SLAM Litigants Move Toward Resolving Ka Nefer Nefer Mummy Mask Case

The St. Louis Art Museum (SLAM), the United States government, and the Republic of Egypt appear to be in discussions to settle the contest over title to the mummy mask of Ka Nefer Nefer. Last week the U.S. Attorney's Office for the Eastern District of Missouri filed an unopposed motion with the Eight Circuit Court of Appeals asking for filing deadlines to be held in abeyance in the case. The court granted the motion.

The federal government's October 17 motion tells the court that "the parties believe that continued discussions will be productive and that there is a significant possibility that they will reach a resolution that would obviate the need for the appeal to continue."  The appeals court was notified that "the United States must consult further with the Solicitor General, the Department of State, and the government of the Republic of Egypt before it can propose or agree to any potential settlement terms."

U.S. Attorney Richard Callahan appealed the mummy forfeiture case in June after a federal district court denied the government's efforts to seize and forfeit the Ka Nefer Nefer mask from SLAM.  The federal government alleges that the mask was stolen from Egypt and is in the United States in violation of the law.  SLAM asserts that they are the rightful owners of the artifact.  SLAM filed a declaratory action in February 2011 to gain quiet title to the mask followed by the U.S. Attorney's petition for forfeiture in March 2011.


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

Notice of Appeal Filed by U.S. Attorney in St. Louis Art Museum (SLAM) Ka Nefer Nefer Mummy Mask Case

One day after the U.S. District Court for the Eastern District of Missouri denied the government's latest effort to forfeit the Ka Nefer Nefer mummy mask held at the St. Louis Art Museum (SLAM), U.S. Attorney Richard Callahan filed a notice of appeal.

The notice challenges Judge Henry E. Autrey's denial of the government's motion to strike SLAM's claim, the dismissal of the government's verified complaint to forfeit the mask, the denial of the government's motion for reconsideration to reopen the forfeiture case, and the refusal to allow federal attorneys to amend its complaint.

The case now moves to the Eight Circuit Court of Appeals, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

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

Judge Once Again Dismisses Ka Nefer Nefer Forfeiture Case

U.S. District Court Judge Henry Edward Autrey yesterday denied the government's motion to file a new complaint to forfeit the Ka Nefer Nefer mummy mask from the St. Louis Art Museum (SLAM).  In a brief order, the judge described how he had ruled on the case twice before:

"On March 31, 2012 the Court entered an Order dismissing the Verified Complaint in the instant matter. After allowing The Government an extension of time to file its Motion for Reconsideration, on May 7, 2012, The Government filed a Motion to Reconsider Order and Opinion Dismissing Verified Complaint. In the motion, The Government requested, in the alternative, that the Court grant The Government an additional seven (7) days to move for leave to file an amended complaint before entry of judgment. On June 1, 2012, The Court denied the Government’s Motion for Reconsideration in its entirety. For the reasons outlined in The Court’s March 31, 2012 Order of Dismissal, and for the reasons offered in its Order denying reconsideration, The Court denies The Government’s requested leave raised in its motion submitted on June 8, 2012." (Citations omitted).

The U.S. Attorney's Office must now consider whether to appeal the rulings to the Eight Circuit.

UPDATE: The case will be appealed.

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

Eternal Rest Not Coming Soon for Ka Nefer Nefer Mummy Mask as Motions are Once Again Filed in Missouri Forfeiture Case

"This Court has previously denied the Government’s motion for reconsideration of its Order of Dismissal, and this latest filing by the Government amounts to little more than a second motion to reconsider."  That is what lawyers for the St. Louis Art Museum (SLAM) write in their Motion to Strike the Motion of the United States to File First Amended Verified Complaint.  SLAM's latest motion and memorandum to the Missouri federal court in the forfeiture case of United States v. Mask of Ka Nefer Nefer comes on the heels of the government's filing of a new complaint alleging that the mummy mask should be forfeited.

SLAM's lawyers argue that the parties should not have to keep coming back to court to argue an issue that has already been put to rest:

"The Government’s renewed attempt to re-open this case is unsettling. Not only has this Court dismissed this case, this Court has already once denied the Government’s request to reopen this case on the very same bases now reasserted in the Government’s Motion, and effectively denied the Government’s previous requests for leave to amend post-judgment. The Government now asserts that the Federal Rules of Civil Procedure (“Rules”) grant it limitless attempts to reexamine and to re-open this case until they are successful. The Government’s misinterpretation of these Rules would result in an abuse of procedure, a waste of judicial resources and burden on this Court, and a continued strain on the Claimant Museum’s limited resources."

Attorneys for the government counter in their Memorandum of Opposition that its recent petition asking the court's permission to accept a new forfeiture complaint is timely filed.  They argue:

"The Museum’s Motion to Strike is merely its latest attempt to generate procedural confusion in this case in order to avoid a decision on the merits. In any other setting, one would expect the Museum’s arguments to be presented in the form of a memorandum in opposition to the United States’ Motion for Leave to Amend. Instead, the Museum declined to respond and sought instead to strike the United States’ motion, presumably in the hopes of delaying this Court’s decision on the motion until after July 1, 2012, when the United States’ time to file notice of appeal might arguably run."

The pleadings, published on June 15, are expected to be ruled on by the court.

Hat tip to Gary Nurkin.

CONTACT: http://www.culturalheritagelawyer.com/

Federal Attorneys Test the Waters in Ka Nefer Nefer Case by Submitting New Court Complaint Claiming That Parties "Knew" or Were "Wilfully Blind" to Alleged Fictional Provenance

Following Judge Henry Autrey's order seemingly shutting down the government's renewed effort to forfeit a mummy mask located at the St. Louis Art Museum (SLAM), the eastern district U.S. Attorney's Office has once again filed court papers trying to reopen the case of United States v. Mask of Ka-Nefer-Nefer.  In pleadings dated June 8, federal prosecutors propose both an amended complaint and a request to the court for permission to accept the latest petitions.

The government's motion for permission to accept the new complaint states that "[n]one of the Court’s orders have addressed the United States’s request for time to seek leave to file an amended complaint or indicated that any proposed amendment would be futile. District courts routinely do not terminate a case at the same time that they grant a motion to dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice and give the plaintiff at least one opportunity to amend his complaint."  The government therefore submitted a new complaint for the court's consideration.

