Thursday, January 31, 2013

HSI Alleges Receiving Stolen Korean Currency Plate Was Like "Winning a Lottery"

Michigan authorities have charged Wong Young Youn with violations of the National Stolen Property Act (NSPA) for allegedly receiving and transporting a stolen Hojo currency plate purchased for the price of $35,000.

A charge is simply a mechanism for initiating the criminal court process.  A person is presumed innocent of violating 18 USC 2314 and 2315 (the NSPA) unless the prosecution proves that the defendant is guilty beyond a reasonable doubt of receiving and transporting in interstate commerce an item valued more than $5000 knowing that the item was stolen.

An unsealed affidavit filed on December 19, 2012 by a special agent of Immigration and Customs Enforcement's Homeland Security Investigations (HSI) makes the following factual allegations:
  • In April 2010, a Michigan internet auction house listed an "Exceptional Inscribed Korean Bronze Plaque."  Both the South Korean embassy and the U.S. Department of State alerted the auctioneer that the plaque could have been taken from the Republic of Korea illegally.  HSI identified the bidder, who was a woman from Flushing, New York.
  • The Cultural Heritage Administration in Korea in December 2010 provided information that the plaque was a Hojo currency note--a plate used to produce money--from the 19th century Joseon Dynasty, an item of heritage whose "legitimate export would have been 'hardly likely.'"
  • HSI received information in August 2012 from an expert at a Georgia college that the currency plate was "historically and culturally significant not only because of its place in the modern transformation of the Korean monetary system but also because it is a tangible artifact of the extremely difficult socio-cultural transformations of nineteenth and twentieth-century Korean society ...." The professor found a YouTube video of the plaque.  HSI identified the man in the video with the currency plate as Youn.
  • HSI contacted the purchaser in late 2012 and learned that she opened accounts on internet web sites to buy Korean objects on behalf of Youn.  Youn reimbursed the purchaser.
  • The purchaser gave HSI a statement in December 2012 saying that she bought the currency plate at Youn's request and with Youn sitting at her side during the auction.  She reported that the Korean consulate in Washington, DC soon contacted her and told her not to pay the $35,000 price since the currency plate was under investigation.  The purchaser called Youn, who said he would respond to the consulate. Youn then approached the purchaser and was excited.  "Youn likened the plaque to winning a lottery because a price could be negotiated with the Korean Government as the Korean government was interested in returning the plaque to Korea," according to HSI's affidavit. Youn reportedly learned that the object was likely stolen by a soldier during the Korean War.
  • The purchaser told HSI that she wired partial payment to the auctioneer and that Youn himself delivered the final payment when he picked up the plate.  Youn then contacted the media and did an interview with a Korean television station in May 2010.
HSI charged Youn in the Eastern District Court of Michigan.  The court set the defendant's conditions of release on January 29, 2013 and scheduled a preliminary hearing for February 13.

The government has thus far sketched the factual basis to argue that the currency plate was stolen property.  It has not yet described the Korean ownership law violated that would support the present prosecution under the NSPA.

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

Tuesday, January 29, 2013

Encouraging News from the AAMD

The Association of Art Museum Directors (AAMD) announced on Facebook today that its membership voted "to strengthen and clarify its guidelines for collecting archaeological material & ancient art."

The AAMD is holding its mid-winter meeting this week in Kansas City, Missouri.  Dallas Museum of Art director Maxwell Anderson, chair of AAMD's Task Force on Archaeological Material and Ancient Art, was expected to lead a presentation discussing the AAMD’s guidelines.

Any revised guidelines should be studied with interest given Anderson's hopeful remarks in The Art Newspaper in 2011 that museums are changing from “treasure houses” to “stewards of cultural heritage ...."

UPDATE January 13, 2013:  The new guidelines are now published 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

Monday, January 28, 2013

The Law of Repatriation under "The Great Giveback"


Hugh Eakin's New York Times  commentary titled "The Great Giveback" is flawed.  The opinion piece argues that museums "are supposed to be in the business of collecting and preserving art from every era, not giving it away."  But Lee Rosenbaum and several others have correctly highlighted many of the article's problems.  Some legal observations are worth mentioning here.

"The Great Giveback" overlooks the general principle that stolen property cannot be owned lawfully or that contraband antiquities (smuggled antiquities) are legitimate. The article instead appears to encourage museums to retain tainted antiquities so long as they "have not been compelled by any legal ruling to give up the art."  This assertion is fraught with risk for museums.

