential voluntary resolution of this dispute . . . ."

In their stipulation to stay the proceedings filed on October 19, the litigants both conclude that the case should be placed on hold pending the outcome of Claude Cassirer et al. v. Thyssen-Bornemisza CollectionFoundation.

Before he died, Cassirer filed a lawsuit in 2005 in the United States District Court for the Central District of California for the return of a painting titled “Rue Saint-Honoré, Afternoon, Rain Effect.” Cassirer's attorneys argue that the painting, now in Spain, was taken unlawfully from his grandmother.

The Cassirer case focuses on the same statute of limitations relied on by the Armenian Church in its dispute with The Getty, specifically Cal. Code. Civ. Proc. §338(c). Signed into law in 2010, the statute was primarily designed to allow lawsuits for the recovery of Nazi looted art by extending the time period that stolen art claims could be filed--from a six year statue of limitations to a statute of limitations that begins from the time of the actual discovery of the elements of a claim.  The federal district court struck down this statute in May 2012 because the law unconstitutionally intrudes upon the federal government’s exclusive power to conduct foreign affairs, according to the reasoning of the lower court.  The matter is on appeal in the Ninth Circuit.

Given that "the resolution of that appeal may determine the outcome of this case," the Armenian Church and The Getty have agreed in writing to suspend their court proceedings so as "to avoid potentially unnecessary litigation efforts and expenses pending the outcome of that appeal."

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

Dinosaur Claimant's Attorneys File Sharply Worded Reply Memorandum and Ask Court for Expedited Hearing

In a sharply worded reply memorandum filed Tuesday in the forfeiture case of United States v. One Tyrannosaurus Bataar Skeleton, lawyers for dinosaur claimant Eric Prokopi ask the Manhattan federal district court to rule on its motion to dismiss "now."  The claimant's attorneys write (with citations omitted):

"Some three months after filing this civil forfeiture action, the Government has arrested Claimant Eric Prokopi ('Prokopi' or 'Claimant') on criminal charges that largely track the allegations in its 'First Amended Verified Complaint' for civil forfeiture ('Amended Complaint'). This sequence of events raises serious questions. If Government investigators honestly believe that Prokopi engaged in criminal conduct cumulating in consigning the Tyrannosaurs Bataar Display Piece ('the Display Piece') for sale in a public auction, why not treat the matter as a criminal one from the start? One might wonder whether the Government is now merely punishing Prokopi for daring to file a claim to property coveted by the President of Mongolia, and is using the criminal complaint to hamstring Prokopi’s ability to reclaim the Display Piece, the fruit of a year of Prokopi’s own work, Prokopi’s own financial investment and Prokopi’s own expertise."

Prokopi assembled the dinosaur bones to sell at an auction this past spring. At the request of the Mongolian government, American officials seized the Tyrannosaurus Bataar and filed a claim for forfeiture in federal court. A judge recently expressed concern about awarding forfeiture, but allowed the U.S. government to resubmit its case. Federal attorneys not only filed a new forfeiture complaint, they arrested Prokopi on charges of conspiracy, false classification of goods, and receipt and transportation of stolen property.

Prokopi's reply memorandum comes on the heels of the government's own court pleading filed soon after Prokopi's arrest. Read the October 20, 2012 update at the bottom of the post for a description of the federal government's memorandum.

The claimant's attorneys conclude their reply memorandum by saying, "The Government should not be allowed to profit from its hardball tactics, nor should it be allowed to seize property based upon obscure foreign laws or unwritten interpretations of 'country of origin' or valuation rules for fossils. Moreover, the Government has not alleged sufficient facts to establish a reasonable basis to believe that it could meet its burden to prove that the component parts of the Display Piece were 'stolen' under U.S. law. For all these reasons, the Complaint should promptly be dismissed and Prokopi should be awarded attorney’s fees and costs."  They attorneys have asked the court for an expedited hearing.

Meanwhile, the federal district court in Manhattan on Monday set the appearance bond in the criminal case of U.S. v. Eric Prokopi (1:12-mj-02634-UA) at $250,000: "Bail terms set in Florida to continue with following amendments: Bond raised to $250,000 to be co-signed ...." Home detention vacated. Wife's passport to be surrendered. Travel SDNY/EDNY and Northern District of Florida and intervening Districts."


