UPDATED > Back Again: H.R. 4292, The Foreign Cultural Exchange Immunity Clarification Act

[UPDATED 3/7/15: The  Foreign Cultural Exchange Immunity Clarification Act (H.R. 889) has been introduced again in 2015, during the 114th session of Congress.]

First adopted by the U.S. House of Representative in 2012 and then left to die in the Senate, the Foreign Cultural Exchange Immunity Clarification Act (FCEICA) is back, having been reintroduced by the three original sponsors along with a new co-sponsor.

CHL supported the bill the last time it made its way to Capitol Hill and recommended modifications that would help to bolster the State Department's review of IFSA requests. CHL once again supports the legislation.

Judiciary Committee member Rep. Steve Chabot (R-OH) introduced H.R. 4292 on March 25 along with co-sponsors Rep. John Conyers (D-MI), Rep. Bob Goodlatte (R-VA), and Rep. Steve Cohen (D-TX). Their purpose is to amend the Foreign Sovereign Immunities Act (FSIA) in order to encourage foreign lending of art to the U.S.

The bill proposes that artwork of cultural significance imported for purposes of temporary exhibition by a cultural institution, and which is in the national interest, will not be considered "commercial activity." That is important because federal law generally protects foreign states from lawsuits except in situations involving "commercial activity."

The concept of "commercial activity" was expanded by the courts in the 2005 case of Malewicz v. City of Amsterdam. That case involved the heirs of Kazimir Malevich who sued Amsterdam in Washington, DC to either recover the artworks that the city’s Stedelijk Museum loaned to American museums or, in the alternative, to receive $150 million in damages. The heirs claimed that the foreign museum unlawfully obtained the paintings.The City of Amsterdam, meanwhile, argued that the Immunity from Seizure Act (IFSA)--not to be confused with the FSIA--protected it from the lawsuit.

IFSA, formally called the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), protects foreign artwork on temporary loan in America from judicial seizure. It does so by preventing a civil litigant in a U.S. court from claiming the art itself to satisfy a judgment in a lawsuit, for example.

The Malewicz court ruled that Amsterdam had engaged in “commercial activity” under the FSIA. So while IFSA may have protected the actual artwork from seizure, the FSIA did not protect the City of Amsterdam from a damages award, said the court. The FCEICA would correct this contradictory result.

The latest version reintroduces the so-called "Nazi exception," which the bill now words in this fashion:

Nazi-era claims.--[Jurisdictional immunity] shall not apply in any case ... in which rights in property taken in violation of international law are in issue ... and the action is based upon a claim that such work was taken in connection with the acts of a covered government during the covered period [of January 30, 1933 through May 8, 1945]. 

Covered governments are defined as Germany, its allies, Germany's military occupied territories, and cooperating regimes during the period of the Second World War.

The bill has been referred to the Judiciary Committee.

UPDATE 4/3/13
The full committee of the Judiciary quickly held a markup of the legislation, without a hearing, and yesterday approved the bill by voice vote. The measure will now be sent to the full House for consideration.

The Judiciary Committee declared, "By making a minor change to the Foreign Sovereign Immunities Act, this legislation strengthens the ability of U.S. museums and schools to borrow foreign government-owned artwork and cultural artifacts."

A bipartisan statement issued by the bill's Republican and Democratic sponsors announced:

The United States has long recognized the importance of a cultural exchange of ideas through artwork loaned from other countries. We are proud to support this strongly bipartisan legislation that increases Americans’ access to beautiful artwork and artifacts from around the world, fosters knowledge and appreciation of the arts and other cultures, and encourages learning, history and creativity.

UPDATE 5/9/14
The full House passed the bill on May 6 by a vote of 388 to 4.  The bill was sent to the Senate and referred to the Judiciary Committee on May 7.

Photo credit: Micahel Slonecker

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Dinosaur Track Gone, Utah Man Indicted for Violation of PRPA

A grand jury indictment handed up this month charges a Utah man with taking and destroying a three-toed dinosaur track near the Hell’s Revenge Trail at the Sand Flats Recreation Area. The area forms part of the the 258 million acres of public lands administered by the Bureau of Land Management (BLM).

