Sunday, September 9, 2012

New York Federal Court Raises Questions in US v. Tyrannosaurus Bataar Skeleton

The federal district court, southern district of New York, has raised doubts about the facts asserted in the case of United States v. One Tyrannosaurus Bataar Skeleton.  Claims made by Eric Prokopi's lawyers prompted the questions.

Prokopi seeks the return of the Tyrannosaur skeleton, which he assembled and consigned for sale at Heritage Auctions in New York.  Immigration and Customs Enforcement (ICE) seized the skeleton in June, and the U.S. Attorney in Manhattan filed a court action to forfeit the bones and repatriate them to Mongolia.

On September 7, 2012 Judge P. Kevin Castel issued an order concluding that "the proceedings held on September 5, 2012 call into question some of the assumptions in the government's Verified Complaint."

Judge Kastel observes:

"The representations made on the record on September 5 by claimant's counsel call into question whether the Defendant Property [the dinosaur bones] was ever valued on a customs declaration as $15,000 . . . . The $15,000 figure (or $19,000 as stated by claimant's counsel) appears to have been the valuation for one of four shipments into the United States of dinosaur bones some of which were encased in non-organic material and required extensive and difficult cleaning. According to claimant's counsel, approximately 50% of the organic material comprising the Defendant Property had been previously acquired by the claimant in the United States. The nearly complete skeleton (80% of the head and 75% of the body) depicted in the government's evidence and sold at auction does not, according to claimant's counsel, come from a single Bataar. Claimant's counsel asserts that the four shipments together with the 50% material acquired in the United States were assembled by the claimant, Eric Prokopi, using his time, experience and talent, which greatly enhanced the value of the individual shipments."

The court also asks whether the dinosaur skeleton actually originated from Mongolia, as the government alleges in its initial complaint.  Judge Kastel writes:

"There is also a serious question of whether the government has alleged sufficiently detailed facts supporting a reasonable belief that the Defendant Property originated in the nation of Mongolia and was removed in violation of Mongolian law. The Bataar is said to be native to Nemegt Basin in the Gobi Desert in Mongolia. The Nemegt Basin is in the Ömnögovi province of Mongolia which borders with China. There is nothing before this Court which speaks to whether 70 million years ago it would have been implausible for the Bataar to have roamed the bordering territory, including present-day China, or whether geological formations in China (or other nearby nations) would have been conducive to preservation of such skeletons. The government represented that, thus far, substantially complete skeletons of Bataars have not been found outside of Mongolia but did not dispute claimant's counsel's representation that bones of Bataars—less than a full skeleton-- have been found elsewhere."

The court, moreover, wonders whether criminal laws were actually violated when importing the dinosaur bones. The order states:

"Finally, certain of the statutes on which the government premises forfeiture have specific mens rea  [i.e. criminal knowledge] requirements. For example, the anti-smuggling provision requires the person who fraudulently or knowingly imports or brings the property into the United States—or receives it, must “know[] the same to have been imported or brought into the United States contrary to law. . . .” The prohibitions on transportation or receipt of stolen goods require the person to “know[] the same to have been stolen. . . .” 18 U.S.C. §§ 2314 & 2315 [of the National Stolen Property Act]. The Verified Complaint must set forth a basis for believing that some person who engaged in the prohibited conducted—not necessarily the claimant — had the requisite knowledge."

Given the above, the court is permitting government lawyers to file an amended complaint by September 21 if they wish.

It is helpful to note that Heritage Auctions advertised the sale of the dinosaur skeleton, in part, in the following manner:

"This is an incredible, complete skeleton, painstakingly excavated and prepared, and mounted in a dramatic, forward-leaning running pose. The quality of preservation is superb, with wonderful bone texture and delightfully mottled grayish bone color. In striking contrast are those deadly teeth, long and frightfully robust, in a warm woody brown color, the fearsome, bristling mouth and monstrous jaws leaving one in no doubt as to how the creature came to rule its food chain. Equally deadly and impressive are the large curving claws, with pronounced blood grooves. The body is 75% complete and the skull 80%, and it is mounted on a discreet gray-painted armature. Measuring 24 feet in length and standing 8 feet high, it is a stupendous, museum-quality specimen of one of the most emblematic dinosaurs ever to have stalked this Earth. Bone map and restoration details available upon request."

[Sidebar: A federal forfeiture action applying federal law does not involve questions of whether New York State consumer protection laws or state criminal statutes were or were not followed.]

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