Cracking Down on Antiquities Trafficking by Changing Homeland Security's "Seize and Send" Policy

Cracking down on the illegal antiquities trade by regularly prosecuting criminal offenders and dismantling their infrastructure must be a leadership priority for U.S. Immigration and Customs Enforcement's (ICE).  The Homeland Security Investigations (HSI) directorate of ICE currently pursues a "seize and send" policy focused on recovering and repatriating antiquities rather than investigating and indicting criminals.  That policy must change in order to effectively combat a crime that permanently destroys the archaeological record and injures both history and culture. 

HSI Special Agent-in-Charge James Hayes with Indian idols seized last week.

ICE's seize and send policy is illustrated by many of the agency's press releases.  It was restated last week during a Chasing Aphrodite interviewwith James T. Hayes, Jr., Special Agent-in-Charge of HSI New York.  Hayes defended the seize and send policy: "'The focus is always to return stolen property to its rightful owners,' Hayes acknowledged, saying making criminal cases was desirable, but challenging. 'You have to have a legal basis to prove those items, and you have to prove certain things and that proves very difficult.  We’re dealing with laws around the world, in foreign courts and different jurisdictions.'"  HSI's chief added, "At the end of the day, our primary responsibility is to get stolen property back to its rightful owners."

Returning stolen property to owners is a regular goal of many law enforcement agencies.  But there is little indication that simply recovering and repatriating cultural property puts smuggling networks out of business.  Criminals engaged in the illegal antiquities trade surely realize that they face little or no risk of legal accountability for their actions. They must also be aware that the occasional confiscations by police of portions of their inventories do not actually take down their supply, transportation, conservation, distribution, marketing, and sales infrastructures.  That is why prosecutions, coupled with forfeitures of infrastructure assets (instrumentalities forfeitures), should be made part of law enforcement's response.

The decision not to pursue prosecutions and instrumentalities forfeitures on a regular basis produces several negative outcomes:

First, because antiquities traffickers go unindicted, the risk of offenders facing the consequences of prosecution--jail, fines, probation, and/or a criminal record--is eliminated.  Naturally, there is neither general nor specific deterrence against the commission of antiquities trafficking when there is no fear of getting caught.

Second, court sentences will continue to be light in those rare circumstances when antiquities smuggling prosecutions are actually brought forward.  That is because the judiciary, not seeing many cases on their dockets, will believe that this criminal activity is insignificant in scope or impact.

Third, the infrastructures used to facilitate antiquities trafficking will remain intact.  Seizures of ancient pots or Egyptian sarcophagi may remove the fruits of an antiquities trafficker's crime, but their confiscation by authorities likely represents a only portion of the trafficker's illegal inventory at any given moment.  Such limited seizures cannot be expected to shut down expansive global networks operating continuously.  Seizures of the instrumentalities used to commit antiquities trafficking, by contrast, could help dismantle large swaths of trafficking infrastructures.  Just as asset forfeitures in drug cases confiscate the automobiles, boats, planes, homes, etc. used in unlawful narcotics manufacturing and distribution networks, seizures of the instrumentalities used to traffic illegal antiquities could disrupt or shut down antiquities trafficking chains.

Finally, prosecutors and police will continue to confront both a learning curve and inefficiency so long as there iis no change in enforcement policy.  Routine antiquities trafficking prosecutions and enforcement, by contrast, would prompt prosecuting attorneys and detectives to meticulously learn how the crime operates, what evidence is commonly found in such cases, and what legal defenses typically arise.  The experiences gained would foster more efficient criminal investigations in the field and more effective legal cases in the courtroom.

HSI's chief is correct to observe that antiquities trafficking cases can be complex.  But law enforcement authorities over the decades have discovered ways to unravel complex transnational transactions.  If complicated international money laundering, commodities smuggling, and drug trafficking cases can be solved and prosecuted, so too can antiquities trafficking cases.  Indeed, criminal organizations would have little incentive to cease trafficking operations if law enforcement conceded that their activities were too hard to prosecute.

When criminal investigations become too complex to warrant effective action under one set of laws, one enforcement tactic is to separate the overall crime into component parts, examining the parts under different statutes.  So instead of building an antiquities trafficking case broadly around the National Stolen Property Act, for example--which relies on an review of foreign ownership laws to determine if a trafficking suspect has knowingly received stolen antiquities in violation of the statute--authorities might shift their focus to build a case on the basis of false statements.  Put another way, one method of not "dealing with laws around the world, in foreign courts and different jurisdictions" is to focus on the cover-up rather than the crime.

It is widely known that criminals rarely act in the open, committing fraud and deceit to conceal their activities.  That is why criminal cultural property importers oftentimes falsify customs paperwork, classifying looted antiquities as something else on import forms.  Making a false statement on an official customs form is a crimeunder 18 U.S.C. 542, and prosecutions under this statute do not require reliance on anything except evidence of criminal falsification.  Juries simply need to be shown that an ancient antiquity found in a cargo crate is not a "garden table set" or some other false description written down on a customs form. Criminal knowledge of the false statement, meanwhile, can be demonstrated by additional positive evidence and/or by circumstantial evidence--which counts in a criminal case--showing that the criminal defendant was “without reasonable cause to believe the truth of such statement.”  This example demonstrates that there may be other, potentially simpler, legal and investigative options available to authorities.

Cicero said, "What one has, one ought to use: and whatever he does he should do with all his might."  HSI agents are seasoned investigators who should be given the green light to use their skills with all their might in an effort to expose the illegal antiquities trade and take down its networks.  Partnering with prosecutors, HSI should systematically apply the National Stolen Property Act, the false statements law, and many other federal laws to successfully combat antiquities trafficking.  Referring cases for state prosecution should also be a routine consideration rather than an occasional one.  Coupled with the seizure of assets used to facilitate antiquities trafficking, regular prosecutions in the courts would dismantle or disrupt these criminal networks more effectively than the current seize and send policy.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Defendants Plead Guilty in Stolen and Switched Matisse Painting Case

A pair indicted for their role in receiving a stolen Henri Matisse painting will be sentenced following a guilty plea hearing held on October 30.  A federal grand jury in Miami handed up indictments in July against Pedro Antonio Marcuello Guzman and Maria Martha Elisa Ornelas Lazo for their involvement with the Odalisque in Red Pants, reported stolen from the Caracas Museum of Contemporary Art (Museo de Arte Contemporaneo de Caracas (MACCSII) in Caracas, Venezuela in or around December 2002.