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

Wednesday, October 24, 2012

SLAM Litigants Move Toward Resolving Ka Nefer Nefer Mummy Mask Case

The St. Louis Art Museum (SLAM), the United States government, and the Republic of Egypt appear to be in discussions to settle the contest over title to the mummy mask of Ka Nefer Nefer. Last week the U.S. Attorney's Office for the Eastern District of Missouri filed an unopposed motion with the Eight Circuit Court of Appeals asking for filing deadlines to be held in abeyance in the case. The court granted the motion.

The federal government's October 17 motion tells the court that "the parties believe that continued discussions will be productive and that there is a significant possibility that they will reach a resolution that would obviate the need for the appeal to continue."  The appeals court was notified that "the United States must consult further with the Solicitor General, the Department of State, and the government of the Republic of Egypt before it can propose or agree to any potential settlement terms."

U.S. Attorney Richard Callahan appealed the mummy forfeiture case in June after a federal district court denied the government's efforts to seize and forfeit the Ka Nefer Nefer mask from SLAM.  The federal government alleges that the mask was stolen from Egypt and is in the United States in violation of the law.  SLAM asserts that they are the rightful owners of the artifact.  SLAM filed a declaratory action in February 2011 to gain quiet title to the mask followed by the U.S. Attorney's petition for forfeiture in March 2011.


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

Monday, October 22, 2012

Appeals Court Sides with Federal Attorneys in ACCG Baltimore Coin Case

The Fourth Circuit Court of Appeals today sided with the United States in the Ancient Coin Collectors Guild (ACCG) Baltimore test case.   We "have reviewed the Guild's various claims and find them to be without merit," the judges wrote in their October 22 decision.

The court's unanimous decision 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, rejected the invitation to "engage in a searching review of the government's implementation of CPIA import restrictions on Chinese and Cypriot cultural property."  The judges exercised restraint, cautioning that "[a]ccepting such an invitation ... would draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries, injecting the courts into an area of law covered by statutorily conferred executive discretion and congressional oversight."  The court added that "[s]uch judicial interference would be especially problematic because Congress has already prescribed civil forfeiture as a vehicle through which importers can challenge the seizure and detention of articles allegedly covered by CPIA restrictions."

The ACCG initiated the court action in order to challenge the federal government's application of the Cultural Property Implementation Act (CPIA). The CPIA is the law that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.  The ACCG imported ancient coins from a London dealer in 2009, transporting them to Baltimore, Maryland on a British Airways flight.  The coins were minted in China and Cyprus, but they had no provenance and no description of their find spots. U.S. Customs and Border Protection (CBP) detained the coins, sanctioned by the import restrictions placed on Chinese and Cypriot ancient coins.  The import restrictions were enacted pursuant to bilateral agreements negotiated between those countries and the United States under the authority of the CPIA.

The ACCG filed a civil action in federal district court attacking the import controls over ancient coins and lost.  It appealed the decision, and both the government and ACCG filed briefs before making oral arguments on September 19, 2012.  The court of appeals issued its written decision today.

While agreeing with the idea that "[c]oins are portable objects," the appeals court remarked "that is not the whole story." "The often worn and mysterious beauty of ancient coins renders them invaluable cultural artifacts, helpful not only in dating archaeological finds but in revealing how distant civilizations once conducted their civic and commercial life. Whether coins (or sculptures or pottery) should be exempted from coverage as cultural property presents a lively policy debate, but the tension is resolved for us through the medium of law."

In its decision, the appeals court provided a primer on the law supporting the CPIA regime and highlighted that the judiciary should only reluctantly insert itself in diplomatic negotiations or congressional action:
Congress set out an elaborate statutory scheme for promulgating import restrictions on culturally sensitive items and gave the Executive Branch broad discretion in negotiating Article 9 [bilateral] agreements with foreign states. Congress itself retained oversight of the CPIA process ... and placed significant responsibility in the hands of CPAC [the Cultural Property Advisory Committee], a body composed of experts in the fields of archaeology and ethnology. Congress also provided forfeiture procedures through which importers could challenge any seizures made pursuant to the CPIA. The conclusions to be drawn from the entirety of this statutory scheme are clear. The federal judiciary has not been generally empowered to second-guess the Executive Branch in its negotiations with other nations over matters of great importance to their cultural heritage, to overrule CPAC in its conclusion that import restrictions on coins were necessary to protect the cultural patrimonies of Cyprus and China, or to challenge Congress in its decision to channel CPIA disputes through forfeiture proceedings.
The ACCG argued that the import restrictions placed on Chinese and Cypriot  ancient coins as well as their execution by the government were ultra vires (extralegal).  The coin collectors group also asserted that the government violated the Administrative Procedures Act (APA) and that it transgressed the First and Fifth Amendments of the U.S. Constitution.  The appellate court rejected each of these assertions.

