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Monday, August 26, 2013

Chicago Museums Seek Summary Judgment in Rubin v. Iran

The Field Museum of Natural History and the University of Chicago's Oriental Institute filed a motion for summary judgment last week seeking to end a case that has pitted victims of a terrorist attack against two Illinois museums and Iran. The Chicago-based institutions argue that the plaintiffs' wish to take museum "property that Iran neither owns nor has ever claimed." And regarding Persian artifacts owned by Iran but on loan to the museums, the museums say that the plaintiffs cannot take title to these objects in order to satisfy a court judgment. American lawyers representing Iran filed their own motion in agreement.

The museums offer three arguments in their legal memorandum to defend the ancient Persian collections known as the Persepolis Collection, the Chogha Mish Collection, the Herzfeld Collection, and the OI Collection. The lawyers write,
First, even if Plaintiffs could meet their burden to establish Iranian ownership of the collections at issue, those artifacts would irrefutably be immune from attachment under the Foreign Sovereign Immunities Act [FSIA]. To avoid that immunity, the law requires that Plaintiffs prove that Iran itself used these artifacts commercially. Plaintiffs have no such evidence.
The FSIA is a federal law that protects foreign states from lawsuits and makes foreign sovereign property located in the United States immune from attachment and execution. But the law makes an exception, stating that “[a] foreign state shall not be immune from the jurisdiction of courts … in which rights in property taken in violation of international law are in issue and that property … is present in the United States in connection with a commercial activity carried on in the United States by the foreign state … [or an] instrumentality of the foreign state ….”  (italics added). The museums argue that the Persian artifacts were not part of any Iranian commercial activity.

Second, the museums assert that the Terrorism Risk and Insurance Act (TRIA) cannot be used to take the artifacts. And another court, in fact, has already ruled on this issue, barring any reargument in Illinois. The attorneys write,
...Plaintiffs invoke the Terrorism Risk and Insurance Act (“TRIA”), which allows seizure of a terrorist party’s “blocked” assets. But the First Circuit recently rejected this very same argument made by these very same Plaintiffs in attachment proceedings against two Boston-area museums. Rubin v. Islamic Republic of Iran, 709 F.3d 49, 57-58 (1st Cir. 2013). That ruling is not only correct, it is also binding on Plaintiffs as a matter of collateral estoppel. The requisite “contest” under TRIA may not be created by judgment creditors purporting to stand in a foreign sovereign’s shoes.
Finally, the museums object to the plaintiffs' claim that they can attach the museums' property because Iran--and not the museums--own the artifacts. "The only basis for this claim is Plaintiffs’ speculation that the objects in the Museum Collections may have been unlawfully removed from Iran after 1930 and subsequently conveyed to the Field  Museum or the Oriental Institute," the lawyers say, adding "But Iran has never made a claim to the Museums’ property and, despite eight years of discovery, Plaintiffs have failed to adduce any evidence that Iran owns a single object in the Museum Collections." The Attorneys contend,
...although the Court need not reach the issue given the legal barriers that the FSIA and TRIA erect to Plaintiffs’ claims, these artifacts are owned by the Museums. Plaintiffs’ theory of Iranian ownership depends on an interpretation of a 1930 Iranian export law that is without merit. Indeed, several courts have rejected Plaintiffs’ theory and none, so far as we are aware, has accepted it. Moreover, the statute of limitations and the good faith purchaser rule are additional barriers to any claim of Iranian ownership. Ultimately, Plaintiffs simply cannot meet their legal burden to establish that the Museums hold property that is subject to attachment, or indeed, that belongs to Iran at all. Summary judgment should be entered in favor of the Museums...."
Iran similarly makes three arguments, based on the FSIA and TRIA statutes. The lawyers write in their legal memorandum,
The Fortification Texts [of the Persepolis Collection] and Chogha Mish objects are property of a foreign sovereign and therefore immune from attachment and execution. The FSIA’s commercial activities exception, 28 U.S.C. § 1610(a)(7), does not apply; Iran has never used the artifacts for a commercial purpose in the United States. While Plaintiffs urge that the Institute’s activities are attributable to Iran under an “agency” theory, it is implausible that the Institute is Iran’s “agent.” Iran merely lent the artifacts to the Institute for study, and Plaintiffs raise no material issue of fact for their agency theory. In any event, the Institute’s activities are academic, not commercial.
The lawyers further declare that "[t]he Fortification Texts and the Chogha Mish objects are not subject to execution under the TRIA ... because they are not 'blocked assets.'" By way of background, "blocked assets" are properties that have been seized or frozen by the U.S. government. The TRIA allows seizure of blocked assets to satisfy court judgments “in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism, or for which a terrorist party is not immune under [the FSIA] ….” Iranian “blocked assets” as defined by the Iranian Assets Control Regulations are uncontested assets, meaning that there is no dispute about whether Iran holds title. With this in mind, lawyers for Iran submit in their legal memorandum that "[a]lthough Plaintiffs have urged that the artifacts are 'blocked' because their ownership is 'contested,' no contest exists. The Institute has never asserted title or ownership; it has always agreed that those artifacts belong to Iran. The United States agrees that the assets are not 'blocked.'"

