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

Egyptian Coffins Successfully Detected and Recovered by Customs in Texas - Question of Proper Seizure Authority Remains - Updated August 10, 2012

Homeland Security's U.S. Customs and Border Protection (CBP) agency today announced the seizure of "two priceless Egyptian sarcophagi-type artifacts."  A CBP officer at the World Trade Bridge on the border with Mexico in Laredo, Texas is credited with the discovery that successfully recovered the pharaonic-era coffins.

No arrests were made and the transporter(s) has not been identified.  Meanwhile, the suggested legal authority given by CBP for seizing the coffins appears questionable even though there are legal arguments available that would support the seizure of the artifacts.

The coffins did not have export permits from Egypt.  "Working in coordination with HSI [Homeland Security Investigations] and with Office of Assistant Chief Counsel, CBP on July 9 determined that the artifacts would be seized due to a lack of export documentation to substantiate legal exportation of the artifacts from Egypt," CBP says in a press statement.

But the United States is unable to enforce a foreign nation's export laws.  CBP incorrectly explains in its press release that "[t]hrough the Convention on Cultural Property Implementation Act, the United States entered into a cultural property agreement with the Egyptian government to help protect archaeological and ethnological materials through import controls."  The United States and Egypt, however, do not have a bilateral agreement or Memorandum of Understanding (MoU) pursuant to the Cultural Property Implementation Act (CPIA).

[Sidebar: The CPIA is the federal law that implements in the U.S. the 1970 UNESCO Convention (the United Nations Educational, Scientific and Cultural Organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property).  It permits the U.S. to enact import protections and seize endangered cultural objects coming from nations which have a bilateral agreement with America.]

Last year, CBP authorities in Chicago misapplied the law in a case where officers seized a Nayarit figurine from Mexico.  The seizure was reportedly made on the basis of a violation of the CPIA because it was presumed that the United States and Mexico had a bilateral agreement in force under the CPIA.  But the U.S. and Mexico did not (and still do not) have such an agreement in place

Federal officials potentially could rely on the CPIA to seize the Egyptian coffins if they were stolen from a museum after January 12, 1983 and the artifacts were inventoried.  But CBP does not report that the coffins were unlawfully taken from a cultural institution in Egypt.

Federal authorities may choose to rely on alternative legal arguments, nevertheless, to seize, forfeit, and return the coffins to Egypt.  These legal theories are outlined in a 2011 blog post entitled Reclaiming Trafficked Egyptian Cultural Objects.

Instead of returning the coffins right away, the authorities could also choose to secure the coffins as evidence while they investigate and potentially indict suspects for possible violations of the law

CBP tells how the customs officer in Laredo "selected a shipment manifested as Egyptian sculptures for an enforcement examination. In the course of their examination, CBP officers discovered that the shipment included possible Egyptian antiquities . . . ."  CBP reports that it "had recently been made aware of possible stolen artifacts of Egyptian origin,"  It is unknown if the information the agency received was generic--such as the ICOM Red List--or whether CBP received specific intelligence about the shipment traveling through Texas.  In either case, the customs official at the border remained alert so as to intercept the cultural items.

CBP is to be commended for its detection and interdiction of the contraband Egyptian coffins.  Yet it is important that the agency accurately cite the proper legal authority for the seizure of the artifacts.  That is because the public relies on government officials for guidance so as to remain compliant with the law and to avoid the potential loss of property.

[UPDATE August 10, 2012: CBP has now revised its web-posted press release by striking any reference to the seizure of the Egyptian coffins under the authority of the federal Cultural Property Implementation Act. The agency finds support for the seizure by stating that neither sarcophagus had any accompanying export paperwork from Egypt.

CBP should clarify that it is not the lack of foreign regulatory paperwork that justifies the seizure of the cultural objects--although the lack of an export permit from Egypt can be an important piece of evidence to federal enforcement authorities--it is that American import and criminal laws are triggered by Egypt's legal ownership claims to the coffins.  The sarcophagi, for example, can be seized under 19 USC 1595a's "contrary to law" provision where there is probable cause to believe that the coffins constitute stolen property in the United States under the McClain/Schultz doctrine's interpretation of the National Stolen Property Act. To simplify, stolen property brought into the United States from abroad is contraband under federal law that may be seized by CBP officers and returned to the legal owner.]