Henri Matisse

The two signed off on proffers that describe their role in the possession, transportation, and sale of the painting.  The proffers state that Marcuello Guzman brokered the sale of the $3+ million painting to undercover FBI agents for a discounted price of $740,000.  Ornelas Lazo later flew from Mexico City to Miami International Airport carrying the Matisse painting in a tube.  The proffers go on to describe the following details of the transfer, switch, and sale of the artwork:

" ... Ornelas and co-conspirator Marcuello met the FBI under cover agents ("UCs") at a Miami Beach restaurant. During the meeting . . . Ornelas explained that she had taken multiple precautions to minimize being stopped by U.S. Customs and to minimize being inspected, such as in the manner of her packing, dressing lightly, and bringing no food into the U.S. Ornelas admitted taking the photographs of the painting that were sent to the UC's. Ornelas advised that she was present for prior inspections when experts inspected the painting and found it to be authentic. Ornelas added that one specialist said the painting was worth $3.7 million. During the meeting, Ornelas indicated that the experts were nervous because they seem to be aware of the painting's history. When one of the UCs asked if the experts were nervous because the painting was stolen, Ornelas replied affirmatively. During the meeting, Ornelas stated that she knew everything in regards to the painting.

"The following day, July 17, 2012, co-conspirator Marcuello, Ornelas, and the UCs met at a Miami Beach hotel to conduct the sales transaction for the stolen Henri Matisse painting. ...

"During the July 17, 2012 transaction, Ornelas advised the UCs that she had researched the history of the stolen painting online when it showed up years ago at her residence in Mexico. Ornelas further indicated that she had had the painting inspectedby experts in Mexico City, but that none had been willing to authenticate the painting in writing given its origins [referring to the painting having been stolen.]  Ornelas stated that employees at the museum in Caracas had done a "switch'' [referring to the replacement of the original painting with an imitation].

"At the conclusion of the July 17, 2012 meeting, the UCs agreed to purchase the painting and followed through with an ostensible attempt to conduct a wire transfer payment to a bank account supplied to the UCs by Ornelas. Ornelas and co-conspirator Marcuello were then arrested and the painting seized."


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Prosecutors Discuss Antiquities Trafficking at International Conference

IAP President James Hamilton of Ireland.

Global antiquities trafficking is a crime that often goes undetected, unreported, uninvestigated, and unprosecuted. That was the message conveyed to over 400 prosecutors from approximately 80 countries during last week's convention of the International Association of Prosecutors (IAP) in Bangkok, Thailand. The conference focused on organized crime.

Antiquities trafficking was featured during a panel examining commodities crime and its funding of organized criminal networks. It was a privilege for me to have been invited to address the conference.

Prosecutors in attendance were informed about operating techniques used by artifacts traffickers, and how cultural contraband remains visible in the stream of commerce after being illegally dug up, transported, smuggled, laundered, and sold. 

"Impunity undermines the rule of law," said UN Special Rapporteur Gabiela Knaul as she advocated for accountability of organized crime participants. One method of enforcement suggested by Kier Starmer, head of the United Kingdom's Crown Prosecution Service, is to prosecute offenders and seize criminal assets, followed by post-conviction financial reporting by defendants in order to deter repeat offenses.

One of the IAP's stated objectives is "to improve cooperation between prosecutors to more readily combat international criminality."


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text and photo copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Paleo-Prospector Thief Guilty of Conspiracy to Steal Government Property

A federal district court in Alaska has sentenced  Equinox Wilderness Expeditions (EWE) owner Karen Ann Jettmar to three years probation and a $30,000 fine for unlawfully taking a prehistoric fossil bone from federal land. Jettmar pleaded guilty to a lesser misdemeanor charge of conspiracy to commit theft of government property under 18 USC 371 and 641.  She was originally charged by a grand jury in December 2011 with felony counts of conspiracy and removing a paleontological resource from federal land.

In June 2009, U.S. Bureau of Land Management (BLM) agents began an undercover investigation into EWE and Jettmar.  The federal agency uncovered evidence of illegal "paleo-prospecting," according to the plea agreement filed with the court.  A woolly mammoth tusk recovered during a 2007 Kokolik River expedition and a fossil bone recovered from the Uukok River in 2009 were among the illegal items identified. Both artifacts were taken from the protected National Petroleum Reserve in Alaska.  An October 2007 email from Jettmar to an EWE client remarked, "Good thing your tusk is safe in Pennsylvania. ... wouldn't want BLM coming after you!"

Judge Ralph Beistline accepted the plea agreement between Assistant U.S. Attorney Stephen Cooper and the defense, which included the following terms:

"The defendant shall modify and maintain her Equinox Wilderness Expeditions website, advertising, and other business communications, to ensure that they do not contain any writing, graphics, or other material encouraging or designed to encourage the expectation of collecting natural objects or objects of archeological, paleontological, cultural, historic, or scientific interest on the lands or waters visited; to add the following warning: 'It is illegal on all State and federal public lands and on all privately-owned lands to remove without a permit or authorization any natural objects or objects of archeological, paleontological, cultural, historic, or scientific interest'; and to remove and refrain from stating on the website, advertising, or other business communications, any representation that Equinox Wilderness Expeditions has the permits required for collecting such objects."

"The defendant shall not conduct or participate in or be present with any commercial activity on State or Federal public lands except those conservation units for which, before entering, she obtains and holds permits for activities booked for the 2012 summer season through the time of completion of those activities in the summer of 2012."

Alaskan state statutes also protect cultural resources in addition to federal law.   The law of "The Last Frontier" that preserves history and archaeology can be found here.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Hearing Scheduled in Antiquities Trafficking Case - U.S. v. Khouli et al.

Source: US District Court, Eastern District of New York

The U.S. District Court for the Eastern District of New York has scheduled an important hearing in the alleged antiquities trafficking case involving Joseph A. Lewis, II and Salem Alshdaifat, known as U.S. v. Khouli et al.

The evidentiary hearing will focus on the admissibility of the Alshdaifat's statements to law enforcement as well as the portions of the defendants' omnibus motions that have not been dismissed already.

A summary of the government's written arguments can be found here.  A summary of the defendants' written arguments can be found here: Part I and Part II.

The hearing will take place before Senior District Judge Edward R. Korman on November 19, 2012 at 11:30 a.m.

Lewis and Alshdaifat were charged by a federal grand jury in 2011.  They are presumed innocent unless the government proves guilt beyond a reasonable doubt.  Another defendant in the case, Mousa Khouli, pleaded guilty to charges in April.  A fourth alleged conspirator, Ayman Ramadan, remains a fugitive. 


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Ivory Smuggler Pleads Guilty in US v. Gordon

Federal prosecutors in the eastern district of New York last week secured a conviction in the case of United States v. Victor Gordon.  Gordon entered a plea of guilty on September 18 to a substituted charge of smuggling elephant ivory under the African Elephant Conservation Act 16 USC 4223 et seq.

