Never miss a post! Enter your email address below to subscribe today.

Wednesday, January 29, 2014

Sunken and Terrestrial Military Craft: Comment Period Opens on Navy's Proposed Rule

The Department of the Navy has proposed new administrative rules covering vessels under the jurisdiction of the Sunken Military Craft Act (SMCA). The SMCA is a federal law adopted ten years ago that codified what federal courts had already confirmed by case law, namely that the United States maintains sovereign authority its military craft and can protect its vessels and their graves, wherever located, from being disturbed.

The proposed regulations seek to amend the permitting process that authorizes the controlled research and study of sunken and terrestrial military craft.

The Navy favors a policy "to preserve these sites in situ unless site disturbance, removal, or injury is necessary for their protection or justified for research and educational purposes," which is why research conducted on naval vessels must first be approved through a permitting process.

The Navy summarizes its newly proposed rule in the January 6, 2014 Federal Register:
This proposed rule serves as a revision of the current 32 CFR part 767 and incorporates existing regulations together with the expanded authority provided to the Secretary of the Navy by the SMCA (Pub. L. 108-37510 U.S.C. 113 Note and 118 Stat. 2094-2098) in regards to permitting activities directed at sunken military craft that are otherwise prohibited by the SMCA (10 U.S.C. 1402(a)-1402(b)). The proposed rule replaces the current regulations and establishes a single permitting process for members of the public wishing to engage in activities that disturb, remove, or injure DoN sunken and terrestrial military craft for archaeological, historical, or educational purposes. 
Interested parties may submit comments on the proposed rule before March 7, 2014 at regulations.gov.

Photo credit: Jim O'Dell.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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

Saturday, January 25, 2014

Money Laundering and the Trade in Cultural Property: Taking a Fresh Look at Federal AML/CTFs

Mark Vlasic, former head of the Stolen Asset Recovery Initiative, noted in Thursday's Huffington Post blog post titled "An Allied Effort to Save History" that
after the post-9/11 crackdowns on terrorist financing, law enforcement has reported a marked increase in antiquities and other artworks being used to launder money (in fact, one agent told us that money laundering cases make up the bulk of their art investigations, not repatriations).
But anti-money laundering as well as counter-terrorism financing laws (AML/CTF) are often limited when it comes to the trade in cultural property. That is because the cultural property markets in art, antiquities, fossils, etc. are not explicitly covered by AML/CTFs.

The U.S. Treasury's Financial Crimes Enforcement Network (FinCEN) describes money laundering this way:
Money laundering is the process of making illegally-gained proceeds (i.e. "dirty money") appear legal (i.e. "clean"). Typically, it involves three steps: placement, layering and integration. First, the illegitimate funds are furtively introduced into the legitimate financial system. Then, the money is moved around to create confusion, sometimes by wiring or transferring through numerous accounts. Finally, it is integrated into the financial system through additional transactions until the "dirty money" appears "clean."
With respect to the art market, a 2012 Basel Institute on Governance report titled Basel Art Trade Guidelines, observes:
In comparison with other trade sectors, the art market faces a higher risk of exposure to dubious trade practices. This is due to the volume of illegal or legally questionable transactions, which is noticeably higher in this sector than in other globally active markets. Far more serious than shady dealings in a legal grey area, the sector’s shadow economy encompasses issues ranging from looted art, professional counterfeiting and fake certificates to the use of art sales for the purpose of money laundering.
There are several federal AML/CTF laws and regulations, the main ones being the Bank Secrecy Act (BSA) and the USA PATRIOT Act. They are tailored to detect international money laundering and terrorist financing in the banking, financial, and investment sectors by establishing compliance programs designed to report suspicious activities, verify customer identities (so-called Know Your Customer programs), disclose high value transactions, and more. Banks, casinos, and securities brokers are among the industries covered by the BSA. The USA PATRIOT Act, meanwhile, covers a wide swath of fields beyond banking, financial services, and investment institutions. They include travel agencies; pawnbrokers; dealers in precious metals, stones or jewels; and more. Explicitly absent from the list are dealers in art, antiquities, and other cultural materials.

