Tuesday, June 19, 2018

Note reportedly written by Neil Armstrong.
Source: court papers filed in Cicco v. NASA
“To Laura Ann Murray – Best of Luck – Neil Armstrong Apollo 11.” This message accompanied a vial of moon dust that Laura Cicco (neé Murray) received from her mother when she was about ten years old. The first man to set foot on the moon scribbled the note on the back of a business card carried by Cicco's father, who was friends with Armstrong.

These are some of the claims Cicco makes in a declaratory judgment (DJ) pleading her lawyer filed in Kansas federal court on June 6.

Cicco's suit against the National Aeronautics and Space Administration seeks a declaration that she is the bona fide owner of the moon dust. The case of Cicco v. NASA (2018-cv-01164) invokes the Declaratory Judgment Act 28 U.S.C. § 2201, which allows a party to petition a federal court for a binding ruling that resolves the petitioner's rights in a case that is ripe with controversy.

Meanwhile, in the Southern District of New York, both the Barnet family and Sotheby's auction house filed a DJ action on June 5 in response to legal threats made by the Greek government to seize a Greek horse sculpture dating to the 8th century BC. The plaintiffs want the federal district court to declare the family the lawful owner of the ancient bronze statue.

The vial of moon dust in dispute in Cicco v. NASA.
Source: court papers filed in Cicco v. NASA
In the moon dust suit, Cicco's lawyer writes in the court complaint that NASA "has taken the position that all lunalogic material is the property of NASA," pointing to the recent Central District of California case of Joann Davis v. United States (2013-cv-0483).

The Davis case concerned the ownership of a speck of moon rock placed in a paperweight. Neil Armstrong purportedly gave the paperweight to Joann Davis' husband, a former manager of North American Rockwell's Apollo program, and Joann Davis inherited the paperweight upon her spouse's death. But NASA took possession of the moon rock speck when its investigators conducted an undercover operation that seized the paperweight during a sting that lured the 73 year old widow to a Denny's restaurant. The court awarded the lunar material to the space agency.

Notwithstanding the result in Davis, Cicco's lawsuit asserts, "There is no law against private persons owning lunar material. Lunar material is not contraband. It is not illegal to own or possess." NASA likely will counter, as it did in the Davis case, that the National Aeronautics and SpaceAct of 1958 and NASA Policy Directive 1387 vest ownership of moon rocks and dust to the U.S. government.

Greek bronze horse in the Barnet collection.
Source: Sotheby's
Like the moon dust suit, the DJ action in New York seeks to stave off the seizure of an artifact. Greece's Ministry of Culture and Sports requested that the Barnet family turn over the ancient bronze horse or face legal consequences, including criminal penalties. (Although unmentioned, other legal consequences might have included a replevin suit launched by Greece to recover the cultural property or, more probably, a seizure and forfeiture of the archaeological object by U.S. authorities at the Greek government's request.)

Petitioners filed the case of 2012 Saretta Barnet Revocable Trust and Sotheby's v. Ministry of Culture and Sports of the Hellenic Republic (18-cv-4963) to preclude action by the Greek government. The DJ suit alleges that Howard and Saretta Barnet displayed the Greek horse in their Sands Point, NY home for over two decades after the couple bought it from antiquities dealer Robin Symes in November 1973 for approximately £15,000. Before then, the statue had been auctioned in 1967 at Münzen und Medaillen in Basel, Switzerland, according to the court complaint, and Jean-Louis Zimmerman of the University of Geneva later featured the Barnet's statue in the 1989 book, Les Chevaux de Bronze dans L’art Geometrique Grec.

The complaint adds that Saretta Barnet maintained sole ownership of the bronze after her husband's death in 1992. She displayed the piece in her Park Avenue apartment from 1997 until the time she passed away in March 2017. During this period, the Saretta Barnet Revocable Trust (Howard J. Barnet, Peter L. Barnet and Jane L. Barnet  trustees) acquired title in 2012 to the ancient horse. The family thereafter consigned the horse to Sotheby's in July 2017 for auction on May 14, 2018 at "The Shape of Beauty: Sculpture from the Collection of Howard and Saretta Barnet" (Lot 4), which displayed an estimated price tag of between $150,000 and $250,000.

