Wednesday, May 2, 2012

Part I: Motions Filed by Lewis and Alshdaifat in U.S. v. Khouli et al. Take Aim at the Government -- SLAM Forfeiture Lawsuit and Sotheby's Cambodian Case Cited

Objects seized in U.S. v. Khouli et al.

Attorneys for Joseph A. Lewis, II and Salem Alshdaifat both filed omnibus motions this past Monday in the criminal case of U.S. v. Khouli et al.  They argue multiple grounds for relief.

A federal grand jury sitting in the Eastern District of New York indicted antiquities collector and businessman Lewis as well as ancient coin dealer Alshdaifat for their roles in an alleged antiquities trafficking conspiracy.  They are presumed innocent.  Their efforts appear more vigorous now that a third co-defendant, antiquities dealer Mousa "Morris" Khouli, pleaded guilty last week.  A fourth co-defendant, Ayman Ramadan, remains a fugitive.

Joseph Lewis’ lawyers seek to dismiss the case against their client; suppress evidence seized by authorities from email accounts; dismiss specified counts of the indictment; have the grand jury minutes reviewed by the court; seek to obtain advance notice of any prior bad acts by Lewis that the prosecution may raise at trial; and join arguments made by Alshdaifat’s attorney.  Some of the arguments made by Lewis’ lawyers are discussed here.

Lewis’ attorneys say that the evidence obtained by court issued search warrants must be suppressed.  The attorneys argue that affidavits in support of searches of Lewis’ home and emails were misleading and contained material omissions.  “In each supporting affidavit the government repeatedly presented exaggerated, conclusory assertions and omitted contextually important material facts.  Most blatantly, these affidavits painted Mr. Lewis and the alleged conspirators as grave robbers trafficking in stolen property, when the government knew that that was not true and more important, that it lacked proof to support these allegations.”  For example the government “never disclosed the absence of proof that any piece was stolen, preferring instead to create an aura that such proof did exist.”  The government also did not mention anything about Lewis’ inquiries to Khouli, made in order to confirm the provenance of an Egyptian coffin, instead implying that Lewis “asked [Mr. Mousa] Khouli to create a false provenance ….”  Had the government presented a full picture of its evidence and not made improper implications, Lewis’ attorneys contend that the “Magistrate Judge would have been deeply troubled by the [search warrant] application …”

The lawyers for Lewis protest that “the government baldly asserted . . . that ‘persons who smuggle cultural property of questionable provenance into the United States typically avoid detection by Customs by means of false statements . . . .”  Lewis’ attorneys attack this line of reasoning, in part, because they say that Lewis was never part of the importation process of antiquities and because “hundreds of foreign antiquities … lawfully exist throughout the United States despite their bearing explicitly uncertain provenances.”

To support their client’s claims, Lewis’ attorneys cite the recent dismissal of the federal government’s forfeiture case in the matter of US. v. Mask of Ka Nefer Nefer:  “[I]t has become the practice of the government in the antiquities field [to make assertions] without regard for the truth as was shown recently, when the government was badly rebuffed and excoriated in a recent effort to seize an antiquity from the St. Louis Art Museum.”

Lewis’ attorneys also contend that federal agents acted beyond the scope of the warrant authorizing a search of Lewis’ Virginia home last year.  Instead of simply taking relevant antiquities—e.g. a Greco Roman coffin, an Egyptian nesting coffin, limestone figures, and funerary boats—as well as related items such as documents, the agents took items well beyond what the warrant authorized.  The attorneys claim that the seizure of documents related to Lewis’ insect collection, personal documents, and more was outside the scope of the warrant’s authority.  The lawyers state that “U.S. Fish and Wildlife Service agents were inappropriately invited to participate, undoubtedly contributing to the massive number of unrelated and unauthorized seizures.”  The only way to cure the problem of an overly broad execution of a search warrant is to suppress the evidence obtained by it, the lawyers argue.

Attorneys for Lewis further argue that the case against their client should be dismissed because of government excesses.  They urge the court to drop the criminal case against Lewis because of the alleged misconduct described above, because of reckless media statements, and because of selective prosecution.  The attorneys say that Lewis has been unfairly characterized in the press by government misrepresentations, and that there is “an overall campaign to harm Joe Lewis” as illustrated by “damaging accusations” made to CNN, The New York Times, and elsewhere. 

Lewis has also been unfairly targeted for prosecution, they say.  “Indeed, outside of this case, the number of traded antiquities with dubious , questionable or unknown provenances are too numerous to count and yet none of those sellers or buyers have been prosecuted based on questionable provenance alone—the only factor here,” the lawyers argue. (Emphasis in the original).  To further illustrate the claim, Lewis’ lawyers point to the lack of prosecution occurring in the Sotheby’s case involving forfeiture of a Cambodian statue.

Legal counsel also asks the court to dismiss the money laundering count against Lewis, in part, because the charge is not based on Lewis paying money for the importation of cultural property.

Because Customs seized the components of an Egyptian nesting coffin in Newark, New Jersey, the case should also be dismissed for improper venue.  The court for the Eastern District of New York does not cover cases arising in Newark, Lewis’ lawyers say.

Attorneys for Lewis conclude by asking the court to review the transcript of the grand jury session.  Normally grand jury proceedings are confidential.  But the attorneys state that the government’s excesses were so pervasive in this case that a judge should review the testimony given to the grand jury.

To be continued tomorrow ...