Tuesday, December 3, 2019

Newly unsealed antiquities trafficking charges detail an alleged Cambodian smuggling network.

CPIA enforcement, the "CPIA Embargo," and statute of limitations are some of the legal issues presented by the grand jury indictment.

A federal grand jury in Manhattan has handed up a 26 page indictment detailing an alleged cultural heritage trafficking network that stretched from Cambodia to America's antiquities market. Grand jurors charged Douglas Latchford,
a preeminent collector and dealer of Cambodian artifacts, with five counts, including(1) wire fraud conspiracy; (2) conspiracy to commit smuggling, entry of goods by false statement, interstate transportation of stolen property, sale and receipt of stolen property; (3) wire fraud; (4) smuggling; and (5) entry of goods by means of false statements.

An indictment simply is notice of a criminal charge. A defendant is presumed innocent unless proven guilty by prosecutors beyond a reasonable doubt.

Latchford indictment
U.S. Attorney Geoffrey Berman brought
the indictment against Douglas Latchford.
Both the indictment and arrest warrant issued against the 88 year old Latchford, also known as Pakpong Kriangsak, were unsealed by magistrate judge Robert Lehrburger of the Southern District of New York (SDNY) following a November 26 request by prosecutors. The grand jury charged the defendant on October 17.

Usually prosecutors ask the court's permission to seal an indictment pursuant to FRCP 6(e)(4) so that a fugitive is not tipped off. The indictment ordinarily becomes unsealed after the defendant's arrest. But a press release issued by U.S. Attorney Geoffrey Berman's office last week confirms that Latchford "remains at large, residing in Thailand." The United States has a treaty of extradition with that nation.

The unsealing of the indictment and the simultaneous release of the news bulletin last week likely were meant to help expedite the defendant's arrest; to alert dealers, collectors, and other art market participants of the charges; and/or to stave off a possible speedy trial or due process challenge by Latchford if he is apprehended at a later date. That is because the government must avoid unreasonable delay when trying to locate a fugitive. Importantly, a defendant who does not know that he has been indicted and is captured several years after being charged might successfully argue that he has been denied the right to a speedy trial as was the case in Doggett v. United States, 505 U.S. 647 (1992). So publicizing the indictment helps the prosecution.

The unsealed indictment alleges that Latchford "engaged in a scheme to sell looted Cambodian antiquities on the international art market, including to dealers and buyers in the United States." It goes on to explain:
As part of that scheme, in order to conceal that LATCHFORD'S antiquities were the product of looting, unauthorized excavation, and illicit smuggling, and to encourage sales and increase the value of his merchandise, LATCHFORD created and caused the creation of false provenance for the antiquities he was selling. ... As part of the scheme, LATCHFORD also falsified invoices and related shipping documents to facilitate the international shipment of the antiquities to dealers and buyers ....
Count one specifically accuses Latchford of conspiracy to commit wire fraud, contending that from 2000-2012 he "engaged in a scheme to sell looted Cambodian antiquities by creating and causing others to create, and transmitting by means of international and interstate wire, false provenance, invoice, and shipping documents that concealed and misrepresented the source, country of origin, prior owner(s), age, and/or attribution of such antiquities." The defendant is alleged to have committed these acts, which earned payments transmitted via wire, "in order to induce the sale and transport of such antiquities to buyers in the United States and elsewhere, and to obtain the proceeds of such sales...."

Tuesday, July 9, 2019

Establishment Clause and Bladensburg Peace Cross
The Bladensburg Peace Cross

The Supreme Court of the United States has ruled that an historic, cross-shaped monument may be preserved on public land because it does not violate the Constitution's Establishment Clause.

Cultural property watchers may not have noticed the case of American Legion et al. v. American Humanist Assn. et al. that the United States Supreme Court decided last month and which preserved the display of a cross-shaped war memorial on public property. That’s because the case received greatest attention from religious liberty practitioners and constitutional lawyers monitoring the fate of the controversial Lemon test, which the high court first articulated in 1971 in its landmark decision of Lemon v. Kurtzmana judicial test that assesses whether there is improper government endorsement or hindrance of religion.

