Plaintiffs-Appellants in Rubin v. Iran File Reply Brief in First Circuit

"The Plaintiffs successfully obtained judgment against Iran and seek to execute that judgment—pursuant to federal law—against Iranian assets held by the Trustees-Appellees (“Garnishees”). The Garnishees, wealthy museums represented by aristocratic law firms, have sought to stop the Plaintiffs, claiming that the exercise of federal law is somehow unfair to them—that they are above the law." So begins the reply brief filed on behalf of Jenny Rubin and others affected by a 1997 terrorist attack that held Iran liable for damages.  The appellees in the case of Rubin v. Iran are the museums at Harvard and the Boston Museum of Fine Arts (MFA), which house Persian artifacts that are sought after by the plaintiffs-appellants to satisfy a money judgment they were awarded by a federal court against Iran.

The Rubin plaintiffs-appellants appealed to the U.S. First Circuit in March 2012 after losing their case in federal district court.  The museums filed appellate briefs on May 31, 2012, and the United States government submitted a friend of the court brief in June 2012 in support.  Now the Rubin plaintiffs-appellants have entered their response.

The litigation has become complicated, involving technical legal issues and multiple courts.  Highlights of the arguments put forward by the plaintiffs-appellants follow.

First, the plaintiffs-appellants argue that there is a legal basis to award them the artifacts in the collections of the museums under the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. §1610(g) even if Iran does not own the property.  The museums, they say, have waived their right to challenge the conclusion that plaintiffs-appellants can execute judgment.

Second, the plaintiffs-appellants charge that the museums' "failure to engage in due diligence" cause the institutions to "suffer at their own hands."  That is because, as the plaintiffs-appellants write, the museums "are not 'innocent third parties' (Gov’t 12; Harvard 26, 63; MFA 60) or 'innocent property owners' (Gov’t 17). They are, in some cases, successors in interest to thieves. In other cases, the provenance of their artifacts is simply unknown . . . . Garnishees did no due diligence (or have deliberately hidden the results of their due diligence) in reliance on a three-year statute of limitations and a three-year rule for adverse possession. (Harvard 47, 49-51). Now they have discovered that the state statute of limitations and adverse possession rules are not ironclad and are subject to federal preemption and beg this court for cover."  As a result, the Rubin plaintiffs-appellants say that this "decision not to insist upon documentation—or to ignore and discard the documentation that they received—opens them to recapture by the property’s rightful owner or, as in this case, another party that claims a primary statutory interest." (footnote omitted)

Third, the First Circuit Court should wait to issue a decision until the Second Circuit Court rules on other cases that involve the FSIA and the Terrorism Risk Insurance Act (TRIA), two laws applicable to the Rubin v. Iran case.  The plaintiffs-appellants argue that "[t]he cases squarely present before the Second Circuit the scope of TRIA and FSIA without all of the extraneous complications in [Rubin v. Iran] pertaining to factual questions about the provenance of the Property, the question of whether the Property are rightly considered 'blocked assets' for purposes of TRIA, and the proper interpretation of Iranian domestic law."

Fourth, the Rubin plaintiffs-appellants contend that their case can be resolved in their favor under either FSIA or TRIA: "Plaintiffs request that this Court either resolve this dispute pursuant to [FSIA] §1610(g) or remand for further proceedings under §1610(g). If this Court chooses not to do so, it should grant Plaintiffs the relief requested pursuant to TRIA."

Fifth, the Rubin plaintiffs-appellants say that if the First Circuit decides the case on the basis of TRIA, then the museums hold the burden of proof regarding ownership of the artifacts in their possession, not the plaintiffs-appellants.  They write in their brief that the museums "have argued repeatedly that Plaintiffs have the burden of proving that Iran owns the assets at issue in this litigation and that Plaintiffs have not met that burden. (Harvard 21, 31, 41-46; MFA 12-14, 25-35). They ignore that the reason that conclusive evidence is lacking is because Garnishees cannot document the provenance of their artifacts."  The plaintiffs-appellants submit that they have presented evidence of the artifacts "have presented adequate evidence showing where the Property originated, approximately when it was taken from those locations, and the long history of pillaging that occurred in those locations. Plaintiffs have likewise presented adequate evidence showing—at very least—that the Iranian government retains title or a right to immediate possession of all artifacts that it has not gifted or sold to others."

