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

Intentional Infliction of Emotional Distress, A Dangerous Cause of Action

This headline, Steelworker awarded $25 million in New York racial lawsuit might seem to come from a typical Title VII or Section 1981 case for racial discrimination.

According to the story in the Cleveland Plain Dealer, the plaintiff Elijah Turley, who is black, testified that

 "KKK" and "King Kong" graffiti were written on the walls of the plant and a stuffed monkey with a noose around its neck was found hanging from his driver's side mirror.

But it was not as if the company did nothing in response as evidence indicated that the company hired a private investigator, installed security cameras and suspended some of the employees involved in some of the incidents.

But it's my guess from another quote in the story that although based on racially based behavior, it was not a race discrimination claim, but instead a claim for intentional infliction of emotional distress. That's based on the quote from Turley's lawyer that the conduct was "atrocious and intolerable in a civilized society," which is language taken from the Restatement of Torts discussion of the tort of intentional infliction of emotional distress.

Texas struggled with this as an employment law tort, with approximately 10 cases passing the muster of that supposedly high standard at both the trial and appellate level only to be rejected by the Supreme Court. (One case did survive the Supreme Court's review.) Finally, the Supreme Court basically eliminated the tort from Texas employment law, finding that it was designed as a gap-filler, one that was to be used only if no other cause of action existed.

Unfortunately, for the defendants, they weren't in the Lone Star state.

Inquest into the death of Daniel Cox

Yesterday the inquest took place into the death of Daniel Cox, the promising young artist killed as a consequence of being run down on his bicycle by a left turning lorry at Dalston Junction on 02.02.11.  Ross Lydall of the Evening Standard was there and reports the verdict of 'accidental death'.  Apparently the concern of the Coroner was directed not so much at lorries with avoidable blind spots running down cyclists, or the totally unenforced contravention of red traffic lights when motorised vehicles cross the line into space before the Advanced Stop Line reserved for cycles, but instead on the paradoxical situation that ASLs might be placing cyclists in danger.
So, there we have it, the inquest into the 'accidental' death of Daniel Cox reveals as the most disturbing feature of his death that the ASL might have placed him in danger.  Since it was the ASL apparently that killed Daniel, we can now see why the CPS dropped all charges against the driver.
I very much hope that the Coroner appropriately grilled that driver over his decision to encroach into the advanced stop area in order (so he apparently claimed) to get a better view of the junction and over the fact that he did not apparently have the benefit of a legal nearside mirror.
I ought to stress that I was not there and do not have access to the evidence but what I have read suggests that the lorry driver goes through the first stop line (contravening the red light) indicating right and eventually stops at the Advance Stop Line.  A cyclist coming from behind (in all probability knowing the lights had just turned to red), would not see either a left indication or that the lorry had blocked the ASL.  Cyclist perfectly sensibly moves ahead to the second line where he ought to be well ahead of the lorry but, as he finds when he gets there, is alongside (or maybe only slightly ahead of the lorry - I cannot know) because the lorry is further ahead than it should be.  Lorry driver sees nothing of the cyclist either because of the inadequacy of his observation or the inadequacy of his mirrors (or both).  Cyclist cannot go further forward without jumping a red light.  Lorry driver indicates left and runs down cyclist.
So how is it that it is ASLs, rather than (say) defective lorries or bad driving that is putting us in danger?  I can only imagine it is that the very existence of ASLs lulls us into a false sense of security that there will be a space for us ahead of the traffic that we should use.  Whereas in reality of course there is no such space because so many motorists, and all those paid to enforce the law,  do not give the slightest attention to an ASL, to the extent that it is quite unremarkable for a lorry driver to say that he encroached onto a space reserved for cyclists to get a better view.
To that extent perhaps the Coroner has some sort of perverse point: either enforce ASLs or do away with them.  However the blind eye being turned to planks whilst identifying this mote is astounding.

Subsequent thought: the CPS do seem to be a lot more willing to prosecute in cases involving the death of a pedestrian than cases involving the death of a cyclist.

British Cycling calls on the Lord Chancellor to review the role of the Criminal Justice System in protecting vulnerable road users

British Cycling's letter to the Lord Chancellor can be read here.  Item (b) concerns the role of the Crown Prosecution Service in deciding the appropriate (if any) charge where a death has been caused.  I have vented my frustration on these pages at Police/CPS decisions that there is either 'insufficient evidence' or it is 'not in the public interest' to prosecute each time, thus far, that I have submitted evidence of bad driving.  These are of course petty irritations when compared to the far more serious circumstances of a death or serious injury.


Ross Lydall of the Evening Standard reported yesterday that the driver of the left turning lorry, which crushed Daniel Cox in Dalston in February 2011, will not be charged.  I do not have access to the evidence.  However, Ross reports a CPS spokesperson as saying,  “We concluded that we could no longer prove that Simon Weatherley did not use his indicators to show his intention to turn left, an essential element in proving that he was driving without due care."