The American Legion case should interest heritage preservationists, nevertheless, because it tackles the recurring question of how public governments are to maintain historic monuments that contain religious symbolism.

Already the outcome of the supreme court's ruling in the American Legion case has prompted the nation's highest court to ask the Eleventh Circuit Court of Appeals to revisit the matter of City of Pensacola, Florida v. Kondrat’yev so that it can reassess whether Pensacola can keep an historic World War II era cross monument erected in a public park.

The American Legion case focused on the intersection between the preservation of a World War I memorial and the terms of the U.S. Constitution’s Establishment Clause. In a 7-2 decision, the supreme court voted to keep the Bladensburg Peace Cross standing, writing, “As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage.” “The passage of time gives rise to a strong presumption of constitutionality.”

Monday, July 1, 2019

El Salvador has petitioned the United States for a Memorandum of Understanding to renew cultural property import controls that preserve archaeological objects from looting and smuggling.

This Maya effigy vessel is one example of the type
of endangered cultural objects looted from El Salvador.
El Salvador is home to archaeological sites that tell us the histories of peoples like the Maya, Nahua and Lencas. To protect this cultural heritage, the government of El Salvador is asking the United States for a Memorandum of Understanding (MoU) to reimpose restrictions on imports of endangered artifacts, first put in place in 1995 and renewed every five years thereafter.

The bilateral agreement of 2015 between the U.S. and El Salvador maintained U.S. import restrictions on specified objects from 8000 B.C. through 1550 A.D. and that are identified on the Designated List. They include figurines, ceramic vessels, incense burners, metal objects, and more cultural artifacts.

El Salvador seeks a continuation of these import protections to protect archaeological material in jeopardy of looting by invoking Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and companion implementing legislation in the U.S., the Convention on Cultural Property Implementation Act (CPIA).

A public hearing on El Salvador's request will be held by the Cultural Property Advisory Committee (CPAC) on July 23, 2019, at 1:30 p.m. EDT. Go on this State Department link to learn how to attend the meeting online.

Photo courtesy of the Secretaría de Cultura de la Presidencia and the U.S. State Department. Text and original photos copyrighted 2010-2019 by Cultural Heritage Lawyer Rick St. Hilaire, a blog commenting on matters of cultural property law, art law, art crime, cultural heritage policy, antiquities trafficking, looted, antiquities, stolen relics, smuggled antiquities, illicit antiquities, museum risk management, and archaeology. 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. Blog url: https://culturalheritagelawyer.blogspot.com.

Monday, March 18, 2019

CPAC Will Consider Import Restrictions on Cultural Property from Chile and Jordan.
The pre-Colombian archaeological site of
Pukará de Quitor in northern Chile.

The governments of Chile and Jordan have petitioned the United States for import controls on at-risk archaeological material.

The Cultural Property Advisory Committee will meet in April to consider import protections covering archaeological objects from Chile and Jordan that are in jeopardy of looting.

Chile is the fourth South American nation to seek a Memorandum of Understanding (MoU) that erects U.S. import controls to stem the trafficking of cultural heritage objects. The United States currently has similar bilateral agreements with Bolivia, Colombia, and Peru.

Jordan, meanwhile, is the third MENA country to seek an MoU with the U.S, as it seeks to join the ranks of Egypt and Libya.

On February 4, Chile invoked Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, asking the United States for import restrictions under the Convention on Cultural Property Implementation Act (CPIA), which is the federal statute that implements the 1970 UNESCO Convention in the U.S.

The Jordanian government submitted a similar request last year on November 26.

Wednesday, February 20, 2019

The Metropolitan Museum of Art can fight back against antiquities trafficking by hiring a provenance curator and by fully disclosing the chain of custody of collection objects.

