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Thursday, December 26, 2013

The Crisis Facing Cultural Heritage in Egypt: Reports from Two Egyptologists

Lawmakers on Capitol Hill are once again urged to adopt an Emergency Protection of Egyptian Cultural Antiquities Act (EPECAA). A law implementing import restrictions on trafficked ancient Egyptian heritage is needed because the danger to archaeological, cultural, and religious sites in that country remains clear and present.

Recently calling attention to this threat are two Egyptologists. They are Dr. Salima Ikram, professor at the American University in Cairo, and Dr. Monica Hanna, the 2014 SAFE Beacon Award winner

Both Ikram and Hanna have published articles in the latest Journal of Eastern Mediterranean Archaeology & Heritage Studies (V.1, No. 4, 2013), which build on their initial descriptions of the heritage crisis in this summer's Bulletin of the American Research in Egypt (No. 202, Summer 2013).

Ikram and Hanna write that looting and land grabbing are ravaging Egypt. Hanna describes several incidents of destruction; she writes:
  • In the area of ancient Memphis, south of Cairo, the villagers are digging unexplored areas of the necropolis, especially in Abu Rawash. In the Memphite necropolis, storehouses containing antiquities have been attacked, despite the wall around the site protecting it from illegal occupation. 
  • Abusir was looted systematically and continuously by mafia groups and local looters. Right after the events of January 2011, the local sheikh incited people to destroy and loot the site of the ancient infidels. New tombs have been discovered, but archaeologists have not able to access them; thus, looters have destroyed most of the archaeological record.
  • At Abusir el-Malaq, a site notorious for repeated theft, looters have created impressive heaps of human bones, fragments of mummies, and broken sarcophagi.
  • Ansina, a Coptic site where villagers believe the rock-cut monastic settlement houses gold treasures, has been heavily looted using dynamite.
Because of these reports and many others, museums, auction houses, dealers, and collectors should remain vigilant against knowingly receiving illegal antiquities that freshly appear on the market from Egypt. Meaningful due diligence that carefully scrutinizes the chain of custody of Egyptian material offered for sale and that critically examines the source of provenance information should be utilized to curb the unwitting or unlawful receipt of stolen heritage.

The introduction and adoption of EPECAA, meanwhile, would focus necessary public attention on this urgent matter while supplying U.S. authorities with an additional, specifically-tailored enforcement tool to combat transnational trafficking rings that smuggle Egyptian artifacts across America's borders.

Photo credit: Mohamed Aly

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Friday, December 20, 2013

ABC Radio Australia and Other News Reports on Cambodian Statue's Repatriation

Credit: Ante Vecik
Last week's agreement between the U.S. government and Sotheby's auction house to repatriate a 10th century sandstone sculpture continues to be widely publicized.

Chasing Aphrodite has a recent informative report, which supplies commentary by cultural property experts Tess Davis and Simon MacKenzieThe Phnom Phen Post, meanwhile, provides an update on repatriation plans for the statue. And readers should take note of Tom Mashberg's and Ralph Blumenthal's original news breaking article in The New York Times.

CHL provided commentary on the federal district court case to ABC Radio Australia yesterday. Listen to the broadcast by ABC's Liam Cochrane by clicking here: Sotherby's agrees to return 10th century statue to Cambodia | Asia Pacific | ABC Radio Australia

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Monday, December 16, 2013

Oral Arguments Scheduled in Ka Nefer Nefer Mummy Mask Appeal

The Eight Circuit Court of Appeals has scheduled oral arguments for January 13, 2013 in the case of U.S. v. Mask of Ka Nefer Nefer.

The case involves federal prosecutors' efforts to forfeit the Ka Nefer Nefer mummy mask from the St. Louis Art Museum (SLAM). Government lawyers wrote in July 2011 that SLAM's “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum."

Prosecutors allege that the ancient burial mask, which archaeologists discovered during an authorized excavation in 1952, was stolen from Egypt. SLAM purchased the cultural object in 1998 for approximately half a million dollars.

A Missouri federal district court brought the government’s forfeiture case to an end in April 2012, concluding that the government's complaint failed to specifically explain how the mask was allegedly stolen or smuggled, or how it was brought into the U.S. illegally.

The U.S. Attorney's Office filed a motion to reconsider the court's decision, and in May 2012 the government revealed new information that it said would support a proposed amended complaint. Judge Henry Autrey denied the motion to reconsider, and federal prosecutors filed a proposed amended complaint anyway. The district court rejected the government's case a second time.