A federal grand jury indicted the Philadelphia art dealer in July 2011, charging him with conspiracy to smuggle elephant ivory, four counts of smuggling, and five Lacey Act violations. See here for further background.

The plea agreement calls for the uncontested forfeiture of hundreds of ivory tusks, ivory carvings, and at least $150,000 in cash.

Darren LaVerne handled the plea hearing for the prosecution.  Sentencing is scheduled for April 23, 2013.

Photos courtesy of USFWS.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Cultural Property Cases Roundup - Khouli et al., Sandstone Cambodian Sculpture, Weiss, and ACCG Appeal [UPDATED]

September is a busy month for cultural property law cases.  More activity is expected in the case of United States v. Mask of Ka Nefer Nefer soon, a case that involves the U.S. government's attempt to forfeit a mummy mask from the St. Louis Art Museum and repatriate it to Egypt.   [UPDATE 9/25/12: The 8th circuit has lately granted an order permitting the government to file its brief in the case on October 26 rather than in September].  Thus far there has been activity in four other important cases.

The case of U.S. v. Khouli et al. saw the submission of legal memoranda by defendants Joseph Lewis, II and Salem Alshdaifat urging the court to dismiss the criminal charges against them.  A grand jury alleges that the pair had roles in trafficking antiquities.  Lewis and Alshdaifait vigorously deny the charges.  A third co-defendant, Mousa Khouli pleaded guilty in April 2012.

On September 18, 2012 the eastern federal district court in New York ruled on Lewis' arguments.  Judge Edward R. Korman denied the Motion to Dismiss but the omnibus motions remain.  The court on September 10, meanwhile, granted Alshdaifat's request to travel to England to meet with overseas business partners and to attend the Coinex London 2012 numismatics show.  The prosecution objected to the request.  According to Alshdaifat's lawyer in a September 5 letter to the court, Alshdaifat "has a joint venture with a business in London, called Roma Numismatics."  It appears, however, that the joint venture is actually Athena Numismatics Ltd., which is listed on VCoins.

In the southern district New York federal court, Sotheby's and Ms. Ruspoli di Poggio Suausa filed a reply memorandum on September 17 to bolster their June 5, 2012 motion arguing that the government cannot forfeit a statute in the case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's.  The claimants' reply brief was filed in response to the government's pleading submitted last month.

New York state court, meanwhile, scheduled the case against Arnold Peter Weiss for sentencing on September 17.  Weiss pleaded guilty in July to attempted criminal possession of stolen property in the fourth degree.  Terms of his sentence, pursuant to the plea agreement, are outlined here.  As part of the sentence, Weiss published an essay titled "Caveat Emptor: A Guide to Responsible Coin Collecting" in American Numismatic Society Magazine.

In Virginia, oral argument in the fourth circuit court of appeals took place on September 19 before judges J. Harvie Wilkinson, III, Stephanie D. Thacker and Michael F. Urbanski in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs.  The ACCG appealed their August 2011 loss in the lower federal district court in Baltimore.  The organization submitted its written arguments in October 2011, and the federal government replied in January 2012.

The attorneys' oral arguments in the ACCG case can be heard in their entirety here.  In sum, Judge Wilkinson appeared unwilling to involve the judiciary in foreign affairs decisions of the executive branch, which can be overseen by the legislative branch. He had apparent trouble finding that  the U.S. State Department acted arbitrarily or capriciously when implementing import controls over ancient coins under the Cultural Property Implementation Act (CPIA). "Why should we jump into this and make it a tri-cornered mess," asked the court in its apprehension of being drawn into a matter that involves the two other branches of government.

The court appeared to believe that there is a "slight burden" placed on the importer--not on the government--to show where ancient Chinese and Cypriot coins have been in the past few years; the inquiry is not where the coins have traveled in ancient times. And this burden, which is "not a huge hurdle to surmount,"should be placed on importers because importers have the most knowledge.

[Hat tip to Nathan Elkins for highlighting the Weiss article in ANS Magazine].


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

Grand Jury Hands Up Indictment in Matisse FBI Sting

A federal grand jury in the southern district of Florida (Miami) handed up indictments on Tuesday against a pair with alleged ties to the stolen Henri Matisse painting, Odalisque in Red Pants.  The grand jury charged Pedro Antonio Marcuello Guzman and Maria Martha Elisa Ornelas Lazo with a three count indictment.

The indictment alleges that on or about December 1, 2011, Guzman met with an undercover  Federal Bureau of Investigation (FBI) agent an agent and a confidential informant (CI) of the Federal Bureau of Investigation "to discuss the sale of the Henri Matisse painting 'Odalisque in Red Pants' which had been reported stolen from the Caracas Museum of Contemporary Art (Museo de Arte Contemporaneo de Caracas (MACCSII) in Caracas, Venezuela in or around December 2002." Guzman allegedly gave the CI a password four days later to access an email file containing photographs of the artwork.

Talks continued to work out the payment and transfer of the painting, and Lazo allegedly agreed to transport the stolen artwork from Mexico to the United States. A transaction date of July 17, 2012 was set up where both cash and a wire transfer totaling $740,000 would purchase the painting.

Lazo flew from Mexico City to Miami International Airport on July 16 carrying a red tube that contained the Matisse painting.  She then met with the undercover FBI agent and a second one "posing as an art dealer" in order to close the deal.  Arrests followed.

A July 19, 2012 press release issued by the United States Attorney for the Southern District of Florida, and the FBI Miami Field Office reported that the painting is valued at $3 million.

Guzman and Lazo are each charged with conspiring to transport and sell stolen property (18 USC 371), interstate transportation of stolen property (18 USC 2314), and possession of stolen property (18 USC 2315).  They face potential maximum penalties of five years in prison on the conspiracy count, ten years on the transportation count, and another ten years on the possession count.

Prosecutors also filed a criminal forfeiture action under 18 USC 981(a)(1)(C) in order to gain custody of the painting.  Both the criminal and forfeiture cases are docketed at 12-CR-20559.

An indictment is simply a process of bringing persons into the court process.  The defendants in this case are presumed innocent unless the government proves guilt beyond a reasonable doubt in a court of law.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT: www.culturalheritagelawyer.com

U.S. Investigators Retrieve Cultural Objects from Kapoor's Rented Storage in New York - What Might Happen Next?

Source: ICE

American authorities participating in the Subhash Kapoor investigation today seized cultural and religious artifacts from a storage facility in Manhattan, according to the New York Post.  The newspaper reports that Immigration and Customs Enforcement (ICE) took away several dozen pieces.

