Saturday, June 30, 2012

One day after the U.S. District Court for the Eastern District of Missouri denied the government's latest effort to forfeit the Ka Nefer Nefer mummy mask held at the St. Louis Art Museum (SLAM), U.S. Attorney Richard Callahan filed a notice of appeal.

The notice challenges Judge Henry E. Autrey's denial of the government's motion to strike SLAM's claim, the dismissal of the government's verified complaint to forfeit the mask, the denial of the government's motion for reconsideration to reopen the forfeiture case, and the refusal to allow federal attorneys to amend its complaint.

The case now moves to the Eight Circuit Court of Appeals, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Friday, June 29, 2012

U.S. District Court Judge Henry Edward Autrey yesterday denied the government's motion to file a new complaint to forfeit the Ka Nefer Nefer mummy mask from the St. Louis Art Museum (SLAM).  In a brief order, the judge described how he had ruled on the case twice before:

"On March 31, 2012 the Court entered an Order dismissing the Verified Complaint in the instant matter. After allowing The Government an extension of time to file its Motion for Reconsideration, on May 7, 2012, The Government filed a Motion to Reconsider Order and Opinion Dismissing Verified Complaint. In the motion, The Government requested, in the alternative, that the Court grant The Government an additional seven (7) days to move for leave to file an amended complaint before entry of judgment. On June 1, 2012, The Court denied the Government’s Motion for Reconsideration in its entirety. For the reasons outlined in The Court’s March 31, 2012 Order of Dismissal, and for the reasons offered in its Order denying reconsideration, The Court denies The Government’s requested leave raised in its motion submitted on June 8, 2012." (Citations omitted).

The U.S. Attorney's Office must now consider whether to appeal the rulings to the Eight Circuit.

UPDATE: The case will be appealed.

(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Wednesday, June 27, 2012

A federal prison in Maryland.
Source: BOP
Historical documents thief Barry Landau was sentenced today to prison.  Landau pleaded guilty to his crime in February, admitting to stealing volumes of treasured documents from cultural institutions throughout the east coast and selling some for financial gain.

Prosecutors for the United States Attorney's Office filed a sentencing memorandum with the federal district court of Maryland (docket 1:11-cr-00415-CCB) today in support of their recommendation to incarcerate Landau.  He faced up to 15 years in prison.

According to a press statement issued by U.S. Attorney Rod J. Rosenstein, prosecutors asked for nine years. Judge Catherine Blake ordered seven followed by three years of supervision. She also restitution in the amount of $46,525 to make whole three dealers swindled by Landau.

Rosenstein accurately remarked that “[p]urchasers who innocently buy stolen property do not gain lawful title and are required to return it to the rightful owner. Anyone who has information about historical documents obtained from Barry Landau should contact the National Achives Archival Recovery Team at 800-786-2551.”

One of many institutions targeted by Landau was the University of Vermont.  In October 2011, authorities returned 67 historical papers to UVM that had been recovered.

(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Tuesday, June 26, 2012

Source: ICE
Today the federal district court in the southern district of New York electronically published the federal government's forfeiture complaint against a dinosaur skeleton.  And an ancient coin dealers' attorney and lobbyist has filed an appearance as co-counsel on behalf of a claimant who wants the bones back.

Cultural property watchers are aware of the dinosaur's seizure last week when the federal government took legal action against a Tyrannosaurus bataar skeleton offered for sale at auction. The U.S. Attorney for the Southern District of New York filed a forfeiture complaint explaining that the dinosaur bones were illegally imported into this country on March 27, 2012 from Great Britain.  Federal prosecutors allege criminal wrongdoing in their complaint, writing in part:
The Customs Importation documents for the Defendant Property [Tyrannosaurus bataar] contain several misstatements. First, the country of origin for the Defendant Property was erroneously listed on the Customs Entry Form as Great Britain rather than Mongolia. Second, the Defendant Property was substantially undervalued in the Customs Importation documents. The importation documents list the value of the Defendant Property as $15,000 contrary to the $950,000 - $1,500,00 value listed in the Heritage Auctions May 20, 2012 Natural History Auction catalog and the actual auction sale price of $1,052,500. Third, the Defendant Property was incorrectly described in the Customs Importation documents as "2 large rough (unprepared) fossil reptile heads;" "6 boxes of broken fossil bones;" "3 rough (unprepared) fossil reptiles;" "1 fossil lizard;" "3 rough (unprepared) fossil reptiles;" and "1 fossil reptile skull."
Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) assisted with the case. "As alleged, criminal smugglers misrepresented this fossil to customs officials when they illegally imported it into the United States," commented ICE Director John Morton in a press statement.  While authorities allege specific unlawful acts surrounding the Tyrannosaurus bataar's import, federal officials have thus far only arrested the dinosaur bones.

The U.S. Attorney's stated goal is to seize and forfeit the Tyrannosaurus bataar for repatriation to Mongolia.  Court records do not indicate that law enforcement sought a search warrant to seize the dinosaur for potential evidence as part of a criminal investigation.

The government's complaint lists "commercial paleontologist" Eric Prokopi as the consignor of the dinosaur bones.  Washington, DC based attorney Peter Tompa, who litigates and lobbies on behalf of the Ancient Coin Collectors Guild (ACCG), filed a court appearance today announcing his representation of Prokopi.  Tompa is co-counsel along with Brooklyn cultural property lawyer and ancient coin dealer advocate, Michael McCullough.  McCullough's LinkedIn profile lists him as past associate counsel at Sotheby's.  Experienced cultural property forfeiture prosecutor Sharon Cohen Levin is lead attorney for the government.

