Accusations, Embargoes, and More of the Same for Baltimore Coins Test Case

Both the government and the Ancient Coin Collectors Guild (ACCG) have filed new court papers in the bitterly contested case of U.S. v. Three Knife-Shaped Coins, Twelve Chinese Coins, and Seven Cypriot Coins. The new pleadings, filed in Maryland, follow on the heels of last month's round of action.

A Motion to Strike to filed by government lawyers on September 17 criticizes the ACCG for arguing matters already decided by an appeals court last October. The prosecutors write:

Most of Claimant's responses to the Verified Complaint raise issues that were resolved by the Fourth Circuit in its 2012 decision. In particular, in its responses to the allegations in the Complaint, and in most of its affirmative defenses, Claimant seeks to challenge the underlying basis for, and the procedures used to draft and promulgate, the regulations and procedures implementing the Convention on Cultural Property Implementation Act (CPIA). Those issues have been resolved, and the Fourth Circuit's decision now represents the law of this case. Accordingly, the court is no longer concerned with, and Claimants may not re-litigate, why or how the applicable statutes and regulations were enacted. Nor are the parties or the court concerned with whether the defendant property should have been designated as archaeological material covered by those statutes and regulations. The only issue is whether these particular coins are so designated, such that they are subject to forfeiture in this proceeding.

Accordingly, the Government is moving to strike from the Answer any response or affirmative defense that challenges the forfeiture action on the ground that the statute and applicable regulations were not properly implemented. In addition, the Government moves to strike Claimant's attempt to re-litigate, by way of an affirmative defense, whether the Government is required to prove that the defendant property was first discovered in Cyprus and China, and to strike Claimant's attempt to assert an innocent owner defense on the ground that such a defense is not available in this case as a matter of forfeiture law.

The government also charges the ACCG with being ambiguous, asking the court to order the trade group "to provide a more definite statement--or simply to withdraw--the responses" in last month's pleadings "that are so vague and ambiguous that the Government and the court are left to guess at the basis for Claimant's position, or even what that position may be."

On September 27, the ACCG submitted a Response saying that "the Guild respectfully requests that the Court deny the Government's Motion as moot."

The ACCG protests in a companion Amended Answer to the Verified Complaint that it should be allowed to relitigate the legal issues it lost in the appellate court:

In prior litigation between the parties, the Government represented to this Court that the Guild would be entitled to litigate the issue of whether the defendant property was "first discovered within" and "subject to the export control" of either Cyprus or China in the context of a forfeiture action. Moreover, in this litigation, the Government itself has put its own actions at issue by asserting that it complied with the CPIA's procedures in promulgating import restrictions.

The ACCG proceeds to jump on the embargo bandwagon [see also U.S. v. Peruvian Artifacts] by repeating several times that the federal district court has jurisdiction to hear the case but that the "the Court of International Trade also has 'embargo jurisdiction' that may supersede that jurisdiction."

Accusations pepper the ACCG's pleadings as the trade group makes efforts to paint a picture of intrigue and wrongdoing within the U.S. State Department, writing:

Plaintiff s claims are barred in whole or in part because, on information and belief, mid and/or low level employees of the U.S. Department of State, working in concert with members of the archaeological community ideologically opposed to private collecting, engineered the imposition of import restrictions on coins of "Cypriot type" in potential violation of Government standards of conduct, particularly those relating to impartiality.

Plaintiff's claims are barred in whole or in part because, on information and belief, then Undersecretary of State Nicholas Bums ordered import restrictions on coins without regard to the procedures found in the CPIA as a "thank you" for receiving an award from Greek and Greek Cypriot lobbying groups that were working in concert with mid and/or low level State Department employees and/or members of the archaeological community ideologically opposed to private collecting.

The Fourth Circuit in its decision last year gave examples of how government authorities followed the CPIA law with regard to Chinese import restrictions. The appeals court also joined with the lower federal district court, reiterating that the State Department "complied with the statutory requirements in placing import restrictions on Cypriot coins."

