Wednesday, February 26, 2014

Sentencing of a Chinese artifacts dealer and his company for obstruction of justice took place last week in the Southern District of Florida. The U.S. Attorney in Miami commenced the prosecution when the defendants tried to thwart import restrictions authorized by the Convention on Cultural Property Implementation Act (CPIA).

In the cases of U.S. v. Francois B. Lorin and U.S. v. Lorin & Son, LLC, federal district court judge Jose E. Martinez fined Lorin & Son (doing business as Asiantiques) $25,000 plus an assessment of $400. He also placed the company's manager, Francois Lorin, on probation for a period of three years, imposing a special condition that he "shall provide complete access to financial information, including disclosure of all business and personal finances, to the U.S. Probation Officer."

Today, the court issued a further order forfeiting 22 Chinese objects seized from the defendants in 2011. The forfeiture is part of the plea agreement reached between the parties this past December.

Prosecutors say that the defendants supplied fake paperwork to U.S. Customs and Border Protection (CBP) in an effort to convince authorities that the Chinese artifacts arrived in the U.S. prior to the enactment of a bilateral agreement between the U.S. and China. That bilateral agreement, also known an MoU, was adopted in 2009 under authority of the CPIA. It restricts imports of designated archaeological materials from China unless specifically authorized. Import restrictions enacted under the U.S.-China MoU were renewed by the President last month.

If the defendants could show that the archaeological objects to be imported were located in the U.S. prior to January 14, 2009—the enactment date of the U.S.-China MoU—then the archaeological objects could be re-imported with little difficulty. So when the defendants offered fraudulently backdated customs paperwork to prove that the goods were in the U.S. as early as May 9, 2006, Miami's top federal prosecutor charged the defendants with obstruction under 18 U.S.C. § 1512(c)(2). The U.S. Attorney's office further alleged to the court that the defendants declared false values for the imports and failed to declare some others. Fuller details of the facts can be found here and here

When sentencing Francois Lorin, Judge Martinez agreed to depart downward from the federal sentencing guidelines, a move supported by both the government and the defense. That is to say that the court agreed with the parties' recommendation that a term of probation could be imposed on the 75 year old defendant without sending him to prison.

Today's court order describes the objects forfeited to the government as part of the plea deal reached with the government:
  • Nephrite Jade “Bi” Disk composed of Three “Huang” from the Neolithic or Shang Dynasty.
  • Nephrite jade “Bi” disk composed of three Huang from the late Shang or Western Zhou Dynasty.
  • Pan Bronze Footed Tray with Two handles from the Archaic-Zhou Dynasty, first millennium BC.
  • Nephrite Jade Insignia Blade from the Late Neolithic Period.
  • Lion and Grapevine mirror with elaborate wood.
  • Nephrite Jade “Bi” Disk from the Han Dynasty.
  • Nephrite Jade “Bi” Disk from the Han Dynasty.
  • Three-part Nephrite Jade “Bi” Disk from the Shang Dynasty.
  • Gold and Silver Inlaid Bronze Cylindrical Lidded Container from the Late Zhou Dynasty.
  • Nephrite Jade Phoenix from the Warring States Period.
  • Nephrite Jade Bird hand piece from the Neolithic Period, possibly Hongshan culture.
  • Nephrite Jade model of a pig from the Han Period.
  • Nephrite Jade Falcon-type Bird from the Neolithic Period, said to be Hong Shan.
  • Nephrite Jade “humanoid'' Figure from the Shang Dynasty.
  • Nephrite Jade Three-pong Attachment from the Neolithic Period, perhaps Liangzhu Culture, 5th 6th Millennium BC or Hongshan Culture, 5th-3rd Millennium BC.
  • Nephrite Jade “Bi”' Form from the Warring States.
  • Nephrite Jade Fish Toggle from the Neolithic Period.
  • Bronze and Nephrite Jade Lidded Container (“Lian'') from the Han Dynasty, Early Western Han, Xang.
  • Archaic, yellow jade blade from the Han Dynasty or earlier.
  • Bronze mirror with fish and birds from the Tang Dynasty.
  • Four Chinese Bronze weapons or articles of adornment from an undetermined Period, possibly Qin-Han Period. Pre-907 AD.
  • Bronze mirror with fish and birds from the Tang Dynasty.

Photo credit: Jason Morrison

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Tuesday, February 25, 2014

Chicago-Kent College of Law won this past weekend's National Cultural Heritage Law Moot Court Competition held at the Dirksen federal courthouse in Chicago. The annual competition is sponsored by the Lawyers' Committee for Cultural Heritage Preservation and DePaul University College of Law.

