Tuesday, January 14, 2014

SLAM Mummy Mask Appeal: "You now have to beg for a do-over"

"All we want here is an opportunity to get in the gate," argued U.S. Department of Justice Attorney Sharon Swingle before the Eight Circuit Court of Appeals yesterday. But Patrick McInerney, attorney for the St. Louis Art Museum (SLAM), told the court that he wanted finality in the government's failed attempt to take the Ka Nefer Nefer mummy mask from his client.

Archaeologist Mohamed Zakaria Goneim discovered the more than 3,000 year old mask in Egypt in the 1950's. Despite SLAM's purchase of the mummy mask from a gallery in 1998 for approximately a half million dollars, authorities in the U.S. and Egypt say the mask remains a stolen object that was illegally removed from Egypt.

Government lawyers still want a chance to present this argument to the Missouri federal district court by filing a newly amended complaint that would restart the process to forfeit the Ka Nefer Nefer mask from SLAM. But they first need the approval of the court of appeals.

The forfeiture case known as U.S. v. Ka Nefer Nefer was first begun in 2011 by the U.S. Attorney in St. LouisHowever, the lower court dismissed the government's claim in 2012, saying the the complaint was deficient. The district court turned the government down again after attorneys tried to rejuvenate the case with a newly minted complaint alleging more facts surrounding the mask's theft. Justice Department lawyers then appealed the district court's technical decision dismissing the proceedings, setting the stage for Monday's oral argument before a three judge appellate panel.

Circuit Court Judge James Loken bluntly observed during yesterday's oral argument that the government made mistakes in the eyes of the district court. "You now have to beg for a do-over," Judge Loken told the lawyers for the government.

But Swingle protested that the grounds for the district court's dismissal was not based on some "fundamental legal defect." She stressed that the law favors deciding legal cases on their merits, not simply dismissing them before they are substantively argued. In fact, the law favors granting at least one opportunity to amend a complaint before dismissing it with prejudice, she argued.

McInerney contested Swingle's assertions. "It's really whether the government is entitled to an advisory opinion from the district court, with the help of defense counsel here, as to what the proper pleading elements are for their claim under the Tariff Act. Because that's really what they want."

If the government were successful in its appeal to restart the forfeiture case, McInerney suggested that it would be the first time that happened in the Eight Circuit under the federal rules. He argued that no special exception should be made for the government in this case.

Judge Loken may have given the impression that the government was out of luck, but he also hinted that the government's case might have life remaining if the appeal were denied by the appeals court. Judge Loken asked more than once during oral argument whether the declaratory judgment action might still go forward if the forfeiture case were dismissed. The so-called "DJ" case is the original and still active companion case to the forfeiture action where SLAM petitioned to establish exclusive title to the Ka Nefer Nefer mask. The appellate court suggested that the government could still argue its forfeiture claim as a defense in the DJ case. Swingle was not so sure, however.

Judge Diana Murphy inquired about allegations surrounding the sellers of the mask, remarking to Swingle, "When did facts come out about this company in Switzerland? ...which has a cloudy past I gather ...." Swingle replied by describing specific criminal complaints made against the gallery's owners.

McInerney, during his oral presentation, addressed what he called "some illegality" by saying,  "It ought to noted ... that [illegality] had absolutely no connection with this case; none whatsoever." "The facts don't show it." Any criminal conduct claimed by the government "post-dated by four years the acquisition of the mask" by SLAM. "This left-handed suggestion that there was some ... sort of misconduct in connection with the mask doesn't stand," McInerney protested.

Judge Lavenski Smith attempted to clarify the timetable of the government's requests to the district court to reconsider the dismissal of its case. He raised a question about the many months that went by between SLAM's filing of the petition to dismiss the forfeiture complaint, the district court's later dismissal, and the "equity to the government" concerning the opportunity to amend. In other words, Judge Smith  wanted to know why the government failed to petition for leave to amend its complaint during an apparently available ten month time period. Conversely, he wanted to know what specific prejudice the museum would suffer if the case were allowed to continue and not dismissed.

Swingle maintained that the government's actions were timely and, even if not, there was no disadvantage to SLAM.

Swingle, in her argument before the justices, endeavored to demonstrate that the government had been taking the high road in the litigation. "Our preference was to reach a mediated solution to this dispute ...," she explained. "It was the museum that precipitated a judicial intervention by filing the declaratory judgment."

McInerney countered with several critiques. He cited federal lawyers' failure to show that the mask was stolen. "In order to get to theft in the first place you have to get to ownership." SLAM's attorney argued that it was not enough for the government to allege that the mask was in one place at one moment and another place at another moment without alleging an actual theft. "They still can't show that the item was ever owned by the Republic of Egypt," he exhorted.

McInerney further contended that the government could have appealed the case in a timely fashion but did not. They kept the case in district court, he charged, because "...they were banking on the district court writing a recipe for an appropriate [forfeiture] complaint ...." It was 401 days after SLAM filed its motion to dismiss when the government finally presented what it believed was a factually compelling forfeiture complaint to the district court, presenting "satisfactory allegations" that "still don't suffice," pressed McInerney.

Swingle particularly objected that one of the grounds the district court relied on to dismiss the government's forfeiture case concerned an issue not even briefed by the litigants, instead raised by the district court sua sponte (on its own). The government needed to allege facts showing that the mask was imported "contrary to law," ruled the district court, not simply that that the mask was stolen. While Swingle objected to this "contrary to law" requirement, McInerney responded that "contrary to law" was not a new element raised by the district court, it was just the district court recognizing what is required for a forfeiture claim filed under 19 U.S.C. §  1595a of the customs law.

On Judge Murphy's mind was the district court's failure to clarify why it denied the government's request to amend the forfeiture complaint. She asked early in the oral argument whether the district court abused its discretion. Later, she posed the question to McInerney, "You concede ... that the district court did not say much?"

Whether the district court abused its discretion is the ultimate issue that the judges will decide when they issue a ruling at a future date. The appellate argument can be heard in its entirety by clicking here.

Photo credit: Thomas Ricks

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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