Finally, Iran's attorneys offer the technical argument that the Rubin plaintiffs cannot use an exception under the FSIA law to acquire the artifacts, specifically § 1610(g). They write, "To the extent Plaintiffs assert that the Fortification Texts and the Chogha Mish objects are subject to attachment under § 1610(g) of the FSIA, they are mistaken. Plaintiffs cannot invoke § 1610(g) because they did not raise it before the Seventh Circuit."  The lawyers add,
That provision, moreover, at most subjects property of entities that are legally distinct from the sovereign (such as agencies and instrumentalities) to execution to satisfy a judgment against the sovereign—if that property otherwise lacks immunity because it falls within one of § 1610’s express exceptions. Consequently, §1610(g) is inapplicable. And § 1610(g) applies only to judgments entered under § 1605A. Plaintiffs’ judgment was entered under § 1605(a)(7), and retroactive conversion of Plaintiffs’ judgment would violate separation of powers.
The case of Jenny Rubin, et al. v. Islamic Republic of Iran v. The Oriental Institute et al. began in the Illinois federal district court in 2003 after Rubin and the other plaintiffs won a $71.5 million default court judgment against Iran for that country's role in supporting a 1997 terror attack launched by Hamas. To get Iran to satisfy its judgment, the plaintiffs sued the Field Museum and the Oriental Institute for the ancient Iranian artifacts.

The litigation traveled from the Northern District of Illinois to the Seventh Circuit Court of Appeals, and was later sent back to the district court. But the Rubin plaintiffs sought review along the way by the U.S. Supreme Court. The nation's high court returned the case to the district court last year after declining to hear the Rubin plaintiffs' request to critique the Seventh Circuit's appellate decision.

UPDATE: The plaintiffs in the litigation filed responses to the museums' motion for summary judgment in November and December 2013.

Photo credit: sumeja

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

Friday, August 23, 2013

Second Case Dismissed in Hojo Currency Plate Prosecution

The U.S. Attorneys Office, Eastern District of Michigan, has dismissed charges in the matter of an allegedly stolen Korean currency plate.

Prosecutors closed their criminal case against Midwest Auction Galleries owner James Amato, explaining in a pleading filed earlier this month in federal district court, "The reason for dismissal is: Defendant, JAMES CARL AMATO, has successfully completed pre-trial diversion."

The U.S. Attorney's office dismissed a companion case against co-defendant Wong Young Youn in May.

Officials originally arrested the pair for possessing and selling a Hojo currency plate dating to 1893. Prosecutors said it was stolen from Korea and was one of only three such plates in existence. Details of the investigation may be found here.

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

Wednesday, August 21, 2013

Responses to the Destruction of Heritage in Egypt

Lives and livelihoods are in jeopardy in Egypt, which must be safeguarded. Those involved with heritage preservation, meanwhile, must do what they are able in order to protect history and culture.

Archaeological sites, churches, and museums have been damaged extensively, and they remain under threat. Some responses thus far to this crisis have included:
Naturally, dealers and collectors of artifacts should remain vigilant when acquiring Egyptian objects during this period, conducting rigorous due diligence that includes asking tough questions and reviewing export and import paperwork..

And U.S. officials should consider adopting emergency import protections on Egyptian cultural heritage items. A suggestion has been made on this point already in an earlier blog post.

