Sunday, March 31, 2013

China MoU Renewal Announcement

Today's Federal Register announces China's intent to renew its Memorandum of Understanding with the United States under the Cultural Property Implementation Act.

The Cultural Property Advisory Committee (CPAC) will meet on May 14, 2013 to solicit public comment on the renewal.

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: www.culturalheritagelawyer.com

Friday, March 29, 2013

Cambodian Statue Forfeiture Case Moves Forward - Sotheby's Motion to Dismiss is Denied

The federal district court for the southern district of New York today allowed federal prosecutors to amend their forfeiture complaint in the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture Currently Located at Sotheby's.  The court also refused Sotheby's request to dismiss the case.

Prosecutors have accused the New York auction giant with issuing misinformation to prospective sellers; skirting claims that the statue was stolen from Cambodia in 1972 and trafficked to Thailand; and making unsubstantiated assertions. Sotheby's has countered that federal prosecutors failed to allege that the statue was stolen, that it remained stolen, or that the claimants even knew that the statue was or remained stolen.  They have also accused prosecutors of having wasted the court's time to the detriment of the claimants.

In today's 18 page decision, Judge George Daniels sided with the government at this pre-trial stage of the case, writing:

“Each of the federal statutes under which the Government has brought this forfeiture action requires an underlying violation of the NSPA [National Stolen Property Act].  Thus, to establish that the property is subject to forfeiture, the Government must allege that (1) the Statue was stolen, (2) the Statue remained stolen at the time of import into the United States, and (3) Claimants knew the Statue was stolen.

“The Government's allegations in the PAC [Proposed Amended Complaint] support a reasonable belief that the Government will be able to demonstrate by a preponderance of the evidence that the Statue was stolen.

“Claimants' argument that the PAC is deficient because it does not contain factual allegations that Cambodia ever enforced the Colonial Decrees also fails. 

“The Government's allegations in the PAC support a reasonable belief that the Government will be able to demonstrate by a preponderance of the evidence that the Statue remained stolen at the time of import into the United States. 

“The Government has sufficiently pled facts regarding Sotheby’s knowledge that the Statue was stolen at the time of import into the United States.  According to the PAC, Sotheby's was aware of the origin of the Statue, that it had been broken off at the ankles, and it first appeared on the international art market during a period of rampant looting of antiquities from Koh Ker. Sotheby's has a particular expertise in works from India and Southeast Asia, including extensive experience in the sale of Khmer artifacts. Sotheby's consulted regularly with the Collector and knew him to be the original seller of the Statue in 1975. The Collector knew that the Statue had been looted from Koh Ker, and had trouble selling it in 1975 because many prospective buyers were unwilling to purchase it due to its lack of legitimate provenance and missing feet. Subsequent to import, Sotheby's was expressly advised that the Cambodians had clear evidence that the Statue was definitely stolen. Sotheby's is alleged to have provided inaccurate provenance information and omitted information about the Collector who acquired the Statue in Sotheby's communications with potential buyers, the Kingdom of Cambodia, and United States law enforcement. Accepting all of these fact as true for the purposes of the parties' motions gives rise to a reasonable inference that Sotheby's knew that the Statue was stolen at the time of import and thereafter. The Government need not provide unassailable proof to demonstrate Sotheby’s knowledge at this stage in the case. Claimants have also not offered any legal support for their argument that the Government need plead facts demonstrating Claimant's actual knowledge of foreign patrimony law for the complaint to survive a motion to dismiss.”

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: www.culturalheritagelawyer.com

Thursday, March 28, 2013

Archaeological Context: Hard Evidence Attorneys Should Value


Attorneys value hard evidence. They collect, classify, and present evidence to persuade jurors and judges about the merits of their cases. They are intimately familiar with the Rules of Evidence, which require a "chain of custody" and "laying a foundation" before any item may be offered to the finder of fact as an authenticated piece of proof. Archaeologists also value evidence. They likewise preserve the chain of custody of objects--called provenience and provenance--and they employ the scientific method to preserve, authenticate, and reconstruct evidence of the past.

Given the high regard lawyers and archaeologists have for rigorous standards of proof, it would be natural for these professionals to possess a shared affinity. That is why a lawyer's remarks this week questioning archaeologists' "single-minded obsession with archaeological context" deserves comment.  See Chasing Aphrodite, March 25, 2013.

The context of an archaeological artifact refers to the object's find spot, its time sequence within the layers or strata of dirt, and its association with nearby artifacts. Context means that the artifact is an integral part of its place of discovery. It also means that the place of discovery is an integral part of the artifact. Both the artifact and the archaeological site lose information when an artifact is ripped out of the soil without proper scientific excavation or documentation. Reconstructing the past is made difficult when contextual evidence is damaged or tampered with.

