Monday, November 24, 2014

CHL Selected as One of ABA Journal's Blawg 100

Editors of the ABA Journal announced today the selection of Cultural Heritage Lawyer as one of its top 100 best blogs.

Now that the editors have made their picks, the ABA Journal is asking readers to weigh in and vote for their favorites in each of the 8th Annual Blawg 100’s thirteen categories.

Click here to register and vote. Vote for CHL in the "Niche" blog category. Voting ends at close of business on Dec. 19, 2014.

CHL is grateful for the honor. Many thanks go to the blog's loyal readers, who make about 15,000 page views per month.

ABA Journal Editor and Publisher Allen Pusey remarked that law blogs play a crucial role in today's legal media landscape, explaining, “While traditional media sources often break news, law blogs dive deeper to offer insight into what the news means for clients, the legal profession and the public. And the ones on our list are well-written and, more often than not, entertaining.”

The ABA Journal is the flagship magazine of the American Bar Association, which is read by half of the nation’s 1.1 million lawyers every month. It features a directory of more than 4,000 lawyer blogs.

Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Monday, November 17, 2014

House Bill Calls for Cultural Property Protection Czar and for Import Restrictions on Syrian Heritage in Jeopardy

The fight to preserve our common cultural heritage, as well as to deny extremists such as ISIL [Islamic State in Iraq and Syria] resources from the sale of blood antiquities, is yet another front on the global war against terror,” proclaimed Congressman Chris Smith (R-N.J.-4) in a press statement issued last week.

Congressmen Eliot Engel and Chris Smith, sponsors of the
Protect and Preserve International Cultural Property Act.
Rep. Smith, together with Rep. Eliot Engel (D-N.Y.-16), introduced the Protect and Preserve International Cultural Property Act (H.R. 5703) in the U.S. House of Representatives on Thursday. The bill would create a cultural property protection czar and set up import restrictions to prevent looted and smuggled Syrian heritage material from crossing America's borders.

Rep. Engel, the lead sponsor of the bill, emphasized its importance: “Since World War II, the United States has been a leader in protecting cultural property. Today, ISIL and other terrorist organizations have found a lucrative source of revenue in artifacts they traffic out of areas of conflict. America must respond by denying terrorists and criminals the ability to profit from instability by looting the world of its greatest treasures.”

The proposed legislation would advance four articulated U.S. policy goals designed to
(1) protect and preserve international cultural property at risk of destruction due to political instability, armed conflict, or natural or other disasters;
(2) protect international cultural property pursuant to its obligations under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and customary international law in all conflicts to which the United States is a party; 
(3) prevent, in accordance with existing laws, importation of cultural property pillaged, looted, or stolen during political instability, armed conflict, or natural or other disasters; and 
(4) ensure that existing laws and regulations, including import restrictions imposed through the Office of Foreign Asset Control (OFAC) of the Department of the Treasury, are fully implemented to prevent the trafficking in stolen or looted cultural property.
To promote these objectives, the lawmakers want the White House to appoint a Coordinator for International Cultural Property Protection who will
(1) coordinate and promote efforts to address international cultural property protection activities that involve multiple Federal agencies, including diplomatic activities, military activities, law enforcement activities, import restrictions, and the work of the Cultural Antiquities Task Force established pursuant to the Consolidated Appropriations Act, 2004 (Public Law 108-199); 
(2) submit to the appropriate congressional committees an annual report on interagency efforts to protect international cultural property based on information required under section 5 of this Act; 
(3) provide policy recommendations, if necessary; 
(4) resolve interagency differences in a timely, efficient, and effective manner; and 
(5) work and consult with domestic and international actors such as foreign governments, nongovernmental organizations, museums, educational institutions, research institutions, and the U.S. Committee of the Blue Shield on efforts to promote and protect international cultural property.
Under the terms of the legislative proposal, the Secretary of State, Attorney General, Secretary of Defense, and United States Agency for International Development Administrator would be required to submit reports to the cultural property protection czar that describe each department’s efforts to protect cultural property from the threats of armed conflict, political unrest, crime, construction activities, and natural disaster.

