Sotheby's wants a preliminary hearing to argue the law, and the government wants more discovery from Sotheby's to argue the facts. That continues to be the posture of the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture Currently Located at Sotheby's.
Yesterday federal prosecutors criticized Sotheby's and Decia Ruspoli di Poggio Suasa, claimants in the forfeiture case, for "yet another effort to delay discovery in the case." The U.S. Attorney's Office for the Southern District of New York objected to a letter recently submitted by the claimants that requests a pre-discovery hearing to discuss the meaning of Cambodia's cultural property ownership law.
Prosecutor allege that the monuments of Koh Ker were built by Cambodia state under Jayavarman IV, that the state never transferred Koh Ker or the statue to anyone, that looters stole the statue in 1972 and trafficked it in pieces to Thailand, and that a well-known collector purchased it knowing that it was stolen. “These factual allegations … do not depend upon an analysis of Cambodia's national ownership laws ….,” the prosecutors contend.But Schultz and McClain certainly do not stand for the proposition that a state can never "own" an object in the absence of a national ownership law. Rather, McClain makes clear that a state can come to own property either by "declar[ing] itself the owner" through a national ownership law, or by "acquir[ing] such property in the general manner by which private persons come to own property." McClain, 545 F.2d at 1002. And Schultz, in adopting the reasoning of McClain, plainly contemplated that an object could be "stolen" not only by virtue of having been "possessed or disposed of by an individual in violation of a national patrimony law," but also "'stolen' in the commonly used sense of the word, for instance, where an object is taken from a museum or a private collection." 333 F.3d at 399.
it would be most efficient to conduct discovery on all factual issues in this action simultaneously, as the discovery will be largely overlapping. Evidence regarding the Collector, for instance, will be relevant not only to the issue of whether the Statue was stolen from Cambodia, but also to the issue of Sotheby's knowledge of the theft, as the Amended Complaint alleges that Sotheby's "consulted regularly with the Collector regarding the sale of the [Statue]," that Sotheby's "knowingly omitted the Collector's acquisition of the [Statue] from the provenance information it provided,” and that Sotheby’s was informed by “a scholar of Khmer art closely associated with the Collector (the "Scholar")" that the Statue was stolen.