Finally, the plaintiffs-appellants criticize the museums' argument that TRIA would prompt "an unconstitutional taking of private property."  They write, "Their arguments are frivolous."

The case will continue to move forward in the coming weeks.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Contact: www.culturalheritagelawyer.com

Federal Attorneys File Motion in Support of Cambodian Statue's Forfeiture from Sotheby's, Arguing the "Signs of Theft Should Have Been Obvious"

"In this case, the signs of  the Statue's theft should have been obvious to a major international art dealer like Sotheby's."  That is what the United States Attorneys Office, Southern District of New York, contends in its objection filed yesterday in the case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York.  A June 5 motion submitted by Sotheby's auction house and Ms. Ruspoli di Poggio Suasa--the claimants--urges the federal district court in Manhattan to dismiss the case.  Federal attorneys have now filed their objection.

The United States government is seeking the seizure and forfeiture of the statue claimed to have been removed illegally from the Prasat Chen Temple in Koh Ker, Preah Vihear Province, Cambodia.  Sotheby's attempted to sell the artifact on behalf of the consignor, Ms. Ruspoli di Poggio Suasa, this spring when prosecutors filed their civil lawsuit against the sculpture, known as the Duryodhana.  The government seeks to repatriate the statue, whose carved feet remain in Cambodia.

Calling the claimant's motion to dismiss a "thinly-disguised effort to circumvent discovery ... and argue the ultimate merits before the Government has had an opportunity to obtain further evidence of their wrongdoing," the federal attorneys, led by Sharon Cohen Levin, forcefully explain that the government's complaint is more than sufficient to justify a forfeiture action.  The lawyers argue, in part, that Cambodian law clearly vests title of the statue in the hands of Cambodia, that the statue was taken from Cambodia unlawfully, and that Sotheby's knew that the statue was stolen.

"Cambodian national ownership laws, in fact, are clear and unequivocal," write the prosecutors, and the laws that award title of cultural property to Cambodia have existed since the 1900's.  Counsel for the United States reject the implication that "the archaeological treasures at Koh Ker were abandoned property, free for the taking by anyone willing and able to cut them off their pedestals."

The government also rejects the claimant's argument regarding Cambodia's alleged lack of enforcement of national ownership laws, arguing that there is no requirement to brief such facts at this stage of the litigation.  Nevertheless, the government points out that it "has gathered substantial additional evidence that Cambodia has enforced its laws, which has also revealed that Sotheby's is intimately familiar with Cambodia's enforcement efforts" because there have been "instances where Cambodia has sought to recover its cultural property from Sotheby's, specifically."

Federal prosecutors assert that the Duryodhana was looted without Cambodia's permission, and they distinguish the case from the Ka Nefer Nefer mask case: "In Mask of Ka-Nefer-Nefer, the district court dismissed the Government's civil forfeiture complaint because the complaint, rather than alleging that the mask was stolen, merely stated that the mask was found to be 'missing' from Egypt in 1973." The attorneys reaffirm that the Duryodhan was stolen from Cambodia at a time when Cambodia's patrimony laws were in operation.

The prosecutors contend that "the allegations demonstrate that Sotheby's was well aware that the Statue had been removed from a temple at the Koh Ker archaeological site." As "a sophisticated participant in the Southeast Asian art market" with a Worldwide Compliance Department, prosecutors allege that "Sotheby's either knew that it was stolen from Cambodia, or 'was aware of a high probability that [it] was stolen and deliberately looked the other way,' either of which would meet the Government's burden."  In fact, the attorneys declare that the auction house's actions, which followed a scholar's warning that the statue was stolen, was part of "behavior of a company trying to sell artwork it knows to be stolen if it can figure out how to get away with it."

Sotheby's will have a chance to respond to the government's claims by September.