In the new complaint, the government's attorneys repeat their contention that the Ka Nefer Nefer mask was stolen. But they allege more forcefully and more thoroughly claims that the parties involved either "knew" the mummy mask was stolen, unlawfully exported, or illegally imported, or that they were "willfully blind" to the fact that the mask's "purported provenance was fictional."

Details of the government's allegations can be found by reading the The First Amended Verified Complaint.

CONTACT: www.culturalheritagelawyer.com

Motion Denied: Missouri Court Forces Prosecution to Consider Appealing the St. Louis Art Museum Ka Nefer Nefer Mummy Mask Case

The federal court for the eastern district of the United States has denied the prosecution's request to reopen the St. Louis Art Museum Ka Nefer Nefer mummy mask case.  Click here for background.

Judge Henry Autrey's May 30, 2012 order denied the U.S. Attorney's Motion for Reconsideration and extended the time for the government to file an appeal with the Eighth Circuit Court of Appeals.  U.S. Attorney Richard Callahan will now have to decide whether to let the district court dismissal of the forfeiture case stand or whether to appeal to the higher court.

CONTACT: www.culturalheritagelawyer.com

Prosecutors Reveal New Details of Theft Claim in St. Louis Art Museum Ka Nefer Nefer Mask Forfeiture

St. Louis Gateway Arch
Source: Sue Ford, National Park Service

Prosecutors in the case of United States v. Mask of Ka-Nefer-Nefer today filed a Reply in Support of Its Motion to Reconsider.  The U.S. Attorney for the Eastern District of Missouri hopes to reverse a judge's April dismissal of the case.  The government ultimately seeks to forfeit the allegedly stolen Ka Nefer Nefer mummy mask located at the St. Louis Art Museum (SLAM) and return it to Egypt.  SLAM denies that the mask is stolen and asserts ownership over the artifact.

The museum filed an objection earlier this week to the government's motion requesting the judge to reconsider the dismissal of the case.  Today's pleading by the government responds to the museum's objection.

The government says that it should be permitted to amend its original complaint if the court continues to uphold its dismissal order.  The prosecution goes on to reveal more specific allegations that it would articulate in a revised complaint:

"To the extent ... that a fuller explanation of the new allegations to be incorporated into an amended complaint would aid the Court in assessing the United States’ request for time to seek leave to amend, the United States is glad to elaborate. If deemed necessary by the Court, the United States' proposed amended complaint would:

• expressly allege that the Mask was stolen from box number fifty-four at Saqqara between 1966 and 1973;

• recite the provisions of the controlling Egyptian cultural patrimony law, Law No. 215, which provides that ancient artifacts excavated after 1951 are the national property of the Republic of Egypt, and establish the absence of any facts that would authorize the Museum’s ownership of the Mask under Egyptian law;

• summarize the relevant Egyptian export laws, which required application to be made to the Egyptian government before the Mask could be exported from Egypt, and allege the absence of any record of lawful exportation;

• detail the sale agreement between the Art Museum and the sellers for the purchase of the Mask, including the obligation of the sellers to provide copies of applicable export and import licenses, and allege the breach of those obligations;

• advance allegations regarding the sellers’ knowledge of the falsity of the Mask’s supposed provenance, as well as information regarding the criminal history of the sellers, to suggest the illicit nature of the sale;

• describe the Museum’s merely pro forma “investigation” into the Mask’s provenance to support the inference that it knew or was willfully blind to the fact that the Mask was stolen property both before and after its importation; and

• offer citations to numerous other provisions of law, including but not limited to Egyptian [patrimony] law No. 215 and 18 U.S.C. §§ 2314 and 2315 [the National Stolen Property Act], to bolster the conclusion that the Mask was imported into the United States 'contrary to law.'"

Federal attorneys further argue that "that the Museum apparently now concedes, for the first time on this Motion, that probable cause, not a preponderance of the evidence, is the ultimate trial burden that the United States will have to bear.  The Museum also appears to agree that the United States should not have to allege 'the date, location, or motive behind the stealing, let alone the identity of the thief' in order to meet that burden, so long as it can establish that the Mask is 'stolen.' The Museum likewise appears to admit that an artifact is considered 'stolen' if its private ownership violates originating country’s patrimony laws."

Prosecutors add that SLAM does not correctly construe the law or the facts of the case.  The U.S. Attorney's Office writes

"The Museum takes a detour, however, when it attempts to distinguish United States v. One Lucite Ball Containing Lunar Material on the ground that 'until 1983, there was no Egyptian law that unequivocally established Egyptian ownership of items like the Mask.'  That claim is not only outside the face of the complaint; it is also incorrect. As the United States set out in its Motion to Strike the Museum’s claim for lack of standing, Egyptian law has provided for national ownership of cultural artifacts like the Mask since at least 1951. While it will ultimately be for the Court to determine whose interpretation of Egyptian law is correct, any such determination is a matter of law that did not need to be pled, and in fact was not pled, on the face of the complaint. Thus, any such contention of the Museum’s is beyond this Court’s consideration on this motion."

[Blogger's sidebar: United States of America v. One Lucite Ball containing Lunar Material (one Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque is a federal district court case where authorities successfully seized a moon rock originally given by President Richard Nixon to Honduras.  The rock was bought for $50,000 by claimant Alan Rosen, who purchased the moon rock from a retired Honduran military officer.  The moon rock went missing from the Honduran presidential palace during the 1990's.  The case resulted in the forfeiture of the lunar rock to the federal government in 2003 after government lawyers argued that the rock was stolen from Honduras and smuggled into the United States in violation of 19 U.S.C. 1595a(c)(1)(A), the same statute invoked in the Ka-Nefer-Nefer case.]

CONTACT: www.culturalheritagelawyer.com

SLAM Opposes Government's Motion to Reopen Ka Nefer Nefer Mummy Mask Case

Attorneys for the St. Louis Art Museum (SLAM) oppose reopening the case of United States v. Mask of Ka-Nefer-Nefer.  Last week U.S. Attorney Richard Callahan's office urged the eastern district federal court in Missouri to reconsider its March 31 dismissal of the forfeiture caselaunched to recover the mummy mask. SLAM's lawyers today filed their objection.