"The Bronze Horse was acquired lawfully and in good faith by the late Howard and Saretta Barnet 45 years ago and has been part of their collection ever since," the plaintiffs' attorneys write. They protest that "one business day before Bronze Horse was to be auctioned, Sotheby’s received a letter by e-mail, from the Ministry of Culture ... marked 'URGENT,'” and "asserted that the Bronze Horse is cultural property that had been stolen from Greece in violation of Greek patrimony laws, asserted Greece’s ownership of the Bronze Horse, and threatened that persons in the United States involved in the sale of the Bronze Horse would be subject to criminal prosecution in Greece."

The plaintiffs say that Greece gave no evidence the statue had been stolen but, as a conseuquence, "Greece’s claim to ownership of the Bronze Horse, however meritless, has impaired Sotheby’s ability to sell it on behalf of the Barnet Family."  So plaintiffs withdrew the horse from the auction and petitioned the federal district court to declare the Barnet family the true owner of the artifact and to rule that there is "no basis for the forfeiture or repatriation of the Bronze Horse under U.S. or international law" so that Sotheby's can sell the artifact.

While the plaintiffs' DJ complaint acknowledges that antiquities dealer "Symes was accused of trading in looted antiquities," that was "[d]ecades later," well after the Barnet's purchased the bronze horse, adding that "the documented provenance of the Bronze Horse pre-dates Symes’ alleged acquisition of the object. Therefore, Symes’ involvement with the Bronze Horse lends no support to Greece’s claim of ownership to the Bronze Horse," the petitioners insist.

The DJ action filed by the Barnet family and Sotheby's is uncommon and likely will compel Greece to hire private counsel in the U.S. to defend its claim to the bronze horse. This scenario differs from the usual pattern where an alarm is raised over suspected stolen antiquities offered for sale, prompting intervention from American prosecutors and police who seize the artifact, sue to forfeit title, and then send the cultural object to the county of origin--the seize and send strategy. Think of the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture Currently Located at Sotheby's, for example, with which Sotheby's in New York has direct experience.

The Cicco matter, like the bronze horse case, also is preemptive and uncommon. That DJ action almost certainly will forestall any effort by authorities to conduct an undercover police sting like the one undertaken in the Davis case.

Text and original photos copyrighted 2010-2018 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. The materials presented on this site are intended for informational purposes only and should not be used as legal advice applicable to the reader’s specific situation. In addition, the provision of this information to the reader in no way constitutes an attorney-client relationship.

Wednesday, June 6, 2018

Defendant mosaic seized by the FBI that prosecutors say measures
18 ft. x 8 ft. and weighs approximately 1 ton.
In a recently filed civil forfeiture case involving cultural property, prosecutors in the U.S. Attorney’s Office for the Central District of California say that an importer failed to meet the obligations of 19 U.S.C. §§ 1481 and 1484, which require true and accurate information on invoices and entry documents.

Government lawyers allege in United States v. One Ancient Mosaic (18-CV-04420) that the importer failed to supply an accurate description of the ancient mosaic, listed a false value for the artifact, entered a false country of origin, failed to classify the mosaic under the correct Harmonized Tariff Schedule, and failed to declare the artifact as an antiquity. Simply put, prosecutors say that “the defendant mosaic was illegally imported and entered into the United States in violation of United States law.”

The forfeiture complaint identifies the large mosaic as a third or fourth century Roman Empire artifact from the Byzantine Period, “a ‘rare’ piece that probably originated from northern or central Syria,” according to an expert retained by the government. The expert inspected the artifact and examined pictures that had been supplied to an auction house, concluding that the object “was consistent with the iconography of mosaics found in Syria, in particular in and around the city of Idlib, Syria” and that such mosaics “were typically [found] on the floor.” According to the court complaint, the expert reported that “since approximately 2012, there had been an increase in illegal excavations in Syria involving cultural property, and that looted Syrian archeological items were routinely routed through Turkey.”

The importer, Mohamad Alcharihi, identified the mosaic as Greek, labeled the object as the "Eleventh Labor of Hercules," and produced a restoration report suggesting that the artifact had a history going back to the 1960's/1970's, according to papers filed in a related court matter.

Meanwhile, the forfeiture complaint filed by the government on May 23 grew out of an investigation begun by the FBI in 2015, which led to the agency seizing the artifact as well as documents and computers from the home of Alcharihi on March 19, 2016. A federal magistrate judge issued a search warrant for the house, and the FBI executed the warrant with assistance from Homeland Security Investigations (HSI).