Nedjemankh's coffin, surrendered by the Metropolitan Museum of Art last week.
Nedjemankh's coffin, surrendered by
the Metropolitan Museum of Art last week.
The Metropolitan Museum of Art in New York has surrendered a celebrated artifact from its collection. The Met announced on Friday that "it has delivered the gilded Coffin of Nedjemankh, for return to the Government of Egypt by the Manhattan District Attorney’s Office, after having learned the Coffin was looted from Egypt in 2011."

The spectacular, human-shaped coffin, dating from the first century B.C. and glittering in gold, anchored the popular Nedjemankh and His Gilded Coffin exhibition, which began in July 2018 and was scheduled to close in April 2019. With the handover of the coffin, the show abruptly came to an end.

Max Hollein, who has not yet completed his first full year on the job as the The Met's new director, now faces a multi-million dollar loss that is likely not covered by insurance and reputational harm to his institution, as well as intense scrutiny of the museum's Collections Management Policy that is supposed to "ensure[] that ... its collections are protected ...."

The district attorney's investigation hopefully leads to the arrest and prosecution of those responsible for trafficking the looted archaeological object and for lying about its provenance. Meanwhile, the museum's loss presents a golden opportunity for one of the world's leading cultural institutions to fulfill Hollein's promise last week to mitigate similar risks in the future and, in the words of Met CEO Daniel Weiss, "to deter future offenses against cultural property."

In 2017, CHL wrote that institutions lacking solid protective measures to guard against acquiring illicit artifacts would face acute legal and reputational risks. CHL asked at that time whether museums effectively shield their collections from legal confiscationposing the question soon after The Met lost a looted ancient vase to a seizure by search warrantSee Museum Loss Prevention: Apply Rigorous Due Diligence.

Now, in the wake of the relinquishment of the golden coffin, The Met's director announced, “Our museum must be a leader among our peers in the respect for cultural property and in the rigor and transparency of the policy and practices that we follow," adding, "We will learn from this eventspecifically I will be leading a review of our acquisitions program—to understand what more can be done to prevent such events in the future."

One way to help reduce the risk of loss is to hire a provenance curator like the one Museum of Fine Arts in Boston has, a professional whose job is to investigate the collecting histories of archaeological artifacts, paintings, and other cultural objects. That person should be full-time and have the experience to navigate the complex art and antiquities trade, which can be tempting to the black market. It is a marketplace that "faces a higher risk of exposure to dubious trade practices ... due to the volume of illegal or legally questionable transactions," as the Basel Art Trade Guidelines accurately points out.

The museum, moreover, should revive its commitment to transparency of provenance information, championed recently by Hollein in The Met's Role in Protecting Cultural Heritage (November 2018) where he writes"Transparency: ... Our goal is to publish the provenance (or known history of ownership) for all works as part of their entries in our online collection." Provenance should not be limited to "known history of ownership," of course, but must include the fullest description of an object's chain of custody.

Tuesday, February 5, 2019

Jordan Asks U.S. for Import Restrictions to Protect Archaeological Heritage from Looting and Smuggling
Petra in southern Jordan is one of the world's
most famous archaeological sites

The State Department has published notice of Jordan's request for cultural property import controls.

Jordan is home to some of the world's most treasured archaeological sites, including Petra, the baptismal site of Jesus at Bethany, and the castle at Quseir Amrahas. To protect its cultural heritage, Jordan now is asking the United States to place restrictions on imports of its endangered artifacts.

The State Department received Jordan's petition on November 26, 2018, but the agency only published notice on January 31, 2019.

Jordan is the latest MENA country (Middle East/North Africa) to seek a Memorandum of Understanding (MoU) from the U.S. that would safeguard antiquities put at risk by looters and smugglers.

Tuesday, January 8, 2019

A look at cases involving art, artifacts, and money laundering helps explain why art and antiquities dealers should be included in anti-money laundering laws.

Art, Looted Antiquities, Artifacts, Artworks and Money Laundering
Money laundering transforms criminals' ill-gotten gains into usable cash or commodities. It also mitigates the risk and anxiety of getting caught. "You don't have to worry about it," an art gallery owner and money launderer confidently assured a potential client, who really was an undercover police officer.

Pretending to be a narcotics trafficker who needed to launder dirty cash, the undercover agent asked the gallery operator if the artworks she wanted to buy could be "in somebody else's name to where if [the undercover] were to ever have to sell it, that [other] person can sell it." The gallery owner explained, "We can do it any way, any way you want." "It doesn't have to be, it doesn't have to be in anybody's name," he said, "It can be in anyone's name you want."

The prosecution of the gallery owner is among the sample of court cases described below that offer a window into the world of art, artifacts, and money laundering.

Why is knowing about money laundering in the sale of art and antiquities important?

Industries that deal with high cash value transactions are the first lines of defense against money laundering. Banks, life insurers, casinos, precious metal dealers, automobile sellers, travel agencies, and other sectors are best positioned to become aware of unusual financial transactions early. That's the reason why the Bank Secrecy Act (BSA) directs certain of these businesses to file Suspicious Activity Reports (SARs) with the U.S. Treasury's Financial Crimes Enforcement Network (FinCen) and requires designated sectors to maintain risk-based anti-money laundering (AML) programs.

Art and antiquities dealers do not fall under the BSA's directives, yet they are susceptible to money laundering. Like other trades and businesses, they are required to file Form 8300 when they receive more than $10,000 in cash, cashier's checks, bank drafts, traveler's checks, or money orders either from a single or several related transactions. But they are not part of the BSA's reporting, recordkeeping, and anti-money laundering program requirements even though they sometimes receive large amounts of cash for high value goods.

In its National Money Laundering and Terrorist Financing Risk Assessment (2013) report, the Financial Action Task Force (FATF) expressly called attention to the illegal trading of antiquities as a predicate crime of money laundering. FATF, in fact, specifically flagged art and antique dealers as a commercial sector that must "build[] a list of the [money laundering/terrorist financing] vulnerabilities that can be exploited." They additionally need to assess "the adequacy of their [anti-money laundering/counter-financing of terrorism] controls."

Both FATF's report and the Basel Art Trade Guidelines' (2012) conclusion that "the art market faces a higher risk of exposure to dubious trade practices" is why CHL in 2014 called for taking a fresh look at federal AML laws and why CHL later listed such improvements as one of the top six law enforcement recommendations to combat transnational cultural heritage trafficking.

Congress made initial progress on this topic last year when Rep. Luke Messer (R-IN-6) introduced the Illicit Art and Antiquities Trafficking Prevention Act (H.R. 5886) in the U.S. House of Representatives. The bill sought the addition of "dealers in art or antiquities" to the BSA. Although the legislation sat idle in 2018, it could be presented to lawmakers again in 2019. In the meantime, the nonprofit Antiquities Coalition has started to focus vital attention to the AML issue.

Wednesday, January 2, 2019

Happy New Year! CHL looks forward to beginning its tenth year of blogging.

Thank you readers and subscribers for taking an interest in the issues surrounding cultural property law and heritage preservation policy.

As we begin 2019, let's look back at the five most popular posts from 2018.

1. [VIDEO] "Moxie" Sniffs Out the Scent of Antiquities

2. Rubin v. Iran: Supreme Court Says Persepolis Collection Will Stay at the Oriental Institute

Photo credit: Svilen Miley/freeimages.com
Text and original photos copyrighted 2010-2019 by Cultural Heritage Lawyer Rick St. Hilaire, a blog commenting on matters of cultural property law, art law, art crime, cultural heritage policy, antiquities trafficking, looted, antiquities, smuggled antiquities, illicit antiquities, museum risk management, and archaeology. 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. Blog url: http://culturalheritagelawyer.blogspot.com.