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

Sunday, August 18, 2013

Stakes Raised in Peruvian Artifacts Forfeiture Case: Claimant Says Objects Not Peruvian as Prosecutors Make New Assertions in Second Forfeiture Complaint


Miami, Florida.
The U.S. Attorney for the Southern District of Florida on July 18 filed a second complaint to forfeit Peruvian cultural property. The complaint alleges that Jean Combe Fritz, a citizen of Peru, illegally imported additional heritage objects when he arrived at Miami International Airport in Florida in August 2010. U.S. Customs and Border Protection (CBP) seized the items.

The federal district court has consolidated this new case of U.S. v. Three Artifacts Constituting Cultural Property of Peru with the case of U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru, filed in May. The three artifacts described in the latest complaint consist of two amulets and a tunic.

The prosecution's newest pleading follows on the heels of Combe Fritz's court notice claiming lawful title to the original 29 artifacts. In answer to the government's initial complaint, he denies "that the CPIA [Convention on Cultural Property Implementation Act] applies, that the items are Pre-Columbian or Colonial, and that Peru is the source country." In the alternative, the claimant argues that "it is not possible to determine whether or not Peru is the source country." Meanwhile, a third affirmative defense asserts that "[t]he articles seized are not Peruvian as their production predates the establishment of Peru as a nation."

A fourth affirmative defense raised by the claimant argues that the objects are not ones of "cultural significance" that can be forfeited as required by the terms of the CPIA. And a fifth affirmative defense contends that CBP failed to provide an administrative process that would have allowed the claimant to recover the property. Indeed, a final affirmative defense says that Combe Fritz "has valid title to the items and is a bona fide purchaser for value...."

The prosecutors' latest complaint targeting the three artifacts argues that the objects can be seized, not under the terms of the CPIA, but pursuant to 19 U .S.C. § 1595a(c)(1 )(A), which states that "[m]erchandise which is introduced or attempted to be introduced into the United States contrary to law . . . shall be seized and forfeited if it ... is stolen, smuggled, or clandestinely imported or introduced."

The prosecution alleges, "The Defendant in rem is merchandise that has been introduced into the United States contrary to law, as it constitutes property unlawfully exported from Peru and stolen, smuggled or clandestinely imported or introduced into the United States." They cite Law 28296 as legal authority, Peru's patrimony law, but make no mention of any specific U.S. criminal law that would have been violated.

Prosecutors, nevertheless, outline additional facts in their case. They allege, among other details, that
Combe-Fritz initially told the officers that he had come to Miami for a vacation and to do some shopping for his wife and child.  He said that he had purchased the artifacts for $500 from the Inca market in Lima, and that he intended to send them to his aunt in San Francisco. 

On further questioning by Customs officers, however, Combe admitted that he was bringing the artifacts in for three persons whose names were on a list given to him by his father, who had also paid for his ticket.
Those named include a doctor in New York City; a man located in Westchester County, NY; and a textile conservation company in New Mexico.

Photo courtesy naomistern.

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

Wednesday, August 14, 2013

Using MLATs in State Court Cultural Property Prosecutions

Many more receiving stolen property cases are handled in state courts rather than federal courts. Whether the cases involve illegally possessed, transported, or sold jewelry, cars, computers, or other stolen objects, these criminal matters are routinely heard by state, county, and local judges applying state law. That is why prosecutors should be familiar with their state's laws that can target those who receive stolen cultural property originating from foreign nations.

All fifty states have receiving stolen property laws on the books. In about about 1/4 of the states--including art market rich New York--there are even statutes that presume criminal knowledge in cases involving dealers. New York Penal Law 165.55 states: "[A] person in the business of buying, selling, or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it."

But how do state authorities build effective cultural property criminal cases in situations where evidence may be located overseas? That is where Mutual Legal Assistance Treaties (MLATs) may help.

Prosecutors were reminded about MLATs last week during a conference titled "Current Challenges and Strategies in the Fight against Transnational Crime," sponsored by the National Association of Attorneys General and the International Association of Prosecutors.

In a world of more extensive shipping, communications, and travel, MLATs give law enforcement authorities greater ability to gather critical information across international borders.

MLATs specifically allow prosecutors to call on foreign assistance to help them examine objects and sites, locate or identify persons of interest, serve documents, take witness statements, and execute requests for searches and seizures.