Hon. Warren Wolfson, Hon. Warren J. Bauer, Hon. Paul J. Kelly, Jr.,
and Hon. Mary L. Mikva hear oral arguments from the moot court champions.
This year's moot court problem addressed legal topics surrounding the Convention on Cultural Property Implementation Act, the law that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Twenty teams from across the country submitted briefs.

Judges for the moot court finals hailed from two federal circuit courts of appeal and two Illinois state courts. They crowned Kelly O'Neill, Hannah Tuber, and Paulina Lopez the moot court champions. Lopez also won the award for best oralist.

Law professor and Cultural Property Advisory Committee Chair Patty Gerstenblith organized the competition, now in its fifth year. Contributing to the success of the program, which serves to educate law students about the nuances of cultural heritage law, were Lubna El-Gendi and eighty-four legal professionals who served as competition judges and brief graders.

CHL was honored to judge the quarter-final and semi-final rounds, which were skillfully argued by the law student contenders.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Thursday, February 13, 2014

Fresh images from Egypt continue to document the destruction and looting of cultural heritage.

Dr. Monica Hanna, in a video recently posted by Saving Antiquities for Everyone, shows active plundering taking place at Dashur near the ancient pyramid sites. She also spotlights the damage caused to a network of Coptic Christian churches attacked by looters. See the video here.

Christian Manhart, Head of the Museum Section at UNESCO Paris, meanwhile, has provided CHL with the accompanying photos that capture the damage caused to the Islamic Museum of Art in Cairo, a result of last month's explosive blast from a nearby truck bomb.

That attack prompted the Archaeological Institute of America and several other cultural heritage organizations to issue a statement last week expressing dismay about the loss of human lives and the threat to heritage in Egypt.

Manhart partnered with Dr. Regine Schulz, a specialist in Islamic and Egyptian museum collections, and restoration architect Riccardo Giordano to form a joint UNESCO, International Council of Museums, and Blue Shield Emergency Mission team. Along with local heritage authorities and professionals in Cairo, the group members toured the building on Port Said Street in Cairo two weeks ago that houses both the art museum and the Archive Museum of the National Library at Bab el Khalq. The archive holds collections of precious manuscripts, coins, and scientific instruments.

Manhart and his team witnessed the damage first-hand and report both good news and bad news to CHL:
In spite of the shocking first aspect of destruction inside and outside, the mission was pleased to record that the structural stability of the building seems not endangered. However, serious damage was recorded to the coating of the outside façade and almost all exhibition halls of both institutions, as well as to the skylights of the roof. 
First emergency work is required to cover the roof and the windows, in order to make the building waterproof to avoid further damage in case of rainfall. It is also urgent to check and remove [the] loose decoration panels on the top of the facade, which could fall down and injure people walking in the street in front of the building. 
In the Islamic Museum, all showcases and display facilities have been destroyed. 161 objects have been either totally destroyed or so seriously damaged that their restoration will require many years and substantial funding. In particular the precious glass collection, including 9 important lamps from Mosques of which some go back to [the] 9th century has been reduced to rubble, which is being collected and sorted by the staff of the museum, even if at the moment there is no method to restore them. 
Also the ceramic objects have been strongly damaged. The wood objects collection, in particular two unique carved old Mihrabs are already under restoration. The metal collections are only slightly damaged, and can be restored rather quickly by the museum’s staff. 
Fortunately, the conservation laboratories and store-rooms which are mostly in the underground or on the backside of the building are not or only very slightly damaged, they can now entirely be used to safe keep and restore the collections. 
As for the Archive Museum of the National Library at Bab el Khalq, all showcases are smashed, however only [a] few manuscripts and books are damaged, mainly by water from the broken water supply and from glass dust. Most of this damage can be rather easily cleaned and restored, but also this will take many months of work.
Photos: Copyright C. Manhart UNESCO. Used with permission.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Friday, February 7, 2014

Several cultural heritage organizations issued a joint statement today regarding the loss of life and threat to heritage caused by an explosion that rocked the Museum of Islamic Arts in Cairo, Egypt. The statement reads:
The undersigned cultural heritage and archaeological organizations express their dismay over the injuries and loss of life from the January 24, 2014 truck bombing in Cairo and resulting damage to the Museum of Islamic Arts, The Egyptian National Library and Archives, and other historic buildings in the immediate area. 
We support the desire of the Egyptian people to exercise their basic civil rights. We also share their concern about the losses to cultural heritage that Egypt has already sustained and the threat of further such losses. 
We call on the Egyptian authorities and all other parties to exercise their responsibilities to protect their country’s irreplaceable cultural heritage. At the same time, we urge international organizations to help to assess the damage caused and to support conservation and preservation efforts.
The organizations signing on to the statement include the American Anthropological Association, the American Schools of Oriental Research, the Archaeological Institute of America, the Collaborative for Cultural Heritage Management and Policy, the U.S. Committee of the Blue Shield, and The Lawyers' Committee for Cultural Heritage Preservation.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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:

Wednesday, February 5, 2014

Cultural property accrediting and membership organizations are likely consulting with their lawyers in the wake of recent litigation involving two separate court actions.