The bill curiously omits any duties that might have been placed on the Secretaries of Treasury, Interior, or Homeland Security to supply reports directly to the Coordinator. These cabinet officials supervise agencies that have an impact on international cultural property policyagencies like the the Office of Terrorism and Financial Assistance, the Financial Crimes Enforcement Network, the Internal Revenue ServiceU.S. Fish and Wildlife, and Immigration and Customs Enforcement's Homeland Security Investigations and Customs and Border Protection divisions. At best, the proposed legislation would have the Attorney General simply offer a report "in consultation with the Secretary of Homeland Security."

Reps. Engel and Smith also want to implement safeguards to protect endangered Syrian cultural property. Their bill would mandate the President to immediately enact emergency import restrictions under the terms of the Convention on the Cultural Property Implementation Act (CPIA) 19 U.S.C. 2603 in order to stop looted and smuggled antiquities from entering the American marketplace.

The legislation attempts to offer a solution to the CPIA's cumbersome statutory framework, which currently requires Syria’s government—under whatever form that might be at present—to first ask the State Department for American import controls restricting cultural objects. Recall that the White House recognized the rebels as the legitimate governing authority of the Syrian Arab Republic in 2012.

The proposed Protect and Preserve International Cultural Property Act, in both substance and procedure, mirrors the Emergency Protection of Iraqi Cultural Antiquities Act of 2004 as well as CHL’s 2013 recommendation for an Emergency Protection of Egyptian Cultural Antiquities Act.

It remains to be seen whether the 113th Congress will take up these critical requests for a cultural property policy coordinator or for import controls to protect threatened heritage. Congress is in a lame duck session following the GOP's sweeping election victory earlier this month. Yet the proposed legislation already has been referred to the House Committees on Foreign Affairs, Ways and Means, Armed Services, and Judiciary. The bill's sponsors, more importantly, are well-known fixtures in the House. They hail from from safe districts where constituents regularly vote them back in office by wide margins.

Rep. Engel is the ranking minority member of the Committee on Foreign Affairs. He is a liberal Democrat who recently earned a fourteenth term after facing no opponent in a district that encompasses New York’s Westchester County and the Bronx. Rep. Engel is known for his sponsorship of the Syria Accountability and Lebanese Sovereignty Restoration Act.

Rep. Smith, meanwhile, first arrived on Capitol Hill following the election of 1980. He is a popular conservative Republican representing Trenton and central New Jersey. He possesses expertise on the topics of foreign affairs and organized crime, serving as senior member of the House Committee on Foreign Affairs; chair of the Commission on Security and Cooperation in Europe; chair of the Subcommittee on Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations; and chairman of the Congressional Human Trafficking Caucus. Last year Rep. Smith introduced a resolution to establish a Syrian war crimes tribunal.

The full text of H.R. 5703, the Protect and Preserve International Cultural Property Act, can be found here.

Photo credit: House.gov

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Friday, November 7, 2014

The Cultural Property Cases of AG Nominee Loretta Lynch

U.S. Attorney Loretta Lynch
It is not every day that an attorney general nominee actually has a record of handling cultural property forfeitures and prosecutions. But that is the case with Loretta Lynch, U.S. Attorney for the Eastern District of New York.

Lynch is President Barack Obama's choice to replace outgoing Attorney General Eric Holder.

Lynch's office has handled a few heritage trafficking cases, including...

Lynch's office filed a civil forfeiture complaint last month to forfeit a 65 million year old dinosaur skull. Prosecutors alleged that a fossil dealer unlawfully attempted to import an Alioramus head by failing to declare that it was real, that it originated from Mongolia, and that it had a value of $250,000.

2. U.S. v. One Ancient Roman Sarcophagus Lid with Sculpture of Reclining Woman
Litigation over a sculptured coffin cover came to a successful conclusion in September when Lynch's office finalized an agreement to forfeit the object from a collector so that it could be returned to Italy. The Roman sarcophagus lid was featured as an illicit antiquity in the Becchina archive.

3. U.S. v Victor Gordon
After a federal district court sentenced an ivory smuggler in June to a sentence of 30 months in prison, two years supervised release, a $7500 fine, and the forfeiture of $150,000 plus one ton of elephant ivory, 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.”