CBP's press release may be found here.  Photos of the seized Egyptian coffins courtesy of CBP.

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

Unveiling the Import and Export of Trafficked Heritage: The Kapoor/Art of the Past Case Examined

Source: Tamil Nadu Police

International antiquities trafficking networks will utilize legitimate and illegitimate shipping methods to advance cultural heritage crimes.  That is why a consideration of the solutions to combat illegal antiquities trafficking must examine how objects are imported and exported. The current American and Indian investigations into Subhash Kapoor offer a timely case study into the alleged transnational smuggling of cultural heritage.

Kapoor is currently under arrest in India, charged with idol trafficking.  He is an American citizen who owns Art of the Past gallery and Nimbus Import Export on Madison Avenue in New York.  Click here and here for further details.

Immigration and Customs Enforcement (ICE) reports that Homeland Security Investigations' (HSI) involvement in the case began in February 2007 after having been contacted by the government of India.  "The Indian Consulate advised HSI that an import and export company was expecting the arrival of a shipment containing seven crates manifested as 'Marble Garden Table Sets.' The consulate believed these crates contained stolen Indian antiquities. This merchandize (sic) was allegedly imported by Kapoor."

APL Alexandrite

The bill of lading reveals that the shipment weighed 1400 kg (3086 lb.) and occupied seven containers. The merchandise is described as "Garden Table Set."  The shipper is listed as Palae Knit Exports in Ludhianda, India.  The shipment left Jawaharlal Nehru, India on the Singapore flagged ship, APL Alexandrite, before arriving at the port of New York on February 10, 2007. The receiver of the goods is listed as Nimbus Import Export, Inc. with an address in West Nyack, NY. (It is important to note that neither the shipper nor the shipping company are implicated in any wrongdoing.)

A few interesting highlights about this shipment, which may have alerted customs agents at the border, are that:

• it was the weight of a subcompact car and not a garden table set;
• the exporter was a garments and textiles supplier and not an outdoor furniture or stone supplier;
• Nimbus Import Export, Inc. is Kapoor's import company, and he owns an antiquities shop rather than a garden furniture company; and
• the shipping address of the company is not the same as the one listed in official New York State records. (As reported on July 18 on this blog, Nimbus Import Export's officially listed address is in Manhattan, at the same place as Kapoor's Art of the Past gallery, and not in West Nyack, NY.)

Comparing additional import records associated with Nimbus to information collected by Indian police yields further information about how cultural artifacts may have entered the United States.  Bills of lading explain that Nimbus Import Export received the following listed merchandise from Everstar International Services since 2006 (spelling errors in the original electronic bills of lading):

• Handicraft Items (brass Ganesh, Brass Krishna, Brass Deve, Brass Nandhi) - U.S. arrival: 2/28/06
• Indian Hand Made Artistic Handicraft Articles -  U.S. arrival: 6/10/06
• Indian Hand Made Artistic Handictaft Artickes (brass Ganesh,brass Deepalakshmi,brass Murugan) -  U.S. arrival: 8/5/06
• India Hand Made Artistic Handicraft Articles -  U.S. arrival: 9/13/06
• Indian Artistic Handicraft -  U.S. arrival: 12/27/06

A 2009 document, published by the Idol Wing of the Tamil Nadu Police Department and which details the alleged trafficking of idols to the United States, reports that arrested export agent Packia Kumar ran a company called Ever Star International Services.  Everstar  (as it is spelled in the import records) purportedly exported newly crafted statues mixed with illicit commodities.  The report says that "part of the stole[n] antique idols were mingled with [n]ew metal idols. (Like 2 or 3 stolen idols with 4 or 5 new metal idols) and presented the export invoice with a false affidavit that all the idols in the consignment were recently manufactured."  The report goes on to describe how the export certificates listed the idols as  "Artistic Handicraft Products," and names Nimbus as the receiver of the alleged illegal exports.  This information confirms the information listed in the bills of lading outlined above.