The U.S. Attorney for the District of Utah initiated the case of U.S. v. Jared Ehlers less than 30 days after the defendant allegedly removed, stole, and discarded the dinosaur fossil on or around February 17. Authorities believe that the dinosaur footprint was thrown into a river.

An indictment begins the criminal court process. It is not a finding of guilt. A defendant is presumed innocent unless proven guilty beyond a reasonable doubt.

The four-count federal indictment--more reminiscent of charging documents filed in state courts because of its brevity--charges Ehlers with violating the Paleontological Resources Preservation Act (PRPA) at 16 U.S.C. § 470aaa-5 as well violating three sections of the federal criminal code, namely stealing public property under 18 U.S.C. § 641, damaging federal property under 18 U.S.C. § 1361, and destroying evidence under 18 U.S.C. § 1519.

All together, the possible penalties include a prison term of 45 years, with the longest incarceration potentially coming from the destruction of evidence charge. Ehlers likely would not receive the maximum sentences were he to be convicted.

The case may be among the first of its kind--if not the first case--prosecuted under PRPA.* That statute, signed into law on March 30, 2009, is an outgrowth of a Department of Interior report published in 2000 titled Assessment of Fossil Management on Federal and Indian Lands. The report recommended that

[f]uture actions should penalize the theft of fossils from federal lands in a way that maximizes the effectiveness of prosecutions and deters future thefts. Penalties should take into account, among other factors, the value of fossils themselves, as well as any damage resulting from their illegal collection.

Federal prosecutors have moved quickly in the Ehlers case, buoyed by federal, state, and county cooperation. The Grand County Sheriff's Office earlier reported that the agency was working with the Utah Department of Safety and BLM to find the fossil track possibly beneath the waters of the Colorado River.

Cultural property prosecutions remain infrequent and require continuing public and judicial support. So it is wise in this case that prosecutors chose to have the defendant summoned to court rather than arrested. The decision contrasts with the FBI and BLM raids in 2009 that ignited a long-running feud between citizens, collectors, dealers, and law enforcement authorities in the American Southwest.

*UPDATE July 9, 2014: Further research suggests that U.S. v. Ehlers may be the first direct, non-conspiracy conviction under PRPA. See the blog post describing the guilty plea entered in this case here.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

U.K. is Top Source Nation in 2013 for U.S. Imports of Archaeological, Historical, and Ethnological Goods

Switzerland in 2012 was the #1 source of archaeological, historical, and ethnological material imported into the United States. But U.S. import values from that country fell by 99.8%, leaving the former second place finisher, the United Kingdom, to take the top spot in 2013 as measured by declared customs values of consumable goods.

Data compiled from tariff and trade information supplied by the U.S. Department of Commerce and the U.S. International Trade Commission reveal this latest picture of imports classified by Harmonized Tariff Schedule (HTS) commodity code 9705.00.0070.

The overall total customs value of archaeological, historical, or ethnological goods imported into the U.S. in 2013 amounted to a declared value of $45,647,923, an increase of 22% from 2012. 

Imports received from the U.K. jumped nearly 54%, totaling $11,451,019. And the U.K. and Egypt together made up nearly half of the $45 million of American imports.

Import values from Egypt skyrocketed 105% at a time of political instability and upheaval. There is a Red List covering cultural heritage from that nation.

Photo credit: Athewma

Israel, which has a legally regulated antiquities market, saw its U.S. import values climb 97%.

India, a source of highly prized artifacts among American collectors, saw a jump of 3805% in its U.S. import values.

Mali, once on the top 20 list of source countries, experienced a 79% collapse in 2013 after the White House, in September 2012, extended import restrictions on endangered Malian cultural heritage. Conakry Terminal on the port city of neighboring Guinea, meanwhile, continues to grow. And in 2013, American archaeological, historical, or ethnological imports from Guinea totaled $347,100, up from $0 the previous year.

Imports from war-torn Syria spiked 1375%. A Red List for threatened cultural heritage is in effect.