The court of appeals, like the federal district court below, found that the conduct of the government had not been been ultra vires or extralegal as the ACCG had alleged.  Citing established case law, the court explained that the government only acts outside in an extra legal fashion when it "'is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden.'" (Citation omitted).  The court emphasized that it would not probe the foreign relations functions of the executive and congressional branches of government, writing:
The [CPIA] statute . . . involves a sensitive area of foreign affairs where Congress itself has delegated the Executive Branch significant discretion.  Given that approach, a searching substantive review of the State Department's diplomatic negotiations or CPAC's application of its archaeological expertise would be singularly inappropriate in this forum.
The federal appeals court pointed to specific examples of how authorities followed the CPIA appropriately with regard to Chinese import restrictions, and the fourth circuit sided with the lower federal district court by repeating  that the State Department "complied with the statutory requirements in placing import restrictions on Cypriot coins."

Despite compliance with the CPIA, the fourth circuit judges considered the ACCG's allegation that China did not make a request for bilateral protection of ancient coins--an assertion disputed by the government. The court looked beyond this charge, writing "In making this argument ... the Guild seeks to add a provision to the statute that is simply not there, namely a requirement that a request ... 'include a detailed accounting of every item eventually covered by an ... agreement.'"  (Citation omitted). The court made clear that a request by a foreign government for U.S. protection of cultural property under the CPIA "need not include a comprehensive list" of every archaoelogical and ethnological object included in a final bilateral agreement. To say otherwise, the court wrote, is a burden that "Congress nowhere mentioned ...."

By the same rationale, the appeals court rejected any contention that the State Department was required to publish in advance a detailed list of every cultural object that might have been considered for import protections under the CPIA. "To scrutinize the adequacy of the State Department's publication and require a verbatim publication of a foreign request would involve the judiciary in the very early stages of the CPIA process and place upon the State Department a burden that Congress did not intend," the court wrote.  The appeals court judges observed that the "detail required by the statute at the conclusion of the process is altogether different from the level of detail required before negotiations between our country and another nation have even so much as begun," making note that "Congress sought to strike a balance here between the need for notice and transparency on the one hand, and the need for confidentiality in sensitive matters of diplomacy on the other."

The court addressed the ACCG's further complaint "that State and CBP acted ultra vires by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were 'first discovered within' China or Cyprus."  The court disagreed by explaining that "State and CBP are under no obligation to list restricted items with more specificity than the statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice."

The circuit court acknowledged that there will be cultural objects imported into the U.S. without provenance or export permits, but that there is a process that allows importers to show that the objects are legal:
In those cases, the statute expressly provides that CBP may seize the articles at the border: "If the [importer] of any designated archaeological or ethnological material is unable to present to the customs officer” the required documentation, the “officer concerned shall refuse to release the material from customs custody until such documentation or evidence is filed with such officer.” 19 U.S.C. § 2606(b). In short, CBP need not demonstrate that the articles are restricted; rather, the statute “expressly places the burden on importers to prove that they are importable. (Citation omitted).
The court implied that the burden of proof imposed on importers by the CPIA is not as high as might be suggested because "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import."

The court commented specifically that "the Guild need not have documented every movement of its coins since ancient times. To comply with § 2606 [of the CPIA], the Guild need demonstrate only that the Cypriot coins left Cyprus prior to 2007 and that the Chinese coins left China prior to 2009. It never so much as attempted to do so."