Some countries' AML/CTF laws cover art, antiquities, and/or antiques dealers directly. Argentina, Brazil, Japan, and Lithuania are a few. (A thumbnail sketch of AML/CTF laws can be found here and here.) While Internal Revenue Code 6050I and 31 USC § 5331 direct business operators in the U.S.--including sellers of cultural objects--to document sales transactions over $10,000 on IRS Form 8300, the major AML/CTF laws, once again, do not explicitly mention dealers in art, antiquities, and other cultural materials.

Yet the U.S. Department of State's INL Office of Anti-Crime Programs specifically cites "art dealers" when referencing AML/CTF goals. By way of background, the U.S. is a member of the Financial Action Task Force (FATF), an inter-governmental body that "set[s] standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system." FATF identifies illicit trafficking of cultural goods, counterfeiting of antiquities, and the illegal trade of antiquities as facilitators of money laundering and terrorist financing in a 2013 report. With regard to FATF, the State Department declares on its web site that one of its objective is to help countries
implement the Financial Action Task Force (FATF) standards, which mainly address: (a) the types of AML/CTF laws and regulations a country should have; (b) the agencies a country should establish (financial intelligence units (IUs), regulatory agencies, specialized law enforcement and prosecutorial authorities); (c) the reporting regime and the entities within and outside of the financial sector that should be obliged to file reports (e.g., banks, money remitters, exchange houses, securities brokers, mutual funds, insurance companies, casinos, lawyers, accountants, realtors, art dealers, etc); and (d) the sharing of non-evidentiary information via the FIU and evidentiary information via MLATs and MLAAs to generate cooperation with other countries to ensure conviction of launderers. (Emphasis added).
Spotlighting black market antiquities with record-keeping laws has already been proposed by CHL. But identifying and targeting both money laundering and terror financing that is entangled within the legitimate cultural property trade should also involve a fresh look at federal AML/CTFs, and maybe some changes.

Photo credit: Levy Choi

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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, January 23, 2014

The U.S.- Bulgaria Bilateral Agreement and Ancient Coins: Some Thoughts

The recent adoption of a bilateral agreement between the United States and Bulgaria under the Convention on Cultural Property Implementation Act (CPIA) brings to mind two thoughts.

First is the rationale that supports protective import measures covering designated jeopardized cultural property, specifically ancient coins that are "first discovered" within a country of origin.

Fourth Circuit Court Judge James Harvie Wilkinson III provides an explanation. Appointed to the federal bench by President Ronald Reagan, he authored the unanimous decision in the 2012 case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs:
Section 2601 narrows the universe of articles that may be subjected to import restrictions under the CPIA. Only an object of archaeological or ethnological interest “which was first discovered within, and is subject to export control by” the requesting state may be restricted. 19 U.S.C. § 2601(2). The [Ancient Coin Collectors] Guild alleges that [the U.S. Department of] State and CBP  [U.S. Customs and Border Protection] acted ultra vires by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were “first discovered within” China or Cyprus. Guild Br. at 21–22. According to the Guild, the government and the district court effectively read the “first discovered” requirement out of the statute. Id. at 24. 
We are not persuaded. As an initial matter, the CPIA is clear that defendants may designate items by “type or other appropriate classification” when establishing import restrictions. 19 U.S.C. § 2604. State and CBP are under no obligation to list restricted items with more specificity than the statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.
That raises the second thought.  What is the cultural property importer's responsibility?

Judge Wilkinson and his colleagues acknowledge that there are undoubtedly cultural objects, such as ancient coins, which are imported into the U.S. without provenance or export permits. But the court of appeals describes the process that allows importers to show that the objects are legal:
If the [importer] of any designated archaeological or ethnological material is unable to present to the customs officer” the required documentation, the “officer concerned shall refuse to release the material from customs custody ... until such documentation or evidence is filed with such officer.” 19 U.S.C. § 2606(b). In short, CBP need not demonstrate that the articles are restricted; rather, the statute “expressly places the burden on importers to prove that they are importable. (Citation omitted).
The court implies that the burden of proof imposed on importers by the CPIA is not as high as one might think because "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import."

