Peru Fails to Stop Spain in Odyssey Marine Case

Outside the US Supreme Court

The case of Republic of Peru v. Kingdom of Spain et al. (11A795)--related to Odyssey Marine Exploration, Inc. v. Kingdom of Spain, et al.--saw a last minute emergency appeal quashed Thursday. Peru made the final effort to stop coins, believed to be from the galleon called Nuestra Senora de las Mercedes, from returning to Spain. Spain has insisted that the so-called Black Swan treasure was taken unlawfully by salvor Odyssey Marine because the company impermissibly removed the items from a ship flying the Spanish flag.

US Supreme Court Justice Clarence Thomas denied Peru’s appeal on February 23, just two days after that country filed its application to stay. Peru made claims in federal court that the coins were minted in that country.  Justice Thomas also denied Odyssey Marine's application for a stay on February 9.

The high court's decision clears the way for the 17 ton load of coins to be transferred to Spain.  Odyssey Marine's stock fell nearly 4% on Friday.

CONTACT: www.culturalheritagelawyer.com

List of Stolen Objects from Olympia Museum in Greece

David Gill has posted a useful blog entry listing the objects looted from the Archaeological Museum of Olympia in Greece.  For background on last week's theft, see the video below.

CONTACT: www.culturalheritagelawyer.com

ACCG Makes Allegations in Baltimore Coin Case Reply Brief

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

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

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

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

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

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

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

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

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

CONTACT: www.culturalheritagelawyer.com

Imperial Winter Series Race 12, Saturday 12th February

I had not thought the last race of the series would happen.  Where I woke up on Saturday morning there was snow, and more particularly ice everywhere, so I was pleasantly surprised to find the Hillingdon circuit completely snow and ice free (save for one small patch which was coned off.)  By the time of the start the temperature had crept up to just above freezing but there was no wind and unbroken sunshine.  After a couple of laps the conditions really were quite pleasant and I was very glad I had come.

The pace seemed high this week though again there was not a lot of activity off the front; one or two attempts but nothing sticking.  We passed the 4^th cat race without any of the drama of last week.  Unfortunately the last couple of laps were hazardous with crashes on successive laps through the kink in the home straight.  I was happy to finish the final race of the series in the bunch and upright.

A huge thank you has to go to Imperial and particularly the Collins for once again giving us something to keep us riding through the depths of winter.    With the series over, believe it or not, spring must be here.

Stats:  25 miles in 58 minutes with an average of 25.7 mph.  Max 32.

Ivory Smuggling Case Moves Forward

Carved African ivory seized by US Fish and Wildlife in the case against Victor Gordon..
Source: USFWS

Plea negotiations continue in the case of United States v. Victor Gordon, according to a recent letter filed in court by Gordon's attorney. The US District Court for the Eastern District of New York has scheduled a status conference in the matter for March 15, 2012.

A federal grand jury indicted Philadelphia art dealer Victor Gordon in July 2011 for unlawfully importing and selling illegal African elephant ivory. Gordon is charged with conspiracy to smuggle elephant ivory, four counts of smuggling, and five Lacey Act violations.  Agents arrested him in July.  A person indicted is presumed innocent unless prosecutors prove guilt beyond a reasonable doubt in a court of law.  

The Lacey Act 16 USC 3371 et seq. protects wildlife and other natural resources. Under the law, it is illegal to import, transport, sell, receive, acquire or purchase specified wildlife taken, possessed, transported or sold in violation of any law, treaty or regulation of the United States.

The indictment also cites the Endangered Species Act 16 USC 1531 et seq., which makes it illegal to possess or trade illegal African ivory under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Legal import into the United States only occurs when a person obtains an import permit plus a foreign export permit issued by the country of origin or a foreign re-export permit issued by the country of re-export.

The indictment alleges that between 2006 and 2009 Gordon paid a person to travel to Africa on multiple occasions to "purchase raw elephant ivory and have it carved to Gordon's specifications. In advance of each trip, Gordon provided [the person] with photographs or other depictions of ivory carvings to serve as templates. Gordon also directed [the person] to stain or dye the elephant ivory specimens so that the specimens would appear to be old."  The ivory was brought through JFK International Airport in New York inside luggage before being sold by Gordon at his store in Philadelphia.

Federal prosecutors seek criminal forfeiture of the items seized. Specifically, they seek cash and objects that include nearly 500 ivory tusks and carvings seized between 2009 and 2010 in Pennsylvania, New York, Missouri, Kansas, Florida, and California.

If convicted, Gordon could face up to 20 years in prison.

CONTACT: www.culturalheritagelawyer.com

State Department Gives Seizure Immunity to Cultural Objects from Kazakhstan

The State Department’s Bureau of Educational and Cultural Affairs has granted cultural objects from Kazakhstan immunity from judicial seizure.  The protected pieces will be part of a 2012 exhibition called “Nomads and Networks: The Ancient Art and Culture of Kazakhstan.”

The exhibit is to be held at the Institute for the Study of the Ancient World at New York University from March 6, 2012, to June 3, 2012.  The exhibition catalog describes a presentation of cultural objects from the sixth to the first century BC, including saddles, objects from the Berel valley, and gold mortuary ornaments from Shilikty and Kargali.

Under the federal statute known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), foreign lenders are encouraged by Congress to lend cultural objects to museums without risk that those objects will become targets of litigation while on American soil.  The statute protects imported objects determined to be (1) of cultural significance, (2) intended for temporary, nonprofit exhibition, and (3) in the national interest.

Museums importing objects for temporary display must apply for this legal protection.  The notice of immunity is then published in the Federal Register.

CONTACT: www.culturalheritagelawyer.com

US Supreme Court Rules Against Odyssey Marine's Request for Stay



Associate Justice Clarence Thomas

 The US Supreme Court has denied Odyssey Marine Exploration's application for a stay pending the filing and disposition of a petition for a writ of certiorari (i.e. a request to have the court review the case). Justice Clarence Thomas ruled on the matter today, docketed at 11A745.

Days ago the eleventh circuit court of appeals ruled in the case of Odyssey Marine Exploration, Inc. v. Kingdom of Spain, et al. that Odyssey could not postpone the return of the so-called Black Swan treasure to Spain while the commercial salvor appealed the case to the nation's highest court. Odyssey took the items from a Spanish galleon--the Nuestra Senora de las Mercedes--that sank in 1804 and was discovered in 2007.  Spain has contended that the galleon is a Spanish warship subject to protection from salvage.

On February 3, attorneys for Odyssey Marine filed their application to stay the court of appeals' decision.  The supreme court's denial followed on February 9.

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