The top 20 source countries in 2013 by customs value for archaeological, historical, or ethnological goods were, in descending order, U.K., Egypt, Italy, Democratic Republic of Congo, Germany, Greece, France, Israel, Australia, India, Gabon, Congo, Argentina, Denmark, Norway, Japan, Canada, Guinea, Lebanon, and Spain.

The full list of HTS 9705.00.0070 data is reproduced in the table below. More 2012 data is found here.

HTS Number	Country	2012	2013	Percent Change 2012 - 2013
		In Actual Dollars
9705000070	United Kingdom	7,446,021	11,451,019	53.8%
9705000070	Egypt	5,186,166	10,655,752	105.5%
9705000070	Italy	4,189,800	3,972,732	-5.2%
9705000070	Congo (DROC)	0	3,465,671	N/A
9705000070	Germany	1,826,463	2,052,398	12.4%
9705000070	Greece	928,254	1,801,489	94.1%
9705000070	France	1,694,952	1,250,293	-26.2%
9705000070	Israel	598,212	1,178,980	97.1%
9705000070	Australia	100,768	1,080,405	972.2%
9705000070	India	26,958	1,052,933	3,805.8%
9705000070	Gabon	0	941,213	N/A
9705000070	Congo (ROC)	519,087	906,600	74.7%
9705000070	Argentina	0	759,100	N/A
9705000070	Denmark	31,771	725,025	2,182.0%
9705000070	Norway	0	513,717	N/A
9705000070	Japan	14,909	401,146	2,590.6%
9705000070	Canada	268,177	385,249	43.7%
9705000070	Guinea	0	347,100	N/A
9705000070	Lebanon	6,546	300,000	4,483.0%
9705000070	Spain	3,494,617	242,406	-93.1%
9705000070	Morocco	182,020	219,148	20.4%
9705000070	Austria	119,628	176,227	47.3%
9705000070	Madagascar	16,360	169,900	938.5%
9705000070	Turkey	399,462	147,669	-63.0%
9705000070	Indonesia	14,631	136,714	834.4%
9705000070	Papua New Guin	46,648	135,924	191.4%
9705000070	Costa Rica	0	135,867	N/A
9705000070	Russia	32,599	134,972	314.0%
9705000070	Finland	0	120,101	N/A
9705000070	Syria	6,870	101,349	1,375.2%
9705000070	Netherlands	30,632	78,996	157.9%
9705000070	Sweden	81,865	77,937	-4.8%
9705000070	Nigeria	7,500	73,203	876.0%
9705000070	Mali	254,207	53,128	-79.1%
9705000070	China	59,219	42,288	-28.6%
9705000070	Ghana	20,080	36,463	81.6%
9705000070	Uruguay	0	33,539	N/A
9705000070	Burkina Faso	0	33,205	N/A
9705000070	Bulgaria	18,000	31,379	74.3%
9705000070	Belgium	21,686	25,036	15.4%
9705000070	South Africa	54,816	23,764	-56.6%
9705000070	Ireland	32,363	22,790	-29.6%
9705000070	Ukraine	170,670	21,257	-87.5%
9705000070	Switzerland	8,710,037	20,870	-99.8%
9705000070	Taiwan	0	20,000	N/A
9705000070	Saudi Arabia	0	19,540	N/A
9705000070	Poland	21,379	11,575	-45.9%
9705000070	Solomon Is	0	11,500	N/A
9705000070	Brazil	3,000	10,000	233.3%
9705000070	Uzbekistan	3,000	8,793	193.1%
9705000070	Jordan	4,600	8,000	73.9%
9705000070	Colombia	0	6,127	N/A
9705000070	Romania	5,500	5,500	0.0%
9705000070	Togo	0	4,730	N/A
9705000070	Iceland	0	3,704	N/A
9705000070	Chile	3,500	3,500	0.0%
9705000070	Thailand	10,221	0	-100.0%
9705000070	Mauritania	7,425	0	-100.0%
9705000070	Albania	2,070	0	-100.0%
9705000070	Korea	202,730	0	-100.0%
9705000070	Serbia	2,575	0	-100.0%
9705000070	Algeria	13,152	0	-100.0%
9705000070	Singapore	49,200	0	-100.0%
9705000070	Malaysia	7,794	0	-100.0%
9705000070	Macedonia	42,800	0	-100.0%
9705000070	Niger	6,992	0	-100.0%
9705000070	New Zealand	168,454	0	-100.0%
9705000070	Czech Republic	3,730	0	-100.0%
9705000070	Philippines	22,465	0	-100.0%
9705000070	Cameroon	9,022	0	-100.0%
9705000070	Senegal	3,207	0	-100.0%
9705000070	Mexico	19,380	0	-100.0%
9705000070	Peru	59,014	0	-100.0%
9705000070	New Caledonia	3,750	0	-100.0%
9705000070	Portugal	18,655	0	-100.0%
9705000070	Burundi	14,500	0	-100.0%
9705000070	Pakistan	25,228	0	-100.0%
9705000070	Afghanistan	5,699	0	-100.0%
9705000070	Fr Polynesia	2,500	0	-100.0%
9705000070	Montenegro	25,000	0	-100.0%
Total		37,378,536	45,647,923	22.1%

