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Tuesday, October 29, 2013

Honduras MoU Renewal Attracts Comments Ahead of Tomorrow's CPAC Meeting - Inclusion of Colonial and Republican Objects in Dispute

"Please help us," pleaded Honduran archaeologist Ricardo Agurcia in written remarks submitted to the Cultural Property Advisory Committee (CPAC). He and nearly twenty others submitted remarks to CPAC in advance of the presidential advisory group's scheduled meeting beginning tomorrow in Washington, D.C.

CPAC will consider the renewal of the United States-Honduras Memorandum of Understanding (MoU), adopted under the federal Convention on Cultural Property Implementation Act (CPIA), which restricts American imports of at-risk cultural property from the Central American nation. The request to renew the bilateral agreement between the two nations is rooted in Article 9 of the 1970 UNESCO Convention.

The U.S. and Honduras first entered into a bilateral agreement in 2004 after Honduras' cultural patrimony was found to be in jeopardy from pillage, particularly from looting at thousands of archaeological sites across the country. The U.S. renewed the MoU in 2009. The agreement is set to expire in 2014.

The Penn Cultural Heritage Center told CPAC this month in a published statement that "looters continue to threaten the cultural patrimony of Honduras," a sentiment shared by other archaeologists. The Penn Center specified that from 2001 through 2012 "authorities reported 304 cases of theft involving cultural goods, including artwork, manuscripts, books and monuments, as well as historical, artistic, and archaeological objects" and from 2010 through July 2012 "Honduran authorities recorded a total of 101 complaints of crimes against cultural heritage, robbery, theft and damage of artifacts and sites, including at Copán and at Mayan tombs in Petatía."

In addition to archaeological looting, comments focused attention on looting of colonial era heritage. "Especially at risk are colonial churches, which have been victims of theft or attempted theft during the present MOU period," warned the Penn Center, conceding that it was "unable to determine whether this is an area of increasing illicit trafficking in Honduras or there is simply more publicity attached to these recent thefts." The Penn Center nevertheless cautioned that "the number of instances is cause for concern," pointing to reports of thefts of religious objects at churches in Taulabé, Comayagua, Candelaria, Lempira, Santa Bárbara, Curarén, Pimienta, Cortés, and other locations.

Agurcia offered a more emphatic statement, decrying that "the pillaging of religious, colonial materials has been rampant. In the past few years even the wooden statue of the town's patron saint has robbed and newspaper reports of similar events all over the country have prolific over this same period."

The colonial fortress at Trujillo, Honduras.
CPAC's review of the MoU renewal includes a request by the government of Honduras to widen the protections afforded by current U.S. customs laws. Restrictions on imports of Colonial and Republican cultural heritage objects in jeopardy--in addition to at-risk archaeological and ethnological material dating from 2000 B.C. to 1550 A.D. covered by the current bilateral agreement--will be considered by CPAC.

But there is opposition to this widened request by collectors' advocates. Arthur Houghton, a former curator of The J. Paul Getty Museum and an original member of CPAC in the 1980's, called the broadening of the U.S.-Honduras agreement "odd in the extreme." He argued in a written comment that the CPIA "clearly requires that material to be included in any agreement between the United States and a foreign state meet the definitions of 'archaeological or ethnological.'" Houghton stated that "Honduran material of the Colonial and Republican periods meets neither of those tests," arguing that "archaeological, material must be 1) of cultural significance; 2) at least two hundred and fifty years old and ... 3) normally discovered as a result of excavation or clandestine digging, or exploration" and that "ethnological, material must be 1) the product of a tribal or nonindustrial society and ... 2) important to the cultural heritage of a people."

The Association for Art Museum Directors (AAMD) communicated reservations similar to Houghton's, although the organization expressed overall support for a five year extension of the MoU. "While the AAMD generally supports the protections sought by Honduras, the AAMD urges the Committee to avoid overly broad or ambiguous categorization and definition of subject materials." The museum directors emphasized, "There is no explanation of what is meant by 'Colonial' and 'Republican' material."  As a result, the AAMD urged CPAC members in its written comments to "take care to define the scope of 'Colonial' and 'Republican' material to be protected, using defined dates and recognized definitions." The group nonetheless questioned "whether there is a demonstrated need for such protection," asking "If the United States is not a market, how can the imposition of U.S. import restrictions, even if done in concert with others, be of 'substantial benefit in deterring pillage?'"

CPAC this week will also assess the current bilateral agreement with El Salvador, part of an interim review of the MoU adopted in 2010.

Photo credit: rafito20

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

Monday, October 28, 2013

Praise for Ton Cremer's and His Museum Security Network

Ton Cremers

Ton Cremers issued a statement today saying "after 17 years Museum Security Network I have closed www.museum-security.org. The Google group and it's archive will remain on line."