Because taking down contraband traffickers depends on the old rule of "following the money," MLATs may be the right tool needed to identify overseas criminal money pipelines. Indeed, MLATs have been used successfully to acquire financial and banking records legally from treaty partners.

Negotiated by the U.S. Department of State in cooperation with the U.S. Department of Justice (DoJ), MLATs are currently in force between the U.S. and many cultural property source nations and transhipment nations. These include Belize, Canada, Cyprus, Egypt, France, Greece, Hong Kong, India, Israel, Italy, Japan, Malaysia, Mexico, Netherlands, Nigeria, Switzerland, Thailand, United Kingdom, and others.

State, county, and local prosecutors who utilize MLATs rely on the DoJ's Office of International Affairs for guidance. That office has regional specialists on staff who work to assist prosecutors at all levels of the American criminal justice system.

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

Tuesday, August 6, 2013

Ka Nefer Nefer Forfeiture Case: SLAM Appellate Brief Strongly Criticizes Government

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

Litigants Remain Far Apart in Ancient Coins Forfeiture Case

"In short, the parties have dramatically different views as to how this case should proceed." That is the conclusion of the U.S. Attorney's Office in Maryland after a July 15 meeting with the Ancient Coin Collectors Guild (ACCG) to discuss court scheduling. The ACCG, meanwhile, slapped the government with discovery requests.

Recent pleadings filed by both parties show just how wide the divide is between the two sides.

The battle of U.S. v. Three Knife-Shaped Coins, Twelve Chinese Coins, and Seven Cypriot Coins is the latest round in a seizure and forfeiture contest that began four years ago when the ACCG transported ancient coins from London to Baltimore, declaring to Customs and Border Protection (CBP) that they were from China and Cyprus but with no known provenance or find spots. CBP took custody of the coins, initiating a series of court battles by the ACCG that have dealt the trade organization successive defeats in federal district court, the circuit court of appeals, and the U.S. supreme court.

The current court case restarted in the district court this spring when the U.S. Attorney filed a forfeiture complaint in May. The ACCG, the claimant, filed defenses in a response the following month.

Federal prosecutors in their most recent pleading dated July 16 charge that the ACCG wishes "to attempt to re-litigate many if not all of the issues that were addressed by this court and the Court of Appeals in 2011 and 2012." Yet they add that "none of the issues that were litigated in the previous lawsuit are before the court in this case, and the parties should not have to invest judicial resources in conducting discovery on those issues."

The prosecutors further assert that the ACCG "raises defenses [in the case] that are so vague that it is impossible to know what issue Claimant intends to raise or whether Claimant seriously intends to contest the allegations in the Government’s complaint."

The government's lawyers highlight seemingly stretched defenses by the ACCG that they say should be addressed by the court as a matter of law. "For example, [the ACCG's] Affirmative Defense 2 asserts the innocent owner defense...It is undisputed, however, that Claimant is the perpetrator of the conduct giving rise to the alleged forfeiture. As a matter of law, the perpetrator of the conduct giving rise to the forfeiture cannot be an innocent owner, because such person cannot show that he unaware of that conduct ...."

The ACCG fires back in its own July 16 court filing by demanding discovery from the government. It writes, “This is a far different case. Here, the government seeks the forfeiture of the Guild's coins, presumably so they can be packed off to Cyprus and China as trophies." The trade group argues that it "is allowed discovery as to why the government believes the Guild's coins were 'first discovered within' and 'subject to the export control' of either Cyprus or China ... before the government can take the Guild's coins and pack them off as trophies to cultural bureaucracies in China or Cyprus."

The ACCG adds that "it is entitled to discovery into whether the government complied with the significant substantive and procedural constraints found in the CPIA before imposing import restrictions on Cypriot or Chinese coins." The Claimant contends that "the Guild also has good reason to believe some of the exact same mid and lower level State Department employees who engineered the controversial decisions imposing import restrictions on Cypriot and Chinese coins also guide CBP in deciding whether to detain and seize so-called 'cultural property,' presumably including the Guild's coins."

District Court Judge Catherine Blake issued a simple order on July 26, 2013:
The government is not required to respond to the interrogatories, requests for production, or requests for admission served by defendants’ counsel at this time; no discovery will proceed (unless agreed to) pending the resolution of the government’s motion which will seek to strike defenses and/or clarify the issues to be litigated in this case.
Motions are expected to be filed in the case through November.

