Wednesday, June 25, 2014

Judge James Loken hinted during oral arguments in January that the federal government's effort to forfeit the Ka Nefer Nefer mummy mask still might have life even if the Eighth Circuit Court denied the government’s appeal. But now the federal government's case is truly dead.

Two weeks ago the court of appeals ruled against federal lawyers, halting their effort to forfeit the mummy mask on procedural grounds. And now district court Judge Henry Autrey has signed off on the St. Louis Art Museum’s (SLAM) notice to dismiss the museum’s separate declaratory judgment action.

Readers will recall that the declaratory judgment case was the initial
SLAM mummy mask case, whereby the museum petitioned to establish exclusive title to the artifact. 
Before the U.S. government filed a forfeiture complaint in March 2011, SLAM started its own civil action for declaratory relief in federal district court, seeking to quiet the title of the 19th Dynasty Egyptian mask. The museum's February 2011 petition stated that the
Museum respectfully seeks declaratory relief to declare the respective rights of the parties with regard to the Mask, specifically that (1) the right of the United States to seek seizure and/or forfeiture pursuant to the provisions of the Tariff Act of 1930 (“Tariff Act”) is foreclosed by the applicable statute of limitations set forth in 19 U.S.C. § 1621, and (2) the provisions of Egyptian Law No. 215 [on the Protection of Antiquities] do not establish the Mask is Egypt's property, nor can the Defendants establish reasonable cause to believe the Mask was 'stolen, smuggled, or clandestinely imported or introduced' into the United States pursuant to 19 U.S.C. § 1595a.
During oral arguments about the forfeiture case, the Eighth Circuit suggested that the government could still argue the forfeiture claim as a defense in the declaratory judgment action. But with SLAM’s voluntarily withdrawal of the declaratory judgment suit last week, federal authorities are now left with no forum to argue their claim that the mask is stolen property that cannot be owned by SLAM.

Federal attorneys told the court of appeals earlier this year, "It was the museum that precipitated a judicial intervention by filing the declaratory judgment, explaining ""Our preference was to reach a mediated solution to this dispute ...."  But SLAM has now beaten the forfeiture case and, predictably, the institution has no interest arguing title.

What’s next? Perhaps nothing. Statutes of limitations may close the door on several legal alternatives. It is difficult to know what federal, state, legal, mediated, or political options are being discussed at this time, if any. But if such discussions are taking place, one would expect that SLAM’s governing structure is being probed as a possible requisite for action by private parties or public authorities (e.g., the Missouri attorney general). The museum is funded by property tax dollars, governed by a politically appointed board, and receives financial assistance from a supporting nonprofit organization. For now, however, the Ka Nefer Nefer case will stay in the afterlife.

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

Tuesday, June 24, 2014

The American Bar Association Journal has published an interesting cover story about looted cultural treasures that is well worth reading. View the full article here.

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

Wednesday, June 18, 2014

The United States District Court for the District of Maryland has said no to the Ancient Coin Collectors Guild’s (ACCG) request to challenge issues previously argued in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection.

Judge Catherine Blake, writing a June 3 memorandum opinion in the matter of U.S. v. Three Knife-Shaped Coins Et al., rejected the ACCG’s plea to relitigate a challenge to the validity of import regulations authorized by the Cultural Property Implementation Act (CPIA). Her decision also halts a repeat of arguments concerning the decision made by U.S. authorities to enact import protections covering ancient Chinese and Cypriot coin artifacts in jeopardy of pillage, saying this matter had already been addressed.

In fact, the Fourth Circuit Court of Appeals decided in 2012 that the federal government properly identified Chinese and Cypriot coins subject to U.S. import restrictions under the CPIA and that the detention of the coins by customs officials was proper. The appeals court pointed out that, under these circumstances, the burden shifted to the ACCG to prove that the import of the coins was lawful.