4. U.S. v. Khouli et al.
An antiquities trafficking case that U.S. Immigration and Customs Enforcement billed in 2011 as "a ground breaking case for Homeland Security Investigations" ended with mixed results for Lynch's office. Only two out of four men were convicted. One case netted a sentence of house arrest for a New York gallery owner. Another saw a felony charge dropped to a misdemeanor; the defendant paid a fine. Prosecutors later dropped a third man's case after he satisfied a deferred prosecution agreement. And authorities later gave up looking for a fourth man, a fugitive from justice, after litigation came to an abrupt halt in 2013.

Lynch posted a vibrant press statement at the start of the prosecution when her office charged the defendants with conspiring to smuggle ancient artifacts, engaging in money laundering, and making false statements to carry out their crime. She said, "Antiquities dealers and collectors are on notice that the smuggling of cultural patrimony will not be tolerated." But her office's only other press release, issued the following year, was muted and devoid of any direct quotes from the U.S. Attorney.

The objects involved in the case included Egyptian sarcophagi, Iraqi glass vessels and clay relief plaques, and Iranian (Luristani) bronzes.

Photo source: U.S. Department of Justice

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Wednesday, November 5, 2014

Victoria Reed Headlines the 2014 Daniel Webster International Lawyer of the Year Ceremony Acclaiming Cultural Heritage Law

Dr. Victoria Reed and Attorney Rick St. Hilaire answer questions from an audience of legal and cultural heritage professionals at the Daniel Webster International Lawyer of the Year ceremony held in Manchester, NH. Van McLeod, Commissioner of the NH Department of Cultural Resources (pictured at far left), listens with interest.
Photo courtesy of Norman St. Hilaire.

International lawyers gathered last week at the New Hampshire law firm of Sheehan Phinney Bass + Green to recognize the positive impact made by international cultural heritage law to protect cultural property around the globe.

The attorneys listened attentively as Victoria Reed keynoted the Daniel Webster International Lawyer of the Year ceremony honoring the contributions made by the CHL blog.

Dr. Reed discussed the global trade in art and antiquities and explained the accessions practice implemented by the Museum of Fine Arts, Boston (MFA), which digs deep into the collecting histories of artifacts. Dr. Reed is the MFA's Sadler Curator for Provenance.

Scrutinizing an object's collecting history and its accompanying import/export documentation is vital, Dr. Reed emphasized. That is because the provenance information offered by a seller or donor may not always be correct. Performing due diligence research therefore is essential to discover the truth about an object's collecting history.

CHL is grateful to the NH Bar Association for acknowledging international cultural heritage law as an important legal discipline.

Attorney Robert Cheney, international law section chair of the NH Bar Association,
recognizes CHL's author as the Daniel Webster International Lawyer of the Year.
Photo courtesy of Dan Wise.

By Rick St. Hilaire
Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Thursday, October 23, 2014

Terrorism and Financial Intelligence Undersecretary Points to Antiquities Trafficking as a Source of ISIS Funding

David Cohen
Source: U.S. Treasury
The Islamic State in Iraq and Syria (ISIS) earns most of its cash from oil revenues, approximately $1 million per day. But the terror group also profits from crimes that include heritage trafficking.

"They lay waste to thousands of years of civilization in Iraq and Syria by looting and selling antiquities," David Cohen said today.

As the federal government's point-man in charge of uncovering and blocking financial support for terrorist groups, Under Secretary Cohen's insight on the topic should be given considerable weight. Since 2011, Attorney Cohen has served as Under Secretary for Terrorism and Financial Intelligence at the United States Department of the Treasury.

He made the remark about antiquities trafficking funding ISIS at the Carnegie Endowment for International Peace in Washington, DC.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Monday, October 6, 2014

Conflict and the Heritage Trade: Rise in U.S. Imports of Middle East "Antiques" and "Collectors' Pieces" Raises Questions

American imports of art, collections and collectors' pieces, and antiques from Egypt, Iraq, Lebanon, Syria, and Turkey increased sharply between 2011 and 2013, prompting questions about whether trafficked heritage has piggybacked onto the mainstream marketplace.

War, mass looting, and other grave threats to heritage greatly expand the risk that smuggled cultural contraband will slide into the stream of international commerce undetected. Because art and antiquities transactions often lack transparency or fail to undergo rigorous due diligence, examining published trade data is one way to potentially spot trafficked cultural material hiding under the cover of everyday imports.


