Cultural Property Law Course at Plymouth State University, College of Graduate Studies

Registration is now open for Cultural Property Law, part of Plymouth State University's Historic Preservation program.  This graduate studies course examines the international, national, and state legal frameworks covering the protection and movement of cultural property.

This concentrated course starts July 3 and meets Tuesday, Thursday, and Saturday over the course of two weeks. The final class is a field trip to a major museum.

The class meets in Concord, New Hampshire--an easy drive from Boston, Massachusetts and other points in New England.

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

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

Inquest into the death of Svitlana Tereschenko

Ross Lydall reports in today's The Evening Standard the comments of the Deputy Coroner, Dr Shirley Radcliffe, that 'nobody is to blame' for the death of Ms Tereschenko on the Bow roundabout last November.

This has prompted me to update my criminal sentencing table with cases as they come to my attention where no charges have been pursued against the driver who has collided fatally with a cyclist.

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

May Day? A Lack of A Call?

Earlier this morning I received an email forwarded from the management company in the downtown office building where I work, advising that there could be traffic issues arising out of protest activities planned for this afternoon.

That reminded me that I had meant to post about the alternative labor day, that has been much talked about in certain circles. But as the morning slipped away, I thought surely that the topic had been well covered by other bloggers. But when I checked my google reader, where I have a large, although by no means complete collection of labor/employment type blogs, nary a word today.

I have become a fan of MSNBC's Up with Chris Hayes and this week end one of his panel's talked a lot about the the failure of the Employee Free Choice Act,  plans for May Day activities sponsored by Occupy Wall Street and the general state of the labor union movement in America.

Hayes, who regardless of what of you think of his views, is clearly a bright and deep thinker, made a comment that he was shocked to learn that the May Day movement, which like many, I have always associated with celebrations in the Soviet Union, originated in the United States and was tied to one of our most infamous moments in labor history the Haymarket Riot which occurred in Chicago on May 4, 1886. 

From the Dissident Voice, a radical newsletter in the struggle for piece and social justice (so you know the perspective it is taking) Jerry Elmer penned this article, The Haymarket Riot and the Origins of May Day. Even the overseas press new more about its origins than I did. See, A potted history of Labour Day, from the Irish Times.

I have done far more employment than labor law in my career, and what labor law I have done has been on the side of management.   I am by no means convinced that labor as we have known it in the recent past is the answer to the future.

I do think however, that we are long past due for a non-partisan look at our economic system and the world of work and just how it functions. In any such conversation, all sides must have a serious and listened to voice. 

Although any marching analogy on May Day is fraught with peril, what I fear most is that rather than moving toward such an important discussion each day we are marching more and more stridently in the opposite direction.

Ultimately, regardless of whether there is a short term winner to that approach or not, I am afraid that our society as a whole will be the loser.

Improving the Safety of Cyclists

A regular reader was puzzled by my preference for the evidence given by CTC's Vice-President Josie Dew over that of President Jon Snow at last week's Transport Select Committee and I promised a fuller explanation.

First, I like Jon Snow (a lot).  He introduced me to cycling 10 years ago, shepherding me round my first 100 mile ride and I hope it is not presumptuous of me to regard him as a friend.  He is a high profile figure and an ambassador for cycling.  I am sure he has been an inspiration to many more than just me and I was delighted when he accepted the Presidency of the CTC.  I have never met Josie and did not really know who she was until watching the select committee.

Second I am acutely conscious that what divides the opinions of cyclists is minute compared to that which unites them.  John Cleese's brilliant satire has the People's Front of Judea loathing the Judean People's Front more than they loathe the Romans.  Cyclists can hopefully avoid that.
Having said that, we are not compelled to agree with each other on everything and I have my reservations about Jon's oft repeated and sincerely held views that the roads in London are not safe for cyclists, that cyclists and vehicles do not mix and that they need to be separated.  Josie's willingness to ride her daughter to school on the roads but to lament the standards of some motorists and the weak way in which our laws are enforced against criminal motorists chimed much more with me.

I have no problem with people who seek more and better segregated facilities in the belief that it will encourage more cyclists.  However there is a very real threat that things could be made worse for cyclists than they already are by jeopardising our entitlement to use most roads.  We should not forget the case of Daniel Cadden.  The same police and CPS who do not have the time or inclination to pursue motorists who endanger cyclists, found the time and inclination to prosecute Daniel for inconsiderate cycling because he was riding his bike in the road instead of a nearby unsatisfactory cycle track.  The CTC assisted his successful appeal.  The CTC also made representations over the Highway Code to ensure it was clear that the use of cycling facilities is not mandatory.  I applaud the CTC for this and it is a major reason that I am a member.