Mohammed Zakaria Goneim originally excavated the 19th Dynasty mask at Saqqara, Egypt during the 1950's. The museum bought it on the antiquities market in 1998. Federal authorities say that the mask is illegal contraband, while the museum maintains that it is the owner of legitimate property.

St. Louis Art Museum
 Source: Colin Faulkingham. Public Domain

SLAM's pleading argues that the district court should not reconsider its decision to dismiss the case, and the court should not permit the government to file a newly amended complaint. The museum's attorneys suggest that the government's remedy is to appeal the dismissal of the case to the Eight Circuit Court of Appeals.

The museum's lawyers complain that federal prosecutors

• did not state any new evidence that should reopen the case,
• failed to explain any exceptional circumstances that would prompt a reexamination of the dismissal,
• did not submit an amended complaint when it had the chance, and
• failed to show that Egyptian law declared ownership over cultural property prior to 1983.

Several passages from SLAM's memorandum of law, quoted below with legal citations omitted, provide both a sketch and the flavor of the museum's arguments.

"In the Eighth Circuit, where an order dismisses a complaint for failure to state a claim but remains silent on whether the order is final, whether it dismisses the entire action, and whether the plaintiff has the right to amend, the entire action is dismissed.... The March 31st Order of this Court is silent ...: it does not state whether it is final, whether it dismisses the entire action, or whether the Government may appeal. As such, the Order was plainly a dismissal of the entire action."

"In its Motion for Reconsideration, the Government does not allege that it has discovered new evidence since the Court’s dismissal of this action that would warrant alteration or amendment of this Court’s Order. Instead, the Government offers evidence it 'could' now present evidence that could have been presented before the dismissal of this case. The Government had ample time between its decision to initiate this lawsuit and the dismissal of this action to provide evidence necessary to bolster its case, but has now missed its opportunity to do so."

"In its Motion for Reconsideration, the Government did not allege any exceptional circumstances that warrant a reexamination of the Court’s final judgment in this case. The Government has had a fair and full opportunity to offer evidence in opposition to Claimant Museum’s Motion to Dismiss, either in the Government’s responsive pleadings or by way of an amended complaint. In fact, the Government now brings to the Court the very same arguments it made in its responsive pleadings to the Claimant Museum’s Motion to Dismiss. Other channels of relief are available to the Government, as it has the option to seek redress from this Court’s Order by appeal to the Eighth Circuit. For all these reasons, this Court should deny the Government’s Motion for Reconsideration."

"The appropriate time for the Government to submit an amended Complaint was at some point during the nearly eleven months between the Claimant Museum’s Motion to Dismiss and the Court’s Order dismissing this action due to those very insufficiencies. Now, more than a year after the Museum first identified the deficiencies of the Verified Complaint, the Government offers only facts it 'could' include in an amended Complaint. But the Government stops there, without submitting a proposed amended Complaint, any documentary evidence of the additional facts the Government 'could' provide, or even a specific description in its Motion of what facts exist to cure the myriad defects identified by the Court."

"[O]ne of the marked deficiencies in this case [is that] until 1983, there was no Egyptian law that unequivocally established Egyptian ownership of items like the Mask.  It is well settled that such a clear declaration of ownership is necessary before exportation of an article constitutes theft. The Government’s objection about being required to 'establish the date, location, or motive behind the stealing, let alone the identity of the thief' overstates what the court expected. In its Order, the Court used the absence of those very basic 'factual and logical steps' to illustrate the utter lack of any facts connecting the Mask’s absence from Egypt with its 'theft.'"

"[T]he Government in this case offered no facts regarding: the date (or even the year) of the theft; the place from which the Mask was stolen; the identity of the thief or thieves (or even so much as speculation as to the identity); the location of the Mask at any time between its suspected location in 1966 and its purchase by the Museum in 1998; the year in which the Mask was exported from Egypt; that there was any law enforcement investigation conducted and, if so, what it revealed; the chain or suspected chain of custody; the identity of any witnesses to either the theft, recording, transport, storage or possession of the Mask in the intervening three decades; or the Egyptian patrimony law that purportedly established Egypt’s ownership of the Mask."

"Nevertheless, the Government requests leave to amend its Verified Complaint. It is interesting that after more than six years during which the Museum has repeatedly sought--first from the Egyptian government, then from the United States government--any evidence suggesting theft or even that the Museum’s possession of the Mask was less than legitimate, the Government now hints at but still does not specify what additional facts may satisfy its burden. The Government has clearly had sufficient time, even within the time frame of this case, to amend its Verified Complaint to cure the deficiencies."

CONTACT: www.culturalheritagelawyer.com

Motion to Reconsider Urges Court to Resurrect St. Louis Art Museum Mummy Mask Case

U.S. Attorney Richard Callahan
Source: USDOJ

Reopen the St. Louis Art Museum (SLAM) mummy mask case. That is what the U.S. Attorney for the Eastern District of Missouri is asking a federal district court judge to do.  In a Motion to Reconsider filed today, U.S. Attorney Richard Callahan's office seeks to resurrect the case of United States v. Mask of Ka-Nefer-Nefer.

A judge dismissed the suit last month, claiming that the government's legal complaint to forfeit a mummy mask from SLAM was insufficient.  The complaint failed to articulate how the mask was stolen and smuggled, or how it was brought into the United States "contrary to law," the court ruled.

But the prosecution says in today's motion that the complaint does not need to be more specific about how the mask was stolen or smuggled. And the government does not need to prove any more than probable cause to believe that the mummy mask was stolen.

Assistant United States Attorney (AUSA) Richard Finneran writes, "While it is true that the Verified Complaint does not disclose the identity of the thief, the exact date of the theft, or 'why' the Mask was stolen, it does allege circumstances that reasonably give rise to the inference that the Mask was unlawfully taken from Egypt’s possession without its permission, and is therefore 'stolen' property  ...."  The AUSA adds that "the United States . . .  must merely establish probable cause to believe that the property is subject to forfeiture" then "the burden then shifts to the Museum to prove the lawful importation of the Mask by a preponderance of the evidence."

