Thursday, July 31, 2014

The ancient Assyrian Empire and the Phoenician city-states fascinate museum-goers. But when visitors view Assyria to Iberia at the Dawn of the Classical Age in New York this September, few will be aware of the legal and public policy issues surrounding the Metropolitan Museum of Art’s exhibition. Two are worth highlighting.

On the legal front, the museum secured immunity from judicial seizure of the objects on temporary loan.

The Met bills the show as a landmark exhibition," which will present "some 260 works of art on loan" that have been “brought together from some four dozen museums in 13 countries.” That's why this immunity is important: it protects the artifacts from potential legal entanglements when they are inside America’s borders.

The U.S. State Department published its decision to grant immunity on July 10.

Congress passed a statute in 1965 called IFSA, the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display 22 USC § 2459. Lawmakers wrote the statute to promote imports of fine art, making foreign art lenders feel confident that their cultural works would not be taken away as a result of any U.S. court action.

The statute protects objects of cultural significance intended for temporary, nonprofit exhibition. The law also prevents a civil litigant from seizing temporarily imported fine art that might satisfy a judgment in a lawsuit.

(For a discussion of the current controversy surrounding the IFSA statute and a congressional attempt to resolve the problem, see earlier CHL posts here and here.)

The immunity given by IFSA is not automatic, which is why the Met petitioned the State Department. That is the federal agency responsible for reviewing immunity requests. The State Department granted the Met’s request because the agency found--as required by the statute--that (1) the objects included in Assyria to Iberia qualify as objects of cultural significance, (2) they were imported pursuant to loan agreements with foreign owners or custodians, and (3) will be displayed by a museum in the national interest.

The immunity covers the specific artifacts on loan to the Met; it does not give the institution itself immunity from possible lawsuits.

The kind of foreign lending encouraged by IFSA and by exhibitions like Assyria to Iberia support the wider policy goals associated with cultural exchanges of artifacts. Foreign lending of heritage objects enlightens minds and hearts. Foreign lending also offers a possible solution to the problem of transnational antiquities trafficking by increasing exchanges between reputable cultural and archaeological institutions, thereby decreasing American museum accessions of undocumented artifacts from the often opaque art and antiquities market.

On the public policy front, Assyria to Iberia serves to support smaller cultural heritage centers like Almuñecar, Spain. Euro Weekly News reported that the Met asked the cultural heritage department for its Apofis vase and two onyx marble vases that were discovered from nearby archaeological sites. Olga Ruano, Councilor for Culture of the town was quoted as saying “Our cultural heritage attracts prestigious institutions, so it is our duty to protect, preserve and promote it.”

If you visit Assyria to Iberia at the Dawn of the Classical Age later this year, keep the law and public policy issues in mind, which form the backdrop.

Photo: Alex Bruda

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 without the express written consent of CHL is prohibited.

Thursday, July 24, 2014

Greed often motivates cultural heritage trafficking. The illegal looting, smuggling, laundering, and sale of heritage objects is typically undertaken to earn cash. But a far more insidious crime is cultural heritage assault, which targets the identity of a community by attempting to obliterate its history and culture.

Cultural heritage assault takes the form of politically or religiously motivated iconoclasm, theft, and vandalism. Its purpose is to cause psychological distress or to incite racial, ethnic, or religious hatred. Assaults on heritage target monuments, art, religious institutions, and symbols and usually accompany acts of genocide or ethnic or religious cleansing.

History, unfortunately, is replete with examples of assaults on culture, flourishing because of silence or indifference. That is why people of goodwill are urged today to pay particular attention to the destruction of heritage occurring in Iraq.

Dr. Abdulamir al-Hamdani of Stony Brook University spoke about the demolition of Iraq’s heritage last week at the Iraqi Cultural Center. SAFE | Saving Antiquities for Everyone has published slides from his talk on its web site, which chronicle relentless assaults on archaeological sites, museums, monuments, churches, shrines, and more.