More details about the legal responsibilities borne by cultural property importers can 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 2010-2014 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, January 16, 2014

Bilateral Agreements Adopted Covering Bulgarian and Chinese Heritage in Jeopardy

"[P]romoting U.S. leadership in achieving greater international cooperation towards preserving cultural treasures that not only are of importance to the nations whence they originate, but also to a greater international understanding of our common heritage."
That is the focus of the Convention on Cultural Property Implementation Act (CPIA) according to the 1982 U.S. Senate Report describing the implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

This week marked the adoption of a bilateral agreement with Bulgaria and the renewal of an agreement with China under the CPIA. These agreements, or Memoranda of Understanding (MoU) as they are called, create American import restrictions that hope to curb what the Senate Report calls "the demand for cultural artifacts [that] has resulted in the irremedial destruction of archaeological sites and articles, depriving the situs countries of their cultural patrimony and the world of important knowledge of its past."

Today's Federal Register reports that the State Department's Assistant Secretary for Educational and Cultural Affairs on November 20, 2012 determined under the CPIA, 
"That the cultural patrimony of Bulgaria is in jeopardy from the pillage of (a) archaeological material representing Bulgaria's cultural heritage (a) archaeological material representing Bulgaria's cultural heritage dating from the Neolithic period (7500 B.C.) through approximately 1750 A. D. and (b) ecclesiastical ethnological material representing Bulgaria's Middle Ages (681 A.D.) through approximately 1750 A.D. (19 U.S.C. 2602(a)(1)(A)); (2) that the Bulgarian government has taken measures consistent with the Convention to protect its cultural patrimony (19 U.S.C. 2602(a)(1)(B)); (3) that import restrictions imposed by the United States would be of substantial benefit in deterring a serious situation of pillage, and remedies less drastic are not available (19 U.S.C. 2602(a)(1)(C)); and (4) that the application of import restrictions as set forth in this final rule is consistent with the general interests of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes (19 U.S.C. 2602(a)(1)(D)).
The State Department's decision follows a public hearing held by the Cultural Property Advisory Committee (CPAC) in November 2011.

Monday's Federal Register, meanwhile, chronicles the renewal of the bilateral agreement with China for another five years, saying "The Assistant Secretary for Educational and Cultural Affairs, United States Department of State, has determined that conditions continue to warrant the imposition of import restrictions on the archaeological materials from China."

The renewal includes a so-called Article II agreement that calls on the Chinese government to fulfill certain obligations. For example, the agreement responds to concerns about Chinese loans to U.S. museums--an issue specifically raised by the Minneapolis Institute of Art, which requested quicker finalization of contracts and object lists, faster processing of passports, assistance with fulfilling the requirements for indemnity insurance, decreased premium shipping charges by China Air, a more simplified loan approval process, lengthened exhibition tour times, and increased availability of First Grade objects. The Article II agreement responds, in part, with these terms::
The Government of the United States of America recognizes that the Government of the People's Republic of China permits the international interchange of archaeological materials for cultural, educational and scientific purposes to enable widespread public appreciation of and legal access to China's rich cultural heritage. The Government of the People's Republic of China agrees to use its best efforts to further such interchange by ...  facilitating the approval of loan exhibitions to the United States of America, allowing objects in an exhibition to remain outside China for up to two years, increasing the number of Grade 1 objects allowed in an exhibition; and considering longer-term loans of up to five years of a limited number of objects.
In addition to collaboration, Article II calls for improved law enforcement, saying that the Chinese government "shall increase joint efforts with the Hong Kong Special Administrative Region and the Macao Special Administrative Region to stop archaeological material looted or stolen from the Chinese mainland from being trafficked into and out of these regions" and "shall seek to further implement regulation of its internal market for antiquities, with the aim of reducing unauthorized transactions."

Information sharing is also covered by Article II, which mandates that China "shall provide annually to the Government of the United States of America information and statistics about crimes of theft, clandestine excavation, trafficking (illicit trade and smuggling) and abuse of official power, and, as it becomes available, information about prosecutions and convictions pertinent to the MOU."

The public hearing on the U.S.-China renewal took place in May 2013. Public comments were submitted to CPAC both for and against.