It seems that the prosecution was brought on the basis that the lorry driver had not indicated left and that when evidence emerged that he might have indicated left, a prosecution was regarded as untenable.  I find this disturbing.  Every case will turn on its own facts and it is surely a jury question as to whether it is enough to have indicated.  Every lorry driver ought to be aware of the possibility that there is a cyclist to his nearside.  It is hardly relevant that an experienced cyclist would do anything to avoid being there.  By definition if cycling is expanding not every cyclist will be experienced.  Furthermore Highway Authorities, many motorists and some cyclists have an expectation that cyclists should be on the nearside margins of the road.  It is not therefore sufficient for a left turning lorry driver simply to indicate and lack of an indication is not therefore 'an essential element' in proving an offence.  A careful and considerate lorry driver does not turn to his left unless he is sure, by the use of mirrors, detectors or otherwise, that there is no cyclist on his nearside.  If the driver does not have adequate mirrors he must take that handicap into account when deciding whether it is safe to turn left or indeed to drive at all.


I cannot say whether the decision not to prosecute this driver was the right one but I can say that I find the reasons given for the decision  disturbing.


There is an inconsistency between that decision and the contrary decision to prosecute the tanker driver who seriously injured the journalist, James Moore.  As Ross Lydall's report of that case reveals, there was CCTV footage showing that the tanker driver was indicating whilst waiting at traffic lights before taking the turn.  That driver was acquitted by a jury.


The evidential test should be considered satisfied if there are reasonable prospects of a conviction.  That means, if the test is applied appropriately, the prosecution can expect to win some and lose some.  Merely because it has lost one case where a lorry driver was indicating left does not mean that indicating left should henceforth be treated as a literal 'get out of jail' card.  It is emphatically not 'an essential element' to a charge of causing death by careless or inconsiderate driving that the driver can be proved not to have been indicating.

CPIA Import Restrictions on Peruvian Artifacts Renewed

Gold figurine from Peru.
Source: U.S. State Department

The Federal Register today published a notice by the Department of Homeland Security extending import restrictions on archaeological and ethnological materials from Peru.

Earlier this year, the Cultural Property Advisory Committee (CPAC) met to consider Peru's request to renew import controls on at-risk cultural property under the federal Cultural Property Implementation Act (CPIA), which gives force in the United States to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Scholars with first-hand knowledge of archaeological site looting in Peru submitted information to CPAC.

The U.S. Department of State's Assistant Secretary for Educational and Cultural Affairs "has determined that conditions continue to warrant the imposition of import restrictions," reported the Federal Register. "Accordingly, the restrictions will remain in effect for an additional five years, and the CBP [Customs and Border Protection] regulations are being amended to indicate this third extension."  The regulations go in to effect June 9, 2012.

The importation of restricted Peruvian cultural objects into the U.S. without authorization could result in their seizure and forfeiture as well as possible criminal prosecution. The types of materials that remain subject to American import protections can be found on the State Department's image database.

CONTACT: www.culturalheritagelawyer.com

More on sentencing: R v Zeeshan - a turning point?

On May 30th Anjum Zeeshan was sentenced at Guildford Crown Court to 9 months imprisonment and a two year driving ban following his conviction by a jury of causing death by careless driving.  Zeeshan's victim was John Austin who was cycling in the same direction on his bicycle.  Zeeshan ran into the cyclist from behind in broad daylight.  He claimed not to have seen Mr Austin before colliding with him, blaming the sunlight and even suggesting (without a shred of evidence) that Mr Austin had come off the pavement.  In fact, as the Judge pointed out, Zeeshan obscured his own vision by travelling much too close to the car in front.

It is fair to say that with an immediate custodial sentence, Zeeshan was not treated with the degree of leniency that had become all too common-place.  (Look under 'Sentence' here and you will note that he was treated more like the cyclist Darren Hall, than like the motorist Matthew Rice).  Should Zeeshan appeal against his sentence, any such appeal would form a useful opportunity for the Court of Appeal to repair the damage done in Rice.  Of course, the ban could usefully be longer but this case is at least a step towards that which British Cycling with the backing of The Times are seeking to achieve, namely justice for the victims of bad driving.

One might think that Zeeshan did not have much of a defence.  Oddly at his first trial in February, a jury had failed to reach a verdict which resulted in the need for a re-trial.  Those responsible for selecting charges and bringing prosecutions should note that if they select the right charge and have the right evidence, juries will almost invariably (in the end) bring in a just verdict.

