Tuesday, December 3, 2019

Antiquities Trafficking Indictment Unsealed: Latchford Prosecution Raises Legal Issues

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...."

Count two charges the defendant with offenses against the United States, specifically:
a. On or about February 26, 2006 ... the defendant[] emailed the [Manhattan-based] Dealer [dealer in [Southeast Asian art] about a “NEW FIND” “across the border,” a 12th century Khmer Siva “fresh out of the ground” that “was found near the hill of Bakheng in Angkor Thom.” The email was labeled “PRIVATE AND CONFIDENTIAL F Y E ONLY,” and attached a photograph of a statue covered in earth. LATCHFORD later emailed the Dealer again to confirm that LATCHFORD had acquired the Siva from a seller in Cambodia, and was offering it for sale for $175,000. 
b. On or about October 18, 2009 ... the defendant, shipped a 12th century Cambodian stone Naga Buddha statute from a restorer in London to the Dealer in New York, using a false shipping’ invoice that described the statute as a 16th century stone “seated figure” from Laos. Based on the false information LATCHFORD provided to the shipping company, United States Customs and Border Protection records falsely reflected that the country of origin of the stone Naga Buddha was Laos, rather than Cambodia, and that the value of the statute was $6,500, rather than the sale price of $175,000.
Prosecutors contend that these artifacts and other antiquities Latchford's custody or control were property stolen from the Cambodian state, citing Cambodia's 1996 patrimony law, known as the Law on the Preservation of Cultural Heritage, as the basis of authority that vests title of cultural property in that nation.

Counts three, four, and five allege similar facts against the defendant in his individual role, not as a conspirator.

The indictment reveals that attorneys in the SDNY take the important position--staked out by this author in 2007 and by the U.S. Attorney in the Central District of California in  2012--that the Convention on Cultural Property Implementation Act (CPIA) is criminally enforceable.  The CPIA is the federal law that authorizes import restrictions on overseas archaeological material in jeopardy of looting. It has been argued that a smuggler who violates the CPIA’s cultural property import restrictions faces the civil remedy of seizure and forfeiture of the banned cultural object but is not subject to criminal prosecution for smuggling. By charging Latchford with smuggling and conspiracy to commit smuggling in violation of import restrictions on Cambodian artifacts--these controls were erected in 1999 and later enhanced in 2003 and 2008--prosecutors are contending that violations of CPIA import restrictions are subject to criminal penalties.

The indictment, meanwhile, steps into the debate about whether CPIA import regulations constitute an embargo by calling the 1999 CPIA import restriction on Cambodian artifacts the "CPIA Embargo." See Do CPIA Import Restrictions Constitute an Embargo? for background on this debate. In summary, cultural property claimants have argued that court forfeitures of artifacts seized pursuant to CPIA import restrictions are cases that should be heard by the Court of International Trade (CIT), not by federal district courts because the CIT's embargo jurisdiction supersedes. This assertion was made in the cases of U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru, U.S. v. Three Artifacts Constituting Cultural Property of Peru, and U.S. v. Three Knife-Shaped Coins, Twelve Chinese Coins, and Seven Cypriot Coins. But the U.S. Attorney's Office in the Southern District of Florida, by contrast, is on record that CPIA import controls do not constitute an embargo.

The "CPIA Embargo" issue likely is tangential to the Latchford prosecution. But the statute of limitations certainly will be argued if the defendant is apprehended and brought to trial. That is because the indictment alleges crimes committed between 2000 and 2012. Generally, under 18 U.S.C. § 3282, the statute of limitations for federal crimes is five years. Did the limitations period expire in 2017, or did the clock stop? That is the question. Overt acts to hide an alleged conspiracy typically preserve the government's ability to prosecute beyond the apparent end of a statute of limitations period. Moreover, under 18 U.S.C. § 3290, the statute of limitations does not run out when a defendant flees from justice. And pursuant to 18 U.S.C. § 3292, the statute of limitations clock is suspended for a period when the government tries to obtain evidence from a foreign country.

Antiquities trafficking prosecutions like the Latchford case are rare. Even rarer are convictions. Still rarer, are prison sentences. Federal officials traditionally have taken a "seize and send" approach to transnational cultural property crime where looted and smuggled artifacts are seized and then sent back to their country of origin without indicting the traffickers. The last significant federal prosecutions were in the Central District of California against Jonathan and Carolyn Markell in 2015, spawned by the 2008 Museum Raids. Meanwhile, cultural property watchers will recall that the SDNY was home to the seminal case of U.S. v. Frederick Schultz. In that case, a grand jury in 2001 charged a prominent art and antiquities dealer with conspiracy to receive stolen Egyptian archaeological artifacts. The court sentenced the defendant in 2002 to 33 months' incarceration after conviction by a trial jury.

Now the SDNY is the venue for U.S. v. Latchford, which is a notable prosecution that appears to have sprung from the 2012 civil forfeiture case of U.S. v. Cambodian Sandstone Sculpture. That case, covered by CHL and Chasing Aphrodite, involved a looted Khmer temple statute, the "Duryodhana," that Sotheby's offered for sale and was later turned over to authorities. The Latchford indictment references this same statue:
In or about 2011, an auction house in New York ("Auction House-2") offered for sale one of the Koh Ker statutes that LATCHFORD had originally supplied to Auction House-1 [in the United Kingdom], a stone guardian figure called the "Duryodhana." During the course of preparing to sell the Duryodhana in or about 2010, Auction House-2 communicated with LATCHFORD and a scholar of Khmer art closely associated with LATCHFORD (the “Scholar”) in order to confirm provenance for the Duryodhana. In particular, Auction House-2 asked LATCHFORD and the Scholar to help trace the provenance of the Duryodhana back to the early 1970s. LATCHFORD falsely stated to Auction House-2 that he had the Duryodhana in London in 1970, and that he had consigned it with Auction House-1 in 1975; whereas in truth and in fact LATCHFORD had exported the Duryodhana from Cambodia in or about 1972. About a month later, LATCHFORD changed his story, telling Auction House-2, in substance and in part, that he had never owned the Duryodhana. Around the same time that LATCHFORD falsely denied owning the Duryodhana, the Scholar warned LATCHFORD in an email, "I think maybe you shouldn’t be known to have been associated with the Koh Ker Guardian figures[.]... Let’s fudge a little, and just put the blame squarely on [Auction House-1]...."
U.S. v. Latchford is docketed at 19-CR-748. Assistant United States Attorney Jessica Feinstein is lead prosecutor. She is assigned to the Money Laundering and Transnational Criminal Enterprises Unit of the U.S. Attorney's Office. Attorney Feinstein is a graduate of Stanford Law School and holds a Masters of Studies degree in art history from Oxford, according to her LinkedIn page.

Read the full indictment here.

Photo credit: USDOJ

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.