Alcharihi protested the FBI’s confiscation of the piece. On his behalf, Attorney Henry Nasif Mahmoud sent a memo dated May 20, 2016 to an FBI special agent demanding the return of the mosaic. “We do not know what was told to the federal judge to have the Warrant issued, but an exhaustive investigation of the facts and the law show conclusively that … you have no case against [Alcharihi].”

“If the FBI and AUSA [Assistant U.S. Attorney] had probable cause for an arrest then the Client would have been arrested on the scene,” the memo argued, adding that the “the elements for smuggling are not present in the case” because “the shipping documents show that the customs duties were paid and all shipping documents were in order and all costs and expenses were properly paid.”

The memo concluded, “There was no intent or attempt to evade customs duties and introduce uninspected items into the United States. No false or forged documents were used to bring the items into the United States.” “It is believed that this action has been taken against [the Client] based on sheer Islamophobia and racism.”

A restoration report submitted in support of the memo demonstrated that the mosaic may have been removed from its base in the late 1960's or 1970's because of the kind of glue used to hold a fabric attached to the artifact's surface. There also was evidence that the mosaic had been rolled like a carpet following its removal. A photograph published in the restoration report (seen here) shows a fold.

On May 27, 2016, Attorney Mahmoud sent another memorandum to the FBI that enclosed "items of documentary evidence to establish the claim of ownership." These documents included an invoice dated Spring 2015 from a Turkish supplier selling sculptures, mosaics, and paintings, which listed two mosaic tables measuring approximately 15 ft. x 7 ft., together weighing a total of 617 lbs., and described as natural cut stone flooring.

In a further effort to reclaim the mosaic from the FBI, on October 3, 2016 Alcharihi petitioned the federal district court in Central California (Mohamad Yassin Alcharihi v. U.S.A. and Department of Justice, 16-CV-7391) to say that he “imported the property, paid customs duties, and then one item, a Greek Mosaic, (which was close to trash and in need of restoration) was restored to value by the Petitioner [Alcharihi].” He added that the FBI raid “destroyed Petitioner's business of restoring items and conserving items which he legally acquires” and that “Petitioner paid a specialist in New York to come to California to restore the Mosaic to turn it from an item of low value close to trash now it is transformed to a precious item of great value.” He argued that he “needs to perform further restoration on the Mosaic and the FBI is unskilled, inexperienced and abysmally careless when it comes to preserving antiquities such as the Mosaic….” “This seizure,” Alcharihi continued, “is causing a loss of goodwill and the risk of permanently losing the interest of potential buyers of the Mosaic….”

On May 4, 2017, the court denied Alcharihi’s petition, writing that the search warrant permitted the seizure of “looted and/or stolen antiquities appearing to originate from Syria and/or Turkey, including mosaics and records related to antiquities,” and the mosaic fit this category. In the opinion of the court, “Petitioner identified the Mosaic as a ‘Turkish Mosaic’” during previous administrative forfeiture proceedings begun by the government on May 17, 2016. “In addition, Petitioner submitted a copy of a Certificate of Origin … reflecting Turkey as the country of origin of the Mosaic.”

The court in Alcharihi v. U.S.A. et al. ruled that the mosaic would not be given back because the petitioner failed to satisfy three of the five requirements of 18 U.S. C. § 983(f)(1). First, despite the petitioner’s claims that the mosaic’s detention by the FBI prevented further restoration of the artifact and created a loss of interest among potential buyers, these assertions were not “sufficient to outweigh the Government’s interest in ensuring that smuggled antiquities are kept out of the stream of commerce.” Second, the petitioner announced that he wanted to sell the archaeological object, “which will make it unavailable in the event that the Government files a forfeiture proceeding,” the court declared. Third, the Assistant United States Attorney told the court that the mosaic would be “used as evidence of a violation of law.”