The numbers posted here do not document the broader category of "collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, paleontological, ethnographic or numismatic interest" classified by HTS 9705.  The statistics posted are only those covering  HTS 9705's subcategory of archaeological, historical, and ethnological material under HTS 9705.00.0070. Note too that HTS 9705 excludes "antiques" over 100 years old (e.g., silverware and furniture), which are classified elsewhere by HTS 9706.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

With All Deliberate Speed: Implementing Emergency Import Controls on Cultural Objects from Egypt

Import controls must be implemented with all deliberate speed, particularly now that a potential request to protect endangered Egyptian artifacts has been announced publicly.

Cultural heritage watchers over the last few years have witnessed the destruction to cultural heritage that has been inflicted on archaeological sites, storehouses, museums, and places of worship in Egypt. The crisis has been severe, prompting the International Council of Museums in 2012 to issue its Emergency Red List of Egyptian Cultural Objects at Risk.

But the lack of comprehensive action to stem the looting and smuggling of cultural heritage has afforded heritage traffickers the advantage of a three year head start to move their ill-gotten gains to the United States. Calls by CHL in January 2011 and July 2013 for emergency import protections were not received with urgency.

Last week, however, Tom Mashberg of The New York Times reported that the State Department and the Egyptian Minister of State for Antiquities spoke about implementing American emergency import measures. By the terms of the Convention on Cultural Property Implementation Act (CPIA), the State Department must receive a formal request from the Egyptian government for that process to officially begin. The Federal Register has not yet reported such a formal request, although Mashberg writes that Egypt is looking "for fast action on the restrictions."

Now that the prospect of emergency restrictions on the importation of Egyptian artifacts appears real, traffickers are likely to increase shipments of heritage contraband to the U.S. before barriers are raised. And that is why emergency import measures must be implemented immediately.

Photo credit: Leonardo Barbosa

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

U.S.-Honduras MoU Extended, Ecclesiastical Ethnological Heritage Added to Import Rules

Copán archaeological site in Honduras.

The Treasury Department and Customs and Border Protection today issued final rules in support of a five year extension of the cultural property Memorandum of Understanding (MoU) between the U.S. and Honduras.

The import rules, which protect endangered cultural heritage from Honduras, were finalized in response to the State Department's conclusion that "conditions continue to warrant the imposition of import restrictions on the archaeological materials from Honduras...."

The renewed MoU contains added import protections covering threatened ecclesiastical ethnological material dating from Honduras' Colonial Period. Sculpture, paintings, and metalwork such as chalices and crucifixes are now objects subject to American import controls.

A complete list outlining the full range of archaeological and ethnological objects subject to import restrictions may be found here.

Voices from the collecting and museum communities last year expressed concern or outright opposition to a renewed agreement that would have protected Colonial and Republican cultural heritage objects. The Association of Art Museum Directors, for example, offered support for the Honduran MoU but cautioned that care should be taken to define exactly what objects should be protected and what dates should be used. The final rules issued today appear to have responded to these concerns by specifying ecclesiastical ethnological goods dating from c.1502-1821 A.D.