A source of controversy surrounding both the Bulgarian and Chinese MoUs is the inclusion of designated ancient coins among protected the cultural objects subject to American import controls. But the adoption of this week's agreements reconfirms that ancient coins are considered archaeological material by the terms of 19 U.S.C. § 2601 of the CPIA.

Cultural objects covered by the bilateral agreements may legally pass through America's borders when they are accompanied by either an export permit or proof showing that they left the countries of origin prior to the effective dates of the restrictions. Cultural materials protected by CPIA's import controls may be detained, seized, and forfeited by U.S. authorities as contraband. Smugglers may face potential prosecution under criminal statutes.

This post was revised at 8:15 p.m. on January 16, 2014. Photo credit: shho

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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, January 14, 2014

SLAM Mummy Mask Appeal: "You now have to beg for a do-over"

"All we want here is an opportunity to get in the gate," argued U.S. Department of Justice Attorney Sharon Swingle before the Eight Circuit Court of Appeals yesterday. But Patrick McInerney, attorney for the St. Louis Art Museum (SLAM), told the court that he wanted finality in the government's failed attempt to take the Ka Nefer Nefer mummy mask from his client.

Archaeologist Mohamed Zakaria Goneim discovered the more than 3,000 year old mask in Egypt in the 1950's. Despite SLAM's purchase of the mummy mask from a gallery in 1998 for approximately a half million dollars, authorities in the U.S. and Egypt say the mask remains a stolen object that was illegally removed from Egypt.

Government lawyers still want a chance to present this argument to the Missouri federal district court by filing a newly amended complaint that would restart the process to forfeit the Ka Nefer Nefer mask from SLAM. But they first need the approval of the court of appeals.

The forfeiture case known as U.S. v. Ka Nefer Nefer was first begun in 2011 by the U.S. Attorney in St. LouisHowever, the lower court dismissed the government's claim in 2012, saying the the complaint was deficient. The district court turned the government down again after attorneys tried to rejuvenate the case with a newly minted complaint alleging more facts surrounding the mask's theft. Justice Department lawyers then appealed the district court's technical decision dismissing the proceedings, setting the stage for Monday's oral argument before a three judge appellate panel.

Circuit Court Judge James Loken bluntly observed during yesterday's oral argument that the government made mistakes in the eyes of the district court. "You now have to beg for a do-over," Judge Loken told the lawyers for the government.

But Swingle protested that the grounds for the district court's dismissal was not based on some "fundamental legal defect." She stressed that the law favors deciding legal cases on their merits, not simply dismissing them before they are substantively argued. In fact, the law favors granting at least one opportunity to amend a complaint before dismissing it with prejudice, she argued.

McInerney contested Swingle's assertions. "It's really whether the government is entitled to an advisory opinion from the district court, with the help of defense counsel here, as to what the proper pleading elements are for their claim under the Tariff Act. Because that's really what they want."

If the government were successful in its appeal to restart the forfeiture case, McInerney suggested that it would be the first time that happened in the Eight Circuit under the federal rules. He argued that no special exception should be made for the government in this case.

Judge Loken may have given the impression that the government was out of luck, but he also hinted that the government's case might have life remaining if the appeal were denied by the appeals court. Judge Loken asked more than once during oral argument whether the declaratory judgment action might still go forward if the forfeiture case were dismissed. The so-called "DJ" case is the original and still active companion case to the forfeiture action where SLAM petitioned to establish exclusive title to the Ka Nefer Nefer mask. The appellate court suggested that the government could still argue its forfeiture claim as a defense in the DJ case. Swingle was not so sure, however.

Judge Diana Murphy inquired about allegations surrounding the sellers of the mask, remarking to Swingle, "When did facts come out about this company in Switzerland? ...which has a cloudy past I gather ...." Swingle replied by describing specific criminal complaints made against the gallery's owners.

McInerney, during his oral presentation, addressed what he called "some illegality" by saying,  "It ought to noted ... that [illegality] had absolutely no connection with this case; none whatsoever." "The facts don't show it." Any criminal conduct claimed by the government "post-dated by four years the acquisition of the mask" by SLAM. "This left-handed suggestion that there was some ... sort of misconduct in connection with the mask doesn't stand," McInerney protested.