All quotes are taken from the Memorandum of Law in Support of the Government's Opposition to Claimants' Sotheby's, Inc. Ms. Ruspoli di Poggio Suasaof's Motion to Dismiss.  Citations have been omitted.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Dinosaur Claimant Files Motion to Dismiss in New York Federal Court

Attorneys for Eric Prokopi on Friday filed a motion to dismiss in federal district court in the southern district of New York. The lawyers argue in the case of United States of America v. One Tyrannosaurus Bataar Skeleton that the government cannot seize and forfeit an dinosaur skeleton on both policy and legal grounds. Prokopi is the claimant seeking the return of the Tyrannosaur skeleton, which he assembled.  It was seized by Immigration and Customs Enforcement (ICE) on June 22, 2012.

Courtesy ICE

The matter came to the attention of law enforcement officials after chairman and curator of paleontology at the American Museum of Natural History in New York raised concerns about the piece advertised for sale at an auction. The auction site listed the object as "SUPERB TYRANNOSAURUS SKELETON, Tyrannosaurus bataar, Late Cretaceous, Central Asia." U.S. Attorney Preet Bharara in Manhattan filed a forfeiture action alleging that the import paperwork for the dinosaur bones misstated the country of origin as Great Britain, not Mongolia; undervalued the skeleton at $15,000; and improperly described the bones as fossil reptile heads, a fossil lizard, and other incorrect items. See the June 26, 2012 blog post for additional background.

In their 28 page legal memorandum urging dismissal of the case, the claimant's lawyers set the stage for their argument to the court:

"Eric Prokopi purchased several groups of fossils on the open market and spent a year of his life and considerable expense identifying and compiling component parts of, and then restoring and mounting, the Tyrannosaurus bataar fossil (the “Display Piece”) so that it could be sold at auction. Prokopi thought he had recouped his considerable investment . . . when the Display Piece sold for $1.05 million at Heritage Auctions (“Heritage”) in New York. But then, a media campaign stirred up by academic paleontologists prompted Mongolia’s President to demand that the Display Piece be sent to Mongolia because it 'must have been stolen from there.' Prokopi and Heritage had entered into negotiations with Mongolia’s President in order to settle the dispute, when on June 18, 2012, the United States filed a Civil Forfeiture Complaint in rem (“Complaint”) seeking forfeiture of the Display Piece." (footnotes omitted)

The claimant's August 17, 2012 memorandum of law argues that the government should not set policy regulating dinosaur bones through the courts. The claimant's advocates write that the "Motion to Dismiss should be granted, not only to ensure that the fruits of his labor are rightly returned to him but to encourage the Government to regulate fossil collecting – if at all  – prospectively through the legislative and regulatory process rather than retroactively through this unprecedented forfeiture action."

Additionally, the lawyers contend that Prokopi did not commit any violations of federal import regulations because he did not have notice of U.S. rules regarding how to list the country of origin or value a paleontological object. "Here, Prokopi could have no fair notice of the 'country of origin' or valuation rules for fossils because none exist," the attorneys submit.  They maintain that in "May of 2006, CBP issued a revised Informed Compliance Publication which included guidance on the proper tariff classification of fossils, but failed to issue guidance on how to determine the country of origin or value of fossils or even of archaeological objects. . . . Since no regulatory guidance exists on how to apply this definition, there is no way for an importer of fossils to know how to proceed."

[Sidebar: Where a cultural property importer has a question about the proper tariff classification, country of origin, or even valuation it can be good practice to file a request for a binding U.S. Customs ruling pursuant to 19 C.F.R. 177.  A rulings letter can provide an official interpretation of the law regarding a specific object to be imported.  See the U.S. Customs web site discussing rulings letters.  See also the CROSS database of rulings letters, which which can also help importers of cultural property comply with applicable regulations.]

The claimant's legal counsel further argue that Prokopi did not have fair notice of Mongolian law "because they are not readily available to the general public much less to attorneys who practice in the 'cultural property' field."  Even if he had knowledge of Mongolian law, the lawyers declare that the dinosaur skeleton could not be considered stolen because current Mongolian law does not clearly define fossils to be owned by Mongolia.  The country, moreover, does not enforce its title vesting law, they aver.  In any case, the claimant's attorneys assert that there is no evidence to support that the bones came from Mongolia or were removed from that country without authority. The attorneys argue that the government cannot show that Prokopi knew the Tyrannosaur bones were stolen.

