OFAC Ok's Export of Cultural Heritage Protection Services by NGO's

Palmyra

The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) this week published a notice reauthorizing nongovernmental assistance for cultural heritage protection in Syria.

General License No. 11A, issued under the Syria sanctions program, permits activities that support the preservation and protection of cultural heritage sites in that country "including, but not limited to, museums, historic buildings, and archaeological sites."

Nongovernmental organizations are permitted under the license to export services to Syria otherwise barred by Executive Order 13582, signed by President Barack Obama in 2011.

Photo credit: timot.

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

Justice Department Files Brief in SLAM Mummy Mask Appeal, Claiming "Clear Abuse of Discretion"

One year after the U.S. Attorney filed a notice of appeal in the St. Louis Art Museum (SLAM) mummy mask case, the Justice Department yesterday submitted an appellate brief critical of the the U.S. District Court, Eastern District of Missouri. The government faults the lower court for refusing to allow prosecutors to file an amended forfeiture complaint after the court ruled that the original complaint was legally insufficient.

"The court’s orders constitute a clear abuse of discretion," the government's brief contends. "The district court cited no basis for departing from the principle that a party should be given at least one opportunity to amend a complaint whose allegations have been found deficient."

Litigation to reclaim the Ka Nefer Nefer mummy mask began in February 2011 when SLAM sued the U.S. government in order to assert ownership over the artifact. The government responded immediately by filing an in rem action against the mask to forfeit it, later arguing in July 2011 that the mask constituted illegal contraband that could not be possessed. But Judge Henry Autrey brought the government’s case to a seeming end in April 2012 when he concluded that the government's forfeiture complaint failed to specifically articulate how the mask was stolen and smuggled, or how it was brought into the U.S. contrary to law.

The U.S. Attorney's Office filed a motion to reconsider the judge's order, arguing that its forfeiture complaint did not need to be more specific. But in May 2012, the government revealed a wealth of new information, which it said it would enter in a new amended complaint.  Judge Autrey denied the motion. 

Federal prosecutors then proposed an amended complaint in June 2012. The government's lawyers more forcefully alleged that the parties either knew the mummy mask was stolen, unlawfully exported, or illegally imported, or that they were willfully blind to the fact that the mask's "purported provenance was fictional." Just weeks later the court repeated that the case was dismissed, and federal lawyers filed their notice of appeal.

The case remained on hold from June 2012 through April 2013 as all sides reportedly engaged in talks to settle the matter out of court.  Those negotiations failed, and yesterday's court filing renews the litigation.

The U.S. government's attorneys argue, "A dismissal for want of adequate allegations is generally without prejudice, and a party is customarily permitted to amend its complaint at least once to cure deficiencies." "The court denied the motion to file the amended complaint out of hand without addressing any of its new allegations" raised by the proposed amended complaint.

Federal lawyers add,

Even following dismissal, leave to amend should be freely given, and “an outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” Foman v. Davis, 371 U.S. 178, 182 (1962). The First Amended Complaint specifically addressed the deficiencies cited by the district court in the original complaint, and the court abused its discretion in summarily rejecting the filing without considering its allegations.

The attorneys complain that the "district court denied the United States’ repeated requests for leave to file an amended complaint, without evaluating the legal sufficiency of the substantial new allegations in the proffered amended complaint that sought to cure the deficiencies the district court identified in the initial complaint."

The government's lawyers cite Federal Rule of Civil Procedure 15(a)(2)'s recommendation that "[t]he court should freely give leave [to amend a pleading] when justice so requires." They want the district court to assess their allegations that an archaeologist excavated the mask in 1952 in Saqqara, Egypt; it remained under the custody, control, and ownership of Egypt; the mask was discovered missing in 1973; and there was no authorization that it could be sold or transferred, so SLAM could not have acquired valid title to the Ka Nefer Nefer mask when it purchased it in 1998 from Phoenix Ancient Art, S.A.

SLAM is expected to file a reply brief in the near future.