Those who devote themselves to cultural heritage blogging, news syndication, and managing listservs spend immense amounts of time keeping information fresh.  That is why Ton Cremers is to be highly commended for his invaluable efforts.  We owe him a debt of gratitude.

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, October 18, 2013

The Monuments Men: Movie and Conference

"The Monuments Men" movie, based on Robert Edsel's book, premiers December 18 (UPDATE: Now February 7, 2014). Watch the trailer below.

Before viewing George Clooney, Matt Damon, and Cate Blanchett on the silver screen, examine the legacy of the Monuments, Fine Arts, and Archives program at a special conference to be held on Friday, November 1 at Fordham University Law School located at 113 W. 60th Street in Manhattan, New York.


American soldiers' efforts to protect works of art and cultural heritage during World War II emerged from a commitment rooted in Francis Lieber's code, authorized by President Abraham Lincoln, calling for protection of art and archives by Union soldiers during the Civil War. The Lieber Code set the stage for General Dwight Eisenhower's call during the Second World War to respect monuments of heritage as best as possible during conflict.  Following that war, the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict appeared on the global stage, a treaty as relevant today as it was sixty years ago.

The November 1 conference-- hosted by the Lawyers' Committee for Cultural Heritage Protection, Fordham Law School, and the American Society of International Law--seeks to:
  • honor the monuments officers of WWII fame;
  • review their successes and consider the legacy of their unfinished work;
  • study more recent examples of prevention efforts in times of armed conflict;
  • introduce efforts to address these problems currently being undertaken by museums and the art market, US armed forces, law enforcement and others; and
  • consider the role of various media, including "The Monuments Men" film and internet resources, in publicizing the issue and raising cultural awareness.
Register online here. Admission includes the conference, breakfast, lunch, coffee, and cocktail reception.

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, October 15, 2013

Federal-State Cooperation on Display in Heritage Trafficking Prosecution of Kapoor Relative

In July 2012, CHL wondered whether federal-state cooperation and the use of state criminal law--as opposed to federal criminal law--to prosecute international heritage trafficking may be taking shape in New York City. Sushma Sareen's arrest last week answers that question.

Tom Mashberg of the New York Times broke the story that Sareen is charged with crimes related to the Indian idol trafficking case of Subhash Kapoor. Kapoor is Sareen's brother. He was detained in Frankfurt, Germany in 2011 under authority of an INTERPOL Red Notice and was later extradited to India on July 14, 2012. Kapoor is currently awaiting trial. He owns Art of the Past gallery and Nimbus Import Export on Madison Avenue in New York City.

It was reported in July 2012 that the Manhattan District Attorney's Office issued an arrest warrant for Kapoor, charging him with possession of stolen property. Sareen, meanwhile, is charged with four counts of criminal possession of stolen property under New York State penal law. A Manhattan criminal court released her on $20,000 bond, $10,000 cash, scheduling her next appearance for January 8, 2014.

The charges against Sareen are serious offenses. They allege receiving property valued at $1 million or more. The property alleged to have been possessed are four Chola bronze statues that include two of Shiva of Nataraja, which are valued at $3.5 million and $5 million, respectively; one statue of Uma Parameshvari valued at $2.5 million; and one statue known as Uma-Parvati valued at $3.5 million. 

A person is guilty of criminal possession of stolen property in the first degree in New York, which is a Class B felony punishable by imprisonment, when the person "knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars." PL 165.54.

Available information shows that the Kapoor/Sareen heritage trafficking case rounded the circuit from Indian police to INTERPOL to U.S. Homeland Security to Manhattan authorities, illustrating the type of enforcement cooperation that is possible when combating transnational criminal activity.

Indian officials contacted U.S. Homeland Security in February 2007 to report that antiquities were perhaps being smuggled into New York, according to Homeland Security Investigations (HSI). That same year, federal prosecutors in the Central District of California concluded a customs-related false statements prosecution on the west coast, according to information contained in the criminal complaint against Sareen. The defendant in that federal case then began to serve as an informant for HSI, working on the Kapoor investigation.

The Sareen complaint describes how the informant went to Kapoor's Art of the Past gallery in New York on December 4, 2008 and was offered the $3.5 million Shiva of Nataraja. The informant returned to the gallery on September 27, 2011, this time wearing a wire. He reportedly recorded a meeting with Kapoor who presented the Shiva for sale along with another Shiva statue. The Sareen criminal complaint alleges that "Kapoor indicated ... that he had been holding both of the items for a few years, and further stated that he expected the items to appreciate by 10 to 15 percent per year from the current fair market values of $3.5 and $5 million."