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

ICOM Red List for Syria Now Available

The International Council of Museums' Red List covering Syrian cultural objects at risk is now available. Click on the picture below to view the document.

Learn more about the impact of Syria's war on cultural heritage by clicking here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Upcoming LCCHP Event in New York: The Monuments Men, Social Media, the Law and Cultural Heritage

LAWYERS COMMITTEE FOR CULTURAL HERITAGE PRESERVATION FIFTH ANNUAL CONFERENCE

---

The Monuments Men, Social Media, the Law and Cultural Heritage

Historical, Political, Social and Cultural Perspectives

on the Protection of Cultural Heritage in Times of Armed Conflict

 

Friday, November 1, 2013

Fordham Law School, Lincoln Center Campus
113 W. 60th Street, New York, NY 10023

 

Click here to register online today.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Upcoming CPAC Meeting To Consider Honduras MoU Renewal - El Salvador Interim Review Also Expected

Today's Federal Register announces the U.S. Secretary of State's intention to propose a renewal of the cultural property Memorandum of Understanding (MoU) with Honduras. The request to extend the five year bilateral agreement, which restricts the importation of protected cultural property under the Convention on Cultural Property Implementation Act (CPIA) will be considered during a public session to be held on October 30, 2013 at 10:00 a.m. in Washington, DC.

Maya carving in Copán in western Honduras.

The U.S. and Honduras entered bilateral agreements in 2004 and 2009 after Honduras' cultural patrimony was found to be in jeopardy from pillage, particularly from looting at thousands of archaeological sites across the country.

The Honduran MoU currently covers archaeological and ethnological material dating from 2000 B.C. to 1550 A.D. This time the State Department announces that "the Government of Honduras has asked that the MOU be amended to include material representing the Colonial and Republican periods of its cultural heritage" as well.

The Cultural Property Advisory Committee (CPAC) met in January 2013 to anticipate the Honduran renewal. That meeting was carried out in executive session. The upcoming meeting will have both a public session and an executive session.

Public comments regarding the Honduran MoU renewal may be submitted to CPAC by October 17 at Regulations.gov.

When CPAC meets from October 30 through November 1, it will also give an interim review of the bilateral agreement with El Salvador. That MoU served as the supporting basis for a federal smuggling conviction in U.S. v. Perez when authorities discovered that the defendant was selling pre-Columbian and pre-Hispanic pots imported illegally into the U.S. from El Salvador.

Public comments are expected to be accepted by CPAC on the bilateral agreement with El Salvador at a future date.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

New Wildlife Trafficking Initiative Should Be a Model for an Antiquities Trafficking Initiative

Earlier this month the White House announced the creation of the Advisory Council to the Presidential Task Force on Wildlife Trafficking. It hopes to develop a national strategy for combating this crime. Such an initiative should be considered for heritage trafficking as well.

President Barak Obama signed Executive Order 13648 on Combating Wildlife Trafficking on July 1, 2013 because "poaching of protected species and the illegal trade in wildlife and their derivative parts and products ... represent an international crisis that continues to escalate." The Executive Order formed the Task Force that is chaired by the Attorney General and the Secretaries of State and the Interior.

Acting Assistant Attorney General Robert G. Dreher of the U.S. Justice Department’s Environment and Natural Resources Division said, "Vigorous enforcement of the nation’s wildlife trafficking laws, through investigation and prosecution of those who violate those laws, is a central element of the nation’s efforts to combat wildlife trafficking."

Dreher added that "the Department of Justice has successfully prosecuted numerous cases of illicit wildlife smuggling involving trafficking of rhinoceros horns, elephant ivory, South African leopard, Asian and African tortoises and reptiles, and many other forms of protected wildlife and protected plant species."

Dreher observed, "The illicit wildlife trade increasingly involves international organized crime and millions of dollars, and it is driving some protected species towards extinction in our own time.  The Department of Justice treats these crimes with the utmost seriousness."