Source: Eight Circuit Court of Appeals
Attorneys for the government appealed to the Eight Circuit, arguing that the lower court abused its discretion by not allowing them to file an amended complaint. Lawyers for SLAM rebuffed their argument by contending that 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 chided federal officials for "the liberties the Government takes ...."

The appellate case is expected to be heard by Circuit Judges James Loken, Diana Murphy, and Lavenski Smith. Loken is former chief judge of the appellate court, nominated to the bench by President George H. W. Bush in 1990. Murphy is a 1994 Clinton appointee, and Smith is a 2002 appointee nominated by George W. Bush.

UPDATE January 14, 2014: A summary of the oral argument can now be found here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Thursday, December 12, 2013

UPDATED: Cambodian Statue Forfeiture Agreement: Prosecutors Succeed, Sotheby's Gains Concessions. What's Next?

After a bitter court battle flared to new heights in September, the U.S. Attorney's Office for the Southern District of New York and Sotheby's today proposed an agreement to repatriate a 10th century Duryodhana statue to Cambodia.

If today's proposal is signed off by district court Judge George Daniels, it marks the end to a prolonged legal fight that began in 2012.

Prosecutors have consistently maintained that the sculpture was stolen from the Prasat Chen temple at Koh Ker. In fact, the statue's feet remain in Cambodia. They asserted in court papers that it had been looted from Prasat Chen during the 1960s and 1970s and that a private collector in Belgium purchased the Duryodhana from an auction house in the United Kingdom in 1975. They claimed that the statue was the property of Cambodia since at least 1900.  They also alleged that Sotheby’s imported the Duryodhana into the United States in April 2010 and made arrangements to sell the statue in 2011, despite knowing that it was stolen from Koh Ker.

By contrast, Sotheby's and Decia Ruspoli di Poggio Suas, the claimants, have disputed the government’s assertions. They have maintained in pleadings that Ms. Ruspoli di Poggio Suasa’s husband bought the Cambodian statue in 1975 in London in good faith and that they did not know the statue may have been stolen. They have also contended that colonial laws from 1900 and 1925 claiming to vest ownership of the statue in Cambodia remain ambiguous.

The proposed Stipulation and Order of Settlement of December 12 wipes away both sides’ arguments and awards the parties something each wants.

Under the proposed order, U.S. Attorney Preet Bharara and Asset Forfeiture Chief Sharon Cohen Levin will successfully seize and forfeit the statue in order to return it to the Cambodian people. Sotheby's and Decia Ruspoli di Poggio Suas, meanwhile, will end the protracted litigation and receive legal guarantees.

The agreement gives federal prosecutors their victory by declaring “that the Statue is forfeitable to the United States as … property brought into the United States contrary to law.” It also gives the claimants protective legal concessions, memorialized in the proposed Stipulation and Order this way:
… Sotheby's and Ms. Ruspoli maintain that at all relevant times Ms.. Ruspoli had clear legal title to the Statue and deny ever knowing or believing that the Statue belonged to the Kingdom of Cambodia, or providing anyone any provenance information about the Statue known or believed to be inaccurate;  
… Sotheby's and Ms. Ruspoli have a good faith disagreement with the United States regarding whether the Kingdom of Cambodia owned the Statue;  
… the United States does not contend that Sotheby's (or any of its lawyers, executives, officers, or employees) or Ms. Ruspoli knew or believed that the Statue was owned by .the Kingdom of Cambodia or knowingly provided false or misleading provenance information about the Statue;
Legal observers of the case, docketed as United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York, will no doubt take notice that the U.S. Attorney’s office in Manhattan is willing to aggressively tackle cultural property repatriation cases, even if its prosecutors must engage in litigation with one of the world’s largest auction houses.

Moreover, given today’s proposed resolution by the parties, lawyers may ponder whether similar results might be reached through negotiations, or perhaps even mediation, in future cultural property contests. And that question may be answered sooner than expected in the case of the Norton Simon Museum, which displays the companion statue of the Duryodhana.

UPDATE: Where earlier this year Hon. George Daniels denied Sotheby's motion to dismiss, the NY federal judge has now approved the parties' Stipulation and Order of Settlement. That order, dated December 12 and electronically filed on December 13, may be viewed here.

Photo credit: intuitives

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Tuesday, December 10, 2013

Plea Deal Reached with Chinese Artifacts Dealer Charged with Obstruction

An antiquities gallery and its manager entered agreements with federal prosecutors last week to plead guilty to obstruction of justice under 18 U.S.C. § 1512(c)(2).
U.S. Attorney Wifredo Ferrer

The U.S. Attorney for the Southern District of Florida last month charged Lorin & Son, LLC, a Nevada-based company doing business in Florida as Asiantiques, as well as its manager, Francois Lorin, with illegally tampering with the customs process by supplying false information about imported Chinese artifacts.