The claimant's lawyers end their memorandum with the following conclusion:

"It may or may not be time to regulate fossil collecting like antiquities collecting, but surely any such regulatory effort should only be accomplished prospectively through the legislative or administrative process rather than retroactively through a forfeiture action prompted by a media frenzy and foreign politics. The Government should not be allowed to seize property based upon obscure foreign laws or unwritten interpretations of 'country of origin' or valuation rules for fossils. Moreover, the Government has not alleged sufficient facts to establish a reasonable basis to believe that it could meet its burden to prove that the Display Piece was 'stolen.'

The claimant seeks to dismiss the government's forfeiture complaint pursuant to the Supplemental Rule for Admiralty or Maritime Claims and Asset Forfeiture Actions G(8)(b)(i) and Federal Rule of Civil Procedure 12(b)(6).

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Some History Behind the Cleveland Museum of Art's "Vessel with Battle Scene" or "Maya War Vase"

The Cleveland Museum of Art announced this week that it acquired a Roman marble head and a Maya vase.  Yesterday's CHL blog post discussed the new Roman head, the due diligence questions surrounding the acquisition, and a possible connection with a similar Roman head called the "Magdalene Tiberius."  Today the collecting history of the Maya War Vase or Merrin Vase will be explored, noting that the Cleveland Museum has published little information about the chain of custody of the vase.

Vessel with Battle Scene. Cleveland Museum of Art.

The Cleveland Museum's newly acquired "Vessel with Battle Scene" appears to be the Maya War Vase or Merrin Vase cataloged at Kerr archive number 2352.  It is evident that the two are the same.  But this information is unconfirmed in the museum's press release.

The Cleveland Museum's August 13, 2012 public statement begins and ends the collecting history of the vessel by saying that the archaeological artifact was in the Edward H. Merrin collection in New York by 1973 and is now in the museum's holdings:

"This exceptional artwork, Vessel with Battle Scene, is one of several polychrome cylinder vessels known as the Fenton Group, painted by the same Maya master artist in the Nebaj region of Guatemala. The vessels portray a related series of events that involve Kan Xib Ahaw (Lord Kan Xib) and include the taking and presentation of prisoners as well as a ritual perhaps related to tribute payment or blood-letting. 
...
"The Vessel with Battle Scene was in the Edward H. Merrin collection in New York by 1973, when the vessel was first published. Dated photographs place the vessel in New York City in March of 1969. Since the early 1970s, the vessel has appeared in at least a dozen print and electronic publications."

It is unknown how the archaeological artifact came to reside in the Edward H. Merrin collection.  Moreover, the Cleveland Museum does not identify from whom it purchased the vase, when, or for what price.

It is reasonable to conclude that the vase may have been last possessed by the Merrin Gallery in New York City, a business started in 1987 by Edward H. Merrin's son.  The gallery certainly had the Maya War Vase in its inventory.  An April 11, 2011 gallery blog entry titled "Maya Art - Among Samuel Merrin's Favorites" quotes Samuel Merrin as saying, "As a child, in the mid to late 1960s, I remember my father, Edward Merrin, displaying this magnificent vase in our house. He had two vases in his private collection, this war vase and a carved vase now in the Kimbell Art Museum in Fort Worth, Texas. . . . This is the last one of a group of six vases still in private hands."

A video produced by the gallery displays the Maya War Vase and appears below.

The Samuel Merrin and Gallery blog notably describes the Maya War Vase as "recomposed." "This cylindrical terracotta Mayan war vase, depicting a battle scene, is one of Samuel Merrin's favorite pieces. (Although recomposed from several pieces, it is complete.)," explains the post.

The blog post also identifies the five other Fenton school vases located at the British Museum (K2894), the Museum of Fine Arts in Boston (K558), the Museum für Volkerkunde in Berlin (K2206), the Virginia Museum of Fine Arts, Richmond (K1392), and the Museo Popol Vuh, Universidad Francisco Marroquín, Guatemala City.  A fragment, whose whereabouts is unknown, is also mentioned.

The Merrin Gallery identifies many publications in which the Mayan War Vase appeared.  The earliest publications listed are from the 1970's and include

• Edward H. Merrin Gallery, New Acquisitions: Pre-Columbian Art of Mexico and Guatemala – a Sales Exhibition, (New York) illus. no. 22 (N.B. Princeton Art Museum Marquand Library’s accession date for this publication is June 29, 1970).

• Michael D. Coe, 1973, The Maya Scribe and His World, The Grolier Club (New York) illus., cat. no. 26.

Meanwhile, the Facebook page of the Merrin Gallery explains, "According to his records, the photographer, Justin Kerr, reports that this vase was photographed for 'The Maya Scribe and His World' in June, 1971. He previously had photographed it in March, 1969 (K132)."  Of note is that the 1969 photo is cataloged as K132, not K2352.

A final observation.  It may be helpful to learn a little bit about the Fenton school vases housed in some of the five named museums.

• The British Museum says on its web site that The Fenton Vase "(K2894) was found at Nebaj, a Maya site in the highlands of Guatemala" and was "[p]urchased with the assistance of the National Art Collections Fund."  Additional reference sources cite the artifact as being known since the early 1900's.
 

• The Museum of Fine Arts, Boston (MFA) describes the place of manufacture of its Maya cylinder vase (1988.1170) as "Southern Highlands, Nebaj area, Guatemala."  It reportedly was given to the MFA by Landon Clay.  The provenance averred is, "Collected between 1974 and 1981 by John Fulling, Art Collectors of November, Inc., Florida (and known as the "November Collection"); to Landon T. Clay, Boston, Massachusetts, in 1987; to MFA, December 1988, gift of Landon T. Clay."
 

• The Virginia Museum of Fine Arts explains that its vase is either from Mexico or Guatemala.  No collecting history of the piece is given except to say that it was a gift of the Adolph D. and Wilkins C. Williams Fund.

Further information surrounding the Cleveland Museum's recent acquisition of the "Vessel with Battle Scene" would no doubt help the public to understand and evaluate the artifact's collecting history better.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

"Unable to Obtain Documentary Confirmation" - Due Diligence and Questions Posed by the Collecting History of The Cleveland Museum of Art's Drusus Minor Head

The Portrait Head of Drusus Minor acquired by the Cleveland Museum
of Art and the Magdalene Tiberius share many similarities.

[UPDATE: In a press release by the Cleveland Museum of Art dated April 18, 2017, the museum announced that it would repatriate the marble head of Drusus to Italy. The CHL blog post below, dated August 12, 2015, appears to have played some part in the cultural artifact's return.]

The Cleveland Museum of Art announced this week that it was accessioning a marble head depicting Drusus Minor, the son of Roman Emperor Tiberius.  That acquisition appears on the Association of Art Museum Directors' (AAMD) object registry because the Cleveland Museum seeks an exception to AAMD's "1970 rule."

The Report of the AAMD Task Force on the Acquisition of Archaeological Materials and Ancient Art (Revised 2008) declares, "Member museums normally should not acquire a work unless provenance research substantiates that the work was outside its country of probable modern discovery before 1970 or was legally exported from its probable country of modern discovery after 1970. The museum should promptly publish acquisitions of archaeological materials and ancient art, in print or electronic form, including in these publications an image of the work ... and its provenance, thus making this information readily available to all interested parties."  In the case of  the Cleveland Museum of Art, the institution reports that it "has provenance information for the marble head back to the 1960’s, but has been unable to obtain documentary confirmation of portions of the provenance . . . ."

Documented information about an antiquity's find spot, its archaeological context, and the artifact's subsequent collecting history are important in order to learn about human history, to authenticate an artifact, to ensure compliance with national and international laws, and to preserve confidence in cultural institutions--especially those supported in part by taxpayer funds like the Cleveland Museum.  That is why inquiry into the history of the Drusus Minor head is essential.

There is no reported information about the Drusus Minor head's find spot or the archaeological context in which it was found. The Cleveland Museum explains that the head appeared on the market at auction in 2004.  The museum was not the purchaser of the piece at the time, and the auction buyer remains unknown. Apparently there is no import or export paperwork supplied to the museum that may shed more light on either the object's country of manufacture, the original seller of the piece, or any other data that might help complete a due diligence investigation.

The museum suggests an ownership history of the piece prior to the 1960's but it concedes that its pre-2004 information is sourced in a "certificate of origin" produced a day after the auction by antiquities dealer and adviser Jean-Philippe Mariaud de Serres.  He "assisted the prior owner and consigner, Fernand Sintes," according to the Cleveland Museum's object registry narrative.  The certificate--not generated by the actual consignor but produced by an author who passed away five years ago--appears to be one of two primary sources relied on by the museum to establish the head's collecting history.  Meanwhile, the museum has not published any post-2004 collecting history information except to say that it bought the Drusus Minor head from Phoenix Ancient Art, an antiquities dealer with galleries in Geneva and New York.

Why an affidavit describing the ownership history was not produced by consignor Fernand Sintes to the Cleveland Museum is unknown.  The circumstances under which a "certificate of origin" was produced by  Mariaud de Serres after the 2004 purchase at auction are also not known.  And how the Cleveland Museum obtained this "certificate of origin" remains unclear, particularly where the museum asserts that it has no information about the 2004 purchaser of the Roman head.  There is also no information about who, when, or how the marble artifact entered the United States or how it was transferred from the unidentified auction buyer in 2004 to Phoenix Ancient Art, or to which location of Phoenix Ancient Art (Geneva or New York?).  These are a handful of the many chain of custody questions that remain unresolved.

The chain of custody of an archaeological object is expected to come under scrutiny when accessioned by a major museum.  Due diligence is anticipated to be used to investigate the object's find spot and its subsequent ownership, possession, export, and import.  And due diligence would particularly be expected in this case because the Drusus Minor head garnered much public attention in 2004, fetching a remarkably high purchase price.

The Cleveland Museum reports that the Drusus Minor head was listed at Piasa, Paris, Hôtel Drouot-Richelieu, Archéologie, 28–29 Septembre (Paris 2004) 74, lot. no. 340.  That auction listing describes a marble head of Tiberius, which is in fact the Drusus Minor head.  The Cleveland Museum explains in the object registry, "The work was initially identified and published as Tiberius, but was later (after 2007) recognized as a likeness of his son, Drusus Minor." 

Le Journal des Arts wrote in a 2007 article that the Drusus Minor/Tiberius head originally had an estimate of  €100,000 ($123,150 USD in 2004) before it was purchased for over three times that amount, specifically $399,022 USD. The Drouot auction house continues to celebrate the sale on its web site:

"La plus haute enchère a été portée sur une tête monumentale représentant le portrait de l’Empereur Tibère, lot n°340, en marbre blanc à grains fins, Art Romain du Ier siècle, qui a été emportée à 324 013 €. Cette tête provenait d’une collection particulière."

(Author's translation: "The highest bid was given a monumental head representing the portrait of the Emperor Tiberius, Lot No. 340, in white marble-grain, first-century Roman Art, which was purchased for €324 013. This head came from a private collection.")

As previously mentioned, the Cleveland Museum does not know who bought the archaeological object at this noteworthy sale.  The museum, however, possesses the "certificate of origin" that, in all likelihood, would have been handed to the buyer.  Did the museum specifically ask from where and under what circumstances the "certificate of origin" materialized as part of its due diligence investigation?

The Cleveland Museum, nevertheless, describes that Mariaud de Serres' "certificate [of origin] stated the sculpture came from the collection of Mr. and Mrs. Sintes of Marseilles; that the sculpture had been in Mr. Sintes’s family for many generations; that the family’s name was Bacri; and that they had lived in Algeria since 1860." To verify this information, the museum says that it turned to a second source of primary information.  It "contacted Mrs. Sintes who confirmed on behalf of herself and Mr. Sintes that Mr. Sintes’ grandfather, Mr. Bacri, had owned the sculpture; that Mr. Sintes inherited the sculpture from his grandfather; that Mr. Sintes brought it from Algeria to Marseilles in 1960; that he had inherited it from his grandfather prior to bringing it to Marseilles; that the sculpture was sold at the Hôtel Drouot in 2004; and that they had worked with Mr. de Serres."

There is no explanation why the museum did not contact Fernand Sintes.  There is also no information about Mr. Bacri's first name, how he came to own the artifact, or if there was paperwork specifically describing that Fernand Sintes would inherit the marble head after his grandfather's death.  Did the museum seek out other family members or those in the Bacri family to get a more complete collecting history?  That is not known.