Attending to the ACCG's argument that the Administrative Procedures Act was violated, the court rejected this claim.
We have emphasized throughout the restricted scope of judicial review when it comes to the statutory discretion Congress has conferred upon the Executive Branch in carrying out the international obligations of the United Sates under the Convention. These cautions are nowhere more pertinent than where this nation's protection and recognition of another's cultural patrimony is involved. Congress recognized that the CPIA 'is important to our foreign relations, including our international cultural relations,' and it enacted the statute to ensure that the United States did not become an illegal market for foreign cultural property, a development that would have 'severely strain[ed] our relations with the countries of origin, which often include close allies.' S. Rep. 97-564, at 23 (1982).
The court added, "Even were we to assume that State was fully subject to the APA, none of its actions were remotely arbitrary or capricious."  The court concluded that CBP acted appropriately as well.

The appeals court also took up the constitutional issues raised by the ACCG.  It relied on the district court's conclusion, in part, that "'the government's interest in combating the pillage of archaeological materials is unrelated to the suppression of free expression.'"  Moreover, due process claims would be addressed by forfeiture proceedings where the government would be required to outline its arguments supporting the seizure of the imported cultural objects, and where the "Guild must then demonstrate that its coins are not subject to forfeiture in order to prevail."

UPDATE 11/14/12: The ACCG filed a petition on November 13, 2012 for rehearing en banc in the matter.  A rehearing before the full court of appeals (en banc) is usually rejected unless the case is of great significance.

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, October 19, 2012

Art Theft: Paintings Stolen from Kunsthal Museum

Thieves nabbed seven paintings from the Kunsthal Museum in Rotterdam, The Netherlands sometime during the night of October 15/16, 2012.

Dutch police, in a press release, are asking the following:  "The investigators are making a particular appeal to the visitors to the Kunsthal. Did you visit the Kunsthal last week and did you see or hear anything unusual while you were there? Did you take any photos or video pictures? If so you should contact the police on 0900-8844. If you would prefer to speak to the Criminal Information Unit call 079-3458999. We would also like to speak to you if you saw any suspicious vehicles or persons in the vicinity of the Kunsthal in the period immediately leading up to the art theft."

Anyone with information about the crime or the missing artworks listed below should contact police at the telephone numbers above or contact INTERPOL here.

Art Stolen from Kunsthal Museum in Rotterdam 

 Claude Monet: “Waterloo Bridge, London” (1901) 


 Meyer de Haan: “Self Portrait”  (1889 – ’91) 


Lucian Freud: “Woman with Eyes Closed” (2002)


 Claude Monet: “Charing Cross Bridge, London” (1901)


 Paul Gauguin: “Reading Girl in White and Yellow” (1919) 


 Paul Gauguin: “Girl in Front of Open Window” (1988) 


 Pablo Picasso: “Harlequin Head” (1971)


Images courtesy of INTERPOL


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

Wednesday, October 17, 2012

Prokopi Arrested after Claim to Dinosaur Bones Prompts Criminal Investigation

U.S. Immigration and Customs Enforcement Homeland Security Investigations (HSI) today arrested Eric Prokopi at his Gainesville, Florida home, where authorities also searched his house.  Prokopi is a self-described "commercial paleontologist" seeking ownership of an assembled Tyranosaurus Bataar skeleton detained in New York.  Prokopi's lawyers and an auction catalog have called the dinosaur skeleton a "Display Piece."  But federal officials have concluded that the bones are stolen and smuggled.

Tyrannosaurus Bataar, courtesy U.S. Homeland Security
The investigation and arrest of Prokopi is an outgrowth of the civil forfeiture case of United States v. One Tyrannosaurus Bataar Skeleton. The criminal complaint, first sealed by the federal district court in Manhattan on October 5 and unsealed today, alleges that Prokopi violated 18 USC 371, 545, 2315.  The three counts against Porkopi charge that he committed the crimes of conspiracy, false classification of goods, and receipt of stolen property.  HSI Special Agent Daniel Brazier headed the investigation, and Attorney Martin Bell of the Complex Frauds Unit in the U.S. Attorney's Office for the Southern District of New York is prosecuting the case.

A person who has been charged with a crime is presumed innocent.  The prosecution must prove the elements of each offense beyond a reasonable doubt before a criminal defendant may be found guilty.  The current complaint alleges criminal counts based on the lower standard of probable cause.

