Sotheby's wants a preliminary hearing to argue
the law, and the government wants more discovery from Sotheby's to argue the
facts. That continues to be the posture of the case of
United States of America v. A 10th Century Cambodian
Sandstone Sculpture Currently Located at Sotheby's.
Yesterday
federal prosecutors criticized Sotheby's and Decia Ruspoli di Poggio Suasa, claimants in the forfeiture case, for
"yet another effort to delay discovery in the case." The U.S.
Attorney's Office for the Southern District of New York objected to a letter
recently submitted by the claimants that requests a pre-discovery hearing to
discuss the meaning of Cambodia's cultural property ownership law.
Prosecutors write that the claimants “should not be permitted
to delay [the case] further by being granted
a hearing on an issue that will not resolve
the case.” They argue that "the appropriate course of action is
to continue and complete fact discovery on all issues
in the case.”
The claimants
disagree, explaining that the issue of whether Cambodia's
law declares ownership over the statue is a matter the court should consider
before the claimants provide further information to prosecutors. In their May 10 letter to the federal
district court, Sotheby's and Decia Ruspoli di Poggio Suasa write that the issue of
whether Cambodia owns the statue is a matter of law, not fact, which the judge must address rather than a jury.
But federal lawyers counter that the question of whether the Duryodhana
sculpture from the Prasat Chen temple at Koh Ker is owned by Cambodia and was stolen from that nation turns on the facts as well as the law.
Prosecutors make the two-pronged assertion that "Cambodia declared itself the owner
of the Statue through its clear and unambiguous national ownership laws" and
that "Cambodia acquired the Statue in the 'general manner' and that the Statue
was then stolen from Cambodia 'in the commonly used sense of the word.'"
The McLain/Schultz doctrine, the prosecutors argue, supports the proposition that a cultural patrimony law is one way by which a nation can own
cultural material. And Cambodia’s
national ownership law is clear, they maintain. “Claimants dispute
only that Koh Ker and the Prasat Chen temple were, in fact, part of the national or colonial domain.” This dispute, prosecutors stress, “involve[s] factual questions that are matters
for summary judgment
or trial.”
Prosecutors also assert
that the second way that Cambodia owns the Duryodhana
statue is through the general understanding of what it means to steal:
But Schultz and McClain certainly do not stand for the proposition that a state can
never "own" an object in the absence of a national ownership law. Rather,
McClain makes clear that a state can come
to own property either by "declar[ing]
itself the owner" through a national ownership law, or by "acquir[ing]
such property in the general manner by which private persons come to own property."
McClain,
545 F.2d at 1002. And Schultz, in
adopting the reasoning of McClain, plainly
contemplated that an object could be "stolen" not only by virtue of having
been "possessed or disposed of by an individual in violation of a national
patrimony law," but also "'stolen' in the commonly used sense of the word,
for instance, where an object is taken from a museum or a private collection."
333 F.3d at 399.
Prosecutor
allege that the monuments of Koh Ker were built by Cambodia state under Jayavarman
IV, that the state never transferred Koh Ker or the statue to anyone, that
looters stole the statue in 1972 and trafficked it in pieces to Thailand, and
that a well-known collector purchased it knowing that it was stolen. “These factual
allegations … do not depend upon an analysis of Cambodia's national ownership laws
….,” the prosecutors contend.
In an effort to press for
disclosure of information from Sotheby’s, the U.S. Attorney’s Office avers that
it
would
be
most
efficient
to
conduct
discovery
on
all
factual
issues
in
this
action
simultaneously,
as
the
discovery
will
be
largely
overlapping.
Evidence
regarding
the
Collector,
for
instance,
will
be
relevant
not
only
to
the
issue
of
whether
the
Statue
was
stolen
from
Cambodia,
but
also
to
the
issue
of Sotheby's
knowledge
of the
theft,
as
the
Amended Complaint alleges
that Sotheby's "consulted regularly with the Collector regarding
the sale of the [Statue]," that Sotheby's "knowingly omitted the Collector's acquisition of the [Statue]
from the provenance
information it provided,” and that Sotheby’s was informed by “a scholar of Khmer
art closely associated with the Collector (the "Scholar")" that the Statue was stolen.
The claimant’s, however, are resisting
this push. That is why they request that “the Court schedule a pretrial
conference pursuant to Rule 16 of the Federal Rules of Civil Procedure to discuss
appropriate procedures for reaching resolution on what is likely to be the dispositive issue in this case: whether any of the
French colonial decrees the Government has identified clearly and
unambiguously declare Cambodia
to be the owner of the statue at issue in this case."
This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at
culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION:
www.culturalheritagelawyer.com