Sotheby's Asks Federal Court to Dismiss Forfeiture Case Against Cambodian Statue

Sotheby's auction house and Ruspoli di Poggio Suasa yesterday filed a motion to dismiss the forfeiture case against a Khmer statue.  U.S. Attorney Preet Bharara brought the seizure and forfeiture action of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's In New York, New York on April 4. The government's complaint alleges that the statue, which was put up for sale at the auction house this spring, was "illicitly removed from the Prasat Chen Temple at the historic and archeological site of Koh Ker, Preah Vihear Province, Cambodia."  The case is in the federal district court for the southern district of New York.

Prosecutors cite alternative theories to advance their forfeiture claim. They write that "there is probable cause to believe that the [statue] is stolen property introduced into the United States contrary to law" in violation of customs law 19 U.S.C. §1595a(c).  Prosecutors alternatively say that the statue is subject to forfeiture under the criminal anti-smuggling law 18 U.S.C. § 545 because there is probable cause to believe that the statue "has knowingly been brought into the United States contrary to law."  And prosecutors maintain that the statue may be forfeited as proceeds of a theft crime under 18 U.S.C. § 981(a)(1)(C) and the National Stolen Property Act.

Ms. Ruspoli di Poggio Suasa says that her husband bought the Cambodian statue in 1975 in London "in good faith in an arms-length, open market transaction" and that "[t]he couple brought the Statue to their home in Belgium, [where] it remained on display until it was shipped to New York in 2010 to be sold at auction by claimant Sotheby’s, Inc."  Both Sotheby's and Ruspoli di Poggio Suasa are the named claimants in the government's forfeiture action.

The claimants' June 5 motion to dismiss makes the three-pronged argument that "[t]he Government has not alleged sufficient facts to establish a reasonable basis to believe it could meet its burden of proof at trial to show that the Statue was stolen from Cambodia, that it remained stolen at the time of import, and that it was known to be stolen by either Sotheby’s or Ms. Ruspoli."

The claimants challenge the prosecution's assertion that the statue was stolen from Cambodia.  They contend that colonial laws from 1900 and 1925, arguably vesting ownership of the statue in Cambodia, are ambiguous.  "Because the Colonial Decrees do not clearly and unambiguously declare that Cambodia owns the Statue, as a matter of law the removal of the Statue from Cambodia did not render the Statue stolen property," the claimants' attorneys argue.

The decrees were not even enforced, the attorneys suggest: "The [government's] Complaint is silent on whether Cambodia has ever before, in any context, enforced the Colonial Decrees as granting the state ownership of antiquities. Emails incorporated by reference in the Complaint reflect that Cambodia’s Culture Minister did not intend to seek to reclaim objects that left Cambodia 'years ago,' . . . before Cambodia’s 1992 law expressly nationalized antiquities. Another document incorporated by reference in the Complaint shows that Cambodia recognizes that the Companion Statue—which is similarly situated with regard to the Colonial Decrees cited by the Government—'belongs to' a Los Angeles museum [the Pasadena based Norton Simon Museum]." (Citations omitted).

The claimants argue that "[e]ven an apparently clear foreign law does not vest ownership if the foreign state has not actually enforced its own law as granting it title. . . . This rule prevents a country unwilling to take the politically unpopular step of seizing antiquities from its own people from asking this country [the U.S.] to do so on its behalf. It also prevents a country from 'rediscovering' laws that have previously not been enforced, thereby unsettling the reasonable expectations that have developed about the meaning of those laws."

The claimants additionally contend that there is no evidence showing that the statue was taken without Cambodia's permission.  "An essential element in proving that the Statue is stolen is establishing that its removal was without the permission of appropriate government authorities." They compare the case to the government's failed effort in federal district court to forfeit the mummy mask of Ka Nefer Nefer located at the St. Louis Art Museum:  "In Ka-Nefer-Nefer, the Government at least had evidence that the statue was once in the foreign state’s actual possession and that there was no record of a subsequent sale or gift. Here,the Government has not alleged that the Statue was ever in the actual possession of the Cambodian government, and the Government makes no allegation of the absence of gift or sale records. Nor, in any event, would the absence of such records be probative, given the passage of time, the intervening turmoil in Cambodia, and the widespread destruction of property records."

The claimants further declare that the government is unable to show that the statue was in Cambodia at the time the colonial decrees vesting title of the statue in Cambodia were enacted. "The Colonial Decrees on which the Government relies are only relevant if the Statue was still in Cambodia after 1900. . . . The Complaint, however, cites and incorporates powerful evidence that the Statue was not in Cambodia at the relevant time." (Citations omitted).  That evidence is the Parmentier survey.  The claimants' attorneys write that "[t]he Parmentier Survey, published in 1939, devotes five pages to a detailed description of the Prasat Chen temple, including the Western Gopura where the Statue supposedly stood, but contains no reference at all to the large and imposing stone Statue (or its companion). The only reasonable conclusion is that the Statue was not at Koh Ker when the Parmentier Survey was conducted."