The complaint states that photographs obtained from an Art of the Past CD show the two Shivas plus the two Umas in pictures dated February 26, 2008. S. Selvaraj, Deputy Superintendent of Police, Idol Wing Criminal Investigation Department (CID), told HSI Special Agent Brent Easter that these statues were stolen from the Varadharaja Perumi temple in Tamil Nadu sometime between February and April 2008.

One month after the September 2011 meeting with the informant, German authorities detained Kapoor on October 30 at the Frankfurt airport.

Back in the U.S., the criminal complaint claims that Sareen was in knowing possession of the Shivas and Umas on November 1, 2011. It is unclear how she was in possession of them on the time and at the place alleged since the complaint declares that Sareen possessed the items at 1 Hogan Place, which is the address of the Manhattan District Attorney's Office. The complaint additionally explains that a November 3, 2011 letter from Kapoor to a certain individual gave instructions that the Shivas and Umas should be given back to a named person. Neither the certain individual nor the named person were Sareen. And the certain individual moved the bronzes to the named person's apartment, according to the complaint.

Both the certain individual to whom Kapoor wrote the letter and the named person who was directed to receive the Shivas and Umas are implicated in the criminal complaint as having known that the items were stolen. But a search of state and federal court records does not reveal that either has been charged, which is why they are unnamed here.

The complaint goes on to state that HSI executed a search warrant on January 5, 2012 at both Art of the Past and the gallery's storage units on Manhattan's west side. That action, according to information conveyed to federal agent Easter, prompted the named person to not "want[] the four stolen bronzes kept in her apartment." "It was arranged with defendant Sareen that the four bronzes would be picked up and moved to a 'safe location'" so that the bronzes would be "safer with her [Sareen]," the complaint alleges, adding that Sareen made the shipping arrangements, having deciding not send the bronzes back to the Art of the Past gallery. The "safe location" has not been identified. This contention in the complaint, nonetheless, conveys that Sareen had control over the bronzes at this particular time.

Further questions are raised by the complaint's recitation that the "defendant [Sareen] has been closely involved with the illegal business of Art of the Past since Kapoor's arrest in 2010." Kapoor was arrested in 2011 as described above. Where the complaint describes how Sareen "traveled to India, assisted with wire transfers, and contacted antiquities smugglers with prior dealings with Kapoor," it is uncertain whether these allegations cover a time frame since 2010 or from October 30, 2011, when German authorities arrested Kapoor.

Court records do not list when exactly New York authorities became involved with the Kapoor investigation. It is clear, nevertheless, that federal and state authorities were engaged by July 2012. That is when Homeland Security returned to Art of the Past's warehouse location--along with the media--and mentioned for the first time that the Manhattan District Attorney's Office was a local partner. Where the federal judiciary presumably issued the warrants for the searches executed on January 5, 2012 and July 26, 2012, the first date given in court documents showing a search warrant issued by a state court--the Supreme Court of New York City--is March 16, 2013. The execution of that warrant yielded emails from Art of the Past, which were reviewed by special agent Easter. Those emails allegedly reveal efforts by "another gallery owner in New York inquiring about and attempting to sell for commission the $5M Shiva ..." and "yet another individual ... in email negotiations with Kapoor to purchase the $5M Shiva" along with the two Umas.

Easter's federal investigation supports the state court complaint filed by Assistant District Attorney Matthew Bogdanos against Sareen. This cooperation follows on the heels Bogdanos' recent conviction of Arnold Peter Weiss with help from HSI, and the Manhattan District Attorney's prosecution of ivory dealers with assistance from U.S. Fish and Wildlife Service.

See chasingaphrodite.com for their in-depth coverage of the Kapoor investigation.  They have also posted a copy of the complaint.

Photo credit: aschaeffer

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

Monday, October 7, 2013

"Smuggling Protected Cultural Property is Not 'Commercial Trade,'" Say Federal Attorneys in Peruvian Artifacts Forfeiture Case

The United States Attorney's Office for the Southern District of Florida last week filed its Response to the Claimant's Motion to Dismiss in the case involving forfeiture of Peruvian artifacts seized at Miami International Airport. The Response argues that the federal district court--not the Court of International Trade--is the proper venue to litigate a Cultural Property Implementation Act (CPIA) forfeiture; that due process was not denied to the claimant, Jean Combe Fritz; and that the forfeiture complaints are legally sufficient.

The claimant's lawyers last month argued that the Court of International Trade (CIT) should hear the forfeiture case. But the government's lawyers contend that the claimant's reading of the law is wrong, citing in part the federal district court case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection. The ACCG court concluded that it had jurisdiction over "any seizure" by the terms of 28 U.S.C. § 1356.

The prosecutors point to 28 U.S.C. § 1355(a) for the proposition that “[t]he district courts shall have original jurisdiction ... of any action or proceeding for the recovery or enforcement of any ... forfeiture ... incurred under any Act of Congress, except matters within the jurisdiction of the Court of International Trade under section 1582 of this title." (Emphasis in the original). Section 1582 describes civil actions brought by the U.S. to enforce import transaction penalties, bond recoveries, and customs duties.