One year after the court issued this order and two years after the seizure, the U.S. Attorney’s Office for the Central District of California filed its complaint that claims the mosaic is subject to forfeiture under U.S.C. § 1595a(c)(1)(A) because the artifact
was smuggled or clandestinely introduced through the knowing use of false and fraudulent documents or paper through a custom house, in violation of 18 U.S.C. §§ 542 entry of goods by means of false statements] and 545 [smuggling]. Further, following such illegal introduction, the defendant mosaic was concealed by Alcharihi at his residence in violation of 18 U.S.C. § 545.
Prosecutors contend in their complaint that “the statements submitted on CBP’s Entry Summary form were materially false because: (1) the form and various shipping documents misrepresented what was actually in the shipment; (2) the form and shipping documents did not provide the defendant mosaic’s true country of origin; and (3) the items listed and the values of the items were under-reported. Instead, the shipment contained the defendant mosaic, which Alcharihi has admitted he did not truthfully report the value of or describe as an antiquity.” Prosecutors specifically allege:
In or about August 2015, Alcharihi hired a third party company based in California, [a customs broker], to process paperwork and import certain items, including the defendant mosaic, into the United States. The shipment containing the defendant mosaic and other items arrived at the Port of Long Beach on or about August 13, 2015. On the U.S. Customs and Border Protection (“CBP”) Entry Summary Form 7501 that [the customs broker] submitted to CBP on behalf of Alcharihi, the description of the merchandise in the shipment was: 82 pieces of “Ornamental Art Oth. Materia[l]” with gross weight of 1450kg [3,197 lbs.] and assigned HTS 6913.90.500 valued at $1,808; and “Ceramic, Unglazed Tiles, Cub” with gross weight of 313kg [690 lbs.] and assigned HTC 6907.10.000, valued at $391.
The U.S. Attorney’s Office asserts that Alcharihi provided the customs broker with a “purported invoice for Alcharihi’s purchase of approximately 81 vases and 3 mosaic Items,” purchased in April 2015 from a Turkish dealer for the reported price of $2,199.23. This price of $2,199 equals the $1,801 plus $391 listed on the import entry paperwork. According to the forfeiture complaint, “Alcharihi … is alleged to have sent ‘two wires … in October 2015’ and ‘admitted to law enforcement agents that he paid … $12,000 total for the defendant mosaic and vases, but that he only reported ‘twenty four hundred or something like that’ on the Customs entry documents to pay less duties.”

Court papers filed in the prior case of Alcharihi v. U.S.A. et al. show that the customs entry summary displayed Alcharihi as the importer of record, “IL” (Israel) as the country of origin, Los Angeles as the U.S. port of entry, a Turkish port as the foreign port of lading, and shipment to the U.S. via containerized vessel. A customs broker invoice listed the shipment as “GARDEN ORNAMENTAL VASE, MOS.”

The government pleads that “the defendant mosaic was illegally imported and entered into the United States in violation of United States law, with the intent to avoid lawful duties owed in connection with the importation.” [Sidebar: there likely would not have been any import duty on the archaeological object because collectors’ pieces of archeological interest are duty-free.] The filed customs entry summary form for the mosaic calculated $0 duty.

Because restoration work had been done on the mosaic after its import, the FBI spoke with two conservation professionals in March 2016. Prosecutors write in their complaint that one restorer did the work for $40,000 and that the piece at that time was characterized as a “Turkish Mosaic.” The lawyers say that Alcharihi told the restorer that he bought the mosaic “along with another mosaic in Turkey, and that it was 2,000 years old.” “Alcharihi further told [the restorer] that the mosaic was peeled off a floor 25 years ago and that it had taken him (Alcharihi) 10 years to get the mosaic out of Turkey because the laws had changed there. Alcharihi told [the restorer] the mosaic had been rolled-up for 25 years.”

A second mosaic restorer, according to the complaint, “stated that it depicted images from Greek mythology and appeared to have been ‘peeled off of something, possibly a floor.’ The mosaic was stored in Alcharihi’s garage and Alcharihi told [this second restorer] that the mosaic was found in Turkey, where it had been removed from a wall about 20 to 25 years before.”