Meanwhile, ICE describes the types of cultural objects that made their way to Kapoor in the United States, which went undetected by customs officials at the border (except for those objects perhaps recovered following the 2007 tip-off by Indian authorities, but it is unclear from ICE's press release what action the agency took in response to the call received from the Indian consulate). "By the end of January 2012, HSI special agents had seized dozens of antiquities" in New York, according to a July 26 ICE press release, including

• a 1600 pound Buddha head
• a life sized stone figure weighing 500 pounds
• three Chola period bronze sculptures, depicting Uma Parvati, Sivagami Amman, and Murugan
• A sandstone statue depicting Kubera, chief of the Yakshas, from the Indian Gupta period;
• a grey schist statue depicting Herkules-Vajrapani from the Kandahran Kushan period; and
• a sculpture depicting Shakyamuni Buddham from the Indian Chola period.

"This investigation has uncovered that Kapoor allegedly created false provenances to disguise the histories of his illicit antiquities," concludes ICE.

Art of the Past gallery in New York posts "Closed for Inventory,"
one day after ICE raided Subhash Kapoor's storage units.

Examining the import and export methods surrounding the Kapoor case not only can aid police in the United States and India in their current investigations targeting the alleged idol thief, but it can help policymakers, criminologists, and scholars think about better ways to detect, uncover, interdict, and prosecute future crimes of heritage trafficking. Indeed, the Kapoor case may even be the one that prompts stakeholders to give serious consideration to WikiLoot, a proposal that Chasing Aphrodite author Jason Felch describes as "an initiative to crowd-source the fight against the black market in looted antiquities."

Meanwhile, as museums and collectors hopefully research their collections to discover whether they own pieces acquired from Kapoor, they should take note that even modern and legitimately imported items in their collections may have been used to mask potentially illegal shipments of cultural objects.

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

Homeland Security Investigations Returns Artifacts to Nigeria - No Arrests or Indictments Announced

Nok statues repatriated to Nigeria.  ICE

U.S. Immigration and Customs Enforcements (ICE) officials found themselves busy in New York today.  ICE raided a Manhattan storage area linked to an alleged antiquities trafficking network.  Meanwhile, Homeland Security Investigations (HSI) repatriated ten Nok statues and one carved tusk to Nigeria.

James T. Hayes Jr., special agent in charge of HSI New York, commented on the return of the Nigerian cultural objects seized by U.S. Customs and Border Protection:  "Smugglers who thrive on greed place very little interest in the preservation of cultural property when they plunder ancient artifacts to sell to the highest bidder."  No arrests or indictments were announced.

ICE reported in a press statement that "HSI special agents at John F. Kennedy International Airport (JFK) first learned of the stolen Nok statues in April 2010 after receiving information from French customs officials. . . . HSI Chicago had also previously seized two Nok statues and a carved ivory tusk at Chicago O'Hare International Airport.  After an investigation with assistance from French authorities, the Louvre in Paris, Interpol and the International Council of Museums, HSI special agents determined the Nok statues were in fact antiquities and not just handicrafts and personal effects as was diclosed on the importation documents provided to U.S. authorities."

Nigerian Consul General Habib Baba Habu pledged that the "ten figurines and one carved tusk will be returned to the national museum for display, at a ceremony to be presided by the minister of foreign affairs."

Nigeria does not have a bilateral agreement with the United States under the Cultural Property Implementation Act.

This post is researched, written, and published on the blog, Cultural Heritage Lawyer Rick St. Hilaire at http://culturalheritagelawyer.blogspot.com.  Post 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

No Arrests Announced as ICE Officials Seize and Send Cultural Objects to Peru

ICE: Artifact returned to Peru on July 12.

United States Immigration and Customs Enforcement (ICE) reported no arrests or indictments during a repatriation ceremony yesterday that returned stolen and smuggled cultural objects to Peru. 

In a press statement, ICE’s Homeland Security Investigations (HSI) said that it mounted an “undercover Internet operation” and recovered the artifacts “in five separate investigations in . . .  New York; West Virginia; Wilmington, Delaware; and Austin and Houston, Texas.”  HSI concluded that the objects were illegally imported into the United States in violation of U.S. customs laws after having been illegally removed from Peru.

ICE agent watching over a monstrance.

With assistance from the U.S. Department of Justice and INTERPOL, HSI seized and sent to Peru nine 18th century religious paintings, pre-Columbian pottery, an Andean textile, a monstrance, a Moche jar, and a tumi blade.

ICE Director John Morton observed that "[t]he plundering of cultural property is one of the oldest forms of organized cross-border crime and has become a world-wide phenomenon that transcends frontiers.” Deputy Attorney General James Cole added, "Like other criminal acts, cultural property crimes are borderless and require a coordinated law enforcement response among countries.... [The objects] were stolen by those whose selfish acts and greed sought to deprive a people and the public of their cultural treasures."