Judge Lavenski Smith attempted to clarify the timetable of the government's requests to the district court to reconsider the dismissal of its case. He raised a question about the many months that went by between SLAM's filing of the petition to dismiss the forfeiture complaint, the district court's later dismissal, and the "equity to the government" concerning the opportunity to amend. In other words, Judge Smith  wanted to know why the government failed to petition for leave to amend its complaint during an apparently available ten month time period. Conversely, he wanted to know what specific prejudice the museum would suffer if the case were allowed to continue and not dismissed.

Swingle maintained that the government's actions were timely and, even if not, there was no disadvantage to SLAM.

Swingle, in her argument before the justices, endeavored to demonstrate that the government had been taking the high road in the litigation. "Our preference was to reach a mediated solution to this dispute ...," she explained. "It was the museum that precipitated a judicial intervention by filing the declaratory judgment."

McInerney countered with several critiques. He cited federal lawyers' failure to show that the mask was stolen. "In order to get to theft in the first place you have to get to ownership." SLAM's attorney argued that it was not enough for the government to allege that the mask was in one place at one moment and another place at another moment without alleging an actual theft. "They still can't show that the item was ever owned by the Republic of Egypt," he exhorted.

McInerney further contended that the government could have appealed the case in a timely fashion but did not. They kept the case in district court, he charged, because "...they were banking on the district court writing a recipe for an appropriate [forfeiture] complaint ...." It was 401 days after SLAM filed its motion to dismiss when the government finally presented what it believed was a factually compelling forfeiture complaint to the district court, presenting "satisfactory allegations" that "still don't suffice," pressed McInerney.

Swingle particularly objected that one of the grounds the district court relied on to dismiss the government's forfeiture case concerned an issue not even briefed by the litigants, instead raised by the district court sua sponte (on its own). The government needed to allege facts showing that the mask was imported "contrary to law," ruled the district court, not simply that that the mask was stolen. While Swingle objected to this "contrary to law" requirement, McInerney responded that "contrary to law" was not a new element raised by the district court, it was just the district court recognizing what is required for a forfeiture claim filed under 19 U.S.C. §  1595a of the customs law.

On Judge Murphy's mind was the district court's failure to clarify why it denied the government's request to amend the forfeiture complaint. She asked early in the oral argument whether the district court abused its discretion. Later, she posed the question to McInerney, "You concede ... that the district court did not say much?"

Whether the district court abused its discretion is the ultimate issue that the judges will decide when they issue a ruling at a future date. The appellate argument can be heard in its entirety by clicking here.

Photo credit: Thomas Ricks

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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, January 13, 2014

Dinosaur Smuggling Conspiracy: Bataar Skull Mislabeled as "Archaeological, Historic Piece" from Japan Says Newly Filed Forfeiture Complaint

"Archeological, historic pieces" from Japan is how the import paperwork described a Tyrannosaurus Bataar skull that illegally entered the United States. But the dinosaur head should have been classified as a paleontological fossil from Mongolia, according to the U.S. Attorney's Office in Colorado.

Bataar skull seized by ICE.
This month John Richard "Rick" Rolater pleaded guilty to conspiring to import dinosaur fossils illegally. As part of a plea agreement with Wyoming federal prosecutors, Rolater agreed not to contest the forfeiture of several paleontological objects in his inventory, including the Bataar skull.

Colorado U.S. Attorney John Walsh says that Rolater "was known as the largest United States seller of high-end Mongolian and Chinese fossils." In his office's 11 page forfeiture complaint filed in federal district court last week, prosecutors allege that an informant spotted the Bataar skull for sale in Relator's store in Jackson, Wyoming boasting a price tag of $320,000. The skull reportedly was "next to a placard stating that the fossil was a Tyrannosaurus Bataar, which existed during the late Cretaceous era, 67 million years ago, and was recovered from the Nemegt Basin in the Gobi Desert, Mongolia, Central Asia."

When the informant raised questions with the store about the skull's ownership, a clerk purportedly replied, "Well, I guess that goes to show that if you pay the right people ....," the prosecutors' complaint contends.