One region that has witnessed grave threats to cultural heritage is the Middle East. The intelligence community and the academic community both report that antiquities trafficking has generated revenue for the so-called Islamic State of Iraq and Syria (ISIS). More investigation needs to be conducted to measure the scope of the terror group's earnings activity, but the American Schools of Oriental Research and others have confirmed that archaeological site looting has been a wellspring for pillaged artifacts spilling out of Syria and Iraq, a result of both Syria's civil war and ISIS' sprawl. Spoils from the region reportedly have transited through the neighboring countries of Lebanon and Turkey. And in nearby Egypt, the country has suffered its own cultural heritage crisis amid unrest, prompting the nation to petition for an agreement with the United States that would help protect ancient archaeological and ethnological materials in jeopardy.

Given the cultural heritage emergency that has erupted in the Middle East, U.S. International Trade Commission figures documenting an upsurge in imports of Harmonized Tariff Schedule 97 goods from Egypt, Iraq, Lebanon, Syria, and Turkey flag concerns about whether conflict antiquities have entered America's stream of commerce. HTS 97 is the customs classification for works of art, collectors' pieces and antiques.


Total American imports of HTS 97 goods from the five countries rapidly escalated from $51.1 million in 2011 to $95.2 million in 2013--an astonishing 86% rise. The across-the-board spike can be gleaned from the table below, which displays hefty individual percentage increases of cultural imports from each of the five countries.


HTS - 97: WORKS OF ART, COLLECTORS' PIECES AND ANTIQUES
Customs Value
U.S. Imports for Consumption

Country
2011
2012
2013
Percent Change
2012 - 2013

In Actual Dollars
Turkey
22,778,794
24,799,487
44,715,936
80.3%

Egypt
19,546,035
20,201,597
31,383,502
55.4%

Syria
4,553,364
4,759,212
11,148,782
134.3%

Iraq
2,871,141
780,688
4,625,057
492.4%

Lebanon
1,382,136
2,120,696
3,351,462
58.0%


Goods declared by importers to be antiques of an age exceeding 100 years (HTS 9706) or collections and collectors' pieces of zoological, botanical, mineralogical, historical, archaeological, numismatic and other interest (HTS 9705) made up large portions of the broader category of HTS 97 imports.*

For example, HTS 97 imports from Egypt totaling $34.1 million in 2013 largely derived from a combination of $19 million worth of objects labeled by importers as antiques over 100 years old and $11.5 million of goods labeled as collections and collectors' pieces.


HTS 97 imports from Syria totaling $11.1 million in 2013 almost entirely came from $11 million worth of goods classified as antiques.


Remarkable too is that 93% of the 2013 total of HTS 97 imports from Iraq, Lebanon, and Syria were declared to be antiques over 100 years old, begging the question of whether nearly $18 million worth of great grandmothers' rocking chairs and similar items were shipped to America or whether the imports may have been ancient archaeological artifacts misclassified as "antiques."


The table below illustrates, among other information, that commodities declared by importers to be antiques from Iraq and Syria rocketed skyward by 672% and 133%, respectively, from 2012 to 2013.

HTS - 9706: ANTIQUES OF AN AGE EXCEEDING ONE HUNDRED YEARS
Customs Value
U.S. Imports for Consumption


Country
2011
2012
2013
Percent Change
2012 - 2013

In Actual Dollars
Turkey
15,979,030
17,553,638
19,257,308
9.7%
Egypt
16,793,409
13,817,236
19,043,410
37.8%
Syria
4,141,235
4,714,962
11,000,869
133.3%
Iraq
2,832,384
585,682
4,523,126
672.3%
Lebanon
708,461
1,392,005
2,218,073
59.3%

Declared imports of collections and collectors' pieces of zoological, botanical, mineralogical, historical, archaeological, numismatic and other interest goods, meanwhile, grew from $8.9 million in 2011, to $10.8 million in 2012, and then to $19 million in 2013--the final amount constituting a 113% jump from 2011 through 2013. The table below breaks down the individual numbers that chart this ascent. What kinds of objects actually made up these "collections and collectors' pieces?