Heritage trafficking involves criminal activity, the flow of large sums of money, and the theft and destruction of history and culture. Because the illegal trade in cultural property continues to flow, a national strategy for combating this crime could be formulated by a task force similar to the new task force focused on wildlife. It could be chaired by the Attorney General and the Secretaries of State and Homeland Security.

UPDATE: See March 11, 2014 blog post.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Restitution and Repatriation: The Return of Cultural Objects Symposium

Restitution and Repatriation: The Return of Cultural Objects is a symposium that will be held at DePaul University in Chicago on November 14, 2013. It will address the underlying legal, ethical and moral reasons and policies behind the return of cultural objects.

Panels will discuss provenance research, museum acquisitions, the 1970 UNESCO Convention and historical appropriations, and the ethical issues that come into play when requests for repatriation are made.

The featured Lecturer is Jack Trope, Executive Director of the Association on American Indian Affairs. In addition, several other distinguished speakers and moderators will be present, including

• Lori Breslauer, Acting General Counsel of the Field Museum of Natural History;

• Simon Frankel, partner at Covington & Burling LLP;

• David Franklin, Director of the Cleveland Museum of Art

• Patty Gerstenblith, Director of DePaul's Center for Art, Museum, and Cultural Heritage Law

• Thomas Kline, counsel at Andrews Kurth

• Richard Leventhal, Director of the Penn Cultural Heritage Center

• Jane Levine, Worldwide Compliance Director at Sotheby's

• Victoria Reed, Curator for Provenance at the Museum of Fine Arts Boston

Further information and registration details may be found here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

A Big Deal? CPIA Embargo Argument Raised in U.S. v. Peruvian Artifacts

U.S. Customs and Border Protection (CBP) detained what it calls "ancient indigenous artifacts" from Peru when Jean Combe Fritz, a Peruvian citizen, arrived at Miami International Airport in August 2010. CBP seized the items because they violated the import restrictions covering protected Peruvian cultural property enacted under the Cultural Property Implementation Act (CPIA). Fritz wants them back.

Fritz is the claimant, and he has already offered affirmative defenses in the consolidated forfeiture cases of U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru and U.S. v. Three Artifacts Constituting Cultural Property of Peru. Now Fritz's lawyers argue in their motion to dismiss filed yesterday that federal prosecutors violated due process, that federal attorneys brought the case to the wrong court, and that the items seized by CBP weren't even banned cultural property.

The second argument raised by the attorneys puts forward a highly relevant issue of law that could end up being consequential in future cases.

When federal prosecutors filed the forfeiture cases this year in federal court in the southern district of Florida, they went to the wrong courthouse, the claimant's lawyers contend. Cultural Heritage Lawyer flagged the important legal question posed by this argument in July, asking "Do CPIA Import Restrictions Constitute an Embargo?" The claimant's attorneys now advance this issue, expressing the position that the CPIA's import barriers act just like an embargo. Therefore the Court of International Trade must hear the case.

The claimant's attorney's write that because the "CPIA [Cultural Property Implementation Act] and its implementing regulations create an embargo on the importation of certain items designated as cultural property from Peru ... the CIT [Court of International Trade] has exclusive jurisdiction to hear any claims involving embargoes."

Should this argument prevail, future CPIA forfeiture actions might be filed in the CIT in New York and not in local federal district courts. But it is noteworthy that the claimant's pleading does not mention that a federal district court in Baltimore--in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection Agency, Department of Homeland Security et al.--already ruled that federal district courts have jurisdiction over CPIA forfeiture cases.