The prosecution describes that "one may rightfully infer the stealing of property without direct evidence of all the circumstances underlying the theft."  An analogy is given:  "If a homeowner were to return from a trip abroad to find that all of the electronics in his house were missing, it would certainly be reasonable for him to conclude that they had been stolen, even if he could not identify the thief or the exact time of the theft."

In its motion to reconsider, the prosecution also attempts to correct the court's conclusion that the government "should have alleged the [specific] law under which the Mask should be considered 'stolen.'" AUSA Finneran argues that "Section 1595a itself prohibits the importation of stolen property into the United States, regardless of whether any other law has been violated in the process of importation."  That statute, 19 USC 1595a, states:

Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall

be treated as follows:

(1) The merchandise shall be seized and forfeited

if it—

(A) is stolen, smuggled, or clandestinely imported

or introduced . . . .

The government says that its arguments are sufficient to renew the forfeiture case.  But if not, prosecutors are asking the court to allow the filing of an amended complaint.  AUSA Finneran writes that "the United States believes that an amended complaint could allege numerous alternative bases to believe that the Mask’s importation was 'contrary to law' . . . if such allegations are deemed necessary."

The prosecution says it can offer additional allegations in an amended, verified complaint:  "Among other things, an amended complaint could more explicitly allege the approximate date range and location from which the Mask was stolen. It could also allege additional and alternative bases to believe that the Mask was imported 'contrary to law,' including facts relating to the absence of records and licenses reflecting the lawful import or export of the Mask, the content of the applicable Egyptian cultural property laws, and circumstances relating to the Museum’s purchase of the Mask from its seller. Finally, it could identify particular statutes, regulations, and provisions of foreign and common law which establish that the illegality of the Mask’s importation." 

The prosecution draws the court's attention to the generally accepted principle that "[d]istrict courts routinely do not terminate a case at the same time that they grant a motion to dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice and give the plaintiff at least one opportunity to amend its complaint."


UPDATE: SLAM's lawyers filed their objection to the government's motion to reconsider on May 14, 2012.

CONTACT: www.culturalheritagelawyer.com

United States Files Motion in SLAM Mummy Mask Case

The U.S. Attorney's Office in St. Louis filed a motion today in response to a federal district court's ruling earlier this week dismissing the government's forfeiture complaint against the Ka Nefer Nefer mummy mask located at the St. Louis Art Museum (SLAM).  The prosecutor asks the court for an extension of time to file a motion for reconsideration of the court's decision or to file an amended complaint.

The federal district court for the eastern district of Missouri on March 31, 2012 dismissed the government's action, saying that the complaint failed to allege specific enough facts to support a claim for forfeiture.  The government's response today sets the stage to either file a revised complaint that meets the court's articulated demands or to appeal the court's dismissal order if a motion to reconsider the decision proves unsuccessful. The prosecutor asks for extended time to pursue these objectives because he states, in part, that he is in a trial expected to last through April 20.

UPDATE 4/11/12: Judge Autrey granted the prosecution's request, writing "PLAINTIFF GRANTED UNTIL 5-7-12 TO FILE WHAT IT SUGGESTS IS A MOTION TO RECONSIDER."

CONTACT: http://www.culturalheritagelawyer.com/

The Other SLAM Mummy Mask Case Quietly Remains Alive for Now

The U.S. District Court for the Eastern District of Missouri has denied the federal government's claim to forfeit the Ka Nefer Nefer mummy mask located at the St. Louis Art Museum (SLAM).  But the parallel case of SLAM v. U.S. remains alive ... for the moment.

Before the federal government sought to forfeit the mummy mask in March 2011, SLAM filed a civil action for declaratory relief in federal court seeking to quiet the title of the 19th Dynasty Egyptian mask.  The museum's February 2011 complaint states: the "Museum respectfully seeks declaratory relief to declare the respective rights of the parties with regard to the Mask, specifically that (1) the right of the United States to seek seizure and/or forfeiture pursuant to the provisions of the Tariff Act of 1930 (“Tariff Act”) is foreclosed by the applicable statute of limitations set forth in 19 U.S.C. § 1621, and (2) the provisions of Egyptian Law No. 215 [on the Protection of Antiquities] do not establish the Mask is Egypt's property, nor can the Defendants establish reasonable cause to believe the Mask was 'stolen, smuggled, or clandestinely imported or introduced' into the United States pursuant to 19 U.S.C. § 1595a."

On the same day that the court dismissed the government's effort to forfeit the Ka Nefer Nefer mask, Judge Henry E. Autrey issued an order on March 31, 2012 to stay SLAM's declaratory judgment action "pending the outcome of the civil forfeiture action, United States v. Mask of Ka-Nefer-Nefer . . . ."

The government will file a motion for leave to amend its complaint in the forfeiture case.  If granted, both the government's forfeiture case and the museum's declaratory relief case might remain active in the court.

CONTACT: http://www.culturalheritagelawyer.com/

District Court Dismisses Government’s Case to Forfeit SLAM Mummy Mask

The U.S. District Court, Eastern District of Missouri, today published an order dismissing the government's’ forfeiture complaint against the Ka Nefer Nefer mummy mask.  The Egyptian artifact is located at the St. Louis Art Museum (SLAM).

The government filed a claim in March 2011 to forfeit the 19th Dynasty Egyptian mummy mask of a noblewoman from SLAM, alleging that it was stolen from Egypt.

Judge Henry Autrey brought the government’s case to a halt after concluding this past Saturday that the federal attorneys failed to specifically articulate how the mask was stolen and smuggled, or how it was brought into the United States "contrary to law."

Excerpts from the court’s nine page opinion are quoted below with citations omitted:

The Government bases its claim for forfeiture on Section 1595a of Title 19. Section 1595a(c) provides in relevant part:

Merchandise which is introduced or attempted to be introduced into the United States as contrary to law shall be treated as follows: (1) the merchandise shall be seized and forfeited if it – (A) is stolen, smuggled, or clandestinely imported or introduced.

In order to exercise the seizure and forfeiture of the Mask, the statute requires pleading the following: (1) facts relevant to whether the Mask was “stolen, smuggled or clandestinely imported or introduced” and (2) facts related to some predicate unlawful offense, presumably a law with some “nexus” to international commerce from which the Title 19 customs regulation arises. The Government’s verified complaint lacks both of these pleading prerequisites. Indeed, the verified complaint fails to state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.