Count One charges Prokopi with conspiracy to commit crimes of smuggling, false statements, and receiving and disposing stolen goods valued at $5,000 or more under 18 USC 545, 1001 and 2315.  It is alleged that between March 2012 and June 2012 Prokopi "sent price lists to vendors regarding the potential sale of a stolen Tyrannosaurus bataar skeleton in his possession;" that in April 2012 Prokopi "directed another individual to make misstatements on customs forms ultimately submitted to United States Customs and Border Protection concerning the transport of a Microraptor fossil;" and that in December 2011 he "attempted to sell the fossilized remains of an Oviraptor Mongoliensis to another individual."

Count Two alleges that between  January 2012 and May 2012 Prokopi, with intent to defraud, "caused the mislabeling of customs forms relating to the fossilized remains of a Tyrannosaurus bataar skeleton, allowing the skeleton to enter into the United States."

Count Three charges that Prokopi, sometime between January 2012 and May 2012, "sold a Tyrannosaurus bataar skeleton to a buyer in Manhattan, knowing the same to have been stolen from Mongolia."

The government asserts that "that there is probable cause to believe that Eric Prokopi, the defendant, has engaged in a scheme to unlawfully import the fossilized remains of numerous dinosaurs into the United States."  Authorities describe how he "owns a business in Florida called 'Everything Earth' and has also owned a business known as 'Florida Fossils.' Among other things, Prokopi has bought and sold whole and partial dinosaur skeletons."  The case investigator reports that he has "reviewed numerous customs forms dating back to 2007 in which Eric Prokopi, the defendant, accepts shipments on behalf of his business," reporting that "between 2010 and 2012, Eric Prokopi, the defendant, procured dinosaur fossils in Mongolia and unlawfully transported them to the United States, in violation of Mongolian law and with the knowledge that they were stolen. He then sold or attempted to sell them to other individuals. Prokopi also bought dinosaur fossils from individuals in other countries and, in importing the fossils, caused misrepresentations to be made to United States Customs."

The listed dinosaur bones alleged to have been "unlawfully procured, transported, sold and/or negotiated by Prokipi" include:

"a. A Tyrannosaurus bataar skeleton stolen from Mongolia and sold at auction in Manhattan in or around May 2012 for $1,052,500.

"b. A Saurolophus angustirostris skeleton stolen from Mongolia and sold to the I.M. Chait auctionhouse (sic) in or around May 2012 for approximately $75,000.

"c. A Microraptor skeleton purchased from an individual in China and unlawfully brought into the United States by Prokopi in 2010.

"d. Gallimimus and Oviraptor whole or partial skeletons as well as Tyrannosaurus bataar parts."

The federal complaint against Prokopi relies on experts to frame its case. The paleontology experts describe where specific dinosaur fossils are located, namely in Mongolia.  Meanwhile, legal experts describe the force of Mongolian cultural patrimony law.  It is concluded that "Mongolian law dating back nearly nine decades establishes that fossils discovered or excavated in Mongolia are the property of Mongolia and there has been no legal mechanism to export them since that time, absent an official decree from the Mongolian government."  Both the factual and legal assertions are sure to be challenged by defense lawyers in the coming months just as they have been challenged in the civil forfeiture case.  Already a federal district court judge raised doubts about the prosecution's civil forfeiture case, but that was before the prosecution filed a new civil complaint in September and before today's arrest.

HSI cites several pieces of information in support of its arrest of Prokopi regarding the Tyrannosaurus Bataar, many of which have already been mentioned in the civil forfeiture case (see October 10, 2012 post). The government points to additional emails, among them an email dated May 24, 2012 reportedly from Prokopi to a person at Heritage Auctions, Inc., which states, "Although I am sure that everything with this [Bataar] specimen is legal as far back as I can tell, I do know just about all of the people involved in the business of central asian fossils, and could offer ideas and help to make permanent changes that would nearly eliminate the black market and benefit all sides. If the [M]ongolian president is indeed only interested in getting to the bottom of the sources, and wants to look good for his people, I think I can help him do that if he is willing to cooperate and compromise. If he only wants to take the skeleton and try to put an end to the black market, he will have a fight and will only drive the black market deeper underground."