HTS - 9705: COLLECTIONS AND COLLECTORS' PIECES OF ZOOLOGICAL, BOTANICAL, MINERALOGICAL, HISTORICAL, ARCHAEOLOGICAL, NUMISMATIC OR OTHER INTEREST
Customs Value
U.S. Imports for Consumption

Country
2011
2012
2013
Percent Change
2012 - 2013

In Actual Dollars
Egypt
2,375,694
5,746,759
11,518,231
100.4%
Turkey
5,875,218
4,919,196
6,651,262
35.2%
Lebanon
241,345
82,365
597,982
626.0%
Syria
330,129
34,250
117,913
244.3%
Iraq
30,757
8,509
97,931
1,050.9%

Traffickers have imported cultural material into the U.S. in clever ways in the past, surreptitiously labeling Hindu idols as "handicrafts," affixing "Made in Thailand" stickers on ancient Ban Chiang pots to make them appear modern, or manipulating the description of a Tyrannosaurus bataar skeleton from Mongolia on customs documentation. That is why scrutinizing the art, collectors pieces, and antiques that underlie the customs data described above would go far toward confirming or dispelling the suspicion that smuggled ancient artifacts from the Mideast may have been embedded within America's conventional global trade.

Among the questions requiring answers are what kinds of objects were specifically imported, and why did imports of "antiques" and "collectors' pieces" skyrocket in many instances? Were the imports classified properly or improperly? Who were the importers of record, and where did they sell their merchandise? Who were the buyers? What can the customs forms reveal about the commodities' actual countries of origin and their transshipment locations?


Data source: U.S. International Trade Commission Interactive Trade DataWeb (USITC DataWeb), as compiled by the Commission from official data retrieved from the U.S. Bureau of the Census (accessed October 2014).

Photo credit: Svilen Milev

________________
*Import data is reported to U.S. Customs and Border Protection by the owner, purchaser, or licensed broker of the consignee. They file the entry documents, not the customs officials who are not in a position to inspect and document very cargo shipment So whether cultural commodities are properly classified as HTS 9705 archaeological material or HTS 9706 antiques is the responsibility of the importer. In fact whether imports are falsely classified so that they can be smuggled across the border or mistakenly classified because of a judgment error is a function of the importing party. The import classification process is a self-reporting system, part of a shared compliance program overseen by U.S. Customs that obliges the trade community to regulate itself and follow federal law. Shared compliance allows the U.S. to competitively engage the world in global commerce. But smugglers will try to exploit the gaps and loopholes.

By Rick St. Hilaire

Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Monday, September 22, 2014

Stipulation Puts a Lid on Litigation Over Roman Sarcophagus Cover Featured in the Becchina Archive

The Roman sarcophagus lid. ICE
A marble Roman sarcophagus lid is expected to be forfeited and returned to Italy after federal prosecutors and the potential claimant signed a stipulation last week.

Litigation over the sculptured coffin cover--the so-called Defendant in rem--was avoided when the parties finalized their September 14 agreement over the stolen cultural object, which features in the Becchina archive.

The stipulation filed in the United States District Court for the Eastern District of New York recites in part:
WHEREAS, Mr. [Noriyoshi] Horiuchi [of Tokyo, Japan] states that, by and through agents, officers and employees of Art & Archaeology Inc. ("A&A"), an entity owned by Mr. Horiuchi, A&A obtained ownership of the Defendant in rem sometime in the late 1980s or early 1990s, after the Defendant in rem had been publicly exhibited in a Swiss museum in 1982 and 1983, and its exhibition had been published in an accompanying catalogue; 
WHEREAS, Mr. Horiuchi states that he relied in good faith on the representations made by the seller of the Defendant in rem and the fact that it had been publicly exhibited and presented in a publication during its exhibition in the Swiss museum in 1982 and 1983, to conclude that the Defendant in rem was not stolen; 
WHEREAS, Mr. Horiuchi, by and through his attorneys, agents, officers and employees, properly declared the Defendant in rem to the United States Customs Service upon the importation of the Defendant in rem into the United States in February 2001; 
WHEREAS, Mr. Horiuchi states that he believed in good faith that the Italian Government did not claim ownership to the Defendant in rem because, as Mr. Horiuchi further states, he previously had disclosed his acquisition and possession of the Defendant in rem to the Italian Government; 
WHEREAS, Mr. Horiuchi states that the Defendant in rem was transferred to him by A&A and that in approximately 2012 A&A was dissolved; 
WHEREAS, Mr. Horiuchi, upon his receipt of notice of the Defendant in rem's seizure in the United States and the claim of ownership by the Italian Government, cooperated with the United States Attorney's Office in the above-captioned forfeiture action; and 
WHEREAS, all parties now agree that the Defendant in rem should be forfeited with the intent that it be returned to Italy....
The U.S. Attorney’s Office in Brooklyn filed its forfeiture complaint on February 27, a case captioned as U.S. v. One Ancient Roman Marble Sarcophagus Lid With Sculpture of Reclining Woman.