The verified complaint does not provide a factual statement of theft, smuggling, or clandestine importation. Rather, the complaint merely states that the Mask was found to be “missing” from Egypt in 1973. Although the Government alleges, in a conclusory fashion, that “the register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973,” the complaint is completely devoid of any facts showing that the Mask was “missing” because it was stolen and then smuggled out of the country. The closest the Government comes to any type of allegation of theft or smuggling is in paragraphs 19 and 20 of the complaint, which note that in 2006 “the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum . . . and [t]o date, the Saint Louis Art Museum has refused to return the Mask.” The Government’s legal conclusion, in paragraph 22 of the verified complaint, that “[b]ecause the Mask was stolen, it could not have been lawfully exported from Egypt or lawfully imported into the United States,” misses a number of factual and logical steps, namely: (1) an assertion that the Mask was actually stolen; (2) factual circumstances relating to when the Government believes the Mask was stolen and why; (3) facts relating to the location from which the Mask was stolen; (4) facts regarding who the Government believes stole the Mask; and (5) a statement or identification of the law which the Government believes applies under which the Mask would be considered stolen and/or illegally exported.

The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally. The Government is required under the pleading standards set forth in the Federal Rules of Civil Procedure to provide specific facts, or plead “with such particularity,” that the claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading. As it now stands, claimant cannot even be sure of the who, what, when or where of the alleged events surrounding the alleged “stealing,” nor can the Museum ascertain if the Government is pursuing seizure of the Mask based on an alleged theft or a unlawful import/export, or both. (The Court presumes that the Government is not accusing any unnamed parties of clandestinely smuggling the Mask out of Egypt and into the United States; however, given the lack of specificity in the verified complaint, perhaps the Court should not make any assumptions on the Government’s behalf.)

Additionally, as noted previously, the Government has been completely remiss in addressing the law under which the Mask would be considered stolen. The phrase “contrary to law” under § 1595a refers to how merchandise, such as the Mask, is introduced in the United States illegally, unlawfully, or in a manner conflicting with established law. The Government has completely failed to identify, in its verified complaint, the established law that was violated when the Mask was purportedly brought illegally into the United States or purportedly stolen from Egypt or some other undisclosed party, and it has failed to provide any facts relating to the time period surrounding these supposed events. Thus, the Government's verified complaint fails to assert specific facts supporting an inference that the Mask is subject to forfeiture.

CONTACT: www.culturalheritagelawyer.com

Ka Nefer Nefer Case Resumes After Lengthy Hiatus

St. Louis Art Museum

Lawyers for the St. Louis Art Museum (SLAM) filed a sur-reply last week in the case of U.S. v. Mask of Ka Nefer Nefer after activity in the case--at least with regard to legal filings--abruptly ended in August 2011.  SLAM submitted its pleading to the eastern district federal court in Missouri.  The court submission comments on the running dispute about whether the museum has legal standing to remain in the case.

The government filed a claim in March 2011 to forfeit the mask of Ka Nefer Nefer located at SLAM.  The 19th Dynasty Egyptian mummy mask of a noblewoman is alleged by the government to have been stolen from Egypt.

The government's forfeiture action was a response to SLAM's legal effort in February 2011 to quiet the title of the mask so that the museum potentially could own the artifact without worry.  In July 2011, federal lawyers filed a motion to knock SLAM off the forfeiture case, arguing that the museum could make no colorable legal claim to ownership because the mask is a stolen object.  The motion to strike SLAM from the case set off a volley of legal pleadings related to whether the Ka Nefer Nefer mask is contraband.  The federal government argued that possession of the mask was akin to possessing cocaine, which is illegal.

After a long absence of legal submissions, SLAM's most recent sur-reply picks up the argument once again.  The museum charges that it "has consistently taken the position that the Government’s claim is barred from the outset by the statute of limitations and that its forfeiture claim must fail because the Government is unable to prove the Mask was stolen. In raising the arguments it does, the Government is attempting to delay or avoid the consideration of those questions by confusing the standard for constitutional standing and making the bizarre suggestion that the Court pretend that the Museum claims an interest 'not of a centuries old Egyptian mask, but rather a kilogram of cocaine.'  In doing so, the Government so muddles and confuses the term 'contraband,' and the significance that the term carries, that some clarification is necessary." (citations omitted).

SLAM adds that the mummy mask is not contraband per se (such as illegal drugs) "as [artifacts] may be lawfully owned and become contraband only based on a connection with a criminal act."  Relying on U.S. v. Jeffers, 342 U.S. 48, 52-54 (1951), the museum asserts that "[t]he Supreme Court has recognized that, in the absence of a law foreclosing property rights, artifacts can be privately owned."

SLAM criticizes the government, saying that "[t]he Government’s evolving positions with respect to the ownership issue seem to be at war with themselves."  The museum argues that Egypt's patrimony law, which claims ownership of cultural objects found on its soil, is argued by the government to be a law granting private ownership in one pleading and alternatively, in another pleading,  a law that restricts private ownership.

SLAM concludes by reasserting that it has made a colorable claim to ownership to the mummy mask.

The government filed papers on March 28, 2012 for leave to reply to the sur-reply.

CONTACT: http://www.culturalheritagelawyer.com/

Commentary on SLAM Mummy Mask Case - Proceeds Contraband and Statute of Limitations

The current civil litigation surrounding whether the Ka-Nefer-Nefer mummy mask is contraband is worth following given the current legal arguments in play.

The mask, located at the St. Louis Art Museum (SLAM), is claimed by the federal government to be contraband, which is always unlawful to possess. SLAM, meanwhile, argues that the mask, if it is contraband, must be considered derivative contraband, compelling the government to prove that the mask was utilized in the commission of a crime.

It is open to discussion whether the mummy mask fits into the same category as contraband like illegal narcotics. It is also remarkable to think of the mummy mask as derivative contraband like a car used in illegal gun running. It may be that both legal theories are inexact.

The mummy mask might be categorized as proceeds or fruits instead.

Broadly speaking, criminal search and seizure law categorizes property as fruits, instrumentalities, or contraband. Fruits of a crime are the proceeds of a criminal transaction. These items are ones connected with a criminal act and may be seized. Instrumentalities are objects used to facilitate a crime, and these too may be seized. Contraband items are ones that are plainly unlawful to possess like counterfeit money, and these too may be seized.

