Thursday, September 12, 2013

U.S. v. Cambodian Sculpture Case Heats Up: Prosecutors Accuse Sotheby's of Stalling the Discovery Process and False Information; Sotheby's Accuses the Government of Burdensome Conduct and Invented Legal Theories

A letter filed by prosecutors before today's scheduled pre-trial conference in the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture Currently Located at Sotheby's criticizes Sotheby's for trying to halt the discovery process. Lawyers for the U.S. Attorney's office in Manhattan submitted the letter to the court on Wednesday. It restates more forcefully arguments made in May, saying
Both before and after this action, Claimants have sought at every turn to prevent the Government from unearthing the facts about the theft and sale of the Duryodhana. At every stage of this proceeding they have invented a new reason why going forward with discovery would be inappropriate. Discovery has already been halted for nearly a year while they fought first the motion to dismiss, and then their request for a hearing on the Cambodian law. Now they seek to stay discovery yet again. The Court should not permit them to do so.
Meanwhile, Sotheby's and Decia Ruspoli di Poggio Suasa, the claimants in the government's forfeiture case, filed a Motion for Judgment in federal district court on September 9. They argue that the Cambodian government did not believe that its national ownership laws gave it ownership to the sculpture; that the U.S. State Department "had invented a theory of Cambodian ownership, which the government then asked Cambodia to confirm;" that the government interfered with a potential resolution to the case; and that the government's request for discovery is "broad and burdensome."

In the claimants' memorandum of law, Sotheby's introduces Professor Alexandre Deroche to the court, saying that "he provides the expert evidence the Court sought, and it establishes that the Government’s case is wrong. Professor Deroche is an expert in the very area of law on which the Government based its case: French colonial property law in Indochina."

Sotheby's sharply criticizes the government for its latest attempt to push for discovery, saying "The Government served deposition notices on Wednesday, September 4, 2013. Several of the noticed witnesses are overseas. Three are members of Sotheby's legal and compliance departments, presumably in an effort to discover whether Sotheby's somehow intuited a theory of Cambodian ownership based on defunct French colonial decrees, even though the newly produced documents show the theory was invented by the State Department and was previously unknown even to the Cambodian government itself."

Federal prosecutors dispute the claimants' arguments.

"As for the notion that the Government was the obstacle to an amicable resolution here, the Government deferred bringing any action in this matter for more than a year after learning of Sotheby's attempted sale of stolen property to allow Cambodia and Claimants to attempt to resolve the matter without litigation," the prosecutors counter. "That attempt failed not due to the Government’s intervention, but because Claimants rejected the offer of a third party to buy the Duryodhana for $1 million and return it to Cambodia."

Arguing against a halt of the discovery process, the federal lawyers rail against Sotheby's conduct. They explain that the auction house Spink and Sons sold the Duryodhana in 1975, and that a Homeland Security Investigations (HSI) agent was informed that Christie's--owner of Spink after 1975--currently had the records. But the prosecutors contend that Sotheby's "discouraged [the HSI agent] from contacting Christie's, assuring [the HSI agent] that Sotheby’s had 'identified two individuals who presently have no financial interest in the property and who personally saw the piece in London in the late 1960s.'" The prosecutors claim that this information "was simply false." They explain, "As shown by the Spink records ultimately obtained by the Government from Christie's, the Duryodhana was only stolen from Prasat Chen in 1972. Moreover, the sources with no financial interest 'presently' were in fact the original seller of the piece, who conspired with the looting network to steal it from Prasat Chen (the “Collector”), and Sotheby’s own retained art expert, who was herself was a longtime associate of the Collector."

Update September 13, 2013: Sotheby's submitted a letter to the court stating, "Any suggestion that Sotheby's provided information it knew to be inaccurate is demonstrably not true."

U.S. authorities seek forfeiture of the Duryodhana sculpture in order to repatriate it to Cambodia. They allege that the cultural object is from the Prasat Chen temple at Koh Ker and that it's feet remain in Cambodia. The U.S. government says that it cannot be auctioned by Sotheby's because it stolen property.

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