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/

Court Issues Restraining Order in Sotheby's Cambodian Statue Case

U.S. District Court Judge George B. Daniels today issued a restraining order on a statue located at Sotheby's in Manhattan.  He ordered that the ancient Khmer temple statute remain at the auction house, and further ordered that it be made available for inspection by federal authorities pending an April 12 review hearing.

Yesterday federal authorities filed a forfeiture action in the southern district of New York, alleging in in an alternative theory complaint, that the statue is in the United States unlawfully.  Federal prosecutors allege that the ancient Khmer temple statute is stolen property.  Now they are attempting to "arrest" the statue as is common in a forfeiture case.

Chasing Aphrodite has been acquiring legal papers surrounding the case in advance of official publication.  So their blog may be worth a visit to get the latest information.

CONTACT: www.culturalheritagelawyer.com

Manhattan US Attorney Seeks Forfeiture of Cambodian Statue at Sotheby's

The U.S. Attorney for the Southern District of New York today filed a civil complaint to forfeit an ancient Khmer temple statute, known as the Duryodhana, and in the hands of Sotheby's auction house in Manhattan.  A press release issued by U.S. Attorney Preet Bharara stated the following:

"The Duryodhana is believed to have been looted from Prasat Chen during periods of extreme unrest in Cambodia during the 1960s and 1970s. In 1975, a private collector in Belgium purchased the Duryodhana from an auction house in the United Kingdom. Under the laws of French Indochina and Cambodia, the Duryodhana has been the legal property of Cambodia since at least 1900, if not earlier."

Sotheby's in New York
Credit: Jim Henderson

"The statue remained in the possession of the private collector and his/her heirs until March 2010 when Sotheby’s entered into a consignment agreement to sell the statue at auction in the United States. In April 2010, Sotheby’s imported the Duryodhana into the United States and made arrangements to sell the statue, despite knowing that it was stolen from Koh Ker. In March 2011, immediately before the planned auction of the Duryodhana, the Cambodian Government asked Sotheby’s to pull the statue from auction. Sotheby’s withdrew the statue from the auction, but it remains in their possession."

CONTACT: www.culturalheritagelawyer.com

Public Comments Submitted to CPAC Amid Coup and Unrest in Mali

Public comments have now been submitted to the Cultural Property Advisory Committee (CPAC) regarding Mali’s request for a renewal of a Memorandum of Understanding (MoU) with the United States.  The request for the renewed bilateral agreement under the Cultural Property Implementation Act (CPIA) comes amid a March 21 army coup d’etat that removed Mali’s president and other elected leaders. The government overthrow leaves open the question of how the State Department will deal with Mali's request for continued American import protections covering cultural objects from that nation.

The United States government yesterday criticized Captain Amadou Sanogo and his coup supporters’ “illegitimate grip on Mali and its people.”  It also demanded that “all armed rebels in the north of Mali to cease military operations that compromise the Republic of Mali’s territorial integrity . . . .”  (See the U.S. Department of State’s Daily Press Briefing here).

In the midst of Mali’s turmoil, the CPAC comment submission process received a dozen remarks concerning the proposed MoU renewal.

Among those expressing support for the Malian request were the Penn Cultural Heritage Center Executive Director.  Richard Leventhal and his colleagues wrote that there is “a situation of serious pillage jeopardizing the cultural patrimony of Mali [that] exists” to warrant a “renewal of import restrictions on archaeological and ethnological material from Mali.”  The Penn Center also urged the State Department to negotiate several items with the Malian government, including updating its inventory of cultural property to facilitate loans to American museums and creating “an interministerial committee to coordinate activities to preserve cultural heritage in Mali and strengthen efforts to reduce the internal sale and export of restricted antiquities.”  A copy of the Penn Center’s complete letter and position paper appears here.

Douglas Park, a Yale University educated anthropologist who has worked in Mali stated in his prepared remarks: “The beneficial effect of the Mali Cultural Property Protection MOU cannot be overstated. Local Malian capacity to carry out cultural heritage management programs is a direct result of the MOU. In light of the lamentable circumstances currently straining Malian political stability, a renewed bi-lateral agreement with the United States will undoubtedly assist in curbing opportunistic looting and black market trade by outside actors eager to take advantage of the presently difficult and fluid conditions.”

Roslyn Walker of the Dallas Museum of Art (DMA) made the following comments:  “Not only are there few antiquities in the [DMA] collection, few works of art are from Mali. Ideally, I would like to display objects that reach back in time, for example a Djenne-jeno or Bankoni-style terracotta figure or a Tellem ritual vessel or wooden headrest from Mali.

…

The Dallas Museum of Art is neither buying nor accepting gifts of Malian antiquities as per the Cultural Property Implementation Act. The only way the Museum can obtain Malian antiquities is to borrow them from the National Museum of Mali. . . . I understand the Museum’s being protective of its collection, but I would like to offer a suggestion. The Museum could post a form of loan application on the website with an invitation to only accredited museums. If the National Museum of Mali is satisfied with the applicant’s credentials, the National Museum can make their inventory available electronically or on-site. There would follow the formal request, approval of the loan by either the director or a government official, determination of the loan fee if it is not standardized, the logistics of crating and shipping the objects and/or an agreement on exchange of services, and granting of an export permit.”

Support for the MoU came from the Association of Art Museum Directors (AAMD), but with concerns:  “The recent coup d’état in Mali puts in peril the stability of Malian government that we have known over the last two decades as well as its ability to take steps to protects its cultural patrimony. The ability of the Committee now to evaluate . . . e.g., security efforts at sites, police pursuit of criminals, enforcement of export restrictions, education of citizens, etc., is more difficult.”

The AAMD added: [E]ven before the recent coup there existed challenges for American museums that wanted to undertake loans. In order to have a meaningful dialogue about loans, one must have an idea of what is available to be leant and Mali has few if any publically available inventories. Furthermore, access to storage areas to determine what might be available to borrow is severely limited. In addition to these specific concerns about Mali’s compliance with the 2007 MOU, the AAMD hopes that the Committee has or will inquire as to other efforts Mali has undertaken . . . .”

Access to the full comments described above and to the others submitted can be found here.

CONTACT: www.culturalheritagelawyer.com

Body Mass Index As a Hiring Criteria

Hat tip to (probably my favorite blog title in our corner of the world) the Evil HR Lady for catching news from my own back yard, see the original news article, Victoria Hospital Won't Hire Very Obese Workers, as Victoria is just a couple of hours down the road from me, but  also a brilliant commentary on the policy itsefl.

Hard to top anything Suzanne Lucas has to say in her post, Is it okay to discriminate against obese people?, so just check it out.

One thing that I did find interesting was the comment from the Administrator that it was based on the preference of patients. 

Although client preference alone does not automatically push one across any legal boundry, over the years it's one of those "red flag" type comments that tends to make me sit up and pay attention because there could be something troubling about to occur.

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