Litigators know this all too well. It is the reason why prosecuting attorneys, for example, single-mindedly focus on preserving evidence at crime scenes. Crimes like murder and arson have little chance of being reconstructed unless evidence is properly documented, collected, tagged, examined, and tracked. A judge will quickly toss out evidence deemed too be unreliable in cases where the find spot has not been documented or where questions surround the chain of custody.

The value of archaeological context in relation to ancient coins cannot be dismissed by the explanation that "[n]umismatists derive their own context." Derived context increases the risk of producing faulty conclusions, perhaps even based on inauthentic evidence. It is true that "by studying the inscriptions and iconography found on coins, by reconstructing the chronology of dies used to strike a given series, and by analyzing the weight standard and the metallurgical content of each issue" that something may be learned about the past. There is no doubt that a direct examination of numismatic archaeological material can be a valuable tool. But such inspections produce more precise results when the cultural property observer knows where the coins were found and in what specific archaeological context. Archaeology, of course, is the fundamental scientific field that gathers this contextual evidence.

The Archaeological Institute of America shares a good example of why context matters in its August 7, 2007 web post titled "Coins and Archaeology":

"At the sanctuary of Zeus at Nemea (Greece), for example, the coin scatter indicates which areas of the sanctuary were used at different times, and from which regions the travelers came, thereby facilitating a reconstruction of patterns of pilgrimage at the site. In addition, the distribution of coins confirms heavy use of the sanctuary in the fifth century B.C., a lower level of use in the early fourth century, and intense building during the later fourth and early third centuries. In the site's stadium, coins indicate that citizens were seated by towns, not randomly around the track, and that a predominantly local audience watched the games. Furthermore, coins of Ptolemy III, ruler of Egypt from 246 to 222 B.C., are found in great numbers at the site, which constitute direct evidence that the king financed warfare in the Peloponnese (southern Greece) as he did in Attica."

Archaeological context helps reconstruct the past accurately. That is why it is the kind of hard evidence that lawyers should appreciate.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2013 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, March 25, 2013

U.S. Supreme Court Rejects ACCG's Coins Case

Photo credit: David Lat
The Ancient Coin Collectors Guild (ACCG) suffered another defeat as the U.S. Supreme Court declined to hear the trade organization's appeal. The case of ACCG v. U.S. Customs and Border Protection Agency, Department of Homeland Security et al. (docket 12-996challenged America's import controls over Chinese and Cypriot cultural property.  The ACCG lost in both the federal district court and the circuit court of appeals before filing a petition for certiorari in the nation's highest court. The Supreme Court reviewed the ACCG's case on Friday and issued a ruling this morning denying certiorari.

The ACCG began the case in order to challenge the government's application of the Cultural Property Implementation Act (CPIA), the federal 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 trade organization imported ancient coins from a London dealer in 2009 that 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 under authority of CPIA import controls restricting ancient Chinese and Cypriot coins of a certain type. The ACCG then filed suit to challenge the cultural property import protections.

Today's Chasing Aphrodite interview with Peter Tompa, attorney for the ACCG, offers additional information about the ACCG's test case.

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, March 23, 2013

New York Prosecutors Seek to Forfeit Ancient Egyptian Artifacts


­­­The U.S. Attorney’s Office for the Eastern District of New York on March 20 filed a complaint in federal court seeking to forfeit five ancient Egyptian objects. U.S. Customs and Border Protection (CBP) seized the items in 2010. The artifacts include:
  • Amarna-style carving in Egypt.  Photo credit: PocketAces
    An Amarna Period sunken limestone relief of offering bearers with an appraised fair market value of $18,000.
  • A Late Period fragment block statue made of gray schist, having an appraised fair market value of $12,000.
  • A New Kingdom limestone relief displaying the arms of offering bearers, appraised at $2,000.
  • A New Kingdom limestone relief depicting a man, valued at $5,000.
  • A Middle Kingdom funerary boat valued at $20,000.
Government lawyers write that the archaeological material arrived in a FedEx shipment on August 20, 2010 at Newark's Liberty International Airport. The ancient Egyptian objects "were sold in and exported from Dubai, UAE by Hassan Fazeli Trading Company, LLC (‘Fazeli Trading’). [They] were purchased and imported by [Salem] Alshdaifat, by and through Holyland [Numismatics],” allege the prosecutors.

[Sidebar: Alshdaifat, owner of Holyland Numismatics, pleaded guilty on December 21, 2012 to a reduced charge of misdemeanor accessory after the fact in the cultural property case of U.S. v. Khouli et al. The present forfeiture case, however, is not directed against Alshdaifat as it is a civil matter naming the ancient Egyptian artifacts as the defendants in rem.]

The government argues that the objects should be forfeited because of false statements regarding the reported values of the cultural artifacts, false statements about the country of origin, and false declarations made to customs regarding their descriptions.