In the realm of civil forfeiture of property, particularly dealing with items alleged to be connected to a crime, these criminal law concepts of fruits, instrumentalities, and contraband may be translated into three legal theories: proceeds forfeiture, instrumentalities forfeiture, and contraband forfeiture. If contraband forfeiture is the argument of the government, and instrumentalities forfeiture is the argument of the museum, will proceeds forfeiture be considered by the court? We shall see.

Meanwhile, SLAM’s assertion that the statute of limitations has expired in this case, preventing the government from pursuing its court action, is an argument worth watching closely. Statute of limitations is always an issue of importance when applied to cases of fine art and cultural heritage. In the Ka-Nefer-Nefer mummy mask case, it should be noted that the statute of limitations would not likely apply if the mummy mask is categorized as contraband per se. That is because it would be unlawful to possess the mask under any circumstance at any time. And that is perhaps one reason why the government hopes to characterize the mask as contraband, because it could potentially steer the case away from litigation over the statute of limitations altogether.

We look forward to further developments.

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SLAM Disputes Government's "Contraband" Claim in Ka-Nefer-Nefer Mummy Mask Case

In the latest round of legal papers filed in the case of United States v. Mask of Ka-Nefer-Nefer, the St. Louis Art Museum (SLAM) says that its possession of the ancient Egyptian mummy mask cannot be likened to possession of cocaine as the US government's lawyers claim. (See July 31, 2011 blog post for background.)

SLAM's attorneys describe two kinds of contraband. They explain that there is contraband per se, which include items illegal to possess under any circumstance (author's note: think of counterfeit money) and which can be automatically confiscated by the government without a hearing. They also say that there is derivative contraband, which include lawful items that are forfeitable because they are connected with a crime (author's note: think of a car used in drug trafficking). SLAM argues that if the mask is in fact contraband, then it must be characterized as derivative contraband that is not automatically forfeitable. Because the mask is not automatically forfeitable contraband per se, SLAM argues that the government must present evidence that the object is forfeitable as an item that derives from a criminal act.

SLAM writes in its August 3, 2011 pleading (some citations omitted):
"The Government’s evolving positions with respect to the ownership issue seem to be at war with themselves. First, it admitted in its own pleadings that there are several bases under [Egypt’s patrimony] Law No. 215 which would provide for private ownership of artifacts such as the Mask. Now it argues that Egyptian Law No. 215 forecloses property rights in artifacts such as the Mask and renders them contraband per se, akin to cocaine or an illegal whiskey still. In fact, Egyptian Law No. 117, which was enacted in 1983, after Law No. 215, specifically acknowledges that artifacts such as the Mask could be privately owned. United States v. Schultz, 333 F.3d 393, 401-02 (2d Cir. 2003). In that seminal case, the Second Circuit went on to recognize that Law No. 117 was the first Egyptian law declaring illegal any private ownership of all antiquities found in Egypt after 1983. The Mask, therefore, clearly cannot be considered contraband per se in the way that such items as narcotics are intrinsically unlawful to possess."

By making the claim that the mummy mask arguably can be characterized contraband derived from a crime, SLAM tries to reinforce its assertion that the burden of proving the forfeiture is on the government.

Meanwhile, it should be noted that the issue of whether the statute of limitations forecloses the government's seizure action is an argument that SLAM continues to raise. SLAM's lawyers write:
"The Museum has consistently taken the position that the Government’s claim is barred from the outset by the statute of limitations and that its forfeiture claim must fail because the Government is unable to prove the Mask was stolen. In raising the arguments it does, the Government is attempting to delay or avoid the consideration of those questions by confusing the standard for constitutional standing and making the bizarre suggestion that the Court pretend that the Museum claims an interest 'not of a centuries old Egyptian mask, but rather a kilogram of cocaine.'"

The United States Attorney's Office counters SLAM's latest assertions in a pleading filed August 4, saying that SLAM failed to make arguments about the contraband issue when it was supposed to. The government’s lawyers contend that SLAM never before raised the distinction of contraband per se and derivative contraband, writing that the museum only now “disputes whether private ownership of the Mask is authorized under Egyptian law.”

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.

US Attorney Takes the Offensive in SLAM Litigation by Seeking Forfeiture of Egyptian Mask

Last month the St. Louis Art Museum (SLAM) sued the US government to claim ownnership of the ancient mask of Ka-Nefer-Nefer. The US government yesterday sued to forfeit the mask.

Fearing that federal authorities could seize the Egyptian mask of Ka-Nefer-Nefer, SLAM filed a preemptive complaint on February 15 to have a federal district court declare that the mask is the museum’s property. US Attorney Richard Callahan responded on March 16 by initiating a lawsuit against the mummy mask.

In a complaint titled United States v. Mask of Ka-Nefer-Nefer, Callahan petitions a Missouri federal court for forfeiture of the ancient object pursuant to 19 U.S.C. § 1595a. That statute permits officials to seize and forfeit items that have been illegally stolen, smuggled, or clandestinely imported into the United States. Callahan also asks that a restraining order be placed on the mask so that it remains available while the court case progresses.

In its petition for declaratory judgment, SLAM argues the following points:
• The museum conducted thorough due diligence before purchasing the mask on April 3, 1998.

• “The Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

• “The United States government cannot show probable cause the Mask was ‘stolen, smuggled, or clandestinely imported or introduced’ into the United States.’” Therefore, the mask cannot be seized or forfeited under 19 U.S.C. § 1595a.

• If the mask was stolen, the United States government is barred by the statute of limitations from seizing or forfeiting it because federal authorities had information more than five years ago “sufficient to discover the alleged theft of the Mask from Egypt.”

It should be noted that SLAM’s court complaint is hesitant to admit that the mask is stolen property. At best SLAM remarks that the mask may have been “allegedly stolen.”