No mention was made during Thursday's public ceremony held in Washington, DC of any arrests, grand jury investigations, indictments, or continued law enforcement probes into the alleged criminal activity.  HSI's seize and send policy has been critiqued because of its disproportionate focus on the repatriation of cultural objects over needed efforts to deter transnational cultural heritage crime by prosecuting antiquities traffickers when they violate U.S. law.

HSI outlined details of its investigation in its press statement:

“Of the objects returned July 12, two of the Cusco oil paintings – Saint Ignatius of Loyola, and Virgin and Child – were sold at an auction house in Austin. Seven other Peruvian antique paintings were being sold from a Houston gallery. The pre-Columbian Chimu-Inca whistling pot and Andean textile were being sold on eBay. In an undercover Internet operation, HSI special agents in West Virginia targeted sellers of illicit pre-Columbian artifacts operating from this Internet site. The monstrance was listed for sale at Christie's auction house in New York and HSI special agents discovered it was consigned by an art collector associated with museums in Puerto Rico and Denver. HSI's investigation revealed that the monstrance had been stolen from Saint Stephen the Martyr, a small Catholic church in Yaurisque, located in the Cusco region of Peru. The Moche ceramic jar and the bronze ceremonial knife were consigned by an estate trust in order to be sold at an auction house in Madison, N.J., and necessitated grand jury subpoenas issued by the U.S. Attorney's Office for the District of Delaware.”

Assistant United States Attorney David Hall from the Delaware U.S. Attorney's Office was responsible for investigating two of the Cusco school paintings involved in the case, according to a statement released by that office.  An image of one of the paintings appears at right.  Hall is a 2010 SAFE (Saving Antiquities for Everyone) Beacon Award winner.

The repatriation ceremony comes one month after the United States renewed import controls covering Peruvian cultural property determined to be in jeopardy from plunder.

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

Homeland Security's Seize and Send Policy on Display at Repatriation Ceremony

Artifact returned to Italy by ICE.
Courtesy ICE

Immigration and Customs Enforcement (ICE) this week announced successful efforts to combat crime in the United States.  In the last few days, ICE's Homeland Security Investigations (HSI) directorate headlined these results:

• "9 suspects arrested in HSI probe targeting Fresno-area phony document mills"

• "637 gang members and associates arrested during Project Nefarious" 

• "5 indicted for allegedly selling counterfeit goods" 

Yesterday, however, the federal agency announced something other than arrests or indictments.  An April 26, 2012 press release proclaimed, "ICE returns stolen and looted art and antiquities to Italy."

While many of ICE's powerful investigative arms probe violations of federal law and pursue justice through the criminal court system, the Cultural Property, Art and Antiquities Program at HSI continues to repossess artifacts, hold repatriation ceremonies, and ship potential court evidence overseas. Arrests are infrequently announced, and indictments for violating federal smuggling, theft, false statement, or wire transfer laws are rare.

The contrast between ICE's typical approach to cultural property crimes and its customary handling of forfeited documents, human trafficking, counterfeit goods, and other illegal activities is striking.  A few of this week's press releases illustrate:

• After arresting the nine men for trafficking in forfeiting documents, special agent Clark Settles said that the  "goal in these investigations is to identify and ultimately dismantle the criminal organizations behind these highly lucrative schemes."

• After 637 gang members and associates were arrested, HSI Executive Associate Director James Dinkins announced that "[t]he goal of Project Nefarious was to identify, locate, arrest, prosecute and remove gang members and associates affiliated with human smuggling and trafficking organizations."

• After a grand jury indicted five people for selling counterfeit goods, ICE announced that it "plays a leading role in targeting criminal organizations responsible for producing, smuggling and distributing counterfeit products. HSI focuses not only on keeping counterfeit products off our streets, but also on dismantling the criminal organizations behind such illicit activity."

Marble sculpture returned to Italy.
Courtesy ICE

But yesterday's press announcement proclaiming the repatriation of looted and stolen antiquities to Italy simply describes a "ceremony" to return "[t]wo 2,000-year-old ceramic vessels, one Roman marble sculpture, one Renaissance painting and three music sheets from choir books dating back to the 13th century ...."  Authorities did not announce any arrests or indictments despite descriptions of criminal activity by the use of terms such as "looted," "illegally imported," "smuggled," " illicit trafficking," "organized crime," and "stolen."