Deliberate attacks targeting religious groups pose the greatest concern. The radical Islamic State of Iraq and Syria (ISIS), for example, has caused significant destruction to Christian heritage. The extremist fighters, who have spilled out from the Syrian conflict into northern and western Iraq with the avowed purpose to create a new “caliphate,” have forced the exodus of thousands of Christians occupying the area since the beginnings of Christianity. The imposed resettlement prompted Pope Francis to express public support for the community of believers as they abandoned their homeland under threat of persecution. Patriarch of the Syrio-Catholic bishopric in Mosul, Ignace Joseph III Younan has spoken about the plight of Christians and told Vatican Radio, “With regret, we announce that our bishopric has been completely burnt down: manuscripts and the library have gone.”

Shia religious centers have also been destroyed as bulldozers and explosives in the northern Iraqi province of Nineveh have toppled shrines and mosques according to reports from the BBC and other news agencies.

Human Rights Watch, meanwhile, has listed Turkmen, Shabaks, and Yazidis as additional minority groups whose lives and culture have been caught in the crosshairs.

Calling attention to the attacks on heritage in Iraq is vital so that government leaders, lawyers, and policymakers everywhere can take a vocal stand against such wanton destruction.

UPDATED: The Euronews video below shows footage of ISIS blowing up "Jonah's Tomb" on July 24.

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 without the express written consent of CHL is prohibited.

Wednesday, July 23, 2014

Yesterday’s order of forfeiture in the case of United States v. One Attic Red-Figure Skyphos and One Apulian Red-Figure Bell Krater (2014-cv-00448 NDNY) provides another example of why dealers and collectors must exercise stringent due diligence when acquiring antiquities.

The case involved the seizure and forfeiture of the two archaeological objects that were alleged to have been the fruits of the Gianfranco Becchina's antiquities trafficking ring. The forfeiture order issued by the federal district court in northern New York resulted from a stipulation between American and Italian authorities to turn over the archaeological material to the Italian people

The U.S. Attorney in Albany filed a seizure and forfeiture complaint this past April when information from Customs and Border Protection (CBP), Homeland Security Investigations (HSI), and the Italian Carabinieri Command for the Protection of Cultural Heritage (TPC) revealed that the two antiquities, valued at $55,000 in total, entered America’s border illegally. They were bound from Canada to Christie’s auction house in New York City.

American officials seized the objects from Walter M. Banko Enterprises, Ltd. of Montreal on grounds that they were stolen, smuggled, and clandestinely imported merchandise brought into the U.S. contrary to law pursuant to 19 U.S.C. § 1595a(c)(1)(A). They were first seized in 2011 after the TPC notified HSI that the objects had been taken unlawfully from Italy.

Federal prosecutors alleged in their court complaint that false statements were used to illegally import the antiquities into New York.  They also contended that the artifacts were stolen from Italy, referencing Italian statutes asserting title to the pieces, specifically Italian Law number 364 of 1909 governing the ownership and export of any “unmovable or movable items that have a historic, archaeological, paleontological or artistic interest” and Italian Law number 1089 of 1939 covering “moveable and immoveable property with artistic, historic, archeological or ethnographic value.”

Banko made no legal claim to the items in federal district court for the Northern District of New York. Italy did, however, so that the nation could reclaim the looted artifacts.

The prosecutors claimed that convicted antiquities trafficker Becchina had possession of the skyphos and krater. The lawyers wrote in court papers, “Banko falsely claims on the documentation provided at the time of importation to the United States that the Skyphos was acquired from the Swiss collection of Dr. Elie Borowski in Basel in 1968, adding “Becchina’s warehouse and gallery contained images of the Skyphos and documents referencing the Skyphos dated from 1982….”

Prosecutors further argued in their court complaint that the krater appeared in the Becchina archive, a dossier retrieved in 2001 by Swiss law enforcement officials containing thousands of records and Polaroids cataloging looted antiquities.