Prosecutors wrote that the sculpted cover was in the possession of Gianfranco Becchina and his Basel, Switzerland gallery. A Manhattan gallery later displayed the $4 million lid in May 2013 before transferring it to a storage unit in Long Island City, NY in October that same year. Homeland Security Investigations uncovered the lid in its crate at the storage facility in February 2014.

Federal attorneys built their case around 19 U.S.C. § 1595a(c)(1)(A), the statute that prohibits stolen, smuggled, or clandestinely imported goods from being introduced into the U.S.

The district court in Brooklyn is expected to approve the stipulation.

In July, a federal district court in Albany, NY forfeited two other antiquities appearing in the Becchina archive in the unrelated case of United States v. One Attic Red-Figure Skyphos and One Apulian Red-Figure Bell Krater.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Sunday, September 21, 2014

Register Now for the Sixth Annual Cultural Heritage Law Moot Court Competition

The Lawyers’ Committee for Cultural Heritage Preservation and DePaul College of Law have opened registration for the Sixth Annual Cultural Heritage Law Moot Court Competition.

Chicago-Kent College of Law won the fifth annual event that focused on trafficked heritage. Who will win next?

The 2015 competition will argue constitutional challenges to the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106Awhich protects visual artists’ moral rights of attribution and integrity.

Oral Arguments are scheduled for February 27 and 28, 2015 at the United States Court of Appeals for the Seventh Circuit, in Chicago, Illinois.

The moot court is open to 26 two- and three-member student teams from ABA-accredited or provisionally accredited law schools. Schools may register up to two teams.

The registration deadline is November 20, 2014, and the fact pattern will be released on November 21, 2014 so it is important to register soon.

Visit the moot court website at go.depaul.edu/chmoot to register a team.

Attorneys interested in serving as judges or brief graders should contact chmootjudges@gmail.com. CLE credit may be available for attorneys who participate as judges.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Tuesday, September 16, 2014

Conservator's Records To Be Subpoenaed As Prosecutors Score Triple Victory in Peruvian Artifacts Forfeiture Cases

Federal prosecutors recently scored three court victories in two forfeiture actions and one subpoena case involving allegedly contraband Peruvian artifacts.

A federal magistrate in New Mexico recommended that a conservator, who may have handled contraband objects, turn over his business records to prosecutors under subpoena, a decision that certainly will attract attention among conservation professionals since they are rarely the subject of cultural property claims filed by the government.

A federal judge in Miami, meanwhile, ruled that the two cases seeking to forfeit the Peruvian objects could not be halted by a parallel criminal investigation, if one even existed. The court also denied a request to dismiss the forfeiture cases in their entirety.

The Peruvian artifacts forfeiture cases began in 2010 when U.S. Customs and Border Protection (CBP) seized 33 objects from Jean Combe Fritz’s luggage. Authorities suspected Combe Fritz and his father of engaging in a smuggling ring, according to information supplied by court papers. The two made 21 trips to Miami in ten years, returning to Peru after one or two days’ stay, which caught customs officials’ attention.

Prosecutors alleged in court pleadings that “[i]n August 2010, Combe-Fritz attempted to smuggle thirty-two ancient Peruvian artifacts into the United States through the Miami International Airport. Because Customs officers could not confirm the authenticity of the apparently-ancient artifacts without an expert appraisal, Combe was released that day. The U.S. Attorney’s Office Major Crimes section subsequently declined to prosecute the criminal case because Combe had returned to Peru.”