Prosecutors write in their court pleading that federal officials "seized several computers from the Rolater residence, and located numerous emails that showed Rolater knew it was illegal to import Chinese or Mongolian fossils. Some of the emails further indicated that Rolater conspired with others, and the import Customs forms were knowingly mislabeled, misidentifying the country of origin for the fossils he purchased, and mischaracterizing the contents of the imported items."

The forfeiture complaint describes an equivocal conversation between one store clerk and an undercover agent with U.S. Immigration and Customs Enforcement Homeland Security Investigations (HSI). The clerk "informed the undercover agent that the fossilized Bataar skull was approximately 60% complete, that the skull was recovered from the Gobi Desert in Mongolia, and that it was recovered from private land in Mongolia in the 1980s, thereby creating the fiction that lawful ownership was conveyed to the possessor of the skull."

The complaint alleges that "the Bataar skull had been pulled from display [in the store] after the publicized New York seizure of another Bataar, to avoid potential problems." The store clerk reportedly "told agents that the Bataar fossil subject to seizure was stored in a closet within the [clerk's] residence, and that Rick Rolater had directed [the clerk] to remove the Bataar" from the store.

The complaint adds that Rolater later told HSI "that his stores had sold five or six Bataar skulls in the past six years, and that he did not currently possess any additional Bataar fossils, other than the one seized in Jackson, Wyoming." But prosecutors go on to say that Rolater's lawyer corrected this assertion, explaining that another Bataar skull was inside Rolater's home in Colorado. HSI seized the skull:
Upon execution of the warrants on August 1, 2012, HSI officers located defendant Bataar Skull, which was found hidden in the crawl space of the residence, and appeared to have been placed there recently. Officers also located defendant Gallimimus Foot in the garage; it had a price tag on it which indicated that it also came from Mongolia. Defendants Bataar Skull and Gallimimus Foot were seized as illegally imported.
The forfeiture complaint concludes that the Bataar skull and the Gallimimus foot were found to have been
excavated in Mongolia in the mid-1990s and smuggled out of the country. The Bataar Skull was shipped to Rolater from Japan in August 2010; the Customs declaration, which Rolater knew was incorrect, listed not only the shipping country as Japan, but also misstated that the country of origin of the fossil was Japan and that the shipped contents consisted of "archeological, historic pieces" (which are man-made), rather than the truthful "paleontological fossils."
The legal basis upon which the U.S. Attorney's office relies to forfeit the fossils is 18 U.S.C. § 981(A)(1)(C), which governs civil forfeitures of property derived from the proceeds of a crime. In this case, the crime alleged is smuggling under 18 U.S.C. § 545.  Also relied on is 19 U.S.C. § 1595a(c), the customs statute that permits forfeiture of merchandise introduced into the U.S. "contrary to law." Prosecutors additionally reference Mongolia's 1924 patrimony law prohibiting personal ownership of cultural property as well as two Mongolian criminal statutes forbidding the transportation and smuggling of cultural objects.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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, January 7, 2014

Dealer Pleads Guilty to Smuggling, $2.5M in Fossils to be Returned

One of the Tyrannosaurus Bataar skulls seized by ICE.
After news broke of the forfeiture case of United States v. One Tyrannosaurus Bataar Skeleton, a Bataar skull of Mongolian origin and in the possession of fossil dealer John Richard "Rick" Rolater quickly disappeared from public view. That led to a tipster's call and a subsequent federal investigation.

U.S. Immigration and Customs Enforcement (ICE) calls Rolater a "fossil retailer" who operates stores in Wyoming and Colorado. He pleaded guilty in Wyoming federal district court last week to a charge of conspiracy to commit smuggling under 18 U.S.C. §§ 371 and 545 for illegally dealing in dinosaur fossils.

ICE said in a prepared statement that the Bataar skull displayed in Rolater's Jackson, Wyoming store vanished from sight around June 2012, the time when federal prosecutors filed an unrelated dinosaur forfeiture case in New YorkICE's Homeland Security Investigations (HSI) soon afterwards executed a search warrant and located the skull secreted away, "hidden in a closet of the rented residence of the store's director, which was owned by Rolater." Two months later agents located a fossilized Gallimimus foot and a fossilized juvenile Bataar skull, "hidden in the crawl space of Rolater's house," according to authorities.