Kapoor, an American citizen and owner of both Art of the Past gallery and Nimbus Import Export in Manhattan, is accused by police in India of involvement in antiquities trafficking.  Artifacts from Kapoor are reportedly located in American museums' collections.

The New York Post article describes today's raid and tells about a prior seizure of artifacts: 

"ICE said the probe into Kapoor had previously results in the seizure of dozens of antiquities worth nearly $10 million, including a five-foot tall head of Buddha weighing about 1,600 pounds and a life-sized stone figure weighing about 500 pounds. 'Both items were also seized from a storage unit allegedly leased by Kapoor in New York,' ICE said.

"ICE said that some of the artifacts previously seized in the probe had been displayed in 'major international museums worldwide,' and that other pieces that match those listed as stolen 'are still openly on display in some museums.'

"ICE also said that the Indian Consulate in New York contacted Homeland Security investigators in February 2007 asking for help in a probe of smuggling of Indian antiquities into New York."

It is unknown whether the raids in New York are part of a federal investigation into violations of U.S. criminal and/or import laws, or whether ICE executed the search warrants simply to support the investigation and prosecution of Kapoor in India.  In either case, federal authorities may be contacting museums across the United States that have acquired objects from Kapoor.  Forfeiture actions and/or search warrants may be forthcoming if Homeland Security Investigations (HSI) develops probable cause to believe that accessioned objects may be linked to illegal artifacts trafficking.

The New York Post article appears here in its entirety.

UPDATE 7/26/12: The New York Times is now reporting that the "Manhattan District Attorney’s office issued an arrest warrant for the dealer, Subhash Kapoor, on charges of possessing stolen property."

It should be remembered that prosecutors applying New York state law recently charged and convicted Arnold Peter Weiss, even as federal authorities worked with the Manhattan District Attorney's office to investigate the coin case.  This example of federal-state cooperation may be taking place now in the Kapoor case.  An arrest warrant issued for Kapoor by a county prosecutor's office (the New York County District Attorney, a.k.a. the Manhattan District Attorney) may signal the Manhattan DA's increased determination to deploy state law to combat culture crime.  In fact, District Attorney Cyrus Vance, Jr. recently concluded a prosecution that convicted ivory dealers under New York criminal law.  That case saw a collaborative investigation between the DA's office, the state Department of Environmental Conservation (DEC), and the federal United States Fish and Wildlife Service (USF&W).

Federal-state cooperation and the use of state criminal law--as opposed to federal criminal law--to prosecute international antiquities trafficking may be taking shape in New York City, which is the heart of the antiquities market.

The United States and India have an extradition treaty.

UPDATE 7/26/12: NBC4 in New York has video of the raid.

View more videos at: http://nbcnewyork.com.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com.  Text copyrighted 2012 Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC.  CONTACT: www.culturalheritagelawyer.com

Objection Filed: Prosecution Outlines Factual Claims in U.S. v. Khouli et al.

Assistant United States Attorneys Karin Orenstein and Claire Kedeshian have filed an 87 page objection in response to motions filed on April 30, 2012 by Joseph Lewis, II and Salem Alshdaifat.  The government objects to the defendants' efforts to scuttle the case of United States v. Khouli et al., and the prosecutors take the opportunity to present the court with their evidence.

Lewis and Alshdaifat were charged by a federal grand jury in 2011 with crimes related to antiquities trafficking.  They are presumed innocent unless the government proves beyond a reasonable doubt that they had knowledge of the illegality and acted unlawfully. Another defendant in the case, Mousa Khouli, pleaded guilty to charges in April, while a fourth alleged conspirator, Ayman Ramadan, remains a fugitive at large.

In its objection filed with the U.S. District Court for the Eastern District of New York, the government argues, in part, that

• the warrants authorizing searches of Lewis' home in Virginia and Alshdaifat's home in Michigan and their execution by federal agents were proper;
• the search of the two defendants' emails were reasonable and properly authorized by three valid warrants;
• Alshdaifat did not suffer violations of his right to remain silent or his right to counsel;
• the smuggling statute (18 USC 545) is not unconstitutionally vague;
• the government did not engage in any alleged overreaching or misconduct in the case;
• the venue of the court (eastern district of New York) is proper; and
• the money laundering conspiracy charge is valid.

Source: ICE

To support its legal arguments, and to paint a picture of the alleged smuggling and money laundering conspiracy, the government presents the court with a narrative describing the movements of an allegedly smuggled Greco-Roman coffin, a mummy board, a 3-piece nesting Egyptian coffin set, and Egyptian boats and limestone artifacts.

Federal prosecutors outline how Khouli and Ramadan smuggled the Greco-Roman coffin into JFK Airport in New York by transferring two payments of $10,000 and $3400 and submitting false customs information.  "While Lewis and Alshdaifat are not charged with smuggling the Greco-Roman coffin . . . the facts surrounding this transaction are revealing with regard to Lewis’s mens rea [i.e. criminal knowledge] for his subsequent transactions with Khouli," write the attorneys. The attorneys highlight that the customs papers listed the Greco-Roman coffin's country of origin as United Arab Emirates and not Egypt and described the coffin as "antique wood panel" valued at $3400. Prosecutors also tell how a sales invoice that did not originate from the actual seller, who was Ayman Ramadan/Nefertiti Eastern Sculptures Trading, was attached to the customs papers.

The government's lawyers go on to describe that the first artifact purchased by Lewis from Khouli was a mummy board, eventually seized by federal agents during a July 13, 2011 search of Lewis' Virginia home:

"Khouli sold an Egyptian mummy board to a customer .... A mummy board is a decorated wooden board that fits inside a coffin along with a mummy. On January 9, 2009, before [the customer] took physical possession of the mummy board from Khouli, Lewis purchased it from [the customer] for $60,000.  The bill of sale between Lewis and [the customer] included a photograph of the mummy board and identified its prior owners as Khouli’s company, Windsor Antiquities (“Windsor”), and previously, a private Dutch collection that acquired the item in the 1960s. The mummy board depicted in the bill of sale appears to have a transverse cut across the middle. On January 14, 2009, several days after the sale, Khouli and Lewis were in direct e-mail contact about shipping the mummy board from Khouli to Lewis.

"On February 10, 2009, Khouli advised Lewis by e-mail that he had obtained the mummy board from a restorer and offered to ship it to Lewis. Lewis inquired as to whether the repair at the 'joints' was invisible, referring to where the cut pieces were joined together."

On the same day, February 10, 2009, an Immigration and Customs Enforcement Agent (ICE) agent questioned Khouli about the importation of the Greco-Roman coffin.  The government reports that "[o]n the following day, February 11, 2009, Khouli offered Lewis two Egyptian antiquities: the Greco-Roman coffin and a bronze figure. Khouli advised Lewis by e-mail, 'Let me know what you think about the two Egyptian pieces[;] these are from my dad[’]s collection[;] he passed away about three years ago and my brothers and I want to sell them and split the money.'"  Lewis reportedly purchased the coffin for $32,500, not $65,000 as proposed by Khouli.

Because "[n]o mention was made of any other objects remaining from Khouli’s father’s collection [and because] Lewis’s dealings with Khouli the previous month indicated that Khouli had ... acquired the mummy board from a private Dutch collection, not from his father," federal prosecutors argue that "[t]hese facts belie Lewis’s argument that he had a basis for believing that every item he purchased from Khouli came from Khouli’s father’s collection."

In fact, government attorneys suggest that Khouli signaled to Lewis that the Greco-Roman coffin did not actually come from his father, stating:

"On March 6, 2009, after Khouli and Lewis had agreed to the sale of the Greco-Roman coffin, but months before Lewis took possession of it, Khouli offered Lewis a mummy linen and mask, writing in an e-mail, 'I just got th[e]s[e] items[;] i described them to you last week . . . .' (Gov’t Exh. 1; emphasis added). On the same date, Lewis responded, in sum and substance, that he already had four such items and that they were not very expensive. Khouli replied on the same date, 'It is very interesting[;] it was inside the coffin you bought from me according to the owner but he sold I[t] to me separately son of a gun.' (Id.; emphasis added). The statement that the Greco-Roman coffin had belonged to a separate 'owner' who 'sold' both the coffin and a related mummy linen and mask to Khouli was inconsistent with Khouli’s earlier representation that the Greco-Roman coffin had been sitting in his father’s collection for decades.  Upon learning this information, Lewis did not cancel the Greco-Roman transaction or request a new provenance from Khouli. Rather, he agreed to purchase the mummy linen and mask. In addition, despite Lewis’s only information about the mummy linen and mask’s provenance being that Khouli had 'just' received them and they were 'sold' to Khouli by another dealer, Lewis’s records for these antiquities include a Windsor bill of sale stating that these items were 'legally acquired by the late Jack Khouli in Israel in the 1960s.' While Lewis is not charged with smuggling the Greco-Roman coffin, his experience with Khouli in early 2009 told him that (1) not every Egyptian antiquity Khouli sold was from his father’s collection, and (2) any provenance that included Khouli’s father was unreliable."

The next day, on March 7, 2009, Khouli offered Lewis both a middle and outer coffin of an ancient Egyptian nesting coffin set, according to the prosecution.  Khouli reportedly went to Dubai in April to view them and discovered a third inner coffin.  Prosecutors say that  "Lewis’s e-mail messages indicate that he believed that the inner coffin was part of the same set as the middle coffin and outer coffin lid, making a three-piece nesting set. In these email messages, Khouli advised Lewis that the inner coffin had already been sold to another buyer and Lewis agreed to pay $150,000 for the inner coffin to avoid breaking up the set. The total agreed price for the nesting set was $310,000. Nothing in these e-mail exchanges suggested that Khouli had previously been aware of any of these coffins let alone that they had ever been in his father’s collection."

The government's lawyers add:
"On April 12, 2009, Lewis sent an e-mail message to Khouli confirming the details of the sale of the three piece coffin set. Lewis’s terms included that Khouli would provide “[p]rovenance from [his] late father’s collection, Israel 1960s” and a guarantee that the items would be cleared by Customs within 30 days of arrival. Khouli agreed to these terms. (Gov’t Exh. 4)."

The nesting coffins were sent to the United States in pieces using different transportation methods--international mail, air cargo, and sea cargo--and sent through separate points of entry, specifically JFK Airport in New York and the Port of Newark in New Jersey.  Prosecutors write in their pleading that the shipments were variously described for Customs as wooden panels, Indian furniture, purchased by a Connecticut third-party, or valued at $900. The coffin set was delivered to a Connecticut address.

Prosecutors further allege that Lewis knew that the Egyptian coffin parts required assembly.  "Lewis was therefore aware that pieces of the inner coffin and the remaining parts of the coffin set were being shipped in pieces, over an extended time period, because there was some risk attached to their importation."  Federal attorneys describe how Khouli sent an email to Lewis on April 29, 2009: "“i (sic) got the first half of the cut inner coffin the second half is on the way, shall I send it to you or should I wait for the second half and have [a certain person] look at it and have it fixed?” (Gov’t Exh. 6; emphases added). Lewis responded, “[The certain person] needs to put them together, when will the other two coffins arrive?” (Id.; emphasis added)."

Then in May 2009, Alshdaifat allegedly sold Khouli two ancient Egyptian funerary boats and five limestone figures for $40,000, which made their way from Ramadan to Khouli by international mail and then to Lewis. Prosecutors say that Ramadan sent the shipping label, which described the package as "antiques," to both Alshdaifat and Khouli.

The defendants may file a reply to the government's objection.  Meanwhile, Khouli's sentencing hearing is scheduled for next month.

CONTACT: www.culturalheritagelawyer.com
(c) 2012 Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

American Museums and Subhash Kapoor's Artifacts

Inside the Art of the Past gallery in New York.
Source: Google Local

The arrest and extradition of Subhash Kapoor has made headlines in India and garnered the attention of several cultural heritage observers.  He stands accused by Indian police of allegedly participating in an antiquities trafficking ring.  Artifacts from Kapoor are reportedly located in American museums' collections.

Kapoor is an American citizen and antiquities dealer who last year celebrated 35 years on Madison Avenue in New York City. Kapoor is the owner of the Art of the Past, Inc. gallery in Manhattan as well as Nimbus Import Export, a corporation formed on August 17, 2005 and bearing the same address as Art of the Past according to New York Department of State records.

Kapoor wrote in his March 2011 Art of the Past catalog, “There have been some obstacles and hardships during the past thirty-five years, but there have been many more rewards.” A hardship currently faced by Kapoor is his arrest in Germany on October 30, 2011, which resulted in his extradition to India on July 14, 2012.

Kapoor is presumed innocent. India follows the common law system where the burden is on the prosecution to show a crime has been committed beyond a reasonable doubt before a person is judged guilty.

The Art of the Past web site, now shut down, once described how its gallery’s artifacts could be found in the collections of major American cultural institutions. The “About Us” web page noted that “[t]he gallery has sold to some of the most celebrated public and private collections in the world. These include The Metropolitan Museum of Art, New York City; Arthur M. Sackler Gallery, Washington D.C.; Los Angeles County Museum of Art, Los Angeles; Museum of Fine Arts, Boston; Asian Art Museum of San Francisco, San Francisco (sic); The Art Institute, Chicago; and Virginia Museum of Fine Arts, Richmond; Honolulu Academy of Arts, Honolulu ....”  An internet search shows that the Birmingham Museum of Art in Alabama and the Norton Simon Museum in California list objects from Kapoor.

The Toledo Museum of Art, in its fiscal year 2007-2008 annual report, catalogs the accession of many Indian pieces from Kapoor in 2007.  A representative sample of the 44 objects gifted to the museum include:

• Indian, Gupta Period, Seated Mother, 5th century, terra cotta, terra cotta, Gift of Subhash Kapoor, 2007.107

• Indian (Chandraketugarh), Mithuna Plaque, 1st century B.C.–1st century A.D., terra cotta, Gift of Subhash Kapoor, 2007.109

• Indian (Chandraketugarh), Fertility Goddess Sitting with Star, 1st century B.C.–1st century A.D., terra cotta, Gift of Subhash Kapoor, 2007.116

• Indian (Uttar Pradesh), Gupta Period, Head, 5th century, terra cotta, Gift of Subhash Kapoor, 2007.147

• Indian (Western India), Female Head, Gupta period, 5th century, terra cotta, Gift of Subhash Kapoor, 2007.158

It is unknown if any museums are currently examining the provenances of their collections.

Sources:
http://www.artofpast.com/wp-content/uploads/2011/02/March11_Cataloge.pdf
http://web.archive.org/web/20080828191430/http://www.artofpast.com/AboutUsPage.html
http://blog.al.com/mhuebner/2011/04/callahan_lecture_to_feature_ar.html
http://www.nortonsimon.org/collections/browse_title.php?id=P.1997.1.1
http://www.toledomuseum.org/wordpress/wp-content/uploads/AnnualReport07081.pdf

CONTACT: www.culturalheritagelawyer.com

Weiss Pleads Guilty to Attempted Possession Charges in New York - State Criminal Law Applied Successfully in Cultural Property Case

Dr. Arnold Peter Weiss, originally charged with a felony, pleaded guilty today in a New York state court to misdemeanor counts of attempted criminal possession of stolen property in the fourth degree. Chasing Aphrodite has more on the case, and they report that Weiss's arrest for possessing stolen ancient coins turned into convictions for possessing forged coins Weiss believed to be real.

Weiss' plea agreement with the prosecutor, which was accepted by the court, calls for a sentence of community service, fines of $3000, and an order to write an essay about responsible coin collecting.  Other coins in Weiss' possession are to be forfeited.  Court records report that sentencing is scheduled for September 17.

Authorities charged the Rhode Island hand surgeon in January 2012 with Criminal Possession of Stolen Property over $50,000. They arrested Weiss and seized what Weiss and authorities then believed were ancient Greek coins originating from Italy.  The coins were to be sold at the International Numismatic Convention taking place in Manhattan.

Assistant District Attorney Matthew Bogdanos handled the case.  He is the author of Thieves of Baghdad, which describes his and others' efforts to retrieve artifacts from Iraq's national museum after its looting in 2003. Bogdanos employed a scanning electron microscope to determine that three coins, which were the subject of the case, were in fact forgeries and not authentic ancient coins.  Nevertheless, Weiss thought that the coins were authentic and that they were stolen from Italy, subjecting him to accountability for an "attempt" crime.

The convictions for attempted criminal possession will have to be studied in the coming weeks.  That is because the convictions represent a breakthrough for the successful application of state criminal laws, as opposed to federal criminal laws alone, to combat international cultural property trafficking.  Fakes and forgeries of antiquities, ancient coins, and other cultural property are found in the illicit market along with authentic trafficked artifacts, so today's courtroom result is no less significant.

Indeed, all fifty states have receiving stolen property laws on the books, which can be applied in cases where a person is in criminal possession of stolen cultural property.  The states also have "attempt" laws, which would cover a person's attempt to possess stolen cultural property or possession of forged cultural property believed to be authentic.  Beyond these statutes, the states maintain consumer protection laws with applicable penalties to guard against the appearance of fraudulent and stolen items in the marketplace.  The states also have nonprofit enforcement statutes that may be applied to specific cultural institutions or boards of directors that acquire illegal art, archaeological finds, or ethnological artifacts.

It should be noted that there is no request or court order to destroy the Weiss coins that were discovered to be fakes.  Meanwhile, sources indicate that the investigation in this case is of a continuing nature.

CONTACT: www.culturalheritagelawyer.com

Landau's Theft of Historical Documents Earns Time Behind Bars

A federal prison in Maryland.
Source: BOP

Historical documents thief Barry Landau was sentenced today to prison.  Landau pleaded guilty to his crime in February, admitting to stealing volumes of treasured documents from cultural institutions throughout the east coast and selling some for financial gain.

Prosecutors for the United States Attorney's Office filed a sentencing memorandum with the federal district court of Maryland (docket 1:11-cr-00415-CCB) today in support of their recommendation to incarcerate Landau.  He faced up to 15 years in prison.

According to a press statement issued by U.S. Attorney Rod J. Rosenstein, prosecutors asked for nine years. Judge Catherine Blake ordered seven followed by three years of supervision. She also restitution in the amount of $46,525 to make whole three dealers swindled by Landau.

Rosenstein accurately remarked that “[p]urchasers who innocently buy stolen property do not gain lawful title and are required to return it to the rightful owner. Anyone who has information about historical documents obtained from Barry Landau should contact the National Achives Archival Recovery Team at 800-786-2551.”

One of many institutions targeted by Landau was the University of Vermont.  In October 2011, authorities returned 67 historical papers to UVM that had been recovered.

CONTACT: www.culturalheritagelawyer.com
(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

Prosecution Specifies Laws Allegedly Violated in U.S. v. Khouli et al. Prosecution

The prosecution has more particularly identified the laws it will use to prosecute Joseph A. Lewis, II and Salem Alshdaifat, both indicted last year by a New York federal grand jury for crimes relating to alleged antiquities trafficking.  Earlier this month, Chief Magistrate Steven M. Gold denied the defendants' motion for a bill of particulars.  However, the court ordered government attorneys to further crystallize the laws it would rely on during trial.