Without the possibility of prosecution, federal attorneys decided to seek title to the objects through civil forfeiture with the intent to return the heritage objects to Peru.

Prosecutors filed a civil action in Miami federal district court on May 10, 2013 to forfeit 29 objects consisting of a Moche bone carving (pictured here), a 12 piece Inca burial bundle, an Early Horizon/Chavin stone carving, and more. They argued that the Convention on Cultural Property Implementation Act (CPIA) forbade their entry into the United States.

Prosecutors filed a second forfeiture complaint on July 18, 2013 seeking to forfeit three more objects, this time arguing that they should be forfeited under 19 U.S.C. § 1595a(c)(1)(A) because they were stolen, smuggled, or clandestinely introduced into the United States.

While it is rare for a claimant to step forward in a cultural property forfeiture case, Jean Combe Fritz did, and his lawyers have vigorously battled the government ever since.

They have argued that the CPIA does not apply, that the objects seized cannot be shown to be Pre-Columbian or Colonial, that it is not possible to determine whether Peru is the source country, that federal prosecutors violated due process, that federal attorneys brought the case to the wrong court, and that the items seized by CBP weren't even banned cultural property.

The case stalled for one year after federal attorneys attempted to depose Combe Fritz, an effort resisted by the claimant’s lawyers on grounds that the government cannot go searching for criminal evidence by using the civil court process. Prosecutors countered by accusing the claimant of delay.

Combe Fritz’s lawyers filed a motion to stay the civil forfeiture proceedings until federal authorities concluded their criminal investigation. But prosecutors objected, writing on July 10, 2014 that there was no criminal investigation and no possibility of prosecution. “The Government disclosed this fact to counsel early in the litigation,” they explained.

Notwithstanding this representation by the government, one day earlier, on July 9, federal prosecutors in New Mexico targeted the conservator who allegedly handled pre-Columbian artifacts brought to the U.S. by Combe Fritz. Prosecutors told the court that the conservator was not implicated in any wrongdoing, but that they wanted information from him to find out who was running Peruvian artifacts between Miami and New Mexico.

The claimant’s lawyers tried to convince the Miami federal court that the existence of the New Mexico case clearly revealed that a criminal investigation was underway. But the judge in Miami would not stop the forfeiture cases. The court even denied the claimant’s motion to dismiss the matters outright, not just delay them.

The federal magistrate in New Mexico, meanwhile, authorized a subpoena to be issued to the conservator for information relating to the Miami forfeiture cases despite his objections.

The conservator objected to turning over specific information to the government, stating that the information sought was irrelevant to the forfeiture cases in Miami; insisting that he had not received any material from Combe Fritz; protesting that the disclosure of business records would violate the confidentiality necessary to conduct conservation work for his clients; and complaining that retrieving company's records would be too burdensome.

The magistrate noted that the conservator was willing to provide some information and submit to deposition questioning about certain matters,” but that the conservator says “he does not know Combe Fritz, was never contacted concerning any of the 32 items at issue in the Florida cases, and has no reason to believe that any of his clients has anything to do with Combe Fritz or the 32 items.”

The magistrate sided with the government, nevertheless, reasoning in his recommended disposition of August 29,
I agree with the United States that the information sought is relevant to its claims …. It is beside the point whether the government already has some evidence to prove its claims. There is no limit on the quantum of evidence that the government may amass—within the rules—to make its case as strong as possible. See Fed. R. Civ. P. 26(b)(1). I find that [the conservator’s] records and knowledge are reasonably calculated to lead to the discovery of evidence that is admissible and relevant to the elements that the government must prove …. 
The United States … argues that the information sought pursuant to the subpoena is relevant to the elements that it must prove…. The government's aim is not merely to identify the intermediary. Rather, the government's aim is to identify the intermediary and, more importantly, to secure his/her testimony as an "eyewitness[] to acts of the conspiracy and the persons involved in it, as would be the person who was to transport the textile from Miami to New Mexico[;] that information could be critical to the government's case." [Doc. 9] at 4.
The magistrate carefully reframed the government’s original subpoena to restrict overbroad language and to confine the document disclosures to narrowly tailored information about pre-Columbian textiles. Indeed, the conservator’s lawyer informed the district court that his client worked in textiles alone and not with other types of artifacts.