Photo credit: creationc

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

Reply Filed by ACCG in Ancient Coins Test Case

The test case challenging import controls over ancient Chinese and Cypriot coins moved a step forward this week as the Ancient Coin Collector's Guild (ACCG) submitted its answer to a forfeiture complaint filed by proseuctors last month in Maryland federal district court.

The legal battle initially began in 2009 when the ACCG transported the coins from London to Baltimore, declaring that they were from China and Cyprus and had no known provenance or find spots. Customs officials seized the coins. Since then, the ACCG has lost rounds to retrieve the cultural items in the federal district court, the circuit court of appeals, and the supreme court. The ACCG continues to search for a legal victory.

In its latest June 19 pleading, the ACCG asserts several affirmative defenses to the government's forfeiture complaint. Among the group's arguments are claims that

• European Union law does not consider ancient coins to be "archaeological objects" subject to export controls,
• China allows export of ancient coins through Hong Kong and Macao,
• the government cannot prove that the coins were first discovered in either China or Cyprus,
• no government expert has confirmed that the coins of the types subject to import controls,
• American import restrictions are "the product of bureaucratic bias and/or prejudgment and/or ex parte contact," and
• the coins can be reclaimed under an innocent owner defense.

The ACCG seeks a jury trial on these issues.

The ACCG's publicly reported expenses in the ancient coins test case have thus far totaled $49,973 according to the group's 2009 and 2010 Form 990-EZ tax filings, the most recent ones available online. ACCG board member Attorney Peter Tompa and his Washington, DC based law firm have been handling the case since its inception.

The ACCG is a 501(c)(4) social welfare organization, created as a public benefit corporation in Missouri in 2004. Papers filed with the Missouri secretary of state describe the nonprofit's stated mission to "promote and nurture the free and independent collecting of coins from antiquity" and "to foster an environment in which the general public can acquire and hold coins of historical interest."

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

Illegal Gambling and Money Laundering Prompt Forfeiture Complaint for Artwork

Prosecutors have filed a complaint in federal district court in Oklahoma City to forfeit artwork and other property allegedly connected with illegal gambling and money laundering.

Court papers filed on June 7, 2013 reveal that the Federal Bureau of Investigation (FBI) probed an enterprise based in Panama City, Panama, which allegedly conducted illegal internet gaming in the United States. Prosecutors claim that nine pieces of unspecified artwork seized by authorities in April are connected with the millions of dollars generated from the operation.

An FBI affidavit describes the alleged racket as having "established a number of business payment services, and financial schemes to help hide the nature of the gambling activity and to launder the money utilized to operate the illegal gambling enterprise."

Thirty-four defendants from the U.S., Canada, and Panama have been indicted in the Western District of Oklahoma on charges of illegal gambling, money laundering, and Racketeer Influenced and Corrupt Organization (RICO).

Besides art, other property singled out for forfeiture include money, real estate, jewelry, champagne, and memorabilia located in Arizona, Alabama, California, and Colorado.

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

Museum of Fine Arts Curator Offers Due Diligence Model, Saying "Ignorance is No Excuse"

The Weary Herakles has long been a poster child for the problems surrounding undocumented antiquities. The Museum of Fine Arts, Boston (MFA) acquired a partial interest in the top half of the statue in 1981 and then a full interest in 2004 under cloudy circumstances. Archaeologists in Turkey excavated the bottom half of the sculpture in 1980. But the dubious provenance surrounding the MFA's top portion of the Weary Herakles is that it belonged to the antiquities dealer's mother, who reluctantly accepted the sculpture from a German art dealer in repayment of a debt. The mother later died, and Iranian officials swiped the documents. Or so the story goes.

The tall tale of the Weary Herakles is retold in Victoria Reed's new article appearing in the DePaul Journal of Art, Technology & Intellectual Property Law (Spring 2013, Vol. 23, No.2). Reed is an expert in provenance investigations. She is the Curator for Provenance at the MFA. Her article titled "Due Diligence, Provenance Research, and the Acquisition Process at the Museum of Fine Arts, Boston" presents an honest look at the MFA's past collecting errors and the institution's current efforts to steer a different course.