Waiting for a court order to demand the repatriation of stolen or smuggled artifacts when potential settlement options are available disrespects the rule of law and undercuts a museum’s reputation.  Attorneys, museum directors and trustees, museum donors, the general public, and the courts likely would not support the courtroom clashes resulting from "The Great Giveback's" call to legal arms.  Museums are highly respected, and there is an expectation that they will "do the right thing" by finding acceptable legal solutions before initiating or inviting litigation that might result in the forced return of stolen or smuggled property.

Etruscan kalpis returned to Italy.  ICE
Few museums welcome judicial oversight, which is a rare occurrence.  But it happened recently in a matter involving an illicit kalpis purchased in good faith by the Toledo Museum of Art (TMA).  Reported delays slowing the resolution of that case prompted the intervention of federal prosecutors. The matter concluded last year with a federal court order from the northern district of Ohio compelling the TMA--with the museum's assent--to forfeit the Etruscan jug to Italy.  Both the museum's lawyer and its new director agreed to "the seizure of the Kalpis by HSI [U.S. Homeland Security Investigations], the judicial forfeiture of the Kalpis pursuant to 19 U.S.C. § 1595a(c)(1), and the return of the Kalpis to the Italian Government following forfeiture to the United States," according to the June 22, 2012 order.  The court ordered the seizure and forfeiture of the kalpis from the TMA because the jug constituted stolen property unlawfully imported into the United States.  This example offers a mild preview of Eakin's sought after "legal ruling to give up the art," which museums themselves should not hope for unless their trustees desire judicial supervision.

Eakin, meanwhile, maintains that unnamed "[c]ultural property lawyers say it is doubtful that foreign governments could have successfully claimed in court most of the works museums have handed over to them." This assertion is specious.

Looking once again at the TMA kalpis case, federal prosecutors likely would have been successful had they litigated the matter under 19 U.S.C. § 1595a(c)(1)(A).  That law authorizes forfeiture when "[m]erchandise ... is introduced or attempted to be introduced into the United States contrary to law," specifically when the merchandise "is stolen, smuggled, or clandestinely imported or introduced."  The "probable cause" or "proof by a preponderance of the evidence"standards of proof used in civil forfeiture cases are lower than "proof beyond a reasonable doubt." "Probable cause" would simply require federal attorneys to show that the jug’s import more probably than not violated the law, which is not a high standard.  "Preponderance of the evidence" asks on whose side is the greater weight of the evidence.  Investigators in the kalpis collected compelling evidence for a jury to readily conclude that the Etruscan jug was stolen, smuggled, and clandestinely imported into the United States.  The Ohio district court's final order outlines the following information:

"1) an export license from Italy’s Ministry of Culture does not exist for the Kalpis which was alleged to have been originally purchased in 1935 by a private Swiss collector after Italy’s cultural patrimony laws originally took effect in 1909,

2) a Polaroid photograph was discovered amongst the entire Becchina archive of documents, invoices and photographs seized during a search warrant in Basel, Switzerland on February 23, 2002,
...
4) the Polaroid photograph appears to show mud on the Kalpis itself along with dirt on the actual photograph which demonstrates that the Kalpis was photographed in a non-institutional setting long after 1935, its alleged original sale date to the private Swiss collector,

5) similar Polaroid photographs of the Kalpis were seized during a search warrant executed in Geneva, Switzerland on September 12, 1995 at the offices/warehouse of Giacomo Medici (“Medici”), a known Italian art smuggler, who was convicted and sentenced in December 2004 by the Tribunal of Rome for violating Italy’s law of criminal association with the intent to receive stolen archaeological artifacts illegally removed from Italy’s cultural patrimony,

6) Medici’s sentencing document states that the Kalpis was sold by Medici to Becchina,

7) Medici’s sentencing document directly contradicts the information contained in the provenance and invoice provided by Becchina to the Museum at the time of purchase on August 26, 1982, that the Kalpis was (a) purchased by a private Swiss collector in 1935 at an art market and (b) sold by Karl Haug (“Haug”), the alleged son and heir of the private Swiss collector, to the Becchinas in 1980,
...
9) Ursula Becchina provided evidence after her arrest establishing that Gianfranco Becchina collected artifacts illegally in Italy from diggers and from Medici and provided fake documentation to create a provenance for the artifacts including other vases from southern Italy,

10) Ursula Becchina also provided evidence after her arrest establishing that she and Becchina used fake documents to create false provenances for other illegally obtained artifacts attesting to Haug as owner, and

11) the Kalpis, despite its high quality and worth, did not appear in any scientific publication until 1981, one year before the Museum acquired it."