Prosecutors cite four legal grounds. First, they argue that the objects must be forfeited under 18 U.S.C. § 545 (smuggling) because the archaeological material "are goods or merchandise smuggled, clandestinely introduced into the united States, imported contrary to law ....” Second, the artifacts constitute unlawfully imported merchandise under 18 U.S.C. § 545 and/or 18 U.S.C. § 542 (false statements). Third, they "were imported into the United States without the merchandise invoices setting forth accurate information necessary for proper appraisement, examination and classification” in violation of 19 U.S.C. § 148.  Fourth the cultural items "were not imported into the United States with reasonable care to make entry therefore by filing with the CBP documentation and information necessary to determine whether the  [objects] may be released from custody of Customs and Border Protection” contrary to 19 U.S.C. § 1484 (a)(1).

The forfeiture complaint alleges that the value of the goods was understated. The government hired National Appraisal Consultants, LLC, who estimated the fair market value of the archaeological objects to be $57,000. But the import value reported to CBP was below that figure.

The government, meanwhile, claims that discrepant values were placed on customs forms and invoices. Prosecutors write, "The value declared on the FedEx airwaybill and the Fazeli Trading invoice to Holyland was $17,500. The value declared on the Customs Form 3461 was $1,334. The value declared on the Customs Form 7501 was $17,881, broken down into one line item valued at $17,500 and a second line item valued at $381. No invoice was provided for the second line item.” Moreover, “The Fazeli Trading invoice lists four items sold to Holyland: one 'Ancient Egyptian Wooden Boat' ... for $3,500 and three 'Ancient Egyptian Stone Fragment[s]' for $14,000, for a total of $17,500. This information is repeated on the Commercial Invoice supplied to FedEx Brokerage. Although the shipment contained four stone fragments, both invoices state that there were only three stone fragments sold. Neither invoice reflects an object sold for $381."

The government's complaint also argues the listing of a false country of origin. While prosecutors point out that “[t]he Fazeli Trading invoice and Commercial Invoice describe the Defendants in rem as ‘Ancient Egyptian,’” the lawyers add that “the Commercial Invoice listed the ‘country of manufacture’ as ‘Turkey.’” Government attorneys additionally say that “the documents available to Customs upon the shipment's arrival … did not list Egypt as the country of origin or country of manufacture ….” Prosecutors specify that “[t]he country of manufacture declared on the FedEx airwaybill was Turkey, [t]he country of origin declared on the Customs Form 3461 was the UAE, [t]he country of origin declared on the Customs Form 7501 was ‘Multi.’”

The government's complaint additionally alleges false descriptions, arguing "The Fazeli Trading invoice and Commercial Invoice list only three stone fragments, while there were in fact four stone pieces in the shipment...." The complaint also claims that the import description of "Stone Wooden Antique Lime" was inadequate. Morevoer, the listed Harmonized Tariff Schedule (HTS) 9703 number, which designates original sculptures and statuary, was off target say the prosecutors.  The government alleges that when CBP detained the archaeological objects the importer of record supplied a new HTS number of 9706.00.0060, which covers antiques over 100 years old. The objects should have been classified as HTS 9705.00.0070, argue prosecutors.  HTS 9705.00.0070 covers collections and collectors' pieces of archaeological, historical, or ethnographic pieces.

 The government's complaint states that Alshdaift filed a response to the CBP seizure, writing
"Alshdaifat and Holyland submitted a petition for remission through counsel dated September 23, 2010. In his petition, Alshdaifat claimed that he 'conducted his due diligence' to ensure that the [objects] 'were not stolen from Egypt.' In particular, Alshdaifat averred that he had asked Hassan Fazeli, proprietor of Fazeli Trading, about the origin ... to which Fazeli responded that [they] had been part of a private Turkish collection of decorative antiques that he purchased in 2008. Alshdaifat also submitted a copy of Fazeli's export commercial invoice and UAE Customs declaration which purportedly established Fazeli' s purchase and importation of the private collection.”  The forfeiture complaint notes that “none of the items described in the export commercial invoice for Fazeli's purchase correspond to the [objects]."

The forfeiture case is docketed as 13-CV-1462.

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, March 20, 2013

One Week Summer Course in Cultural Property Law

Photo credit: Alex Bruda
Registration is now open for Cultural Property Law, part of Plymouth State University's summer program. This intensive course will take place from July 15 through 20. The class includes a field trip to the Museum of Fine Arts, Boston.

Plymouth State University in Concord, NH.
This course examines the international, national, and state legal frameworks for the protection and movement of cultural property. Archaeological site looting, transnational antiquities trafficking, and armed conflicts threaten global cultural heritage. The international and American governments' responses to such threats have resulted in the development of major treaties as well as the enforcement of criminal laws and customs regulations. It is taught by Rick St. Hilaire.