The government adds that it has pictures of Prokopi in the Mongolian desert in 2009.  "I have learned that Mongolian officials have located and interviewed a Mongolian citizen ("Witness-1").  Witness l stated that in or around 2009, he accompanied Eric Prokopi, the defendant, to an excavation site, and witnessed Prokopi taking physically taking (sic) bones out of the ground. ... I have viewed the pictures taken by Witness-1. ... [A]n individual who appears to be Prokopi is standing with others in what appears to be the desert. In one picture, he is holding a clipboard and looking at the ground."

HSI writes in its complaint "that that there is probable cause to believe that Eric Prokopi, the defendant, brought a stolen Saurolophus angustirostris (the "Hadro") skeleton into the United States and sold it to an auction house," specifically I. M. Chait Gallery/Auctioneers.  It is reported that an April 4, 2012 email from Prokopi to the Chait Gallery discusses a Hadro refers to the "[N]emegt formation, Mongolia," where this dinosaur is alleged by experts to be found.

HSI further alleges criminal dealings with an imported Microraptor from China. The government cites emails in its complaint, writing:

"a. Prokopi exchanged e-mails with an individual ('Individual-5') concerning a shipment in April 2010. On April 19, 2010, Individual-5 e-mailed Prokopi complaining that he had received $9,988 instead of $10,000 and asking whether his commission had been lost. Individual-5 also sent  Prokopi a UPS tracking number. That tracking number matches the tracking number in DHS's records of the Microraptor shipment.

"b. On April 21, 2010, Prokopi e-mailed Individual-5, stating that he had received a message from UPS saying that the customer needed to provide an accurate description and value. Prokopi wrote, 'What did you write on the shipment? I need to know what to tell them.' Individual-5 stated that he had written that he was sending a 'sample of craft rock' and that had listed $30 as the value.

"c. On April 26, 2010, Individual-5 e-mailed Prokopi and stated that he had spoken to UPS, which had asked for more detail with respect to the shipment's name and detail. Individual-5 wrote, 'Call and say 'replica, made by rocks, used for study, $200 for value' or something else, if better.'

"d. On April 29, 2010, Individual-5 and Prokopi both wrote that they were concerned that the shipment had been held up. 'I am worried that they will take the item because you declared the value much too low,' Prokopi wrote. 'There is no reason to do that, because there is no tax on fossils.'

"e. Individual-5 later asked, 'Do you want me to hold the other 8 ones for you?'

"f. Individual-5 later wrote, 'I will send this to you. So please tell me how much I can declare the value.'

g. Prokopi responded that Individual-5 should state, 'Geological specimen for collection. Value $1000.'

h. Individual-5 later wrote, within the same mail thread, 'Selling fossils like this is not allowed in China.'"

Regarding other dinosaur fossils, the complaint quotes a July 28, 2010 email purportedly from Prokopi to a trader explaining, "They didn't ask for a specific amount, just told me the more I can send the more they can buy from the diggers. He said they are finding gallimimus skeletons, a couple of tarbo skulls, and a lot of the usual protos, oviraptors, etc."

UPDATE 10/20/12: Federal attorneys in the  case of  United States v. One Tyrannosaurus Bataar Skeleton filed a memorandum of law in opposition to Eric Prokopi's motion to dismiss the forfeiture case. The government's claims are familiar ones made recently, but allegations of Prokopi's criminal conduct are more forceful following his October 17, 2012 arrest.  The pleading may be found here.


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

Wednesday, October 10, 2012

Bataar Forfeiture Case Intensifies as Motion to Dismiss is Filed and a Second Dinosaur is Seized


Attorneys representing “commercial paleontologist” Eric Prokopi filed a motion to dismiss last Friday in the case of United States v. One Tyrannosaurus Bataar Skeleton.  The United States Attorney's Office for the Southern District of New York seeks to forfeit and return the Bataar skeleton to Mongolia after having prevented its sale at auction this past spring.  Prokopi asserts that he labored to assemble the bones and that the skeleton is not stolen, but rightfully his.  Meanwhile, a seizure warrant has been issued for another dinosaur skeleton.

The federal district court in Manhattan recently raised doubts about the government's forfeiture claim, but allowed government prosecutors to file a new verified complaint.  In its new claim, filed on September 21, 2012, the government asserts several points in support of its forfeiture action.

First, experts conclude that the dinosaur bones came from the Nemegt Formation within the Gobi Desert in Mongolia.  The government's attorneys say that is because "[f]ossilized dinosaur bones found with the Nemegt Formation have a distinctive color to them as a result of the soil composition of Nemegt Formation."

