Lawyers for the St. Louis Art Museum (SLAM) this week answered the government's appellate brief in the case of U.S. v. Mask of Ka Nefer Nefer, saying there is "no basis on which to find [that] the District Court abused its discretion in denying the Government’s fatally late and insufficient submission of its Proposed Amended Complaint." SLAM also chides federal officials for "the liberties the Government takes with the statements in its Proposed Amended Complaint."
By way of background, the U.S. Attorney in St. Louis, Missouri moved to forfeit the Ka Nefer Nefer mummy mask from SLAM in 2011. District court judge Henry Autrey brought the government’s case to an end in April 2012 when he concluded that the government's forfeiture complaint failed to specifically articulate how the mask was allegedly stolen and smuggled, or how it was brought into the U.S. contrary to law. The U.S. Attorney's Office filed a motion to reconsider, and in May 2012 the government revealed new information that it said would support a proposed amended complaint. Judge Autrey denied the motion to reconsider, but federal prosecutors submitted the proposed amended complaint anyway. Thereafter, the district court reiterated its dismissal of the case, and the government appealed to the Eight Circuit Court.
SLAM explains in its August 5, 2013 brief that the district court's order dismissing the federal government's forfeiture complaint against the mummy mask, in fact, dismissed the case. "The operative language of the Dismissal directed 'that plaintiff’s complaint is dismissed,' writes SLAM's attorneys. "As such, and as a matter of law, the Order and Dismissal dismissed the entire action," adding, "The District Court’s March 31, 2012 Order and Dismissal could not have been clearer ...."
SLAM's lawyers further argue that the district court exercised proper discretion when denying prosecutors' attempts to amend the forfeiture complaint.
The museum blasts the government for allegedly diverting attention away from the question of whether the district court improperly dismissed the case. "Despite framing the issue presented as whether the District Court abused its discretion in denying the Government’s Motion for Leave ... the arguments presented by the Government on appeal do an inviting job of transforming a procedural, rule-driven question into a vigorous attempt to have this Court consider the merits of the claims made in the Government’s untimely and failed Proposed Amended Complaint." SLAM's lawyers therefore contend, "In doing so, the Government patently urges this Court to divert its attention from the issue as stated and to back-handedly make a judgment on the sufficiency of what it says would be the amended claims."
SLAM emphasizes that the circuit court "should wholly disregard the issue of whether the amended claims are sufficient under the law." The attorneys contend that "[i]t is not appropriate for consideration and - even at this late hour - the allegations the Government 'would have' or 'could have' made remain short of the mark."
Nevertheless, SLAM explains that the "government's factual assertions [in the proposed amended complaint] are both so conjectural and so clearly incorrect that they present a risk that the factual underpinnings of the case will be fundamentally misunderstood." That is why SLAM offers several criticisms of the government's proposed amended complaint in its appellate brief, which include the following:
- "Paragraphs [of the amended complaint] discuss the 'illicit antiquities market' that purportedly exists - and the practice of 'laundering' the provenance of an item - but [federal prosecutors] allege no connection between this information and the Mask at issue."
- "The Government’s interpretation of [Egyptian patrimony] Law No. 215 and its application to the present case is inaccurate and, worse, absolutely counter to established United States case law. Indeed, Article 5 of Law No. 215 itself specifically provided for the Egyptian government to 'exchange moveable antiquities found in duplicate' with museums and private owners, and Article 22 of Law No. 215 recognizes private ownership of antiquities sold or gifted by the Egyptian government, a provision the Government covers with the conclusory statement that '[t]he Mask was not given to the discoverer as partage.'"
- The Government "offers a) that the importers of the Mask were convicted of export violations years after the Mask was imported and that - presumably because of this - they 'knew or were willfully blind to the fact that Egypt was the true owner of the Mask.' In raising the subsequent alleged conduct of the owners of the company that sold the Mask to the Appellee Museum, the Government presumably and desperately seeks to defame the parties closest to the Appellee Museum in the chain of purchase, albeit with conduct that has no relation whatsoever to this case and occurred years after the purchase of the Mask."
- "[T]he Government discusses asserted defects with the Appellee Museum’s provenance investigation prior to purchasing the Mask, suggesting that it was 'pro forma' and incomplete, leading to the conclusion that 'at the time it imported the Mask . . . the Museum either knew or was willfully blind to the fact that the Mask had been stolen from Egypt.' Again, these statements contain no factual information regarding the alleged theft or stolen nature of the Mask. These conclusory statements are included to undermine the suggestion that the Appellee Museum acted in good faith or was an innocent owner of the Mask."
[UPDATE August 12, 2013: The appeals court is expected to schedule oral arguments in the case now that the government has filed a reply brief as of August 8, 2013. The reply brief reiterates the government's argument that the lower district court abused its discretion by not allowing federal prosecutors to file an amended verified complaint.]
This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com