The U.S. first entered into a bilateral agreement with Honduras in 2004 after the cultural patrimony found in that Central American nation was found to be in jeopardy from pillage, particularly from archaeological site looting. The U.S. later renewed the MoU in 2009 for another five years, the time frame allowed by the Convention on Cultural Property Implementation Act (CPIA), which gives legal force to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

Cultural objects covered by the MoU's import rules may legally pass through American borders when accompanied by either an export permit or proof showing that they left Honduras prior to the adoption of the restrictions. Prohibited cultural material may be detained, seized, and forfeited by customs authorities as contraband, and smugglers could face criminal prosecution.

Importers would do well to remember that the 1973 Pre-Columbian Monumental or Architectural Sculpture or Murals Statute still applies, permitting import of the goods designated in the law so long as the importer produces a valid export certificate or offers proof that the imported heritage objects left Honduras before June 1, 1973.

Photo credit: Krzysztof Szkurlatowsi

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Ivory Ban Dispute Requires Consensus-Building If Future TOC Task Forces Are To Be Formed

CHL has said that the Presidential Task Force on Wildlife Trafficking should serve as a model for a similar antiquities trafficking initiative. That is because large-scale transnational organized crimes (TOCs) like cultural heritage trafficking require highly coordinated and powerful interdiction. But a recent presidential pronouncement based on the task force's work has ignited a growing firestorm of controversy that could impact the formation of future TOC task forces. Public hearings and consensus-building are urged.

The White House issued the National Strategy for Combating Wildlife Trafficking in February, a publication derived from the work done by the Task Force. The strategy adopts a near universal ban on the commercial sale of elephant ivory objects, including old ivory once legitimately purchased and legally imported. It restricts all commercial exports except for antiques 100+ years old, certain noncommercial objects, and items permitted under the Endangered Species Act (ESA). The ban specifically prohibits commercial imports of African elephant ivory, including antiques. It halts the interstate and intrastate trade of ivory (except antiques) "unless the seller can demonstrate an item was lawfully imported prior to 1990 for African elephants and 1975 for Asian elephants, or under an exemption document." The ban is hoped to to combat what the U.S. Department of the Interior (DOI) says is a global illegal ivory trade that "has more than doubled since 2007." DOI reports, "It is estimated that poachers, working with criminal syndicates, systematically killed as many as 35,000 elephants in 2012."

But the blanket ban has prompted Forbes contributor Doug Bandow to remark, "The Obama administration is preparing to treat virtually every antique collector, dealer, and auctioneer in America—and anyone else who happens to own a piece of ivory—as a criminal." Others have expressed similar views.

Proponents of the ban entirely disagree, saying that America needs stringent rules because it has the second largest ivory marketplace in the world, a statistic tendered by a comprehensive United Nations Environment Program report published last year titled Elephants in the Dust. President and CEO of the Humane Society of the U.S., Wayne Pacelle, explains the trade volume and makes a case for the ban in his A Humane Nation blog:

But the sad truth is that the U.S. is the second largest ivory marketplace after China, partly because it’s legal to trade in “antique” ivory more than 100 years old, ivory imported to the U.S. before Asian and African elephants received protection under the U.S. Endangered Species Act (1975 and 1990, respectively), or non-elephant ivory such as mammoth ivory. Traffickers claim that ivory from recently poached elephants is antique, and they dye it to make it look old and forge documents to substantiate their claim... The truth is that there is no way for enforcement officers or the public to distinguish old from new ivory, or which species worked ivory comes from. It all adds up to a robust legal and illegal trade of ivory in the U.S.

Besides the blanket ban, the White House's National Strategy offers universally appealing steps to strengthen law enforcement and to increase cooperation among individuals, organizations, and governments to suppress elephant poaching and ivory trafficking. It is only blanket ban on the trade of pre-existing elephant ivory objects that prompts the controversy and the need for public discussion.