Next, they argue that Mongolian law asserts ownership over cultural heritage, including the dinosaur bones.  “Since as early as 1924, when Mongolia became an independent nation, the Government of Mongolia has prohibited the personal or non-state ownership of items of cultural significance, such dinosaur remains, such as the Defendant Property.”  The country’s constitution, domestic cultural property protection laws, criminal laws, and a supreme court decree are all cited as bases for arguing that the dinosaur bones were owned by and protected by Mongolia.

Prosecutors further allege that importation documents were clouded.  According to the CBP [U.S. Customs and Border Protection] Entry Form, the Defendant Property [dinosaur] was imported from Great Britain to Gainesville, Florida on or about March 27, 2010.  Florida Fossils is listed on the Customs Entry Form as the ultimate consignee. At the time, Florida Fossils was owned by Prokopi. The CBF Entry Form for the  Defendant Property contains several misstatements.      First, the country of origin for the Defendant Property is erroneously listed as Great Britain rather than Mongolia. Second, the Defendant Property is substantially undervalued. … Third, the Defendant Property is incorrectly described ….”

Additionally, prosecutors claim irregular importation information surrounding the dinosaur skeleton.  For example, prosecutors write that it was revealed at a meeting between prosecutors and counsel for the claimant that the dinosaur bones purportedly came to the United States in three shipments, not one.  At the July 26, 2012 meeting “[c]ounsel for Prokopi claimed that the Defendant Property was transported into the United States in three separate shipments and not just a single shipment as alleged in the Verified Complaint.” (Emphasis in the original).  Meanwhile, a letter from Prokopi’s counsel revealed more information: "the March 2010 import shipment … included only a small portion of the Tyrannosaurus bataar display piece … the March 2010 shipment included the head [of the Defendant Property which] was incorporated into the" dinosaur.  "Mr. Prokopi imported two other shipments of various fossils on March 22, 2007 and August 29, 2007, and to the best of his recollection part of one or both of these shipments was incorporated into the" Defendant Property” added the letter from claimant’s counsel.

Irregular importation information is specifically alleged with regard to the March 2007 shipment.  Attorneys for the government state:

“The importation paperwork for the March 22, 2007 shipment lists the items being imported as "fossil specimens" with a declared value of $12,000. On the CBP Entry Form for this shipment, the Country of Origin is listed as Japan.

“In the documents provided by Prokopi's counsel, the UPS Air Waybill for the March 22, 2007 shipment, states that the Country of Origin for the shipment is Mongolia. However, included in the Prokopi Importation Documents is an ‘Additional Information’ form which states that on March 29, 2007 UPS obtained information from Prokopi that the country of origin for the March 22, 2007 shipment is Japan.

“According to CBP records for the March 22, 2007 shipment, the country of origin on the Commercial Invoice submitted to CBP was changed from Mongolia to Japan. Specifically, the Commercial Invoice has a handwritten notation stating ‘IOR is Correct per Eric Prokopi XXX-XXX-XXXX c/o per above.’”

Government lawyers make similar specificed claims with regard to the August 2007 import.  “The importation paperwork for the August 29, 2007 shipment listed the items being imported as "fossils" with a declared value of $42,000. On the CBP Entry Form for this shipment, the Country of Origin is listed as Japan,” the prosecutors write.

The government reasons that “[r]egardless whether the Defendant Property came from one or more shipments the importation documents provided by Prokopi contain material misrepresentations.”

Government lawyers add that the claimant’s lawyers at a September 5, 2012 court conference “advised the Court that the Defendant Property was comprised of fossilized material from four international shipments as well as material purchased domestically.           However, the specifics of those shipments were not disclosed except that it was believed some of the international shipments came from Japan.” (Emphasis in the original.)