Monday, June 25, 2012

The second annual Arts, Culture, and the Law conference will take place June 28, 2012 at the University of New Hampshire School of Law in Concord, NH.  This was a big event last year, attended by artists, gallery owners, museum professionals, archaeologists, librarians, lawyers, and many others. Many are already registered for this year's conference, but scholarships and some space for late registrants remain.  You can register here.

Panels cover copyright, alternative dispute resolution, volunteer issues, and more.  Sessions I will be presenting focus on the legal risks of collecting undocumented objects and cultural institution disaster preparedness. For more information about this event, click here.

Next week then begins an intensive two week Cultural Property Law course taught in Concord, NH (one hour north of Boston), part of Plymouth State University's heritage studies program.  This course begins July 3 and ends July 14 with a field trip to Boston's Museum of Fine Arts.

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

There is still space left.  For more information or to register, contact Professor Stacey Yap at (603) 535-2333 or e-mail

(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Tuesday, June 19, 2012

"This Court has previously denied the Government’s motion for reconsideration of its Order of Dismissal, and this latest filing by the Government amounts to little more than a second motion to reconsider."  That is what lawyers for the St. Louis Art Museum (SLAM) write in their Motion to Strike the Motion of the United States to File First Amended Verified Complaint.  SLAM's latest motion and memorandum to the Missouri federal court in the forfeiture case of United States v. Mask of Ka Nefer Nefer comes on the heels of the government's filing of a new complaint alleging that the mummy mask should be forfeited.

SLAM's lawyers argue that the parties should not have to keep coming back to court to argue an issue that has already been put to rest:

"The Government’s renewed attempt to re-open this case is unsettling. Not only has this Court dismissed this case, this Court has already once denied the Government’s request to reopen this case on the very same bases now reasserted in the Government’s Motion, and effectively denied the Government’s previous requests for leave to amend post-judgment. The Government now asserts that the Federal Rules of Civil Procedure (“Rules”) grant it limitless attempts to reexamine and to re-open this case until they are successful. The Government’s misinterpretation of these Rules would result in an abuse of procedure, a waste of judicial resources and burden on this Court, and a continued strain on the Claimant Museum’s limited resources."

Attorneys for the government counter in their Memorandum of Opposition that its recent petition asking the court's permission to accept a new forfeiture complaint is timely filed.  They argue:

"The Museum’s Motion to Strike is merely its latest attempt to generate procedural confusion in this case in order to avoid a decision on the merits. In any other setting, one would expect the Museum’s arguments to be presented in the form of a memorandum in opposition to the United States’ Motion for Leave to Amend. Instead, the Museum declined to respond and sought instead to strike the United States’ motion, presumably in the hopes of delaying this Court’s decision on the motion until after July 1, 2012, when the United States’ time to file notice of appeal might arguably run."

The pleadings, published on June 15, are expected to be ruled on by the court.

Hat tip to Gary Nurkin.


Thursday, June 14, 2012

Cypriot coin subject to U.S. import restrictions.

"Unfortunately for the plaintiffs, I agree with the State Department's decision."  That is the opinion of Judge Richard Leon of the United States District Court for the District of Columbia in his ten page decision dismissing the case of Ancient Coin Collectors Guild et al. v. U.S. Department of State.

The Ancient Coin Collectors Guild (ACCG), the International Association of Professional Numismatists, and the Professional Numismatists Guild together filed a Freedom of Information Act (FOIA) lawsuit against the State Department in 2007.  The federal district court dismissed the case in 2009, but the court of appeals in 2011 reversed in part, sending the case back to the district court for further review.  The district court reviewed the matter and decided on May 28, 2012 (opinion published on June 11, 2012) to dismiss the suit.

The plaintiffs sought information from the State Department related to the review process of the Cultural Property Advisory Committee (CPAC), which advises the President about enacting import controls to protect cultural property in jeopardy.  Congress fashioned the CPAC process as an integral component to America's implementation of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Cultural Property.

The plaintiffs wanted the Bureau of Educational and Cultural Affairs at the State Department to turn over any information relative to U.S. import controls placed on ancient coins originating from China, Italy, and Cyprus.  In response, the State Department released 109 out of 128 found documents, including 70 full documents and 19 redacted documents.  The balance of the papers were not disclosed based on legal grounds.

When the appeals court sent the case back for reconsideration, the federal district court's task was to assess the redactions contained in a series of emails between an archaeology professor and a State Department employee.  The court's other task was to review whether the State Department sufficiently scoured its files to locate FOIA materials.  The court found that the redacted portions of the emails could be kept confidential because there was a "demonstrated expectation of confidentiality between the parties" under the FOIA law.  The court also found that "the State Department conducted a search reasonably calculated to uncover all the email records responsive to the plaintiffs' FOIA requests."  Therefore, the court dismissed the case.

Meanwhile, the Fourth Circuit Court of Appeals scheduled oral argument in the matter of ACCG v. US Customs and Border Protection et al.  The court selected dates between September 18 and September 21.  This case began when the ACCG hoped to challenge cultural heritage import protections enacted by the Cultural Property Implementation Act (CPIA) on Chinese and Cypriot coins.  The ACCG appealed the case following its dismissal in the Maryland federal district court in 2011.

Photo: U.S. State Department.  Hat tip to Paul Barford and Peter Tompa for publicizing news of the FOIA decision.