The U.S. Attorney's Office for the Eastern District of New York, in part, explained the following in a recent letter to the court:

"The Indictment alleges that the defendants acted contrary to law by providing Customs with false declarations of county of origin, seller, consignee and purchaser; providing Customs with vague and misleading descriptions of shipments' contents; failing to declare that multiple shipments contained a single purchase or to declare the full value of that purchase; and failing to file entry on international mail shipments, and accordingly, failing to make required declarations regarding those shipments. . . . The applicable Customs regulations that were violated by the above-described conduct are contained in Title 19, Code of Federal Regulations, Part 141 (“Entry of Merchandise”), Part 142 (“Entry Process”), Part 143, Subpart C (“Informal Entry”), and Part 145 (“Mail Importations”). . . . "

"In addition, by making material false statements to Customs, the charged conduct was contrary to Title 18, United States Code, Section 542 (“Entry of Goods by Means of False Statements”). See, e.g., United States v. An Antique Platter of Gold, 184 F.3d 131, 134-37 (2d Cir. 1999)(finding that a false declaration regarding an item’s country of origin violated Section 542, and the importation was therefore “contrary to law” for purposes of forfeiture of that item pursuant to Section 545)."

CONTACT: www.culturalheritagelawyer.com

U.S. v. Khouli et al. Update: Judge Denies Defendants' Discovery Motion... With An Exception

"In general, defendants' motion for a bill of particulars is denied ...."  That was the order of Chief Magistrate Steven M. Gold in the alleged antiquities trafficking cases of Joseph A. Lewis, II and Salem Alshdaifat. Together with Mousa Khouli and Ayman Ramadan, the defendants were indicted by a New York federal grand jury in 2011.  Lewis and Alshdaifat deny the charges.  Khouli  pleaded guilty to the charges in April. Ramadan remains a fugitive from justice.

Cultural property seized in U.S. v. Khouli et al.
Courtesy ICE

On April 11, 2012 co-defendants Lewis and Alshdaifat submitted a bill of particulars requesting more specific discovery from the prosecution.  The prosecution objected, saying "the government has already provided more than the law requires."

After a hearing last Friday, the U.S. District Court for the Eastern District of New York ruled against the defendants "with the exception that the United States shall, by May 25, 2012, identify any regulations, treaty provisions, or foreign laws it will rely on at trial as 'laws' in connection with the charge that defendants 'fraudulently or knowingly import[ed or brought] into the United States, any merchandise, contrary to law' in violation of 18 USC 545."

18 USC 545 is the federal smuggling statute.  That law states in relevant part:

"Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—

Shall be fined under this title or imprisoned not more than 20 years, or both.

Proof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section."

CONTACT: www.culturalheritagelawyer.com

Gordon Ivory Smuggling Prosecution on Trial Track

The case of United States v. Victor Gordon appears on track for trial. The US District Court for the Eastern District of New York has issued a schedule that slates the trial for December 3, 2012. Motions are due in July.

U.S. Attorney Loretta Lynch

A federal grand jury indicted Philadelphia art dealer Victor Gordon last summer for allegedly importing and selling illegal African elephant ivory. U.S. Attorney Loretta Lynch's office is prosecuting the case.  Her office is also handling the alleged antiquities smuggling case of United States v. Mousa Khouli et al.

An indicted defendant is presumed innocent unless proven guilty beyond a reasonable doubt. 

CONTACT: www.culturalheritagelawyer.com

Part II: Motions Filed by Lewis and Alshdaifat in U.S. v. Khouli et al. Take Aim at the Government -- Smuggling Statute Claimed to be Overbroad

Continued from yesterday.

CC. Source: www.legaleducation.org.uk

Salem Alshdaifat’s attorney also filed an omnibus motion in the matter of U.S. v. Khouli et al.  He claims that his client was a broker or middleman who did not participate in the importation of the cultural objects that are part of the criminal case.   He seeks to dismiss all counts of the indictment against Alshdaifat; suppress physical and digital evidence; suppress post-arrest statements of his client; have an evidentiary hearing to resolve any factual disputes related to the motions; compel the government to produce expert witness discovery; provide notice of any “prior bad acts” evidence; and have permission to join in motions filed by Joseph A. Lewis, II.

Specifically, Alshdaifat contends that the smuggling statute (18 U.S.C. § 545) is void for vagueness.  Therefore, Alshdaifat cannot be prosecuted under the statute.  To quote from Alshdaifat’s memo of law:

“The federal smuggling statute … has been interpreted by federal courts to mean different things depending on where a defendant conducts his business. Mr. Alshdaifat could not be charged with a smuggling crime had the merchandise been mailed to New Jersey, Pennsylvania, or Delaware because the Third Circuit has ruled since 1994 that Section 545 requires an intent to deprive the United States of revenue.  In this case, the merchandise involved in the Section 545 offenses are classified as 'antiques,' and under the Harmonized Tariff Schedule of the United States, Heading 9706, they are duty free. Thus, in the Third Circuit, there would be no crime here. However, in the Second Circuit [covering New York], the Section 545 smuggling crime has been more expansively interpreted to cover conduct beyond an intent to defraud the United States of its right to revenue. Given that the courts cannot agree on the meaning of this statute, ordinary people will find it difficult to understand what conduct is actually prohibited by the statute.” (Citations omitted).

Alshdaifat’s lawyer adds that “the current expansive interpretation in the Second Circuit of Section 545's ‘intent to defraud’ provision is unconstitutionally vague,” requiring dismissal of charges against the defendant.

Improper venue is also argued as a basis for dismissing the charges.  Counsel for Alshdaifat contends that points of entry for certain goods that are the subject of the indictment are not articulated, or that points of entry mentioned in the discovery materials specifically relate to places outside the Eastern District of New York such as Manhattan or Connecticut.

Alshdaifat’s motion additionally argues that evidence must be suppressed that was derived from “defective” search warrants granting seizure of emails.  Alshdaifat’s lawyer claims that one warrant lacked probable cause for the government to believe that “evidence of a crime would be found within the Alshdaifat Yahoo! e-mail account.”  “This request … was quite expansive and intrusive. It sought authorization to search literally tens of thousands of e-mail communications of several individuals.” Alshdaifat’s lawyer adds that the Magistrate issuing the warrant was “misled.”  A second warrant authorizing the search and seizure of emails must also be struck down, it is argued, because it is tainted by the fruits of the first search warrant.

Meanwhile, federal agents’ search of Alshdaifat’s Michigan home is alleged to be improper because the magistrate's warrant was based on tainted evidence, the warrant was unconstitutionally overbroad, and the agents who executed the warrant went beyond their authority.  The evidence gathered must therefore be suppressed.

Alshdaifat’s lawyer takes pointed aim at statements made in the warrant affidavit by one Immigration and Customs Enforcement (ICE) agent, which describe a past allegation of smuggling by Alshdaifat in Detroit.  “The Agent's account of this incident is emblematic of the reckless way the government conducted this investigation and how they repeatedly misreported information to force the ‘facts’ to fit their theory,” writes counsel. “The Agent's rendition of the incident at Detroit Metro Airport with Mr. Alshdaifat should not contribute to a probable cause showing to invade his home because it does not suggest crimes involving violations of Customs laws or the National Stolen Property Act.” (Citations omitted).