"These fossils had been illegally exported from China and Mongolia, and then illegally imported into the United States," explained Kumar C. Kibble, special agent in charge of HSI Denver, which covers Wyoming.

Christopher "Kip" Crofts, the U.S. Attorney in Wyoming, last Thursday put his signature to a single information charging Rolater with unlawfully conspiring to smuggle Chinese vertebrate fossils into the U.S. between May 2010 and May 2012. The criminal complaint tells how the conspirators generated phony invoices in order to smuggle the goods past customs. The information recites,
Rolater received emails from his Chinese supplier describing how the supplier would package Chinese vertebrate fossils in a manner to subvert both Chinese and United States customs and import regulations. 
In 2012, knowing that the Chinese supplier was willfully and intentionally subverting Chinese and United States import and Customs regulations, Rolater continued to communicate via email with the Chinese supplier to solicit Chinese vertebrate fossils from his supplier which Rolater intended to resell in the United States.
A seized dinosaur skeleton.
Together the Chinese and Mongolian objects seized by ICE and selected for appraisal totaled $2,450,815. Among the items identified were three Bataar skulls worth $1,875,000, four Micro-Raptors priced at $173,000, a Protoceratops valued at $100,000, and a Gallimimus skeleton also valued at $100,000.

Rolater will pay a $25,000 fine, receive two years of probation, and return the fossil specimens in exchange for his plea of guilty.

UPDATE: More details about the case can be found in the government's forfeiture pleading, described here.

Photo credits: ICE

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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, January 6, 2014

Monuments Men Recognition Act Introduced in Congress

Lawmakers last month introduced legislation on Capitol Hill seeking to honor those who protected cultural heritage from destruction during World War II. The Monuments Men Recognition Act marks a bipartisan effort to award the Congressional Gold Medal to the Monuments Men.

Senator Roy Blunt (R-MO) and Congresswoman Kay Granger (R-TX-12) each sponsored legislation in the Senate and House, respectively, to bestow one of the nation's highest awards.

"I believe the veterans who participated [in the Monuments Men] are certainly worthy and deserving of the recognition of Congress’ highest expression of appreciation, the Congressional Gold Medal,” Granger said in a prepared statement.

The texts of S. 1862 and H.R. 3658 chronicle the history of the Monuments Men and their importance:
(1) On June 23, 1943, President Franklin D. Roosevelt formed the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas.
(2) The Commission established the Monuments, Fine Arts, and Archives (MFAA) Section under the Allied Armies.
(3) The men and women serving in the MFAA Section were referred to as the Monuments Men.
(4) These individuals had expertise as museum directors, curators, art historians, artists, architects, and educators.
(5) In December 1943, General Dwight D. Eisenhower empowered the Monuments Men by issuing orders to all commanders that stated they must respect monuments so far as war allows.
(6) Initially the Monuments Men were intended to protect and temporarily repair the monuments, churches, and cathedrals of Europe suffering damage due to combat.
(7) Hitler and the Nazis engaged in a pre-meditated, mass theft of art and stored priceless works in thousands of art repositories throughout Europe.
(8) The Monuments Men adapted their mission to identify, preserve, catalogue, and repatriate almost 5,000,000 artistic and cultural items which they discovered.
(9) This magnitude of cultural preservation was unprecedented during a time of conflict.
(10) The Monuments Men grew to no more than 350 individuals and joined front line military forces; two Monuments Men lost their lives in action.
(11) Following the Allied victory the Monuments Men remained abroad to rebuild cultural life in Europe through organizing art exhibitions and concerts.
(12) Many of the Monuments Men became renowned directors and curators of preeminent international cultural institutions, professors at institutions of higher education, and founders of artistic associations both before and after the war.
(13) The Monuments Men Foundation for the Preservation of Art was founded in 2007 to honor the legacy of the men and women who served as Monuments Men.
(14) There are only five surviving members of the Monuments Men as of December 2013.
The introduction of the legislation coincides with the anticipated debut of The Monuments Men movie (preview below), which is based on Robert Edsel's book titled Allied Heroes, Nazi Thieves, and the Greatest Treasure Hunt in History.



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