Personal property issues likely to arise as a result of the moratorium on pre-existing elephant ivory goods include potential problems for individuals, businesses, and museums. A few illustrations:

• A Cold War Army veteran who served in the Horn of Africa and who lawfully brought home ivory vases to the U.S. after purchasing then from a local craftsman may find, upon his death, that the county probate court has denied the executor's ability to auction the items at an estate sale, thereby reducing the anticipated value of the former soldier's estate.

• A family who had their grand piano restored in 1992 with pre-ban ivory keys may be prohibited from selling their $20,000 instrument unless they either can produce decades-old paperwork that likely would have been in the hands of the piano restorer (who may be retired or out of business now that 22 years have passed) or can retrofit the keyboard with plastic keys at a cost (assuming that a piano restorer would want to conduct this business in the wake of the new ban).

• An American museum may be restricted from importing, accessioning, and conserving a properly provenance hand-crafted Byzantine ivory triptych, once used for private religious devotion in the 10th century.

• An American furniture seller of French art deco tables from the 1920’s through 1940’s who stores her inventory in Europe may suffer business losses and breach existing contracts because she cannot ship her stocks to the U.S.

• A divorcing couple and their family court judge may find themselves hamstrung as they attempt to tally marital assets that can no longer be considered “assets” because the couple's original wedding gifts of non-antique pre-ban jewelry, billiard balls, chess pieces, ivory-handled knives, and natsukes now have no resale value.

These and other issues are certain to surface, particularly because the proposed blanket ivory ban differs from what has been expected in past years under the Endangered Species Act (ESA) and the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (CITES).

With regard to African elephant ivory, the existing rules in the U.S. have generally been that:

• It is illegal to own, sell, or export crafted ivory imported into the U.S. after 1989 and which was less than 100 years old when the crafted ivory came across the American border.

• It is illegal to own, sell, or export uncrafted ivory that was imported into the U.S. after 1989. The age of the ivory does not matter.

• It is legal to own, sell, or export crafted or uncrafted ivory that was imported into the U.S. before 1989.

The rules for Asian elephant ivory have been, broadly speaking, that ivory cannot be sold in interstate or international commerce, that permits are required for import or for export, and that sales within the U.S. are allowed unless restricted by CITES or by State law.

It is entirely fair to say that the announced rules changes suddenly sweeps up innocent owners of old ivory in a dragnet, particularly owners of old African ivory items.

Despite the consequences to innocent owners, a rationale for a total ban is given by the nonprofit Environmental Investigation Agency on its web site: Ivory "belong[s] on the animal and nowhere else … Attempting to undercut the black market with a ‘legal’ supply is a naïve and inappropriate strategy for a market that does not have a finite demand and which is ever more stimulated by new supplies."

But the coming weeks are expected to see an increase in opposition to the ban, even from those who traditionally support strong measures to counter TOC. Buoyed by arguments that collective punishment is being exacted on innocent citizens and that there has been no opportunity for a public hearing, ban opponents will rest their core points on the Fifth and Fourteenth Amendments' exhortations that that no person shall be "deprived of ... property without due process of law."

That the blanket ban cuts the chaff of ivory black marketeers by sacrificing the entire wheat field of individual property rights and commercial trade is an argument that will likely be heard. In fact, opponents are sure to spotlight the ban as an overly broad enforcement tactic, contending that the U.S. would never place a sweeping freeze on banking transactions to halt money laundering; would not propose to halt the sale of all medications in order to eliminate the counterfeit prescriptions market; and would not declare a moratorium on the sale of all movies to combat media piracy.

Public figures like Hillary Rodham Clinton and Chelsea Clinton will, nevertheless, continue to endorse the blanket ban. Writing for the Clinton Foundation blog, they explain,

The global ban agreed in 1989 was successful in stemming a previous killing spree. Over time, however, exceptions have eviscerated the international ban and illegal ivory is now routinely bought and sold under one or more loopholes, providing cover for illegal traffickers. These need to be closed and sanctions imposed on countries that continue to trade in ivory products.