The case of Meyer v. Board of Regents of the University of Oklahoma, et al. took a new turn on January 10 as both the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) were curiously named as defendants in an amended complaint filed in New York federal district court.

The AAM advocates on behalf of thousands of museums across the country. It accredits hundreds of cultural institutions. The AAMD, meanwhile, is a leading cultural organization whose mission is to support art museum directors accepted for membership.

The Meyer lawsuit claims that AAM and AAMD share legal liability for the University of Oklahoma’s purportedly wrongful acceptance of a Camille Pissarro painting entitled “La bergère rentrant des moutons.” The artwork is alleged to have been taken by the Nazis during World War II, imported into the U.S. in 1956, and then bequeathed to the University of Oklahoma in 2000. “La Bergère” remains on permanent display at the Fred Jones, Jr. Museum of Art on the University of Oklahoma campus.

Meanwhile, in another case, a federal district judge in Virginia on January 17 ruled against a nonprofit college organization that revoked a school’s accreditation. The defendants in the case of Professional Massage Training Center, Inc. v. Accreditation Alliance of Career Schools and Colleges (AACSC) immediately appealed the unusual decision to the Fourth Circuit. The AACSC court articulated the general rule that “great deference” is to be afforded an accrediting institution's decision. Nevertheless, the federal district judge ordered AACSC to pay damages after determining that the organization acted in an “arbitrary and unreasonable” fashion when revoking the accreditation of the Professional Massage Training Center. Damages of roughly $429,000 were ordered.

Meyer and AACSC both raise issues of what liability accrediting organizations may potentially face.

In the “La Bergère” case, Plaintiff Léone Meyer now argues in an amended complaint that the AAM and AAMD broke their accrediting and membership agreements with the The Fred Jones Museum, causing the plaintiff to suffer harm. Meyer's attorney characterizes the plaintiff as an intended beneficiary of both the accrediting and membership “contracts,” arguing that she was denied their expected benefits because AAM and AAMD did nothing after The Fred Jones Museum failed to follow the organizations' provenance investigation guidelines when the museum performed background checks on “La Bergère.” The amended complaint declares:
AAM failed to hold Fred Jones Museum to the high standards required in order to become accredited when AAM either issued or renewed Fred Jones Museum’s accreditation without any regards to its adherence to the Unlawful Appropriation Standards
[Moreover, the] "AAMD failed to monitor Fred Jones Museum’s lack of compliance with the guidelines in the 1998 Report [of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945)], and did not follow its Code of Ethics’ procedure pertaining to violations of its code when Fred Jones Museum utterly failed to comply with the guidelines in the 1998 Report." 
These contract claims undoubtedly will be challenged by lawyers for AAM and AAMD.

Among the questions posed at the outset might be whether the defendants’ published guidelines actually mandate obligations on museums. The difference, of course, between what a museum must do versus what it should do is the difference between a potentially enforceable obligation and a hopeful suggestion. In the Meyers case, plaintiff's counsel writes that the defendants are “bound,” a term that implies some duty. But the amended complaint simply articulates that museums are bound by “guidelines,” which are usually understood as aspirational calls to action rather than mandatory obligations.

Another question posed might be whether the contracting parties actually intended to have a third party benefit substantially from the accreditation and membership contracts. Generally speaking, a third party beneficiary may enforce a contract even though he or she is not a direct party so long as the third party is an intended beneficiary rather than an incidental beneficiary.

Was Plaintiff Léone Meyer an intended beneficiary of AAM's membership contract or AAMD's accreditation contract—assuming they were even contracts? Courts across the country typically look to the language contained in a contract as well as to the circumstances that formed the contract in order to determine if there was an intention to directly benefit a third party.

So while issues of liability are raised by the new lawsuit against AAM and AAMD for allegedly failing to act against one of its members, the Accreditation Alliance of Career Schools and Colleges (AACSC) has been sanctioned for the opposite, namely revoking the accreditation of one of its members.

Given the two lawsuits, accrediting and membership organizations in the cultural property realm must be wondering exactly what their legal responsibilities and risks are.

Photo credit: Peter Skadberg

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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: