Seized Cultural Property Identified in Khouli + 3 Case

A specific description of objects and papers in the possession of federal authorities is now available in the criminal case involving Mousa "Morris" Khouli, Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan. They are charged with participating in an alleged antiquities smuggling ring. (See this blog's July 16, 2011 post for background.)

Included are objects from ancient Egypt, Iraq, and Iran. Some of the descriptions are reprinted below, quoted from August 11, 2011 discovery letters issued by the United States Attorney, Eastern District of New York:

• set of three nesting Egyptian wood sarcophagi, bearing the name “Shesepamutayesher” and the title “Lady of the House,” circa 664-111 B.C., including: (a) one Egyptian wood inner sarcophagus seized on or about September 8, 2009 from defendant Khouli’s residence in Brooklyn, New York; (b) one Egyptian wood inner sarcophagus seized on or about November 4, 2009 at the Port of Newark, New Jersey; and (c) one Egyptian wood outer sarcophagus lid seized on or about November 4, 2009 at the Port of Newark, New Jersey;

• one Greco-Roman style Egyptian sarcophagus seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia;

• one set of Egyptian funerary boats seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia; and

• one set of limestone figures seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia.

• [T]wo wood horses and multiple pieces of wood furniture seized on or about November 4, 2009 at the Port of Newark, NJ;

• approximately thirty-seven (37) “Luristani bronze” objects seized on September 8, 2009;

• approximately eighteen (18) Iraqi glass vessels seized on February 12, 2010;

• approximately twenty-one (21) Iraqi clay relief plaques seized on February 12, 2010; and

• approximately sixty-five (65) stone flat face antiquities seized on September 8, 2009 and February 12, 2010.

• Photographs of a shipment of Luristani bronzes en route to Khouli in October 2006 (KHOULI 2094-2099);

• Trocadero.com printouts for the Windsor Antiquities storefront and sale of a terre-crue head (KHOULI 2100-03);

• Photographs of terre-crue head after excavation at Isin excavation site in May 2003 (KHOULI 2104-07).

Photos: US Immigration and Customs Enforcement

Seizure of Mexican Figurine Prompts Question of CBP's Legal Authority

United States Customs and Border Protection (CBP) announced in a new(s) release on July 28, 2011 that it seized a Pre-Columbian artifact en route from Indiana to British Columbia. A buyer in Canada reportedly purchased the small orange Nayarit figure of a woman through an auction, and CBP agents intercepted the package in April during routine checks at Chicago's O'Hare Airport. CBP said that the shipment was "manifested as containing an artifact."

CBP and Immigration and Customs Enforcement-Homeland Security Investigations (HSI) had the Chicago Field Museum examine the object, concluding it "to be an authentic Pre-Columbian artifact of West Mexico dating to the early first millennium AD." The Consulate General of Mexico, meanwhile, claimed that the object was unlawfully exported from that country.

CBP seized the four inch tall Nayarit figurine under Title 19, Chapter 14 of the customs laws. The statute is commonly referred to as the Convention on Cultural Property Implementation Act (CPIA), meant to implement the well-known 1970 UNESCO Convention that covers cultural property. Federal agents in Chicago took the ancient Mexican artifact into their possession under Section 2609 of the CPIA, which permits seizure of protected cultural artifacts covered by import regulations promulgated under section 2606 (as well as stolen objects that had been documented in the institutional collection of a state party to the convention). Import restrictions enacted under Section 2606 result when the United States enters into an agreement with another nation under the authority of the CPIA. Many readers of this blog are familiar with the CPIA process and know that several nations have bilateral agreements with the United States pursuant to CPIA. Mexico, however, is not one of those nations.

So how can CBP take away an ancient Mexican cultural object from its possessor by using the CPIA? I called CPB to find out. The agency's representatives were polite and responsive to calls, but the replies were not helpful. A CBP Associate Chief Counsel said that "we don't comment on anything like this," adding that "we limit any of our comments about the law and our interpretation on the law to our client itself, which is, of course, the agency." Such a closed response from a government agency that actively sought public attention to this seizure and freely declared the legal basis for the seizure is unsatisfactory. CBP issued a public press release announcing the taking of the Nayarit figurine and broadcasted that "[t]he artifact will be returned to the Mexican government in an upcoming CBP and ICE-HSI repatriation ceremony." And while the agency claims the matter is under investigation, CBP's desire to return potential evidence to Mexico, coupled with its early public release of information relevant to the case, does not signal a meaningful commitment to maintain the integrity of the investigation.

We are left to speculate about what CBP may have been thinking when it seized the object. Federal officials could not have seized the Mexican artifact under a legal theory involving the National Stolen Property Act because the NSPA requires an item to have a value of $5000 or more before it is considered stolen under that law. The Mexican artifact was purchased at auction for $550, far less than $5000. So CBP had to look for other legal authority to take the artifact into custody.

Perhaps they erringly looked to a treaty for legal authority? The United States and Mexico entered into a Treaty of Cooperation on March 24, 1971, which provides for the recovery and return of stolen archaeological, historical, and cultural properties. The treaty, which is in force today, permits the United States "to employ the legal means at its disposal to recover and return from its territory stolen archaeological, historical and cultural properties that are removed after the date of entry into force of the Treaty from the territory of the requesting Party." But this agreement was not enacted into law under the terms of the CPIA, meaning there are no import restrictions on Mexican cultural property that derive from Section 2606 of the CPIA to justify a Section 2609 seizure of the Nayarit figurine by CBP.

So what exactly was CPB's legal authority to seize the Nayarit figurine? We have no explanation about why a Section 2609 seizure was the proper legal basis to take away the ancient Mexican artifact.

Federal officials must take great care when using unexplained interpretations of the law to promote seizures of property. While CBP may be commended for taking action to detect trafficked cultural heritage, federal authorities should exercise their authority in a reasonable, intelligent, and open fashion. No citizen should be left guessing about how exactly he or she can comply with the law so as to avoid the loss of property. Clear and reasonable applications of the customs laws, and plain explanations to back them, can build public support for America's effort to protect and secure at-risk cultural property. By contrast, offering questionable or undisclosed legal positions in cases where property may be seized—particularly in cases involving potentially innocent possessors—does little to garner confidence in public authorities.

Photo: Chicago CBP

Judge Dismisses ACCG Challenge to Cultural Property Import Protections - Acknowledges President's Foreign Policy Role in MoU Process

Judge Catherine C. Blake of the United States District Court of Maryland yesterday dismissed the Ancient Coin Collectors Guild’s lawsuit against the federal government. The federal district court decision essentially declared that the ACCG failed to make out a sufficient case.

The ACCG set up a test case to challenge protective American import restrictions placed on Chinese and Cypriot ancient coins when the organization imported 23 from a London dealer in 2009, bringing them to Baltimore on a British Airways flight. The enactment of the import protections followed the president’s adoption of bilateral agreements with China and Cyprus under the Cultural Property Implementation Act (CPIA). The CPIA is the law that implements in the United States the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

The court supplied a comprehensive 52 page memorandum outlining its reasons for dismissal. While many observations are worth noting, three are discussed here.

First, the ACCG’s challenge to the protective import restrictions failed to establish a meritorious legal claim on all counts. The court discharged the ACCG’s case in its entirety, even while assuming that the facts asserted by the organization in its legal complaint were true and construing any inferences in favor of the ACCG. The ACCG, naturally, may appeal but for now Judge Blake’s order stands: “[T]his case is dismissed; and . . . the Clerk shall CLOSE this case.”

Second, the court recognized that the negotiations and implementation of a bilateral agreement adopted under the CPIA involve the president’s broader role in foreign policymaking. A passage from Judge Blake’s memorandum is instructive:

“[W]hen those agencies [such as the State Department] act on behalf of the President, the separation of powers concerns ordinarily apply with full force—especially in an area as sensitive and complex as foreign affairs. As with respect to almost any international agreement, the decision whether to enter an Article 9 agreement [under the 1970 UNESCO Convention] with a particular country does not occur in a foreign policy vacuum. The decision necessarily will involve a variety of considerations beyond those set out in the CPIA, including the broader relationship between the United States and the requesting country and the potential impact of such an agreement on the United States’s relationships with other countries. Those considerations exist regardless of who ultimately negotiates and enters the agreement, the President or the Assistant Secretary [of State for Educational and Cultural Affairs] on the President’s behalf. Furthermore, by lodging primary responsibility for imposing cultural property import restrictions with the President, rather than with an agency, Congress likely recognized these separation-of-powers concerns. While the parties have not pointed to a conclusive explanation in the CPIA’s legislative history, Congress likely concluded that deference to the President was appropriate given the foreign policy considerations inherent in deciding whether to impose import restrictions.”

Finally, the court acknowledged the federal government’s authority to ban the importation of undocumented ancient coins. Judge Blake noted that the thrust of the CPIA is to mitigate the theft of cultural heritage. She intelligently observed that “[l]ooted objects are, presumably, extremely unlikely to carry documentation, or at least accurate documentation, of when and where they were discovered and when they were exported from the country in which they were discovered. Congress is therefore unlikely to have intended to limit import restrictions to objects with a documented find spot.” Judge Blake therefore concluded that “the import restrictions on Chinese and Cypriot coins, which have the effect of barring the importation of coins with unknown find spots, do not exceed the State Department’s authority under the CPIA.”

US Claims SLAM Lacks Legal Standing—Asserts That Mummy Mask is Illegal Contraband —Discovery Reveals More Information

In the latest round of papers filed in court last week, lawyers for the US Attorney’s Office in St. Louis sought to strike the St. Louis Art Museum’s legal claim in the federal lawsuit involving the mummy mask of Ka-Nefer-Nefer. Federal authorities sought forfeiture of the mask in March after the museum filed for a declaratory judgment in February seeking quiet title to the artifact. Both cases were filed in federal district court in St. Louis.

Federal attorneys, in their July 27 pleading, contend that SLAM’s “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum.” The government argues that Egypt’s patrimony law, which gives ownership rights of cultural property to the Egyptians, makes it impossible for the SLAM to own the mummy mask. Therefore, SLAM has no legal standing to assert that it can own the mask.

The government’s brief analogizes SLAM’s claim to the mask as similar to asserting ownership over cocaine—one cannot legally claim ownership. Since the mask cannot be owned by the museum, the museum lacks standing to claim ownership, the government argues.

SLAM says that it has standing to be a legal party in the case because it bought the mask and it possesses it.

The government first disputed SLAM’s legal standing in a July 7 motion. Government attorneys filed the pleading following the receipt of interrogatory answers by SLAM. While the museum wrote that it objected to having to answer questions about how it acquired title to the mask or having to identify documents that would support its claim to lawful ownership, SLAM, nevertheless, answered the interrogatories without waving these objections.

The museum supplied the following information:

• It purchased the mummy mask for $499,000 from Phoenix Ancient Art of Geneva, Switzerland around April 3, 1998.

• Phoenix Ancient Art warranted in a purchase and sale agreement that it had title to the mask and could properly transfer title.

• Phoenix provided provenance information to SLAM before the purchase. “According to Phoenix, in or about 1995, it had purchased the Mask from Ms. Zuzi Jelinek, who in or about the early 1960’s, had purchased the Mask from the Kaloterna (or Kaliterna) private collection,” the interrogatory answer relates.

• The museum conducted a provenance investigation to determine if the mask was stolen by contacting INTERPOL, the Missouri Highway Patrol, the Art Loss Register, and the former director of the Museum of Egyptian Antiquities in Cairo, Dr. Mohammed Saleh.

• The museum conducted an investigation through Swiss legal counsel to determine if there were any liens or encumbrances on the mask. No encumbrances were found.

• Swiss legal counsel confirmed Jelinek’s address.

• The museum contacted Dr. Saleh, who advised SLAM to contact another US museum and who did not say that the mask was stolen or “advise the museum against purchasing the Mask.”

SLAM also provided a spreadsheet of 19 documents, which it claims supports the museum’s legal interest in the mummy mask. The documents can be categorized as a purchase agreement, a bill of sale, letters, and emails.

Missing from the documents list is a purchase or sales agreement between Jenilek and Pheonix Ancient Art. SLAM claimed in past court filings that such a transaction would have occurred in 1995. SLAM, nevertheless, includes on the list of documents a 1997 fax from Phoenix that purportedly attaches a letter of provenance from Jenilek.

Also missing from the documents list are shipping papers or import papers describing the mask’s entry into the United States. Import papers generally describe a package’s date of entry, location of entry, country of origin, value, and contents. The court papers suggest that the mummy mask traveled from Switzerland to the United States in 1998, but this information remains unclear. The mask must have been imported into the United States at some time and at a specific point of entry. But the question of whether papers exist documenting the importation of the Egyptian mummy mask, valued at several thousands of dollars, remains unanswered thus far.