The wine vessel was not from any authorized Italian archaeological excavation, the federal lawyers wrote. “In the documents provided by Banko to HSI, Banko indicated that the Krater was acquired in the 1960s from the personal collection of Andre Matton. [Yet] Becchina’s warehouse and gallery contained images of the Krater and documents referencing the Krater dated from 1992….” The attorneys added in some detail,
Documents recovered from the search of Becchina’s gallery and warehouse reveal the occurrence of the following events: in February of 1992, Becchina purchased the Krater, in fragments, from Raffaele Monticelli. On or about October 24, 1992, Becchina delivered the Krater to Ettore Bruno who was to restore the Krater. On or about July 15, 1993, Ettore Bruno sent a photograph of the restored Krater to Becchina. On or about August 10, 1993, Robert Guy answered Becchina regarding the Krater’s attribution and the scientific study of the Krater. Ettore Bruno returned the Krater to Becchina in March of 1994. Becchina paid 8,490 Swiss francs for the restoration of the Krater. On May 1, 1994, Bechina noted that the Krater was then located in his warehouse at Porto Franco di Basilea (Switzerland). 
An export certificate issued by the Ministry of French Culture accompanied the Krater during its exportation from France into Canada on March 10, 2011. The certificate makes no reference to the origin of the Krater and does not provide documentation supporting the Krater’s origins. 
Nowhere on Banko’s shipping documents does Banko say that either of the two defendant properties was acquired from or ever owned by Becchina.
Dealers and collectors should continue to be on the lookout for any other objects linked to the Becchina archive by getting meaningful answers to two basic due diligence questions:

Where did this object come from?
How and when did it get to the United States?

Photo credit: Jason Morrison.
Hat tip: Gary Nurkin

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 without the express written consent of CHL is prohibited. Visit

Monday, July 14, 2014

Cultural property attorneys should inform their dealer and collector clients that due diligence and a transparent marketplace are necessary to steer clear of contraband heritage that is offered for sale. That is an important lesson taught by the cases of U.S. v. Eric Prokopi and United States v. One Tyrannosaurus Bataar Skeleton.

The companion cases involved the criminal prosecution of Prokopi for fossil smuggling and the seizure and forfeiture of dinosaur bones. They allowed Manhattan’s top federal attorney on Thursday to repatriate an astonishing 18 trafficked dinosaur skeletons to the Mongolian people.

Prokopi’s cooperation helped to wrap up a two-year law enforcement investigation into fossil trafficking networks, which stripped irreplaceable paleontological evidence from the Gobi Desert and inserted black market fossils into the stream of legitimate commerce.

Some of the paleontological material returned to Mongolia
by U.S. officials last week. Courtesy ICE
The items returned included the bones of two Tyrannosaurus bataars. Federal officials repatriated another virtually complete Tyrannosaurus bataar last year following Prokopi’s 2012 guilty plea to conspiracy, unlawful import of goods by means of false statements, and transportation of goods converted and taken by fraud.

The cases remind observers that even though a seller may claim to offer artifacts legally, that does not necessarily mean the goods are legitimate. They must be checked out.

To discover the truth about whether artifacts have been stolen, illegally exported, or smuggled requires buyers and the marketplace as a whole to ask pointed questions and to demand credible documentation. That is why finding out where cultural objects originated from and obtaining their shipping and import documents must be an important function of cultural property attorneys who advise dealers and collectors about due diligence. To counsel clients otherwise may be unwise.

For example, Prokopi’s lawyers in the federal forfeiture case told the court in 2012 that government officials and “a media campaign stirred up by academic paleontologists” combined to unjustly target their small business clients. The attorneys, who regularly represent the interests of ancient coin dealers and collectors, wrote in pleadings filed with the court that the “commercial paleontologist” properly bought fossil bones on the open market, devoted time and expense to restoring and mounting the bones and, for this trouble, was unfairly targeted by the justice system.

They raised claims similar to those used to bolster the undocumented transnational trade of ancient coin artifacts:
  • The dinosaur bones were not stolen.
  • U.S. officials failed to publish proper country of origin and valuation rules for fossils.
  • The bones could not be proven to have actually originated from Mongolia.
  • It could not be proven that the bones were taken without the Mongolian government’s permission.
  • Mongolian law was ambiguous and unenforced.
Despite the arguments, the cases resulted in the production of information verifying that the fossils were in fact stolen, smuggled, and bound for the highest bidders, presumably to be bought by individuals who would not ask where the objects came from or how they made their way to the market. That prompted Homeland Security Investigation’s Special Agent-in-Charge James Hayes, Jr., to issue a statement last week warning that HSI will not allow the illicit greed of some to trump the cultural history of an entire nation.”

