Tuesday, August 21, 2012

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