The government’s complaint discloses that investigators discovered two separate bank wire transfer orders to a dealer in Turkey dated in October 2015, one for $2,199.23 and the other for $12,000, and they found a “Legal Statement” dated March 5, 2016 purporting to declare:
To whom it may concern.
I sold a rolled Mosaic carpet to Mr. Mohamad AlCharihi on November 1th [sic] 2009 in a yard sale.
The rolled mosaic carpet belonged to my late father since early 1970s[.]
My father died in 1992, and my mother kept the rolled mosaic carpet since she did not want to give away any of my late father's belongings.
My mother died in October 24th 2009, so we sold the house furniture and the tools along with the mosaic rolled carpet in a yard sale on November 1st 2009[.]
Mr. Mohamad AlCharihi, bought the 15'X7' mosaic rolled carpet which it was in a bad condition because of long time storing in my late father’s garage.
The discovery of the “Legal Statement” prompted authorities to interview the witness who produced it. The forfeiture complaint alleges, “Alcharihi was a neighbor to whom [the witness] had sold a carpet approximately 5 years before. She said the carpet belonged to her father, who had died 6 years before, and she described it as small, light-weight carpet. She stated she understood what a mosaic was, and the rug that she sold Alcharihi was not a mosaic item and was not heavy.” The witness “further stated that approximately two to three weeks prior to talking to the agents, Alcharihi had asked [the witness] if she would sign a letter for him that indicated that she had sold him the carpet.”

Prosecutors say that authorities interviewed Alcharihi on the same day that the FBI executed the search warrant at his home. Alcharihi reportedly told police:
  • “[H]e bought and restored mosaics for sale, but he had not yet sold anything.”
  • “[H]e had recently imported a container with fountains, vases and mosaics from Turkey that he intended to sell.”
  • “He referred to the mosaics as mosaic carpets that were located in Alcharihi’s garage.”
  • “[H]e bought the vases/waterfalls/fountains and mosaics from a friend, who bought these items from a broker in Turkey.”
  • “He claimed to have paid $12,000 total for the mosaic and vases, and had a customs clearance and receipt for the items. When asked how much the shipment was worth as reported on Customs entry documents, Alcharihi said ‘twenty four hundred or something like that.’ When asked why a lower number was reported instead of the $12,000 he had paid, Alcharihi indicated it was to lower the cost. When asked it if was to pay less duties, Alcharihi stated yes.”
  • “When asked where the old mosaic was from, Alcharihi replied ‘Turkey,’ but he did not know what part of Turkey. When asked how he knew the old mosaic was from Turkey, Alcharihi stated that he bought it from Turkey and it was shipped from there. When asked further how he knew the mosaic was from Turkey, Alcharihi eventually admitted ‘Well to be honest with you, I don’t know.’”
  • "When further asked by agents if anything was old . . . Alcharihi admitted one of them was. … When asked how old, Alcharihi said, ‘It’s about two thousand years.’ When asked if he had told the customs broker how old it was, Alcharihi stated, ‘No.’”
Federal agents reportedly obtained a search warrant to examine emails, and the government's forfeiture complaint alleges that, in October 2015, an email was sent from “an account known to be utilized by Alcharihi” to a third party email address regarding the possible sale of the defendant mosaic. The published email communicated that “[t]he mosaic piece was found in a destructed historical building in Ariha county in Idleb city, North western of Syria, the destructed building a land around it is belong to me. … the picture was removed in 2010 by an expert mosaic specialist and transferred to Turkey for restoration after obtaining of a removal and transfer permit. … in 2015 the picture was imported legally to the US.” (Errors in the original).

Other emails received by the email account allegedly reveal the existence of an “Associate” who, on March 5, 2015, “sent an email to a United Kingdom auction house that specializes in antiquities” to explain that Syria was the country of origin of the mosaic. The auction house replied, “So long as you have documentation/proof that they left Syria before 2010, we might be able to accept these if they are legally shipped to the UK.” Prosecutors do not explain why the auction house referred to the mosaic as “they” in the plural rather than “it” in the singular. As a result, when the forfeiture complaint states, “The auction house reportedly valued 40,000 to 60,000 British Pounds (per historical currency conversion approximately $60,972 to $91,458 in U.S. Dollars),” it is not entirely clear whether the value range applies to the single mosaic sought to be forfeited or to the mosaic plus a additional objects.

The federal district court has ordered the detention of the mosaic and will wait to receive pleadings from anyone who might have a claim to the archaeological artifact. Then the court will consider whether it is proper to forfeit title of the mosaic to the U.S. government.

Text and original photos copyrighted 2010-2018 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. The materials presented on this site are intended for informational purposes only and should not be used as legal advice applicable to the reader’s specific situation. In addition, the provision of this information to the reader in no way constitutes an attorney-client relationship.