The US Attorney’s complaint, by contrast, argues a more forceful claim, detailing why the mask is known to have been stolen. An excerpt from the government’s complaint is reproduced below:

“In 1952, Egyptian archaeologist Mohamed Zakaria Goneim, working for the Egyptian Antiquities Service, excavated the mat burial of a 19th Dynasty noblewoman named Ka-Nafer-Nafer inside the funerary enclosure of the 3rd Dynasty king Sekhemket at Saqqara. The Mask was placed in storage in the Sekhemkhet magazine, also located at Saqqara, where it was registered as the property of the Egyptian Antiquities Service and where it remained until 1959. In July of 1959, the Mask and four other items from Saqqara were packed for shipping to the Egyptian Museum in Cairo in preparation for an exhibit in Tokyo. The packing list identified the Mask as registration number 6119 and packed in box number six. The Mask was received by police guards at the Egyptian Museum in Cairo on July 28, 1959. Ultimately, the Mask did not travel to Tokyo for the exhibit. The Mask remained in Cairo, Egypt until 1962 at which time the Mask was transferred back to Saqqara. In 1966, the Mask and other objects from the same burial assemblage were removed from packaging in Saqqara and given to the Egyptian Antiquities Organization Restoration Lab located in Cairo in preparation for future display. The Mask traveled to Cairo from Saqqara in box number fifty-four. This was the last documented location of the Mask in Egypt. In 1973, the Egyptian Museum in Cairo took an inventory of all the objects that traveled in 1966 from Saqqara to Cairo in box number fifty-four. It was discovered at that time that the Mask was missing. The register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973. In or around 2006, the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum located in Saint Louis, Missouri for approximately $500,000.00 in 1998. Subsequently, the Secretary General for the Egyptian Supreme Council of Antiquities sent letters and documentation to the Saint Louis Art Museum detailing the history of the Mask and requesting its return to Egypt. To date, the Saint Louis Art Museum has refused to return the Mask.”


The US Attorney’s office describes the mask’s source of discovery and its subsequent provenance. Should these claims be proven by the government, SLAM may find it difficult to maintain its dual and nuanced positions that either the mask may not have been stolen, or that the museum's investigation “revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

If evidence of the mask’s stolen character is proven by the government, SLAM might also have to revisit its February 14, 2006 position, reproduced in the museum’s legal complaint, “expressing its willingness to return the Mask to Egyptian authorities upon verifiable proof the Mask was stolen.” Any thought about returning the mask may have vanished, however, now that SLAM has argued that the statute of limitations forbids authorities from seizing or forfeiting the mask.

Knowing the statute of limitations claim asserted by SLAM, the US Attorney’s recent legal action does not address the issue at all. SLAM’s court petition points to episodes where federal officials directly or indirectly possessed knowledge to take action to investigate the possible illicit provenance of the mask. It remains to be seen how the federal government will take on this argument when SLAM inevitably raises the claim in its response to the government’s forfeiture action.

SLAM's Federal Court Action: Summary and Comment on the Saga of the Mummy Mask

The St. Louis Art Museum (SLAM) on February 15, 2011 filed a lawsuit against the United States seeking a declaratory judgment in the case of the Ka-Nefer-Nefer mummy mask. It is helpful to explain both what this lawsuit is about and what missing information and discrepancies are starting to appear at this early stage of the court process.

Summary of SLAM’s Complaint and Legal Arguments

A declaratory judgment is a binding ruling by a court that decides a party’s rights in a dispute. It is a preventive action taken when a party believes that it will face impending legal action. In this case, SLAM filed a complaint in federal district court to prevent authorities from seizing the mummy mask in its possession. SLAM’s complaint suggests that federal authorities were preparing to seize the controversial mummy mask of Ka-Nefer-Nefer, excavated in 1952 in Egypt and purchased by the museum in 1998 from Phoenix Ancient Art, Geneva. The complaint alleges that “counsel for the Museum was contacted by the United States Attorney's Office for the Eastern District of Missouri in St. Louis, to request a meeting regarding the Mask. On January 13, 2011, the U.S. Attorney's Office in St. Louis hosted a meeting regarding the Mask. In attendance were Assistant U.S. Attorneys from the St. Louis U.S. Attorney's Office and, telephonically, the Southern District of New York, and agents from DHS in St. Louis and, also telephonically, a DHS agent stationed in Cairo, Egypt. During this meeting, the Assistant U.S. Attorneys communicated their intention to seize and forfeit the Mask pursuant to 19 U.S.C. 1595a.” The museum responded by filing the current petition for declaratory judgment.

SLAM wants the federal district court in St. Louis to declare that the mummy mask cannot be seized by federal officials. The museum essentially argues that the US government cannot legally take the mask because the statute of limitations has run out and because there is no reason to believe that the mask is Egyptian property or that it was illegally stolen or smuggled into the United States.

The museum presumes that federal authorities wish to seize the mummy mask under a specific section of the US customs law, specifically 19 U.S.C. §1595a. There are other means to seize the mask under federal or state law, but SLAM assumes (not unreasonably) that this particular law would be used.

The museum first argues that the time has run out for the federal government to seize the mummy mask. SLAM’s lawyers point to the fact that the US government had, at most, five years to seize the mask from the time it had information that the mask was allegedly stolen. The museum cites several examples of how it believes federal officials possessed this knowledge as early as 1998, including that
- the US Department of Justice in February 1998, actually or constructively, received from INTERPOL the museum’s letter inquiring about whether the mask was stolen or illicit and

- the FBI in December 2005 and January 2006 knew or should have know about allegations that the mask was stolen because the founder of the Museum Security Network sent emails to the FBI Art Crimes Program asserting that the mask was probably stolen.

SLAM therefore argues that the United States cannot seize the mummy mask because the statute of limitations clock set by 19 U.S.C. §1621 now forbids it.

Second, the museum claims in its complaint that even if the statute of limitations clock has not run out, federal authorities still cannot seize the mummy mask because “[t]he Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

SLAM argues that federal agents cannot take the mask because the government cannot produce sufficient information to show that the mask was stolen or smuggled into the United States pursuant to 19 U.S.C. §1595a. The museum further points out that “Egyptian Law No. 215 on the Protection of Antiquities, the [cultural patrimony] law applicable at the time the Mask was discovered and excavated, allowed for personal and private ownership of Egyptian antiquities, provided that antiquities could be sold or gifted and, as such, did not establish ownership of the Mask by Egypt.” The museum’s lawyers conclude that “the United States lacks an evidentiary basis for asserting the Mask was stolen pursuant to Egyptian Law No. 215, or seizing and/or causing the forfeiture of the Mask pursuant to 19 U.S.C. § 1595a.”