My own personal experience is that there are plenty of motorists who resent our right to use the roads and would like to see us off them.  Only yesterday morning I was 'buzzed' and sworn at by a motorist who said (in effect and removing the colourful language) 'This is a road not a cycleway and if you get in my way I will run you down'.  I wish I could say this was an unusual experience.

Different cyclists may have different requirements.  My commute is only marginally practicable at 20 mph.  If I had to slow down for significant sections it would become completely impracticable.  A 20 mph speed limit would mean that all those motor vehicles would no longer 'need' to squeeze past me.  Even if I represent a minority of cyclists, we probably cover a disproportionate number of miles and I look to the CTC to continue to represent our interests as well as those of other cyclists.

Although Jon made clear, as he always does, that he was speaking as a private citizen and in a personal capacity, it is a reasonable assumption that he (and Josie) were invited to the Select Committee because of their CTC roles.

I was not keen to hear Jon and James Harding propose as policy a 20 mph limit in residential areas but to be lifted to 30mph (in residential areas, I should stress) where there was a separate cycle track.  James Harding was calling upon an unholy alliance between motorists wishing to go faster and cyclists seeking segregation.  The aim of both being to get cyclists off the roads.  Cyclists remaining on the roads after these facilities have been designed, built and adjudged adequate (very likely by non-cyclists) would not benefit from reduced speed limits.

Separate cycle lanes are not necessarily safer.  I mentioned I would like to see statistics on this.  This does not seem to me unreasonable if they are promoted as a safety measure.  Most of us will have seen diagrams like this one:

Even if you give the priority to the cyclists, I am a defensive cyclist (and so should you be) and you cannot rely upon motorists giving way.

I am all for 'Going Dutch' but my understanding of this is that it involves at least as much control over where motorists may go as of where cyclists may go.  I am all for putting up bollards in the middle of our streets that we can whizz by but which block the path of through motorists.  The trouble is that 'The Times' is not calling for infrastructure changes that may adversely impact motorists and almost all politicians have difficulty with this too.  I acknowledge with gratitude that The Times campaign is calling for 20 mph speed limits but their editor is solicitous of the interests of motorists who may be affected by this.   Of course in practice a 20 mph speed limit in London would not slow overall motoring journey times save in the dead of night.  We run a very real risk of heading for the worst of all possible worlds with inferior infrastructure used as an excuse not to lower speed limits in residential areas and with a growing expectation that cyclists are not entitled to the roads.

This is essentially a non-political blog and I am not the holder of a vote for this Thursday.  However Jenny Jones was surely right at yesterday's hustings to call for lower speed limits and better policing of motorists.  This strikes a chord with me.  As it happens I wrote to the Met Police Commissoner last weekend and sent a copy to Jenny.  You may read it here.

Fortunately I can afford to provoke a storm.  I am not a politician and do not sell newspapers.

Postscript:
A transcript is available here.  This is the bit that worried me about 20mph limits in residential areas:

Q423 Chair: What about the 20 mph speed limit suggested for local roads? Would that make a big difference?

Josie Dew: Yes, it definitely would. Past Molly’s school there is a 40 mph speed limit, which means I am often overtaken at 50 mph with children on the back. I went to the council last December and said, "Can we get a 20 mph speed limit past the school?" If you hit a cyclist at 40 mph, 90% of children would die. If you hit them at 20 mph, 5% would die. That is a huge difference. They said, "Oh well, we can’t really do that." There is all this umming and ahhing. They just make excuses. You have to get on and do it. They said it has to be petition-led, so I have to go traipsing round the whole village. Some people say, "I don’t want to slow my speed because I want to get to work." Portsmouth has put in 20 mph speed limits.

Q424 Chair: If there was a system of a default 20 mph speed limit on local roads, would that be something the other panellists would support?

James Harding: In areas where there are not segregated cycle ways. We would argue for a 20 mph speed limit in residential areas where there are not segregated cycle ways. One of the things about that, as Josie says, is that it is not only safer, but it would reinforce the sense that the interests of cyclists and drivers are aligned. Drivers want to go faster, in which case there need to be segregated cycle ways.

Jon Snow: I agree with James.

Q425 Mr Leech: I am interested to hear why you think that the residential streets where there are segregated cycle ways should not have the 20 mph limit. There is a danger, if you keep it at 30 mph on those streets, that drivers are less inclined to stick to the 20 mph speed limit on the other roads. Is there any reason why you have gone for that particular view?

James Harding: As Josie said, the reason is that 20 mph makes it safer. I think that you need to put in place many more segregated cycle ways and you need to incentivise drivers behind that idea too. Being able to free up drivers to drive a little more quickly where there are segregated cycle ways reinforces that point.