Judge Blake’s two page opinion declared that “it is abundantly clear that the claimant, Ancient Coin Collectors Guild (“the Guild”) seeks to expand the scope of this [federal district court] forfeiture action well beyond the limits set by the Fourth Circuit …. The Fourth Circuit’s opinion forecloses any further challenge to the validity of the regulations.” The judge added:
As the government notes in its motion to strike the initial answer, much of the [ACCG’s] answer and most if not all of the affirmative defenses seek to relitigate issues concerning the validity of the regulations and the government’s decision to impose import restrictions on certain Cypriot and Chinese coins. For example, in its Surreply opposing the motion to strike, the Guild suggests that the government will be required to establish that the coins were “first discovered within” and  “subject to the export control” of either Cyprus or China. (Surreply, ECF No. 18, at 1-2.) The Guild is not correct. This argument also is foreclosed by the Fourth Circuit’s opinion. Ancient Coin Collectors, 698 F.3d at 181-82.
The ACCG has responded by filing a motion to reconsider. In court papers filed this week, the Guild has contended that the “first discovered” argument is central to due process and must be litigated:
Due process afforded under the U.S. Constitution, the governing statute, and general principles of forfeiture law, all place the burden on the government to establish a factual basis for its contention that the coins at issue were “first  discovered within” and “subject to the export control” of either Cyprus or China.
The ACCG’s “first discovered” claim maintains that the U.S. State Department and CBP acted outside their authority by placing CPIA import restrictions on coins of certain types without initially showing that they were "first discovered" within their countries of origin. The Fourth Circuit has already struck down this claim, saying “We are not persuaded,” explaining that "State and CBP are under no obligation to list restricted items with more specificity than the [CPIA] statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.”

The battle of U.S. v. Three Knife-Shaped Coins traces its roots to 2009 when the Guild transported ancient coins from London to Baltimore to start a test case. The ACCG declared to U.S. Customs and Border Protection (CBP) that the coins were from China and Cyprus but failed to offer information about any known provenance. CBP took custody of the coins, and the Guild started litigation to challenge the validity of the CPIA’s cultural heritage import protections. After the ACCG lost, the U.S. Attorney in Maryland filed a forfeiture complaint in May 2013 to retain the coins. The ACCG filed a response soon thereafter.

The Maryland federal court is expected to rule on the ACCG’s motion to reconsider once a reply is offered by the government. The court will also set a discovery schedule as the case proceeds to trial.

Meanwhile, the ancient coin lobby has raised the possibility of a "coin looter's exemption" being proposed by Congress while the present district court action continues. Such an exemption to the CPIA could potentially affect the current litigation. The Lawyer's Committee for Cultural Heritage Preservation and the Archaeological Institute of America have issued calls to action in response.

A copy of the court's decision and the ACCG's motion to reconsider may be found on the Guild's web page here.

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

Sunday, June 15, 2014

The president last week signed into law the Monuments Men Recognition Act of 2014 to award the Congressional Gold Medal to the men and women who fought to preserve cultural heritage during World War II.

Rep. Kay Granger (R-TX-12) and Senator Roy Blunt (R-MO) spearheaded the legislative effort along with other members of the House and Senate.

Congresswoman Kay Granger’s remarks on the House floor last month (video below) highlight the importance of the new law.

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

Thursday, June 12, 2014

[UPDATED June 19, 2014 and July 1, 2014]

The Ka Nefer Nefer Mummy mask will stay at the St. Louis Art Museum (SLAM), at least as far as the federal forfeiture case is concerned. That is the outcome of today’s Eighth Circuit Court of Appeals decision in U.S. v. Mask of Ka Nefer Nefer.

The appeals court let stand the lower court's 2012 ruling, which concluded that the government failed to plead sufficient facts in its original forfeiture complaint to show that the Ka Nefer Nefer mask was stolen and subject to seizure.

The companion declaratory judgment case of SLAM v. U.S., which focuses on whether SLAM has good title to the mummy mask, remains unaffected by today's appellate decision. (UPDATE: the declaratory judgment case has been withdrawn by SLAM).

Eighth Circuit Judge James Loken, who observed during oral argument that the government made mistakes, remarking “You now have to beg for a do-over,” authored today's lead opinion.
The issue raised on this appeal is whether the district court abused its discretion in denying the government’s post-dismissal motion for leave to file an amended civil forfeiture complaint. Underlying that issue is an attempt to expand the government’s forfeiture powers at the likely expense of museums and other good faith purchasers in the international marketplace for ancient artifacts. We affirm the district court’s procedural ruling and therefore leave this important substantive issue for another day.
Judge Loken's ruling peppered the government with criticisms for committing procedural missteps.

Judge Diana Murphy notably wrote an important concurring opinion to “express my concern about what the record in this case reveals about the illicit trade in antiquities.” She acknowledged that the lower court did not abuse its discretion when dismissing the government’s forfeiture case, commenting that “[t]he government was dilatory,” but the jurist penned several cautionary paragraphs to explain that institutions and individuals in the antiquities marketplace must act lawfully. Judge Murphy wrote, in part:
The substantive issues underlying this litigation are of great significance, and not only to museums which responsibly seek to build their collections. The theft of cultural patrimony and its trade on the black market for stolen antiquities present concerns of international import.
While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world's international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases.
Today's appellate decision stops government lawyers from litigating the allegations made in their late-filed amended complaint that the mummy mask is stolen property and remains in the U.S. "contrary to law." The government might be able to raise this claim in SLAM's declaratory judgment action, but that case could prove to be an uphill battle for federal attorneys.

The case of U.S. v. Ka Nefer Nefer started when the United States Attorney in St. Louis moved to take the mummy mask from SLAM in 2011 in order to return it to Egypt. The U.S. Attorney filed the action in response to SLAM first filing a declaratory judgment suit seeking judicially-recognized ownership of the mask. While the declaratory judgment action remained stayed, district court judge Henry Autrey brought the government’s forfeiture case to an end in April 2012 after concluding that the government's complaint failed to specifically articulate how the mask was allegedly stolen and smuggled, or how it was brought into the U.S. contrary to law. Federal prosecutors filed a motion to reconsider, and in May 2012 the government revealed new information that it said would support an amended complaint. Judge Autrey denied the motion to reconsider, but prosecutors submitted their proposed amended complaint anyway. The district court repeated that it had dismissed the case. The government thereafter appealed to the Eighth Circuit, and the parties offered oral arguments in January.

Today’s appellate decision can be found here, and a complete list of CHL's posts chronicling the litigation may be found by clicking here.

Questions that remain as a result of the halted litigation have been raised by David Gill here.

Photo credit: Jason Morrison

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

Wednesday, June 11, 2014

Dangerous. That is the term used by a reference document cited by the Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) to describe a potential legislative proposal that would allow looted archaeological coins to enter the United States legally.

LCCHP has issued a call to action to halt the coin looters’ exemption before it might be introduced. The nonprofit posted a statement on its web site that explains what is happening:

Members of Congressman Charles B. Rangel’s (Dem-NY) and Congressman Steve Israel’s (Dem-NY) staff are considering the introduction of legislation that would specifically exempt coins from trade restrictions under the Cultural Property Implementation Act (CPIA). This initiative is being heavily lobbied for by coin collectors. LCCHP opposes the passage of this legislation, which would weaken protection of cultural heritage and allow collectors to more easily purchase coins discovered during illicit excavations.… We encourage our members within the relevant districts to contact the Congressmen regarding this legislation.
LCCHP President Elizabeth Varner and Vice President Diane Penneys Edelman wrote the lawmakers to say, “Such an exemption is neither needed by the coin trade nor warranted by CPIA’s provisions, and would cause irreparable harm to international relations."

The Archaeological Institute of America (AIA), meanwhile, has launched a voice public concern over the looted coins exemption, saying "Rep. Rangel and Israel need to hear from their constituents like you who oppose this exemption."

Readers of CHL are keenly aware that the CPIA is the federal statute that authorizes U.S. Customs and Border Protection to keep out specifically designated archaeological coins—among other archaeological materials in jeopardy of pillage—from the stream of American commerce. The law's definitions cover ancient coins.

International Numismatic Council President Carmen Arnold-Biucchi has reiterated the same. Writing last month to the U.S. Cultural Property Adivsory Committee (CPAC) in support of U.S. import protections for ancient coins from Egypt, the numismatist and archaeologist clarified that the CPIA targets illegal ancient coin artifacts and not the trade as a whole:
As I have stated in my support of the inclusion of coins in the MOU [Memorandum of Understanding] with Cyprus, my arguments and position are not against collecting or trading coins: museums and scholars have always benefited from the collaboration and knowledge of collectors and dealers, most of whom are ethical and respect the law. The restrictions and MOUs pertain to illegal activities, looting and theft. (Emphasis in the original).
Adopting a coin looters’ exemption would turn the CPIA on its head by providing a safe haven for contraband archaeological coin artifacts imported from abroad— culturally significant artifacts that Arnold-Biucchi has called “invaluable documents of material culture and a primary source of information for the history, religion and art of those cities or rulers.”

If pursued, the legislative measure would follow the ancient coin lobby’s failed legal attempts to divorce archaeological coin artifacts from the CPIA’s import requirements. In the case of Ancient Coin Collectors Guild (ACCG) v. U.S. Customs et al., the Fourth Circuit Court of Appeals told coin lobby advocates in clear terms that ancient coins were archaeological objects covered by the CPIA.

The appeals court added that the CPIA does not create undue burdens on importers, writing that “[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import.”

A congressional initiative to carve out a coin looters’ exemption would directly challenge the Fourth Circuit’s ruling. It would also drag the legislative branch into the active federal district court case of U.S. v. Three Knife-Shaped Coins, Twelve Chinese Coins, and Seven Cypriot Coins, the bitterly contested spin-off of ACCG v. U.S. Customs that pits the coin lobby against Maryland’s top federal prosecutor and the U.S. State Department.

Better than a change to the CPIA would be a record keeping law that brings integrity to the purchase and sale of ancient coins. Such a bill would require dealer record keeping of purchase and sales transactions and the chain of custody of archaeological coin artifacts imported and sold. A record keeping law, framed along the lines of one previously proposed by CHL, would help to spotlight and separate the black trade that has latched onto the legitimate marketplace and thereby help to safeguard an increasingly threatened archaeological record.

Staffers in Rep. Israel’s office might find this measure more appealing, particularly since the congressman has spearheaded other consumer protection bills including the Counterfeit Drug Enforcement Act, which proposed increased penalties for the sale of adulterated prescriptions and strengthened record keeping requirements to document the chain of custody of medications.

Documenting the chain of custody of heritage objects from dirt to dealer requires significant improvement, especially when it comes to legally importing archaeological coin artifacts. But a looters’ exemption to the CPIA would not offer a solution. Instead, this kind of exemption would expand transnational heritage trafficking into the American marketplace. That is why LCCHP and AIA have issued calls to action, urging those who care about preserving evidence of the past to contact Representatives Rangel and Israel before an exemption may be proposed.

Photo credit: A Schaeffer

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

Wednesday, June 4, 2014

A federal judge sitting in the Eastern District of New York has sentenced convicted ivory smuggler Victor Gordon to 30 months in prison, two years supervised release, a fine of $7500 and forfeiture of $150,000 plus one ton of elephant ivory.

Gordon pleaded guilty to a smuggling charge in 2012 after U.S. Fish and Wildlife Service seized hundreds of illegal ivory carvings from Victor Gordon Enterprises in downtown Philadelphia in 2009. The sentencing took place almost two years later after having been rescheduled several times.

Today’s sentencing hearing was preceded by an evidentiary hearing conducted last week before Judge Kiyo A. Matsumoto where defense lawyer Daniel-Paul Alva presented character witnesses testifying in support of Gordon.

Ivory seized in U.S. Victor Gordon. USFW
Assistant U.S. Attorney (AUSA) Darren LaVerne, meanwhile, filed a memorandum with the court urging the imposition of a sentence of 30-37 months’ incarceration. 

“This case, in particular, presents one of the most egregious examples of an individual flouting the laws against ivory trafficking that has been prosecuted in the United States,” the prosecutor wrote.

Attorney Alva argued in a separate memorandum “why [Gordon] is a poor choice for a poster child’ in the ‘war’ against the illegal elephant ivory trade,” explaining that “Mr. Gordon is an otherwise law abiding and eccentric elderly man with an exceedingly peculiar psychological makeup who accepted responsibility for his wrongs and who has already been greatly punished by the prosecution in this matter.”

Seeking a more lenient sentence outside the 30-37 month range recommended by the federal sentencing guidelines, Alva explained that “Mr. Gordon admitted to his involvement in the obtaining, possession, and trade of a large amount of unlawful ivory….”  He offered three other points of consideration in his court memorandum:
First, Mr. Gordon will point out to this Court that the Government has overstated the centrality of ivory to Mr. Gordon's life, business dealings, and proposed real estate sales. Second, Mr. Gordon will remind this Court that advanced age in itself can be a reason for mitigation, especially when in conjunction with health issues of the sort that Mr. Gordon deals with on a daily basis. Finally, Mr. Gordon will rebut the Government's argument to sentence Mr. Gordon to as much incarceration as defendants in other ivory smuggling cases, including related cases.
AUSA LaVerne disagreed with these arguments, expressing in the prosecution's memorandum,
An appropriate sentence must reflect, in particular, (i) the seriousness of this offense, which is increasingly the focus of national and global law enforcement and policy efforts; (ii) the importance of general deterrence, which courts have recognized has special relevance in this context; (iii) the unusually large amount of illegal ivory involved in this case; (iv) the duration of the crime, which stretched for nearly a decade; (v) the manner in which the crime was committed, including the fact that the defendant, on multiple occasions, paid a coconspirator to obtain ivory directly from Africa and smuggle it into the United States; and (vi) the defendant’s significantly greater culpability  relative to the six defendants previously sentenced by the Court in a related case, United States v. Sylla, et al.
The court sided with LaVerne.

U.S. Attorney Loretta Lynch remarked that “preventing the flow of illegal ivory through and within our borders” is an important American commitment. “This prosecution–which resulted in the seizure and forfeiture of one of the largest known caches of illegal elephant ivory in the United States and the imprisonment of the person who acquired and attempted to profit from it – is emblematic of that commitment.”

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

Calling Eric Prokopi “a unique and important cooperating witness in the annals of national resource crime,” federal prosecutors urged leniency for the accused dinosaur smuggler who pleaded guilty in 2012 for his involvement in illegally importing dinosaur bones into the United States, which included a Tyrannosaurus Bataar skeleton looted from Mongolia and auctioned for more than $1 million.

New York federal judge Alvin K. Hellerstein heeded the request and yesterday sentenced Prokopi to three months' custody; one year and three months supervised release, of which the first three months shall be community confinement; $300 special assessment; and community service during the year of supervised released.

Prokopi's sentence followed his earlier conviction to an information charging conspiracy to smuggle goods into the United States, conspiracy to commit bribery using federal funds, entry of goods by means of false statements, and transportation of stolen goods.

In a sentencing memorandum filed on Monday, prosecutors representing the U.S. Attorney’s Office for the Southern District of New York wrote that “Prokopi provided information that was and remains crucial in law enforcement’s revitalized efforts to police what had essentially become a black market in stolen national treasures that operated in plain sight.”

Prosecutors welcomed Prokopi’s cooperation after the defendant's lawyers in the forfeiture case—widely known for their ancient coin dealer and collector advocacy—vigorously contended that the Bataar skeleton was not stolen.

Demonstrating that the prosecution of cultural property crimes potentially offers law enforcement opportunities to learn about criminal techniques and to develop or confirm investigative leads—opportunites that may not be presented by the mere seizure and repatriation of contraband cultural heritage—government attorneys highlighted in their sentencing memorandum the advantages gained by Prokopi’s cooperation with federal investigators:
Prokopi met with agents and representatives of our Office and the Department of Homeland Security, Homeland Security Investigations numerous times, spent many hours giving information about the fossil trade not only to this office, but to three other offices as they developed their understanding of the fossil trade. Prokopi developed their knowledge of the players in the trade of not only dinosaur fossils, but other natural treasures. Since Prokopi’s cooperation, other fossils have been seized and individuals arrested. Although these owe to leads developed separately and in some cases before Prokopi’s cooperation, it is safe to say that there is not an active fossil investigation that has not been informed, to some degree, by information given by Prokopi in this case.
Prokopi’s lawyer argued for an entirely non-custodial sentence in light of the defendant’s cooperation, his background, the lack of jail sentences handed down to similarly situated defendants, and his acceptance of responsibility. A May 23 sentencing memorandum filed by defense counsel claimed that “Prokopi was led to believe that as long as the proper Mongolian government permits were obtained, it would be lawful for a private individual to purchase Mongolian fossils for export.” The defense attorney argued more fully that:
Prokopi went awry, however, when, after having learned that the containers to be shipped from Mongolia lacked what he believed to be the necessary export permits, he nevertheless facilitated their entry into the United States by making false declarations on customs forms. He does not seek in any way to excuse or minimize this offense conduct. Rather, the distinction between transporting fossils out of Mongolia in contravention of that  nation's  laws  and  procuring  stolen  fossils  from  within  Mongolia  is  underscored simply to dispel the notion of Prokopi as a black market ringleader who surreptitiously removed bones from the Gobi Desert in the dead of night. This distinction was all but lost in the media frenzy that followed Prokopi's arrest on October 17, 2012.
The court, nevertheless, felt that some incarceration was needed in the case and imposed the three month prison term.

Fossils recovered by authorities from Prokopi are expected to be repatriated to Mongolia just as the Bataar skeleton was returned to that nation last year.

For more complete background about the criminal case of U.S. v. Prokopi and the forfeiture case of U.S. v.  One Tyrannosaurus Bataar Skeleton, see here and here.

Photo credit: ICE

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