Now that the complaint has been filed by SLAM, federal attorneys will file a response.


Emerging Missing Information and Discrepancies

SLAM’s complaint says that it purchased the mummy mask sometime in April 1998 from Phoenix Ancient Art in Geneva, Switzerland. The museum acknowledges that Mohammed Zakaria Goneim excavated the mask near King Sekhemkhet’s unfinished pyramid in Saqqara sometime around 1952. SLAM’s reported history of the mask (the provenance) picks up in the early 1960s when the museum reports that “the Mask was a part of the Kaloterna (or Kaliterna) private collection, during which time it was purchased by Ms. Zuzi Jelinek ('Jelinek'), a Croatian collector in Switzerland. In or around 1995, Jelinek sold the Mask to Phoenix Ancient Art, S.A. of Geneva ('Phoenix'). On or about April 3, 1998, the Museum purchased the Mask from Phoenix.”

Absent from the legal complaint are significant pieces of information that one hopes will be filled-in during the ensuing litigation. The court process can oftentimes shed light on murky or unknown facts, and supplemental information in this case can fill in important gaps and clear up lingering discrepancies. A few are described here.

For example, SLAM’s description of the mummy mask’s provenance in its legal complaint differs from the mummy mask’s chain of custody as reported by the Riverfront Times in 2006. That newspaper reviewed the provenance of the mask based on paperwork supplied by SLAM. The Riverfront Times reported that the mask went from excavation/Egypt - to an unknown Brussels dealer sometime around 1952 – to Kaloterna - to Jelinek – to Phoenix Ancient Art/Aboutaam brothers. SLAM’s legal complaint states that the mask went from excavation/Egypt - to the Kaloterna private collection – to Zuzi Jelinek – to Phoenix Ancient Art/Aboutaam brothers.

SLAM’s legal complaint omits a description of who exactly took possession of the mask after it was excavated by the Egyptians. Most importantly the complaint is silent about how an excavated and documented mummy mask legally exited Egypt in the first place. The court papers filed also ignore the fact that Goneim was an antiquities inspector in Egypt and was the archaeologist who discovered Sekhemket’s pyramid site. Goneim’s status as both a scientist and an Egyptian government official/employee are important facts since issues about what laws and regulations he and his Egyptian superiors followed during the 1950s and 1960s are likely to be significant to the question of whether the mask was stolen.

Curiously, the legal complaint also avoids any mention at all of the mask having been seen with a Brussels antiquities dealer. The Riverfront Times reported that SLAM received documents from Phoenix Ancient Art that included a 1997 note from Charly Mathez, an elusive Swiss man, which explained how he spotted the mask in 1952 in the hands of an unidentified antiquities dealer located in Brussels, Belgium. The absence of this information from the legal complaint raises questions.

In any case, the SLAM’s complaint also omits a description of how the mask made its way from the point of excavation to the Kaloterna private collection, or a description of who owned this collection. There is also no information about the date or the nature of the transfer from the Kaloterna private collection to Zuzi Jelinek in Switzerland. The hazy information currently supplied in the legal complaint should be described more fully as the case continues through the federal process.

Meanwhile, SLAM’s assertion that Jelinek sold the mask to Phoenix Ancient Art will likely be challenged by the federal government. The Riverfront Times described an unusual transaction between Zuzi Jelinek and Phoenix Ancient Art, or perhaps the lack of a transaction at all. The newspaper explained:

“According to Swiss telephone listings, a Suzana Jelinek-Ronkuline lives at 84 Quai de Cologny in Geneva. Her telephone number is identical to the one on the letter Phoenix Ancient Art provided to the St. Louis museum. Reached by phone in Geneva, a man identifying himself as Jelinek's son, Ivo Jelinek, says his mother never owned the Ka-Nefer-Nefer mask. ‘This is completely false information. . . .’ Jelinek says his mother's name may be linked to the Ka-Nefer-Nefer mask for another reason: the Aboutaam brothers, owners of Phoenix Ancient Art, rented another house she owns on Quai de Cologny. . . . Presented with this information, Hicham Aboutaam directed the Riverfront Timesto a woman identifying herself as Suzana Jelinek, of Zagreb, Croatia. ‘I bought the mask many many years ago, and I sold it many many years ago,’ says Suzana Jelinek when reached at her Zagreb home. ‘I have so many things in my collection that my children don't know what all I have.’”

Phoenix Ancient Art allegedly bought the mask in 1997 from Jelinek. The purchase price paid by Phoenix was not known, according to the Riverfront Times. But this price hopefully will be reported during the current federal litigation since an object’s fair market value or its undervalue is a piece of evidence used to determine whether property was legally or illegally transferred. It also goes without saying that evidence of a purchase and sale can certainly establish whether Jelinek engaged in a transaction involving the mask. That evidence can take many forms, including evidence of the parties’ bank statements for example, documenting the release of purchase money or the deposit of sale money.

Also of interest is the museum’s reported due diligence. One must always ask “What diligence is due?” The museum’s complaint certainly details a variety of concrete and laudible steps taken to verify the mummy mask’s provenance. However, several questions remain regarding the actual information learned through that diligence and how that information was accepted or rejected when deciding to purchase the mask.

Hopefully we will learn more as the case progresses.


Sources:
THE ART MUSEUM SUBDISTRICT OF THE METROPOLITAN ZOOLOGICAL PARK AND MUSEUM DISTRICT OF THE CITY OF SAINT LOUIS AND THE COUNTY OF SAINT LOUIS v. THE UNITED STATES OF AMERICA, SLAM’s complaint for Declaratory Judgment (February 15, 2011) (http://www.courthousenews.com/2011/02/16/MummyMask.pdf) (last visited February 19, 2011).

Malcolm Gay, “Out of Egypt: From a long-buried pyramid to the Saint Louis Art Museum: The mysterious voyage of the Ka-Nefer-Nefer mask,” Riverfront Times, Feb. 15, 2006 (http://www.riverfronttimes.com/2006-02-15/news/out-of-egypt/full) (last visited February 19, 2011).