Cultural property lawyers can help dealers and collectors avoid entanglements with heritage traffickers and their illegal goods by promoting strict due diligence practices to investigate the origins and transportation of cultural artifacts. Attorneys can also take the lead to protect cultural heritage by supporting legislative reforms that would shine a spotlight on the black trade. This would be a significant step in the right direction now that the fossil smuggling cases in New York have come to a successful conclusion.

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 without the express written consent of CHL is prohibited.

Thursday, July 10, 2014

A federal district court in Utah has accepted a guilty plea from a man accused of violating the Paleontological Resources Preservation Act (PRPA).

UPDATED > 10/21/14: Judge Dale A. Kimball on October 20, 2014 sentenced Jared Ehlers to one year of probation, including 6 months house arrest, and restitution of $15,090.44, payable at $500 per month.

A grand jury in March indicted 35 year old Jared Ehlers for taking a three-toed dinosaur track from a trail near Moab and then discarding the ancient footprint. Federal prosecutors accused the construction company owner of violating PRPA as well as stealing public property, damaging federal property, and destroying evidence.

Ehlers pleaded guilty yesterday to the PRPA crime. In exchange, the U.S. Attorneys' Office dropped the rest of the charges.

As part of the swiftly concluded plea agreement reached with the defendant's lawyer, prosecutors will recommend a sentence that includes one year of probation, six months home confinement (which allows for the defendant to leave home for work), and $15,090.44 in restitution costs. 

The restitution amount reflects the expense incurred by the Grand County Sheriff's Office and the Utah Department of Safety, whose officers unsuccessfully searched the Colorado River for the 190 million year old dinosaur track discarded by the defendant.

The defendant admitted to several facts in papers filed with the court on Wednesday, including the following:
a. On or about February 17, 2014, I knowingly excavated and removed a paleontological resource, to wit: a 150 pound rock containing a trace fossil of a three-toed dinosaur track 
b. from the Sand Flats Recreation Area which is located on public lands administered by the United States Bureau of Land Management; and 
c. that the value of the paleontological resource, together with the cost of its restoration and repair exceeded $500. 
d. On or about March 3, 2014, I knowingly concealed and covered up the paleontological resource by throwing it into the Colorado River. 
The case of U.S. v. Ehlers might be the first direct, non-conspiracy conviction under PRPA, a law that took effect just five years ago.

One should still take note of the groundbreaking case of U.S. v. Franz, involving a stolen ivory mammoth tusk from Alaska. That case resulted in convictions in 2012 for both conspiracy and theft of government property. The conspiracy conviction explicitly referenced the unauthorized removal of a paleontological resource under PRPA and resulted in a sentence that included a $100,000 fine.

Other known cases have cited PRPA, but they have not resulted in direct convictions under that statute. In 2011 the U.S. Attorney in Utah pursued the case of United States v. Cowan, a PRPA prosecution that also involved the unlawful taking of a dinosaur track. Prosecutors ultimately dismissed the charge on March 12, 2013 after the defendant satisfied a pre-trial diversion program, according to court records. And in the companion case to U.S. v. Franz known as U.S. v. Jettmar, a grand jury originally charged Franz's co-conspirator with a PRPA count, but the defendant entered a plea agreement resulting in a misdemeanor conviction under a separate criminal statue.

The federal district court is expected to sentence Ehlers at a hearing scheduled for October 20.

Photo credit: Wilson Souza

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 without the express written consent of CHL is prohibited.

Wednesday, July 9, 2014

Show your appreciation for the Cultural Heritage Lawyer blog. The American Bar Association is judging which law blogs will make its 8th Annual Blawg 100. Time is short, so click on the link here to nominate the Cultural Heritage Lawyer blog. Thank you for your support!