Approximately three weeks before the magistrate's recommendation to issue the subpoena, the federal district court in Miami ruled that the forfeiture cases would push forward despite the claimant’s request that the court process stop temporarily . The court wrote,
Claimant argues that "by engaging in discovery and offering evidence in support of his interest in the seized objects, he will be forced to incriminate himself in violation of his Fifth Amendment rights." (D.E. 74 at 2). The Government has not indicted Claimant and further states that no actual prosecution or criminal investigation is in progress.  
....
The mere existence of parallel criminal and civil proceedings does not compel a stay of the civil proceeding. 
Under the circumstances presented here, the Court finds that a stay is not warranted. Claimant has submitted no evidence that his invocation of the privilege against self-incrimination would compel an adverse judgment against him. . . . If "special circumstances" arise that Claimant believes warrants a stay during the course of litigation, then Claimant may re-file his motion.
The claimant’s attorneys raised “special circumstances” in their motion to reconsider dated August 16. They claimed that “new facts clearly reveal that the Government is using civil discovery in this case to further its criminal inquiry,” asserting that “new evidence will show that the criminal inquiry is active and ongoing, despite the Government’s unsubstantiated protestations to the contrary.”

The claimant’s lawyers said federal prosecutors’ efforts to compel the conservator to turn over documents “strongly supports Claimant’s position that the Government is improperly using civil discovery to supplement its ongoing criminal inquiry or as an improper substitute for an open and outright criminal investigation. Indeed, the non-party witnesses in New Mexico have corroborated this position and presented compelling, independent evidence in support of the same …[demonstrating] that the Government’s purported civil discovery demands were in fact issued in order to generate evidence of a criminal smuggling ring.”

The court rejected such claims and ruled on September 9 that "[e]ven if the Government is engaged in an active and ongoing criminal inquiry, the mere existence of parallel criminal and civil proceedings does not compel a stay of these civil proceedings.”

The court soon thereafter ruled against the Claimant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, Denial of Due Process of Law, and Failure to State a Cause of Action, a pleading that had been pending for one year. Judge Joan Lenard weighed both the claimant’s arguments and the government’s objection, which included the government’s position that “…smuggling protected cultural property is not ‘commercial trade’: it is criminal[] activity.

In its ruling against the motion to dismiss, the Miami federal district court first determined that it had jurisdiction to hear the case. “Because this action involves the forfeiture of property and does not involve the recovery of civil penalties, the recovery of a bond, or the recovery of customs duties, the Court has jurisdiction….,” the court wrote. The case was not required to be heard by the Court of International Trade as the claimant’s lawyers argued.

Second, the district court concluded that prosecutors sufficiently stated their claims in both the CPIA forfeiture complaint and the 15 U.S.C. § 1595a forfeiture complaint.

Citing in part Ancient Coin Collectors Guild v. U.S. Customs, Judge Lenard ruled that the CPIA forfeiture complaint “demonstrated that the artifacts in this action consist of Pre-Columbian perishable remains, lithics, metal objects, and textiles. (First Compl. ¶ 16). Such items are listed on a designated list within the meaning of the CPIA. See 19 C.F.R. 12.104g; Archaeological and Ethnological Material From Peru, 62 Fed. Reg. 31712-01 (June 11, 1997). Claimant has failed to demonstrate that the artifacts are legally importable by providing a State Party issued certification or any other documentation certifying that the artifacts may be legally imported into the United States.”

The § 1595a forfeiture complaint was also sufficient, the court explained:
Here, the artifacts were stashed in Claimant’s luggage. CBP officers located the artifacts in Claimant’s luggage only after conducting a secondary examination. When questioned about the artifacts, Claimant made false statements regarding how he came to possess the artifacts, his purpose for bringing the artifacts into the United States, and the individuals to whom he intended to deliver the artifacts. Additionally, Plaintiff alleges that the introduction of the artifacts into the United States was a violation of Peruvian law. Based on these facts set forth in the Second Complaint, the Court finds that there is probable cause to believe that Claimant clandestinely introduced the artifacts into the United States contrary to law.
The forfeiture cases have been captioned as U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru and U.S. v. Three Artifacts Constituting Cultural Property of Peru.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.