The MFA agreed to repatriate the Weary Herakles statue in 2011. "In order to avoid such time-consuming and costly scenarios in our future," Reed argues that "it is necessary for the MFA not to repeat the mistakes of our past." She notes that museums generally "turned a blind eye to gaps in provenance and other red flags, such as the names of known victims and perpetrators of Nazi looting, fanciful ownership histories, or indications of illegal export." They "failed to ask specific questions about the origins of their purchases and gifts." "Today, ignorance is no excuse," Reed plainly writes.

The provenance curator outlines the MFA's current practice of questioning provenance, export, and import information before it acquires or borrows a piece, evaluating not only the information supplied to the museum but also the source of that information. The article presents a model of due diligence that may help other cultural institutions avoid traps for the unwary.

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

Statues From New York's Met Museum Repatriated to Cambodia

Video source: AFP

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

Want to Learn More About Cultural Property Law?

Spend a week studying cultural property law with Plymouth State University's summer program. This intensive course will take place from July 15 through 20. The class includes a field trip to the Museum of Fine Arts, Boston.

Plymouth State University

The course examines the international, national, and state legal frameworks for the protection and movement of cultural property. It is taught by this blog author.

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.

Register by visiting: http://www.plymouth.edu/graduate/academics/course-schedules/summer-2013/ and clicking "Apply Online."  You can find more details about the course by clicking the preceding link and then clicking "Heritage Studies."

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

Black or White? Carved Rhino Horns Sold at Auction, Targeted for Forfeiture

Carved rhinoceros horns sold at auction are now the subject of a federal forfeiture complaint. The U.S. Attorney's office in New Jersey recently filed papers in federal district court claiming that the carved horn cups are legally banned objects subject to seizure and forfeiture.

Prosecutors allege in U.S. v. Two Black Rhinoceros (Diceros Bicornis) Horn Carvings that I.M. Chait Gallery in Beverly Hills, California sold the horns to an overseas buyer for $220,000. They claim the objects are subject to forfeiture under the Endangered Species Act (ESA) and the Lacey Act, which regulate endangered wildlife species possessed, purchased, or offered for sale. The lawyers also argue that the horns are subject to forfeiture as "contrary to law" under 19 U.S.C. § 1595a(d).

The government writes in its May 21st complaint, "The price of libation cups made from rhinoceros horns has increased greatly in recent years." They are highly coveted in a "thriving black market" as rhinos continue to face extinction.

Federal prosecutors allege I.M. Chait Gallery featured the carved horns on the cover of the gallery's catalog for the 2011 Asian and International Fine Arts Auction. The pieces were described as Chinese, “PAIR ANTIQUE CARVED RHINO HORN VESSELS." The gallery claimed that the objects were made from a white rhinoceros, according to the complaint.

U.S. Fish and Wildlife (USFWS) investigated the horns as the shipper prepared the objects for delivery. Export paperwork listing confused information about age ("antique" but "less than 100 years old") and species identification (white rhinoceros) led authorities to test the items. The National Fish and Wildlife Forensics Laboratory "positively identified them as carved from black rhinoceros (Diceros bicornis) horn."

The black rhinoceros is listed among the most protected endangered species in the appendix of the Convention on International Trade in Endangered Species. That treaty is implemented in the U.S. by the ESA.

Federal prosecutors explain that "a special agent of the USFWS received a voicemail message from I.M. Chait, who stated, in substance, that he was not certain what species of rhinoceros horn the carvings were made from, [and that] he (Chait) knew they were 200 years old, and therefore considered antique." The government adds to its complaint that "I.M. Chait further stated that since the carvings were antique, the specific rhinoceros species should not matter."

The buyer contacted authorities to explain, "Had I known these are the Black Rhinoceros Carvings, I would never never have risked my hard earned money from my personal savings (over $200,000) to buy them. . . . I would really appreciate if you could return these items to me. However, I am also comfortable to keep these items in US as my personal collection in [the] future in case you and US Customs think they can't be shipped out of US. But to confiscate them will be devastating to my personal finance and my life in general."

Photo credit: mordoc

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