Additionally, there is no information about  Mariaud de Serres' exact role in the 2004 auction.  Mariaud de Serres collected Roman-era antiquities, set up shop in Paris in the 1960's, and is said to have created the "certificate of origin" on behalf of the Sintes couple.  He reportedly opened a gallery in the 1960's at the Palais Royal in Paris and was described in a 1999 New York Times article as "the Paris dealer who operates as a registered expert guaranteeing the authenticity of the items" at Dourot auctions.  He died in 2007.  A Christie's February 2011 sale of his many lots of antiquities in Paris earned a total of € 2,737,912 ($3,763,807 USD). Many pieces offered were Roman. Prior to the sale, France's Le Figaro paid tribute to the influential antiquities dealer by describing his many global travels around the Mediterranean basin, his advice to institutions and collectors, and his passion for collecting ancient artifacts.  His specific involvement with the Drusus Minor head may or may not be of importance to understanding the object's collecting history.  But due diligence would require investigating what role, if any, he may have had acquiring the Roman head, facilitating its sale, and/or exporting the object.

The Drusus Minor head reached the shores of the United States at an unknown time and at an unknown place. What is known is that the 2007 Phoenix Ancient Art catalog titled Imago features the marble head as an image of Emperor Tiberius on the front cover and on pages 14 through 17. The catalog gives the archaeological piece pride of place, providing only the briefest collecting history.

The catalog also lists a bibliography with an interesting reference to a journal article by John Pollini titled "A New Marble Head of Tiberius."  Writing in Antike Kunst 48, 2005, pp. 55–72 pls. 7–13, the professor of art at the University of Southern California describes the previously unknown archaeological object:

The Magdalene Tiberius
Source: Antike Kunst

"A magnificent, previously unpublished over life-size marble portrait of Tiberius (pl. 7, 1–4), which in the 1960s had been in a private French collection assembled in Marseilles, is to be found today in a private American collection. Now called the 'Magdalene Tiberius', after a member of the present owner's family, this head is superbly carved in a luminous, fine-grained white marble with a slight beige patina that extends over the area of the break at the base of the neck. Although this portrait is said to have been found in North Africa, its provenance cannot be established with any certainty."

A Roman marble head of Tiberius in a private collection in the 1960's that is said to have been found in North Africa (perhaps Algeria?) sounds similar to the history of the Cleveland Museum head.  The Magdalene Tiberius and the Cleveland Drusus also are similar in size, measuring 32.5 cm and 35 cm respectively. Moreover, both heads were acquired by sale in 2004, and they look to be, at least photographically, of similar quality and appearance.

Pollini tackles the question of provenance of the Magdalene Tiberius by assessing style and laboratory analysis.  He writes:

"Although, as noted at the outset, the Magdalene Tiberius is said to come from North Africa, this provenance cannot be established with certainty. Indicating, in fact, the possible hand of a sculptor from Asia Minor are the particularly close comparisons in quality, subtlety of carving, and treatment of hairlocks that can be made between the Magdalene Tiberius and various portraits from this region . . . The marble of the Magdalene portrait also comes from the same area (Phrygia) as the head of Tiberius from Philomelion in the Louvre (MA 1255). Itinerant sculptors, including those from Asia Minor, worked in the wealthy cities of North Africa, where the lack of high quality white statuary marble necessitated the importation of marble for portraits."

Pollini continues to speculate about the possible provenience of the Magdalene Tiberius based on laboratory analysis of the marble.  Testing showed that the marble from the Magdalene Tiberius came from "ancient Phrygia in central west Turkey. The statistical analysis suggests two possible locations in Phrygia, Afyon and Usak. Afyon, ancient Dokimeion, is the most logical choice. . . . On the basis of the isotopic ratio analysis and what is known about the two quarries, Afyon appears to be the best choice for the provenance of the marble head."