The claimants' lawyers argue that "[e]ven if the Government has pleaded sufficient facts to establish that the Statue’s removal from Cambodia constituted theft (which it has not), the Complaint must still be dismissed for the independent reason that the Government has not met its burden of alleging facts showing the Statue remained stolen at the time of import."  The attorneys maintain that Sotheby's imported the statue legally, saying that "the assertion that Sotheby’s imported property it knew was stolen is, on its face, wholly implausible. Sotheby’s, after all, fully and accurately described the Statue to the U.S. Customs Service at the time it was imported, put the Statue on the cover of the auction catalogue it circulated publicly around the world, accurately described the Statue’s provenance in that catalogue, and disclosed its intent to sell the Statue to the Cambodian Minister of Culture months in advance of the planned sale. Those are hardly the acts of a 'fence' knowingly selling stolen loot." (Citations omitted). The attorneys add:

"[Sotheby's] would have to have known at the time of import into the United States that Cambodian law in effect when the Statue was still in Cambodia gave that country title to the Statue. That is, Sotheby’s would have had to anticipate that Cambodia and the U.S. Government would take the position that a tangled, unclear patchwork of French colonial texts—no longer anywhere on the code books of the modern nation of Cambodia—decreed the Statue to be state property within the rules set down by McClain and Schultz. Yet the Colonial Decrees the Government cites are sufficiently obscure that even the Government has been unable to locate a fully legible version of the central decree on which it relies—the 1900 Colonial Decree—which it appears in any event was itself subsequently declared illegal."

[Author's sidebar: the McClain and Schultz cases stand for the proposition that a foreign patrimony law that clearly vests legal title in a cultural object may be used as a basis to trigger prosecution in the United States under the National Stolen Property Act in cases involving those who criminally receive property of another.]

Finally, the claimants object to the assertion that they knew the statue was currently stolen.  The government cited a June 1 email by a scholar who advised Sotheby's that the statue was "definitely stolen."  The attorneys for the claimants express that "the Government bears the burden of proving its case by a preponderance of the evidence. The June 1 email, however, is insufficient to create the required reasonable basis to believe the Government will be able to meet its burden at trial."  The lawyers argue:

"First, the view expressed in the Art Historian’s email—that the Statue is 'definitely stolen' because the feet of the Companion Statue were found at Prasat Chen—is a non sequitor as a legal matter. As the law set forth above makes clear, knowing the place of origin is but one piece of a complex puzzle necessary to assessing whether an antiquity is stolen in the legal sense. It is hardly reasonable to think that Sotheby’s—which the Complaint alleges (at ¶ 18) had both a Worldwide Compliance Department and a Worldwide Legal Department tasked with dealing with such issues—would have formed its belief about whether this Statue was stolen based on the unsolicited opinion of a free-lance Art Historian who offered no view on such critical questions as when the Statue left Cambodia, who owned it under Cambodian law at that time, or what was the significance of the 1975 London sale. And, more importantly, even if the June 1 email had some modest force standing alone, it is completely undercut when one considers the subsequent emails incorporated by reference in the Complaint regarding what the Art Historian said and did shortly thereafter."

Further arguing their point, the claimants' attorneys submit::

"In late June, after traveling to Cambodia and speaking to Cambodia’s Minister of Culture, the Art Historian changed her opinion and retracted her concern that the Statue was stolen. As the Art Historian’s emails to Sotheby’s reflect, the Minister of Culture advised her that his focus was 'to stop anything from being exported from Cambodia now, not to go after pieces that left years ago when there were no restrictions.' He also assured her that Cambodia had no intention of seeking to reclaim the Companion Statue—a telling fact since (a) the Cambodians knew the Companion Statue’s feet had been found at Prasat Chen, and (b) the Companion Statue had a similar known provenance, having been sold by Spink [the London antiquities dealer] several years after the Statue. This new information both revealed that Cambodia was not actively enforcing the Colonial Decrees as vesting title . . . (because they did not plan to attempt to reclaim a work with similar provenance), and undermined any characterization of the Statue as stolen (since it was removed 'years ago when there were no restrictions'). It is hardly surprising that the Art Historian changed her mind, stating that: 'I think that Sotheby [sic] can therefore go ahead and plan to sell' the Statue, and that she 'think[s] that legally and ethically [Sotheby’s] can happily sell the piece.' Repeatedly thereafter, the Art Historian reiterated via email her view that Sotheby’s could lawfully sell the Statue, including: 'It was acquired legally, there should be no problem' and 'The piece was legally obtained, so can be legally sold.'" (Citations omitted).

The claimants conclude by saying that "the Government may not seize property by inventing new interpretations of colonial laws long since consigned to dusty archives, while ignoring the archeological record, settled law, and compelling indicia of good faith."

UPDATE August 2012: See the government's objection to the motion to dismiss.

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