Smuggling Arrest and the Law Governing African Elephant Ivory

Federal agents seized approximately one ton of elephant ivory smuggled over three years through JFK International Airport in New York. They arrested Philadelphia art dealer Victor Gordon for allegedly committing acts of conspiracy and smuggling and for violating the Lacey Act, which protects wildlife and other natural resources. He is charged with unlawfully importing and selling African elephant ivory. More details and photos of the extensive ivory haul can be found at http://www.blogger.com/www.justice.gov/usao/nye/pr/2011/2011jul26.html and cityroom.blogs.nytimes.com/2011/07/26/art-dealer-charged-with-smuggling-ivory-into-u-s/. Also see http://www.justice.gov/usao/nye/pr/2011/2011jul26.html.

The current charges remind us about the laws governing the trade and possession of African ivory. African ivory is a heavily regulated item because of the protections afforded the African elephant under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Endangered Species Act.

The rules governing the possession and trade of African elephant ivory in the United States can be summarized as follows:

- It is illegal to own, sell, or export crafted ivory that was imported into the United States after 1989 and which was less than 100 years old when the crafted ivory came across the US border.

- It is illegal to own, sell, or export uncrafted ivory that was imported into the United States after 1989. The age of the ivory does not matter.

- It is legal to own, sell, or export crafted or uncrafted ivory that was imported into the United States before 1989.

Salem Alshdaifat and his company, Holyland Numismatics

Holyland Numismatics is owned and operated by Salem Alshdaifat, the recently indicted co-defendant charged by a federal grand jury in New York with crimes associated with antiquities smuggling.  Court records indicate that he is a Canadian and Jordanian citizen who holds a US green card.  An indictment is not a finding of guilt.

Alshdaifat’s cached Facebook page indicates that Alshdaifat is the founder and president of the company since 2006. But Holyland Numismatic’s company web site states that the company was “[f]ounded in 2004 in Ontario, Canada, and moved in Michigan 2009, USA.”

Holyland Numismatics is apparently a sole proprietorship run out of Alshdaifat’s residence in Orchard Lake, Michigan. That community, near Detroit, is less than an hour from the Canadian border and less than 5 hours from Toronto.

Oakland County, Michigan records show that Holyland Numismatics registered its assumed business name on July 22, 2009, but discontinued that registration on December 15, 2009. The business owner was listed as Alshdaifat’s spouse, not Alshdaifat himself. But new registration papers filed on December 15, 2009 show Salem Alshdaifat to be the owner of Holyland Numismatics.

Holyland Numismatics’s web site lists a location in West Bloomfield, MI as its mailing address. That address is a Goin’ Postal mailbox store according to an internet search. The business location given by county records is an Orchard Lake, Michigan address, which is Alshdaifat’s residence. This business location is not displayed on the company's web site. Public property records for the Orchard Lake address reveal that it is a home owned in the name of Alshdaifat’s wife. The property appears to have been placed for sale as of June 2, 2011, but criminal court orders require the removal of this property from the real estate market since the house serves as collateral for Alshdaifat’s bail.

Holyland Numismatics’ web site remains active, suggesting that the company is operational. Since Alshdaifat is confined to his home under the terms of his bail and since his home appears to be his place of business, one reasonably can conclude that the business will continue to function as the criminal case against Alshdaifat moves forward.

Bail Set, Lawyers File Appearances in Khouli Antiquities Smuggling Case

A multiple count felony indictment against Moussa "Morris" Khouli, Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan charges the defendants with antiquities smuggling crimes. Three defendants are now actively engaged in their cases that are before the federal court of the Eastern District of New York. Ramadan remains at large.

Khouli has been released on a $250,000 bond. Lewis has been released on a $250,000 personal recognizance bond. Meanwhile, the prosecution and the defense agreed to place Alshdaifat on a $500,000 bond along with conditions that include house arrest, electronic monitoring, and a waiver of extradition from Canada.

Lawyers for the three defendants have filed appearances, including attorney Gerald Shargel for Khouli, the firm of Mintz Levin for Lewis, and attorney Henry Mazurek for Alshdaifat. Khouli’s earlier attorneys have withdrawn from the case. Meanwhile, the United States is represented by Karin Orenstein and Claire Kedeshian.

A June 23 press release shows that this is the second major case Orenstein has been assigned recently. She also serves as the prosecutor in a ten person Oxycodone distribution case.