The manner in which federal agents searched Alshdaifat’s home last year also earns scrutiny by legal counsel:  “While the Warrant's Attachment specifically limited the items to be seized to those ‘which are evidence of . . . art or antiquities that were illegally imported,’ the searching agents took everything—every last coin and trinket in the house. There was no attempt to connect these items with evidenc[e] that they were illegally imported—none at all.”

Moreover, it is argued that statements made by Alshdaifat to authorities should not be introduced at trial because the defendant was represented by legal counsel when authorities questioned him outside his home in Michigan.  The attorney writes that “Mr. Alshdaifat requested the opportunity to call his lawyer, and was denied. Under these circumstances, Mr. Alshdaifat did not voluntarily waive his right to have counsel present at his post-arrest interview and his statements were far from voluntary.  Moreover, because at the time of his arrest, Mr. Alshdaifat was already under indictment in the Eastern District of New York and represented by counsel on matters related to that indictment, the government also violated his attached Sixth Amendment right to counsel.” (Citations omitted).

The prosecution will have a chance to respond to the omnibus motions filed by Lewis and Alshdaifat.

CONTACT: www.culturalheritagelawyer.com

Part I: Motions Filed by Lewis and Alshdaifat in U.S. v. Khouli et al. Take Aim at the Government -- SLAM Forfeiture Lawsuit and Sotheby's Cambodian Case Cited

Objects seized in U.S. v. Khouli et al.

Attorneys for Joseph A. Lewis, II and Salem Alshdaifat both filed omnibus motions this past Monday in the criminal case of U.S. v. Khouli et al.  They argue multiple grounds for relief.

A federal grand jury sitting in the Eastern District of New York indicted antiquities collector and businessman Lewis as well as ancient coin dealer Alshdaifat for their roles in an alleged antiquities trafficking conspiracy.  They are presumed innocent.  Their efforts appear more vigorous now that a third co-defendant, antiquities dealer Mousa "Morris" Khouli, pleaded guilty last week.  A fourth co-defendant, Ayman Ramadan, remains a fugitive.

Joseph Lewis’ lawyers seek to dismiss the case against their client; suppress evidence seized by authorities from email accounts; dismiss specified counts of the indictment; have the grand jury minutes reviewed by the court; seek to obtain advance notice of any prior bad acts by Lewis that the prosecution may raise at trial; and join arguments made by Alshdaifat’s attorney.  Some of the arguments made by Lewis’ lawyers are discussed here.

Lewis’ attorneys say that the evidence obtained by court issued search warrants must be suppressed.  The attorneys argue that affidavits in support of searches of Lewis’ home and emails were misleading and contained material omissions.  “In each supporting affidavit the government repeatedly presented exaggerated, conclusory assertions and omitted contextually important material facts.  Most blatantly, these affidavits painted Mr. Lewis and the alleged conspirators as grave robbers trafficking in stolen property, when the government knew that that was not true and more important, that it lacked proof to support these allegations.”  For example the government “never disclosed the absence of proof that any piece was stolen, preferring instead to create an aura that such proof did exist.”  The government also did not mention anything about Lewis’ inquiries to Khouli, made in order to confirm the provenance of an Egyptian coffin, instead implying that Lewis “asked [Mr. Mousa] Khouli to create a false provenance ….”  Had the government presented a full picture of its evidence and not made improper implications, Lewis’ attorneys contend that the “Magistrate Judge would have been deeply troubled by the [search warrant] application …”

The lawyers for Lewis protest that “the government baldly asserted . . . that ‘persons who smuggle cultural property of questionable provenance into the United States typically avoid detection by Customs by means of false statements . . . .”  Lewis’ attorneys attack this line of reasoning, in part, because they say that Lewis was never part of the importation process of antiquities and because “hundreds of foreign antiquities … lawfully exist throughout the United States despite their bearing explicitly uncertain provenances.”

To support their client’s claims, Lewis’ attorneys cite the recent dismissal of the federal government’s forfeiture case in the matter of US. v. Mask of Ka Nefer Nefer:  “[I]t has become the practice of the government in the antiquities field [to make assertions] without regard for the truth as was shown recently, when the government was badly rebuffed and excoriated in a recent effort to seize an antiquity from the St. Louis Art Museum.”

Lewis’ attorneys also contend that federal agents acted beyond the scope of the warrant authorizing a search of Lewis’ Virginia home last year.  Instead of simply taking relevant antiquities—e.g. a Greco Roman coffin, an Egyptian nesting coffin, limestone figures, and funerary boats—as well as related items such as documents, the agents took items well beyond what the warrant authorized.  The attorneys claim that the seizure of documents related to Lewis’ insect collection, personal documents, and more was outside the scope of the warrant’s authority.  The lawyers state that “U.S. Fish and Wildlife Service agents were inappropriately invited to participate, undoubtedly contributing to the massive number of unrelated and unauthorized seizures.”  The only way to cure the problem of an overly broad execution of a search warrant is to suppress the evidence obtained by it, the lawyers argue.

Attorneys for Lewis further argue that the case against their client should be dismissed because of government excesses.  They urge the court to drop the criminal case against Lewis because of the alleged misconduct described above, because of reckless media statements, and because of selective prosecution.  The attorneys say that Lewis has been unfairly characterized in the press by government misrepresentations, and that there is “an overall campaign to harm Joe Lewis” as illustrated by “damaging accusations” made to CNN, The New York Times, and elsewhere. 

Lewis has also been unfairly targeted for prosecution, they say.  “Indeed, outside of this case, the number of traded antiquities with dubious , questionable or unknown provenances are too numerous to count and yet none of those sellers or buyers have been prosecuted based on questionable provenance alone—the only factor here,” the lawyers argue. (Emphasis in the original).  To further illustrate the claim, Lewis’ lawyers point to the lack of prosecution occurring in the Sotheby’s case involving forfeiture of a Cambodian statue.

Legal counsel also asks the court to dismiss the money laundering count against Lewis, in part, because the charge is not based on Lewis paying money for the importation of cultural property.

Because Customs seized the components of an Egyptian nesting coffin in Newark, New Jersey, the case should also be dismissed for improper venue.  The court for the Eastern District of New York does not cover cases arising in Newark, Lewis’ lawyers say.

Attorneys for Lewis conclude by asking the court to review the transcript of the grand jury session.  Normally grand jury proceedings are confidential.  But the attorneys state that the government’s excesses were so pervasive in this case that a judge should review the testimony given to the grand jury.

To be continued tomorrow ...

CONTACT: www.culturalheritagelawyer.com