Highlighting that the CIT’s jurisdiction over embargo issues applies only when the government is sued under 28 U.S.C. § 1581, the prosecutors maintain that "[t]his case is a complaint for civil forfeiture brought by the United States against the Defendant Property, and is therefore clearly not within the CIT’s jurisdiction."

To explain what an embargo is and what it is not is important to the prosecutors, who distinguish between ordinary commercial trade and criminal trafficking. They write in their Response:
The differences between the [CPIA] statute in this case and an embargo are many. The motivating force behind the prohibition is not the United States, but the country of origin of the artifacts. In an embargo, the prohibition on an entry is absolute; in this case, the basis for the prohibition is whether or not the property is restricted under the CPIA or is stolen under 19 U.S.C. § 1595a(c). Under either statute, the prohibition is qualitative, not quantitative – cultural property from Peru can legally enter the United States so long as it meets one of the several criteria necessary to obtain permission from the Peruvian government.

But most importantly, cultural property from another country that has been illegally exported in violation of their patrimony laws is not "products" or "merchandise" that can be commercially traded between merchants: it is stolen property. The CPIA is not a "government order prohibiting commercial trade" because smuggling protected cultural property is not "commercial trade": it is criminal[] activity.
The prosecution, meanwhile, argues that the claimant was not denied due process. "Contrary to Claimant’s statements in his motion, he was provided with notice...."  In fact, "Claimant cannot now seek relief from the district court regarding the issue of exclusion when he failed to pursue his administrative remedy timely,"insist the government's attorneys. The prosecutors contend that "Claimant has incorrectly interpreted the Convention on Cultural Property Implementation Act ("CPIA") and the corresponding regulations, and has incorrectly concluded that he was denied due process, when in fact, he was provided with fair notice and an opportunity to contest the detention of the artifacts." "The statutes and regulations relating to the CPIA," they say, "directed CBP [U.S. Customs and Border Protection] to proceed with summary forfeiture against the applicable seized artifacts." As a result, the "Claimant’s rights were not violated."

Finally, the prosecutors declare their forfeiture complaints to be legally sufficient. "In this case, the United States has presented a specific, detailed analysis of all twenty-nine seized artifacts, accompanied by the opinion of a distinguished expert who is a professor of art history with a specialty in Latin American and Pre-Columbian art ...." The lawyers comment that "[t]here is ... nothing 'purported' about Professor Damian, whose opinion is well-substantiated by her scholarly writings as well as by the opinion of Luis Chang, Minister Counselor of Peru, who has examined the artifacts and advised that the artifacts constitute part of the Peruvian cultural heritage."

Objecting to the fact that the "Claimant has imposed burdens on the government that it does not in fact bear," the prosecutors wield the Fourth Circuit Court case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection to support their position. They write that "it will be the responsibility of the government at trial to prove that the defendant artifacts are within the designated categories listed by the Secretary of State." But, relying on the persuasive authority of the federal appeals court sitting in Virginia, they resolve, "It is not the responsibility of the government to prove that an artifact came from Peru, nor do we have any responsibility to prove that the artifacts are 'of cultural significance' to Peru separate from our duty to prove that they are within the designated categories: all of the items on the designated list are, by definition, of cultural significance to Peru."

The government's attorneys go on to pointedly criticize "Claimant’s suggestion that Peru cannot claim pre-national artifacts as cultural property," calling this argument "astonishing."

The forfeiture case is civil in nature, focused on seizing, forfeiting, and repatriating Peruvian cultural material. It is not a case criminal case targeting an individual. Nevertheless, the government alleges criminal activity in its Response to bolster its claim. The lawyers raise allegations that the ancient artifacts brought from Peru to Miami were worth approximately $283,000 and not $500 as originally claimed during importation. Prosecutors also allege that false statements were made to customs officials about how the objects were possessed, the purpose for importing the items, and to whom the items would be delivered. Twenty-two "turn-around" trips in the last ten years raise the specter of "courier activity," the prosecutors suggest. While these allegations are made by the U.S. Attorney's Office to support its forfeiture action, court records show an absence of criminal charges having been filed.

Photo credit: Plex

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, October 3, 2013

International Archaeology Day 2013

Archaeology is the scientific study of humanity's past. It gives us access to information unavailable anywhere else and guides our civilization toward the future.

International Archaeology Day is a time to learn more about this vital field. It is officially celebrated on October 19, but groups celebrate throughout the month of October.

Find out where you can learn more about archaeology and our past by visiting the Archaeological Institute of America's web site here. It lists many International Archaeology Day events throughout the United States and the world.

Photo credit: ENVIROWEB

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