Topics for discussion include the 1954 Hague Convention, the 1970 UNESCO Convention, the ICOM Code of Ethics, the National Stolen Property Act, and the Cultural Property Implementation Act. The course also introduces students to important national heritage laws such as the Archaeological Resources Protection Act and the rules governing shipwrecks. State statutes and the common law regulating cultural property are also reviewed.

The class meets in Concord, New Hampshire just north of Boston, Massachusetts.

Register beginning on April 3 by visiting: http://www.plymouth.edu/graduate/academics/course-schedules/summer-2013/.

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

Thursday, March 14, 2013

The U.K.: A Major Cultural Property Supplier


Photo credit: Athewma
European nations accounted for ten of the top 20 sources of archaeological, historical, and ethnological material imported into the United States in 2012. And last year alone, the U.S. imported archaeological, historical, and ethnological material from the United Kingdom valued at $7,446,021, making the U.K. the second largest import supply nation of these kinds of cultural property (by customs value). That is according to data classified by Harmonized Tariff Schedule (HTS) 9705.00.0070 and published by the U.S. Department of Commerce and the U.S. International Trade Commission.

Examining HTS 9705's broader trade category of "collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest" reveals that the U.K. is the largest cultural property supplier to the U.S. of these types of goods. 

In fact, numbers compiled from the United Nations Statistics Division show that the U.K. is the world's premiere exporter by value of HTS 9705 property.  The most recent information available indicates that the U.K. exported HTS 9705 goods amounting to $155,020,581 in 2011. That is about equivalent to Dayton, Ohio's city budget.

Other large suppliers to the world include the U.S. ($113,099,923), Switzerland ($98,675,789), France ($71,241,772), Hong Kong ($70,835,291), Canada ($42,695,548), Netherlands ($27,677,428), South Africa ($18,882,248), Austria ($15,231,914), and Spain ($12,658,111). The U.K. outpaced the U.S. by nearly $42 million in additional exports, the approximate amount of Canada's exports.

The massive C-5 Galaxy. Photo credit: U.S.A.F. Tech. Sgt. Charlie Miller
Of particular note, the Netherlands zoomed well beyond other nations in terms of weight with 1,705,030 kilograms (3,761,152 pounds) of HTS 9705 exports. That is approximately the weight of ten massive C-5 Galaxy transport planes.

The U.K.'s export data should agree with the U.S.'s import data. Borrowing from an idea used by Raymond Fisman and Shang-Jin Wei of Columbia University and published in "The Smuggling of Art and the Art of Smuggling: Uncovering the Illicit Trade in Cultural Property and Antiques," American Economic Journal: Applied Economics 2009, 1:3, 82-96, U.K. export data was compared with U.S. import data. It should be mentioned at the outset that, according to gov.uk, U.K. export numbers rely on commodity code 97050000, "collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest." The classification is said to be the equivalent of Standard International Trade Classification (SITC) 896.50, defined as "Collections And Collectors' Pieces Of Zoological, Botanical, Mineralogical, Anatomical, Historical, Archaeological, Numismatic, Etc. Interest." Unfortunately, there is no further break down of the 9700000/896.50 export data into specific archaeological, historical, and ethnological objects. So it is not possible to directly compare HTS 9705.00.0070 imports into the U.S. with the exact numbers for U.K. exports. The best comparison that can be made is examining HTS 9705 imports to the U.S. and 97050000/SITC 896.50 exports from the U.K. The numbers do not match.

To reiterate, the U.S.'s HTS 9705 imports from the U.K. totaled over $38 million in 2012. But the U.K.'s equivalent exports totaled £47423291 or approximately $76,046,377, applying the currency exchange rate published on December 1, 2012. The export data come from HM Revenue and Customs, and the agency lists double the amount of America's recorded imports. The reason for this large discrepancy between the U.K's export numbers and the U.S.'s import numbers of the same goods needs to be studied further. The data nevertheless reinforce the notion that the U.K. is a preeminent exporter of HTS 9705 property. 

It is no surprise then that the U.K. takes first place on the U.S.'s 2012 top 20 list of HTS 9705 cultural property imports for consumption of collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest, ranked by customs value and supplying nation. Other nations follow behind:

United Kingdom  $38,158,210 
Italy  $23,083,181
China  $19,364,785
Switzerland   $12,710,914
Canada  $10,279,170
Germany  $8,873,106
France   $7,661,173
Australia  $5,986,012
Spain   $5,957,395
Egypt  $5,746,759
Turkey  $4,919,196
Poland  $3,372,543
Greece  $3,127,905
South Africa  $2,671,704
Mexico  $1,775,560
India  $1,746,985
Israel  $1,499,005
Russia  $1,313,756
Netherlands  $1,285,472
Brazil  $952,324

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