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

Sunday, August 4, 2013

Afghanistan's Looted History and U.S. Law

National Geographic's "Who's Stealing Afghanistan's Cultural Treasures?" (August 1, 2013) offers valuable first-hand information about the looting and smuggling of Afghanistan's archaeological treasures. So what could happen legally if stolen archaeological treasures from Afghanistan cross into the United States?

Federal prosecutors might apply the National Stolen Property Act (NSPA) to seize and forfeit any contraband objects pursuant to the Forfeitures and Other Penalties statute (19 U.S.C § 1595a) or pursuant to the Civil Forfeiture statute (18 U.S.C. § 981).

A prosecution of individuals under the NSPA (18 U.S.C § 2314, 2315) could also be initiated against those who knowingly transport, sell, or receive stolen Afghan objects. It should be noted that the antiquities separately or all together must be valued at $5000, and Afghanistan's patrimony laws would have to be invoked. The country has adopted three such laws over the years, specifically the Code for the Protection of Antiquities in Afghanistan (1958), The Law on the Preservation of Historical and Cultural Heritage (1980), the Law on the Protection of Historical and Cultural Properties (2008).

Receiving stolen property statutes might also be enforced by state prosecutors. Unlike the federal NSPA, state receiving laws do not require a $5000 threshold amount. More importantly, if a dealer of art and antiquities is named as a criminal defendant, about 1/4 of the states--including art market rich New York--have laws that presume criminal knowledge. New York Penal Law 165.55, for example, states: "[A] person in the business of buying, selling, or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it."

Seizure of the Afghan antiquities and prosecution of criminals involved could also occur under the federal Archaeological Resources Protection Act (ARPA) (16 U.S.C. §470ee(c)).

There are no specific American import barriers authorized by the Convention on Cultural Property Implementation Act (CPIA) that protect archaeological or ethnological objects from Afghanistan. Afghanistan ratified the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property in 2005, but the country has yet to ask for a bilateral agreement with the U.S. that would trigger the CPIA's import protections. And recall that emergency import restrictions envisioned by the Cultural Conservation of the Crossroads of Civilization Actdied in congress several years ago.

The CPIA 19 U.S.C. §2607 may be used, nevertheless, to target items imported into the U.S. that were stolen from a museum, religious institution, or public monument in Afghanistan. But this section of the law would not cover uninventoried archaeological objects stripped from the ground.

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

Thursday, August 1, 2013

First Circuit Upholds Single Parcel Historic District Protecting Church Building

The United States Court of Appeals for the First Circuit last week issued a decision that protects an historic church built in 1925 in southwest Massachusetts. The court's ruling upholds the enactment of a single parcel historic district that covers Our Lady of Hope, an Italian Renaissance style Catholic church. Although the appeals court said the ordinance's adoption was legally justified, it left open the possibility that the ordinance's application could come under attack in the future.

The case of Roman Catholic Bishop of Springfield v.City of Springfield began when the Roman Catholic Bishop (RCB), after planning and consultation, decided to consolidate two parishes. Because one parish church was sold and later demolished by a developer, parishioners sought to save Our Lady of Hope from a similar catastrophe. In response, Springfield's city government swiftly passed an ordinance that placed Our Lady of Hope in a single historic district that did not include any other buildings. The city ordinance was written to require the RCB to petition the Springfield Historical Commission (SHC) for permission to change the church's exterior.

RCB challenged the ordinance, arguing "that the ordinance gives the SHC veto power over its religious decisionmaking, and in doing so violates its First Amendment rights to free speech and free exercise of religion; its rights under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.; and its rights under the Massachusetts state constitution." The First Circuit disagreed and ruled that the adoption of the ordinance was proper.

Because the RCB had not presented a petition to the SHC concerning any alterations to Our Lady of Hope, the court observed that "the City has had no opportunity to demonstrate whether or not it will accommodate some, all, or none of RCB's requests for changes to the exterior of the Church. ... Without knowing what RCB can or cannot do with the Church under the Ordinance, we cannot know to what extent, if any, RCB will suffer from a burden on its religious practice." The First Circuit therefore left open the possibility for a renewed lawsuit by the RCB.


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