In other criminal investigations, HSI agents investigate cases, work with prosecutors to develop and sift through evidence, present the results to grand jurors, and hold lawbreakers accountable.  In illegal antiquities trafficking cases, however, Homeland Security Secretary Janet Napolitano said it best during Thursday's ceremony, "We will continue to work to ensure cultural artifacts and treasures that were stolen and entered this country illegally are recovered and returned to their rightful home nations."

This "seize and send" strategy requires rethinking to coincide with the "investigate and indict" mission that other HSI investigations pursue to dismantle and deter criminal activity.

ICE Director John Morton said yesterday that "ICE is serious about reining in art and antiquity thieves, smugglers, and traffickers."  Yet antiquities thieves, smugglers, and traffickers must be brought to trial.  And while ICE poignantly warned in Thursday's press release that anyone "involved in the illicit trafficking of cultural property, art and antiquities can face prison terms of up to 20 years, fines and possible restitution to purchasers of the items," criminals must first be indicted before they can face such consequences in a U.S. district court.  Only then can the "antiquity thieves, smugglers, and traffickers" who are targeted by ICE be held to account for violating federal criminal laws.

CONTACT: www.culturalheritagelawyer.com

Seize and Send v. Investigate and Indict: Focusing on Cultural Heritage Criminal Investigations and Prosecutions

ICE and CBP return an illegally
imported artifact to Guatemala.
Courtesy ICE.

Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) held a press conference on February 24 to publicly display the return of pre-Columbian objects to the Guatemalan foreign minister. The objects were recovered both in Houston, Texas in 2009 and from an auction house in Massachusetts in 2011. WJZ television in Baltimore reported that “[n]o arrests in the smuggling cases have been made, although federal agents say investigations are ongoing.”

Authorities are to be lauded for detecting and seizing illegally imported archaeological objects. But the claim that federal officials are continuing their investigation remains to be seen. That is because the primary evidence of possible smuggling has now been returned to Guatemala. The artifacts are no longer preserved for criminal analysis, they are not kept in safekeeping for use in court proceedings, and they are not available for inspection by potential criminal defendants who have a constitutional right to view the government’s evidence in a criminal case.

There appears to be no US Attorney involvement in this case, which is a sign that the matter likely is not being reviewed for possible criminal charges. And Homeland Security does not mention in its official press release that it is pursuing a criminal investigation. At best the agency cautions that “[t]hose involved in the illicit trafficking of cultural property, art and antiquities can face prison terms of up to 20 years, fines and possible restitution to purchasers of the items.“

Those who follow cultural property cases closely are aware that Homeland Security generally implements a seize and send policy with regard to cultural artifacts. While the agency boasts in its latest press statement and elsewhere that “[s]ince 2007, HSI [Homeland Security Investigations] has returned more than 2,500 artifacts to 23 countries …”it is silent about successful cultural property prosecutions. Such prosecutions are rare.

The Cultural Property, Art and Antiquities Investigations Program is carried out by HSI. The program describes its mission on ICE’s web site: “Returning a nation’s looted cultural heritage or stolen artwork, promotes goodwill with foreign governments and citizens, while significantly protecting the world’s cultural heritage and knowledge of past civilizations.” The emphasis is on sending cultural objects to home countries, not on developing cases for criminal prosecution.

It could very well be that the lack of financial or human resources prevents the development of cultural property smuggling cases. It could be too that politics affects agency decision making. Indeed, it may be noteworthy that on the same day of the repatriation of artifacts to Guatemala, Homeland Security Secretary Janet Napolitano announced that she would be traveling to Guatemala City and other Latin American destinations between February 27 and 29. Perhaps prosecutors are rejecting these cases for review. Whatever issue prevents ICE from doing its job to investigate and prepare cases for presentation to a federal grand jury and subsequent criminal prosecution must be resolved.

ICE Director John Morton is right to note “the exceptional investigative work HSI is doing to stop the pilfering and illicit trading of precious art and antiquities from around the world.” ICE has talented investigators. But more must be done to bring the talents of these federal agents to the next level so that their cases serve to provide a meaningful deterrent to archaeological smuggling. Investigators must be permitted to conclude their cases by submitting them to receptive US Attorneys for review and possible indictment. Cases concluded through seizure, forfeiture, and repatriation alone do not have a similar impact on criminal activity.