Clamping down on poachers and smugglers is critical to preserving our planet's endangered elephants. But the National Strategy for Combating Wildlife Trafficking possesses shortcomings that urgently require public discussion. The current controversy should not be permitted to diminish the need for a national strategy to combat cultural heritage trafficking. The threats of war, looting, smuggling, and vandalism to heritage remain prevalent, requiring a firm and coordinated response. Ensuring that the wildlife strategy is subject to public debate, is properly formulated, and that it has broad public support will build enthusiasm for a future heritage trafficking strategy. If the current National Strategy continues to build controversy without consensus, however, other TOC task force proposals may never get off the ground.

[UPDATE May 23, 2014: Administration officials loosened the ivory ban a little, helping museums.  See here.]

Photo credits: Dimitri C. and Enrico Corno

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

U.S. v. One Ancient Roman Sarcophagus Lid: Prosecutors Present Legal Arguments in Support of Forfeiture and Offer Exhibit B

The Roman sarcophagus lid. Source: ICE

Tom Mashberg broke the story in The New York Times last week about the seizure of a Roman sarcophagus lid by U.S. Homeland Security Investigations (HSI) in New York. A review of the forfeiture complaint filed in the Eastern District of New York reveals the facts and law supporting the government's claim.

In the case of U.S. v. One Ancient Roman Sarcophagus Lid with Sculpture of Reclining Woman, Assistant U.S. Attorney Karen Orenstein argues that the lid (also known as the “in rem”) is stolen property, which was illegally brought across America's borders "contrary to law."

To support its forfeiture claim, the government offers the tried and true customs statute of 19 U.S.C. § 1595a(c)(1)(A), which says, "Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall be ... seized and forfeited if it is stolen, smuggled, or clandestinely imported or introduced."

Attorney Orenstein offers the familiar logic of the court-defined McClain/Schultz doctrine (see United States .v Schultz, 333 F.3d 393 (2nd Cir. 2003)), weaving both the National Stolen Property Act at 18 U.S.C. § 2314 and Italy's cultural patrimony laws from 1909 and 1939 to construct the argument that the lid is stolen property from Italy unlawfully imported into the U.S and therefore must be returned to the Italian Republic.

The alleged facts listed by the prosecution in support of the forfeiture complaint include the following:

• the lid was shipped from Italy to Switzerland in 1981;

• a Manhattan gallery displayed the $4 million lid in May 2013;

• the gallery later shipped the lid to a storage unit in Long Island City, NY on October 29, 2013;

• HSI agents photographed the lid in its crate at the storage facility on February 20, 2014 and then presented the photos to the Italian Carabinieri's Division for the Protection of Cultural Heritage, the "TPC";

• the TPC identified the lid as cultural property obtained illegally by Gianfranco Becchina, who was convicted in an Italian court of antiquities crimes in February 2011.

The prosecution's Exhibit B showing the lid in two parts

The forfeiture complaint recites in more detail how the lid came to be in the hands of Gianfranco Becchina and his Basel, Switzerland gallery called Palladion Antike Kunst:

The Becchina archive contains images of the Defendant in rem prior to its restoration and documents relating to the piece, including:  

a. A German article about the Defendant in rem, described as a Roman kline statue of a sleeping woman, which included photographs matching the Defendant in rem, including one full-length photograph. See Exhibit B. The article appeared in a catalog that coincided with an exhibition at the Historical Museum of Bern from November 6, 1982 until February 6, 1983. In the photographs, the Defendant in rem appears to be in two pieces and other damage is visible.  

b. …  

c. A receipt dated August 8, 1981 showing that Palladion purchased the Defendant in rem, describe as a marble Roman sarcophagus in two pieces from Carlo Ciochetti in Rome.  Attached to the receipt was a Swiss customs form dated August 14, 1981 bearing the destination "Gianfranco Becchina, Palladion" in Basel, Switzerland.  

d. A receipt dated September 15, 1981 showing that Palladion sold the Defendant in rem, described as a marble kline sculpture of a girl, to George Ortiz. Attached to the receipt was a copy of the full-length photograph of the Defendant in rem in Exhibit B.

No crime has been charged in this case. The government, at this time, only seeks civil forfeiture of the statue in order to repatriate it to Italy.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com