1911 Saurolophous excavation.  Source: Barnum Brown
The prosecutors then mention other dinosaur skeletons associated with Prokopi.  They describe a Saurolophus skeleton purchased by a gallery in California from Prokopi.  The skeleton failed to sell at auction.  The bones were transported to California on April 24, 2012 and described by Prokopi in an email as having come from Mongolia, says the government lawyers.  The southern district of New York issued a seizure warrant for one Saurolophus Angustirostris Skeleton on September 20, 2012, according to the government's lawyers.  That action came two years after U.S. Homeland Security administratively seized a Microraptor or Fossil Reptile Skeleton in Matrix from Prokopi because of misstatements made on import forms say the prosecutors.  The lawyers write that “rather than being described as ‘Microraptor’ or ‘Fossil Reptile Skeleton in Matrix’ the Microraptor was initially described as ‘sample of craft rock’ on the invoice but then at some point a pen and ink change (the ‘Pen and Ink Change’) was made to the description on said invoice so that it read that the Fossil was a ‘fossil replica.’  According to UPS records, The Pen and Ink Change was made on April 21, 2010 and made because ‘Eric Prokopi called and said contents were a replica fossil mounted in rock with a value of $100.00 USD.’”

Finally, prosecutors say that the "Mongolian Government has advised that Prokopi visited Mongolian in 2008, 2009, 2011 and most recently in 2012, after the filing of the instant forfeiture action. Specifically, the Mongolian Government has advised the United States that it has located a witness in Mongolia who states that during Prokopi's 2009 visit he witnessed Prokopi remove fossil bones from the ground in the Gobi Desert in Mongolia, specifically in the Nemegt Formation.”

Prokopi’s lawyers fired back in their October 5, 2012 motion to dismiss by arguing that the government has a high burden to prove forfeiture.  Moreover, it called the forfeiture action “unprecedented.”  “Fossil collecting is well established, and has been intertwined with paleontology for generations. At least since the fall of Communism, fossils from China, Kazakhstan, Mongolia and Russia have been openly sold on the international market, and have been avidly collected in the United States by both individuals and museums. Yet, as the Government would now have it, all dinosaur fossils of presumed Mongolian origin are stolen property and should be returned to that country,” the lawyers write.

They call into question the viability of the government’s new complaint before the court, writing:

“In particular, the Amended Complaint does not contest: (1) that the Government has failed to publish regulations related to the proper valuation and country of origin of cultural property despite Congressional direction to do so; (2) that neither the U.S. nor Mongolian Governments have published Mongolian laws in English translations so they can be understood by American collectors, dealers and museums; and (3) that there is no evidence that Mongolia itself actually takes active steps to preclude its own citizens from owning fossils. Under the circumstances, the Court should not countenance the Government’s efforts to announce a new policy on the import of fossils through a forfeiture proceeding based primarily upon technical violations of “country of origin” and valuation rules where no such rules have been published and upon foreign laws that are largely unavailable to American citizens and are unclear in both their meaning and application. Instead, Claimant Prokopi’s Motion to Dismiss should be granted, not only to ensure that the fruits of his labor are rightly returned to him but to encourage the Government to regulate fossil collecting–if at all–prospectively through the legislative and regulatory process rather than retroactively through this unprecedented forfeiture action.”

Prokopi’s lawyers criticize the government by saying that “the Government has ‘doubled down’ on its prior claims that the [Tyrannosaurus Bataar] Display Piece ‘could only have come from Mongolia,’ that the Mongolian state owns all fossils that exist within its borders, and that the Display Piece is comprised largely of one specimen. The Government then presents unrelated, incomplete and unverified information concerning other fossils and importations, as well as Prokopi’s travels to Mongolia, in an attempt to utilize innuendo to circumvent the stringent pleading requirements of the rules applicable to forfeiture actions.”

The lawyers complain, “Nowhere does the Government allege that the Government has published country of origin and valuation rules for fossils. Nowhere does the Government allege that Mongolian law has been translated and made available to American collectors, dealers and museums. Nowhere does the Government allege during the relevant period cited in the Amended Complaint that Mongolia enforced its own law at home such that Mongolian citizens are actively precluded from owning, purchasing, selling and exporting fossils, thus confirming any claim by the Mongolian Government that it was the sole owner of all fossils. These deficiencies in the Amended Complaint are fatal to the Government’s claims.

Prokopi’s lawyers vigorously argue that the Bataar Skeleton was not stolen, particularly where Mongolain law is ambiguous and unenforced.  Moreover, they say that the government is unable to present facts to show that the dinosaur bones were actually in Mongolia, that they were taken without the Mongolian government’s permission, or that Prokopi knew that the component parts of the dinosaur bones were stolen.
 

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