Were the Magdalene and Cleveland Museum marble heads owned by the same collector(s)?  Were they unearthed from the same location? Did they come from Turkey? From Africa? Were they exported to the United States at the same time?  Is the marble the same?  Why did a sales catalog editor determine that Pollini's "A New Marble Head of Tiberius" article should be included in the bibliography featuring the Cleveland head?  Answers to these questions can aid a proper due diligence analysis.

Museums are invaluable institutions that transmit culture and knowledge to Americans.  Continued public confidence in our cultural institutions is essential to maintaining a vibrant museum community.  And the application of due diligence to the acquisition of archaeological heritage--as opposed to gentle inquiry--can help museums fulfill their legal, ethical, and social obligations.

In fact, AAMD ethics rules and professional practice guidelines place many responsibilities on a museum director that call for due diligence to investigate an object's collecting history. These include duties that "[t]he director must ensure that best efforts are made to determine the ownership history of a work of art considered for acquisition;" that the "[t]he director must not knowingly allow to be recommended for acquisition—or permit the museum to acquire—any work of art that has been stolen (without appropriate resolution of such theft) or illegally imported into the jurisdiction in which the museum is located;" and that "the director is responsible for the daily monitoring of the institution's compliance with laws and regulations."  AAMD says that "is committed to the exercise of due diligence in the acquisition process, in particular in the research of proposed acquisitions, transparency in the policy applicable to acquisitions generally, and full and prompt disclosure following acquisition."

Among the several rules issued by the Report of the AAMD Task Force are:

• "Member museums should thoroughly research the ownership history of archaeological materials or works of ancient art (individually a “work”) prior to their acquisition, including making a rigorous effort to obtain accurate written documentation with respect to their history, including import and export documents." (emphasis added) 

• "Member museums should require sellers, donors, and their representatives to provide all  information of which they have knowledge, and documentation that they possess, related to the work being offered to the museum, as well as appropriate warranties." (emphasis added)

These rules naturally apply to the acquisition of the Drusus Minor head by the Cleveland Museum of Art .

Dr. David Gill's Looting Matters is a blog worth following on this topic.

[Hyperlinks refreshed and updated on 4/20/17].

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Grand Jury Hands Up Indictment in Matisse FBI Sting

A federal grand jury in the southern district of Florida (Miami) handed up indictments on Tuesday against a pair with alleged ties to the stolen Henri Matisse painting, Odalisque in Red Pants.  The grand jury charged Pedro Antonio Marcuello Guzman and Maria Martha Elisa Ornelas Lazo with a three count indictment.

The indictment alleges that on or about December 1, 2011, Guzman met with an undercover  Federal Bureau of Investigation (FBI) agent an agent and a confidential informant (CI) of the Federal Bureau of Investigation "to discuss the sale of the Henri Matisse painting 'Odalisque in Red Pants' which had been reported stolen from the Caracas Museum of Contemporary Art (Museo de Arte Contemporaneo de Caracas (MACCSII) in Caracas, Venezuela in or around December 2002." Guzman allegedly gave the CI a password four days later to access an email file containing photographs of the artwork.

Talks continued to work out the payment and transfer of the painting, and Lazo allegedly agreed to transport the stolen artwork from Mexico to the United States. A transaction date of July 17, 2012 was set up where both cash and a wire transfer totaling $740,000 would purchase the painting.

Lazo flew from Mexico City to Miami International Airport on July 16 carrying a red tube that contained the Matisse painting.  She then met with the undercover FBI agent and a second one "posing as an art dealer" in order to close the deal.  Arrests followed.

A July 19, 2012 press release issued by the United States Attorney for the Southern District of Florida, and the FBI Miami Field Office reported that the painting is valued at $3 million.

Guzman and Lazo are each charged with conspiring to transport and sell stolen property (18 USC 371), interstate transportation of stolen property (18 USC 2314), and possession of stolen property (18 USC 2315).  They face potential maximum penalties of five years in prison on the conspiracy count, ten years on the transportation count, and another ten years on the possession count.

Prosecutors also filed a criminal forfeiture action under 18 USC 981(a)(1)(C) in order to gain custody of the painting.  Both the criminal and forfeiture cases are docketed at 12-CR-20559.

An indictment is simply a process of bringing persons into the court process.  The defendants in this case are presumed innocent unless the government proves guilt beyond a reasonable doubt in a court of law.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com