An additional dismissal argument offered by the claimant' latest motion is that Fritz's due process rights were violated. The U.S. Attorney in Miami only filed the forfeiture complaints in court this year. The claimant's lawyers therefore charge:

For approximately two and a half years, Claimant and his attorneys received no information from CBP regarding a seizure, despite Claimant’s efforts to obtain such information from Customs. Further, CBP failed to issue a detention notice or any other notification advising either Claimant or his attorneys of the status of the detention. Indeed, on numerous occasions, Claimant’s attorneys requested a status of the matter, but were told only that the objects had been sent to an outside expert for purposes of authentication.

After years of silence, Customs finally sent two letters to Claimant’s attorneys. The Notice of Summary Forfeiture Proceedings did not provide Mr. Fritz an opportunity to seek administrative relief, as required by Customs law and regulations. Despite Claimant’s attorneys’ repeated attempts to convince CBP in Miami and CBP headquarters to reconsider the issue, Customs has continued to refuse to provide the required administrative relief to Claimant. (Citations omitted).

Finally, the claimant's attorneys insist that the Peruvian artifacts are not subject to CPIA import controls, nor are they stolen property. The lawyers maintain, in part, that the government 

fails to make a plausible claim that the detained items, in fact: (1) are pre-Colombian, Colonial, or Peruvian; (2) can be identified as originating from Peru; (3) predate the establishment of Peru as a nation such that they could constitute Peruvian cultural property; and (4) constitute items of “cultural significance” to Peru.

The government will have a chance to respond to the motion to dismiss in the near future.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Getty Mounts Preemptive Legal Strike: Museum Seeks to Quiet Title of 14th Century Ansouis Diptych

The Getty Museum has launched a preemptive legal strike to stop a French citizen from taking a 14th century Diptych from its collection. In a legal complaint filed in federal district court in California, the museum seeks an order quieting the title of The Stigmatization of Saint Francis and The Crowning of Saints Cecilia and Valerian, the so-called "Ansouis Diptych" pictured here.

The Getty alleges that the defendant, Geraud Marie de Sabran-Ponteves, erroneously claims the religious piece for himself as part of "long-running inheritance dispute."  The museum says it owns the Diptych.

The Getty's lawyers insist that the Los Angeles based museum lawfully purchased the Diptych in 1986 from Wildenstein & Co. gallery in New York City. Wildenstein, meanwhile, purchased it in 1981 from the Sabran-Ponteves family, who are shown on the Diptych and who owned the work "for hundreds of years." The lawyers argue:

Wildenstein warrantedthat it owned the Diptych, that it had been legally importedinto the UnitedStates, and that there were no liens or encumbrances against it. In addition,the Getty undertooka reasonable investigation of the painting's provenance, as well as its authenticity.  That investigation confirmed that the Diptychhad been possessedand owned by theHouse of Sabran until its acquisition by Wildenstein, and yielded nothing that cast doubt on the validity of Wildenstein's representations.

The museum's complaint stresses that the defendant knew the museum had the Diptych in 1987, "[y]et, Defendant made no effort even to contact the Getty until August 1999. When he did contactthe Getty, Defendant did notassert ownership to the Diptychor demand its return." The letter simply asked for assistance to aid with the valuation of the family's estate. "Then in the summer of 2012," the lawyers add, "Defendant 's French counsel sent the Getty two letters in which Defendant claimed, for the first time, tobe the sole owner of the Ansouis Diptych. The letters asserted that the family'ssale of the Diptych-some 30 years earlier-was unauthorized, and that the Diptych had been illegally exported from France."

Before a threatened claim could be filed by Sabran-Ponteves in civil court in Paris to recover the Diptych, the Getty decided to take legal action in the U.S., arguing that it has valid title; that the defendant is barred from taking the piece by virtue of the statute of limitations; and, alternatively, that the Getty owns the Ansouis Diptych by adverse possession. 

Photo credit: Digital image courtesy of the Getty's Open Content Program. Unknown Italian, Neapolitan or Avignon School, The Stigmatization of St. Francis, and Angel Crowning Saints Cecilia and Valerian, 1330s, Tempera and gold leaf on panel. The J. Paul Getty Museum, Los Angeles.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com