A museum that is in the business of collecting and preserving legitimately excavated and imported antiquities, and in the business of following the law, could not keep the ancient Etruscan kalpis. So was the TMA case one of needless restitution?  Could this case have been won in a hard-fought and expensive court battle?  No.  That is why "The Great Giveback" should reexamine its opinion about the legal issues surrounding the repatriation of stolen and smuggled cultural heritage.

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

Saturday, January 26, 2013

Wilfredo Lam Artworks Purchased with Drug Proceeds Forfeited

Artworks purchased with drug trafficking money have been forfeited to federal authorities in the case of U.S. v. One Canvas and Three Ink Work Paintings by Artist Wilfredo Lam (Dist. Ct. N. Dist. FL 13-CV-8).  The paintings were surrendered by a convicted conspirator who was part of a $14 to $15 million drug trafficking operation during the 1980's, according to an Internal Revenue Service (IRS) criminal investigator's affidavit filed in court last week.  The defendant reportedly fled the jurisdiction in 1986 before being apprehended in 2011.

A plea agreement concluded by prosecutors in the northern federal district of Florida called for the surrender of the Wilfredo Lam paintings.  The IRS affidavit reports that the defendant accounted for $1.7 million in drug proceeds and admitted that drug money was invested in artwork.


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

Tuesday, January 22, 2013

Prison Terms Ordered in Matisse Art Theft Case

Judge Donald M. Middlebrooks today ordered prison time for the pair charged with illegal possession, transportation, and sale of Henri Matisse's Odalisque in Red Pants.

The federal court in the southern district of Florida sentenced Pedro Antonio Marcuello Guzman to 33 months incarceration followed by three years of supervised release.  Maria Martha Elisa Ornelas Lazo was sentenced to 21 months in prison followed by three years of supervised release.

Click here for details about this theft, swap, and fence art crime, which tells of the missing painting from the Caracas Museum of Contemporary Art and the Federal Bureau of Investigation (FBI) undercover investigation that recovered the masterwork.


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

Tuesday, January 8, 2013

U.S. v. Khouli et al. Update: Motion to Defer Prosecution Ushers Rapid End to Antiquities Case

Prosecutors in Brooklyn last week entered into a deferred prosecution agreement with defendant Joseph Lewis, II, completing the alleged antiquities trafficking case of United States v. Khouli et al.  One co-defendant's sentence to house arrest in November for smuggling and making  false statements, and a second co-defendant's plea in December to misdemeanor accessory after the fact, with a sentence of a $1000 fine, appear to have accelerated the case to its rapid conclusion.

A deferred prosecution typically involves an agreement between the prosecution and defense whereby the case is suspended for a period of time and upon certain conditions such as good behavior.  Court documents do not reveal the specific agreement in the case involving Lewis, but one document suggests that the deferral period is for one year beginning January 3, 2013.  At the end of the deferral period, the case is dismissed.  For all intents and purposes, a deferred prosecution generally ends the criminal prosecution.  No conviction is entered.

Last year at this time, Lewis' attorney filed a motion to dismiss arguing that the government could not prove its case.

A fourth co-defendant, Ayman Ramadan, remains a fugitive.  However, the completion of the antiquities case in the Eastern District of New York suggests that the fugitive warrant may not be executed by the U.S. Attorney if he were to be arrested.


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

Saturday, January 5, 2013

CPAC to Meet on Cambodian MoU Renewal - Honduras Considered Too

Angkor Wat in Cambodia
The Federal Register reports that the Cultural Property Advisory Committee (CPAC) will meet to consider renewing the Memorandum of Understanding (MoU) between the United States and Cambodia.

A five year bilateral agreement between the two countries was first enacted pursuant to the Convention on Cultural Property Implementation Act (CPIA) in September 2003 following emergency import restrictions adopted in 1999. The 2003 bilateral agreement was renewed by the nations in September 2008.  It is up for renewal once again.

An open session of CPAC to consider the Cambodian MoU request will be held on February 27, 2013 at 1:30 p.m. EST at the Department of State, Annex 5, 2200 C Street NW., Washington, DC.  CPAC will consider renewing protective import controls through 2018 on archaeological and ethnological materials from the Bronze Age through the Khmer period.

Those wishing to testify in person or to simply attend must contact the State Department at 202-632-6301. To submit written comments, click here.

A list of cultural objects from Cambodia that are currently protected under U.S. import law can be found here.

CPAC will also meet in executive session to consider a request by Honduras for a renewed bilateral agreement under the CPIA in the future.  An open meeting to discuss that country's proposal is expected to be scheduled at a later date.  The current MoU in effect with Honduras dates from 2009.

Photo credit: Bjørn Christian Tørrissen, Creative Commons


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