Sources:
Homeland Security press releases
http://www.ice.gov/news/releases/1202/120224washingtondc.htm
http://www.dhs.gov/ynews/releases/20120224-statement-on-napolitano-trip-to-central-america.shtm

WJV TV
http://baltimore.cbslocal.com/2012/02/24/stolen-ancient-mayan-artifacts-being-returned-to-guatemala/

CONTACT: www.culturalheritagelawyer.com

ACCG Makes Allegations in Baltimore Coin Case Reply Brief

CBP agents are pictured in this file photo
discussing strategies before airport
passengers arrive.  Source: CBP

The Ancient Coin Collectors Guild (ACCG) today filed its reply case in the case of ACCG v. US Customs and Border Protection et al.  The reply is a response to the brief by federal attorneys last month. The court case first started when the ACCG imported ancient Chinese and Cypriot coins through Baltimore, Maryland without a permit in an effort to challenge import protections put in place by the Cultural Property Implementation Act (CPIA).  The case is now on appeal in the Fourth Circuit after the ACCG lost in the lower federal district court.

The judiciary possesses the authority to review implementation of import controls over listed Chinese and Cypriot ancient coins coming into the United States. That is what the ACCG contends in its legal brief.  The organization summarizes its position in the argument title: "The District Court Possessed Ample Authority to Review the Government's Decision to Impose Import Restrictions on Collectors' Coins."

The group casts the controversy as a contest between "collectors' coins," which are of interest to the organization's small numismatic businesses and hobbyists, versus "serious substantive and procedural irregularities" on the government's part.  It complains that "[t]he Government … insists that its efforts to suppress the long-standing trade in common collectors' coins is either a foreign policy matter or one fully committed to agency discretion, leaving the Guild and the small businesses and collectors it represents without recourse." The group challenges authorities who believe they are "empowered to seize any undocumented coin that 'likely' was found in either Cyprus or China, notwithstanding explicit statutory language [in the Cultural Property Implementation Act] to the contrary."

The ACCG's brief levels "serious allegations," claiming that US State Department staff "worked behind-the-scenes with members of the archaeological lobby to orchestrate a change in existing precedent exempting coins from import restrictions ...." and that "staff added coins to the Chinese import restrictions without a formal request from Chinese officials."  The ACCG also alleges that an undersecretary of state "ordered [Cypriot] import restrictions … as a 'thank you' to Greek and Cypriot-American advocacy groups which had given him an award" and that an assistant secretary of state "did not recuse herself from approving the 2007 extension of the Memorandum of Understanding (“MOU”) with Cyprus after she had accepted a new position with an international financial institution that likely has business interests with Cyprus …."  The group additionally claims that the "State [Department] then misled Congress and the public about CPAC's true recommendations against import restrictions on coins."  CPAC is the Cultural Property Advisory Committee that advises the president about adopting import controls over cultural property in jeopardy from pillage.

The ACCG's brief further "alleges that the Government: (1) confused 'cultural significance' with 'archaeological significance' when it comes to objects that exist in multiples, like coins; (2) ignored evidence that Cypriot and Chinese coins circulated widely beyond their place of manufacture such that the 'first discovery requiremen'’ could not be met; (3) ignored or misapplied the CPIA’s requirements that less drastic measures like treasure trove laws or regulation of metal detectors be instituted before imposing restrictions; (4) ignored or misapplied the CPIA's 'concerted international response requirement;' and (5) wrongfully imposed import restrictions on coins without regard to their find spots."

The group argues that "the court has an obligation to ascertain whether coins were properly designated for restriction." That is, in part, because "CBP [Customs and Border Protection] acted in an arbitrary, capricious, or illegal manner under the APA [Administrative Procedures Act] when it allowed [the] State [Department] to assume authority over the preparation of the designated [import control] List."

The ACCG contends that it took action in court, not because it did not follow the rules as federal lawyers assert, but because the federal government failed to file a forfeiture action. The organizations says in its brief that the "Government’s claim that a forfeiture action provided an adequate remedy for the Guild borders on the Kafkaesque."

Note: Citations of authorities contained in the original ACCG brief are omitted from the quotes above.

CONTACT: www.culturalheritagelawyer.com