The plea agreement filed by U.S. Attorney Wifredo Ferrer's office last Thursday in federal district court makes the following offer of proof:
Pursuant to a Memorandum of Understanding between the United States and the People's Republic of China entered into as of January 14, 2009 (the ''MOU'') archaeological materials representing China's cultural heritage from the Paleolithic Period (c. 75,000 B.C.) through the end of the Tang Period (A.D. 907) could not be imported into the United States absent specific prior government approvals, If, however, such items were already in the United States as of the MOU date, the items could be re-imported without prior authorization.  
On or about May 14, 2011, Asiantiques exported a shipment of Chinese artifacts to Hong Kong for an antiques trade show. The value upon export was declared as $1,592,695. On or about June 10, 2011, Asiantiques submitted a Formal Entry Form 3461 to U,S. Customs and Border Protection ("CBP"') in order to import what purported to be the same shipment of Chinese artifacts back to the United States through the Port of Miami, in Miami-Dade County, Florida. Upon return of the shipment to the United States, the shipment was described as "return exhibition of goods'' and was valued at $1,470,965.   
The shipment from Hong Kong was interdicted by CBP at the Port of Miami on or about June 4, 2011. CBP officials conducted an inventory of the shipment and observed anomalies between the contents of the shipment and the invoice and other paperwork that had been submitted. While the shipment consisted of approximately 488 items, the paperwork accompanying the shipment failed to list approximately 50 items. Upon further review, questions were raised about the provenance: of certain items contained within the shipment, including items of Chinese fine art that pertained to the time period prior to 907 A.D. (the "Pre-907 items'). It was later determined that the shipment had approximately 27 Pre-907 items.  
Subsequent to the items being interdicted at the Port of Miami, CBP officers observed four Chinese artifacts contained within a FedEx box located in the shipment that were not listed on any invoice or manifest, two of which were Pre-907 items, Other items in the shipment were not listed on any invoice or manifest. ... An appraiser hired by CBP determined that the domestic value of the shipment was approximately $3,177,825. 
The government adds that the defendants' "'proof' that the Pre-907 items contained in the shipment were in fact inside the United States prior to January 14, 2009" consisted of paperwork falsely backdated to May 9, 2006. Prosecutors contend that the defendants supplied the fake paperwork in an effort to convince authorities that the artifacts arrived on American soil prior to the enactment of the MoU between the U.S. and China.

Sentencing of the defendants is expected to take place in February.

Photo credit: U.S. Department of Justice

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Friday, December 6, 2013

NY Heritage Trafficking Conviction Provides a Model for Prosecutions and Investigations

The importance of Wednesday's guilty plea by Aaron Freedman in the Kapoor heritage trafficking case must not be overlooked.  Freedman, the manager of Subhash Kapoor's Art of the Past gallery in New York City, pleaded guilty in New York criminal court to felony conspiracy and five counts of felony criminal possession of stolen property for his role in facilitating a transnational cultural heritage trafficking ring. Kapoor is currently awaiting trial in India.

The conviction of Freedman shows that state prosecutions can successfully target heritage criminals, and that state and federal cooperation makes a difference.

D.A. Cyrus Vance, Jr.
New York County District Attorney Cyrus Vance, Jr. and Assistant District Attorney Matthew Bogdanos have demonstrated the will to prosecute crimes that destroy humanity's culture and identity.  This desire to make a difference is notably in the hands of attorneys in art market-rich Manhattan.

Freedman's conviction in state court and under state criminal law --not federal law--sets an example for prosecutors in other state and county jurisdictions to take on these cases too. The message that transnational cultural heritage trafficking cases can be prosecuted in local courthouses like any other large-scale conspiracy or stolen property ring is an important one for prosecutors to hear. County attorneys and district attorneys are already accustomed to handling receiving stolen property cases in their jurisdictions, so it makes sense for cultural property cases to be handled in county and district courthouses as well.

The Freedman prosecution also demonstrates the value of state and federal cooperation. To uncover transnational networks most often requires cooperation by federal investigators, and may also require evidence collection through the use of Mutual Legal Assistance Treaties. To then have these investigations bear fruit requires state and county prosecutors willing to bring receivers of stolen property to justice. That is why the cooperation exhibited between Homeland Security Investigations of Immigration and Custom's Enforcement and the Manhattan District Attorney's Office in the Freedman case serves as a model.

Photo credit: NY County District Attorney's Office

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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: