One Side of the Coin: ACCG Re-Argues Previously Decided Legal Issues in Baltimore Test Case

Some of the ancient coins in dispute in U.S. v. 3 Knife-Shaped Coins.

Court decisions in 2014 and 2015 rejected the Ancient Coin Collectors Guild’s (ACCG) demand to revisit legal issues already quashed by the courts in the forfeiture case of U.S. v. Three Knife-Shaped Coins Et al. and the related case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs. Nevertheless, the Guild continues to re-argue the same issues.

The litigation stems from the ACCG’s aim to strike down or erode customs regulations that regulate the import of specific types of ancient coins that have been determined to be in jeopardy of looting. The group minted a test case seven years ago when it intentionally imported undocumented and unprovenanced ancient Chinese and Cypriot coins to the United States. The Guild imported the archaeological materials from a London dealer and shipped them to Baltimore on a British Airways flight. The ancient coins had no accompanying documentation and offered no record of chain of custody or provenance.

Repeated losses suffered by the ACCG in the federal district court, the court of appeals, and the U.S.Supreme Court have not deterred the Guild from continuing its blitz on the import controls, which were erected under authority of the Convention on Cultural Property Implementation Act (CPIA) and are designed to curb transnational trafficking of at-risk archaeological material.

The latest round of ACCG court filings is a motion for summary judgment that repeats many arguments that already have failed to win judicial support. In its July 2016 motion, the Guild insists that it “has either rebutted the government’s prima facie case and/or the government has failed to meet its own burden. Accordingly, the Court should grant the Guild Summary Judgment, order the return of the Guild’s coins, and require the Government to pay the Guild’s attorney’s fees and costs.”

While the ACCG litigates the Three Knife-Shaped Coins case in federal district court in Maryland, it is expected that the Missouri-based group simultaneously will press the matter when the Cultural Property Advisory Committee (CPAC) meets in Washington, DC on October 25. That is when CPAC will hear public testimony about whether the White House should renew import controls to protect pre-classical and classical archaeological objects and Byzantine and post-Byzantine ecclesiastical and ritual ethnological materials from Cyprus, Docket No.DOS-2016-0054.

So far the ACCG’s defeats in the federal courts have produced favorable case law that strengthens law enforcement efforts to disrupt cultural heritage trafficking. The Fourth Circuit Court of Appeals, for example, decided that federal authorities properly listed the kinds of ancient Chinese and Cypriot coin artifacts that may be subject to CPIA import controls.

The appeals court also ruled that U.S. Customs and Border Protection (CBP) properly detained the ACCG's undocumented coins. The court explained that the burden therefore shifts to the Guild to prove that its actions were lawful, plainly articulating the clear rule that "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import.” “In short,” the court added, “CBP need not demonstrate that the articles are restricted; rather, the statute ‘expressly places the burden on importers to prove that they are importable.’”

The ACCG rejects this standard. Rather than offering information to show that the ancient archaeological materials qualify as a legal import, the ACCG instead filed motions for discovery and a motion for summary judgment attacking the validity of the import regulations themselves. Meanwhile, the Guild maintains that the government bears the high burden to prove that the restricted ancient coins were first discovered in and subject to the export controls of China and Cyprus.

At a motions hearing held earlier this year, Assistant U.S. Attorney Molissa Farber, representing the government, told the Maryland district court that the Guild's line of argument is “essentially an attack on the government's ability to classify the coins by type and category, which has already been well-settled that we can do.” “And I understand that Claimants [ACCG] disagree with that process,” the prosecutor said, “but that's already been litigated. That’s not at issue here. That part is done.”

AUSA Farber reminded the court that “the Fourth Circuit rejected the notion that the government was going to have to fight a case coin-by-coin. The Fourth Circuit said that the statutory structure allows us to list coins by type and category.”

She emphasized that “the evidence that the Guild seeks to introduceis not evidence pertaining to the specific defendant property here. They’re not seeking to introduce any kind of evidence that relates to these 22 defendant coins as far as when these specific 22 coins left China and Cyprus.What they want to introduce is general evidence that coins of this type of category circulated broadly and may have left China and Cyprus outside of the regulated period.”

Peter Tompa, attorney for the ACCG and the organization's current president, countered, “The coins at issue here are typical in the market. So we don't know where they were found or too much about them. And there’s nothing nefarious about that, Your Honor. It’s a situation where there’s just low value items, and it was not important until recently that such things would be -- that such things should have a documentary history. But we do know something about the coins, we know something at least. We know that they were exported from the UK by Spink, a well-regarded firm that's been around since the 1600s, and in compliance with both UK and EU law in April,19 2009.”

Attorney Tompa continued, “Well, assuming the government has established first discovery just by listening, we’re entitled to rebut that. And how we’re trying to do that here with regard [to] these specific coins is by offering the opinions of two experts, Mr. [Douglas] Mudd, who is the Curator at the American Numismatic Association in Colorado, and Mr. [Michael] McCullough, who’s an expert in the international exchange of cultural artifacts.”

Declaring that “scholarly evidence” can be used by the ACCG to show that the coins left their countries of origin before the enactment of U.S. import restrictions, Attorney Tompa offered that “Mr. Mudd's opinion is that the ancient coins at issue here are of a sort that circulated in significant numbers outside of China or Cyprus for thousands of years[,] first as currency and then as collectibles. So it’s unlikely and cannot be assumed that they left Cyprus or China after the date restrictions were imposed.”

“So because these things circulated for thousands of years first as collectibles -- first as currency, then as collectibles," Attorney Tompa reasoned that "it’s unlikely that they exited Cyprus or China after the date of the restrictions, just given the numbers outside of those two countries.”

“Mr. McCullough's report is that UK and EU law did not require expert [sic] certificates for the coins at issue in this case, or the Cypriot -- well, any of the coins at issue in this case. And such with respect to the Cypriot coins, that would satisfy Cypriot law, because, after all, Cyprus is a member the EU as well. Mr. McCullough also opines that the Chinese coins here could have exited Hong Kong legally without documentation in that export would satisfy Chinese law under both the laws of China and Hong Kong.”

AUSA Farber countered this argument by rejoining, “The most salient point I think to take away from this particular dispute over the scholarly evidence at least is the distinction between specific and general. And I believe what we just heard from Claimant [ACCG] was a lot of purported evidence regarding general coin circulation. The coins are of the sort that circulated broadly. I mean, Your Honor raised the point, what’s the ultimate implication here? And the implication is that if that argument is allowed, it undermines the CPIA, undermines the statutory structure, because it essentially holds the coins shouldn't have been listed in the first place based on their type of category. And that’s not permitted.”

U.S. District Judge Catherine Blake agreed. In a ruling dated February 11, 2016, Judge Blake pronounced “that the Ancient Coin Collector’s Guild (“the Guild”) seeks discovery not relevant to the issues the court will have to decide in this forfeiture action.” In particular, she highlighted that the ACCG “apparently will seek to prove that the export of these coins from Cyprus or China to England was lawful under EU law. It is unlikely that the export control status of the coins under foreign law will be a proper defense in this forfeiture action.” The judge added pointedly, “Further, to the extent the Guild argues that the government must prove ‘first discovery,’ beyond demonstrating that the coins at issue appear on the designated list, that argument is foreclosed by the CPIA and the Fourth Circuit opinion in Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (4th Cir. 2012). Listing by type and category is proper under the CPIA.”

Judge Blake also granted a protective order shielding two State Department employees from ACCG depositions, explaining that they “do not appear to have relevant personal knowledge.” Over the objections of Attorney Tompa, AUSA Farber attributed “ulterior motives” to the Guild's attempt to depose the purported witnesses, presenting the court with, what the federal lawyer called, an “Internet post written by a former director of the Coin Collectors Guild" criticizing one of the witnesses. Judge Blake remarked, “I'm more interested in probably the relevance than in motive.”

In June, Judge Blake issued a further order rebuking the ACCG's discovery requests, stating, “I will not at this time direct the government to provide any additional 30(b)(6) deposition testimony.”

Soon afterward, the ACCG filed its motion for summary judgment and, on July 29, the court adopted a schedule that allows the parties to fully brief their positions. Once completed in mid-October, CHL expects to review the parties’arguments.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL works in cooperation with Red Arch Cultural Heritage Law & Policy Research, Inc.

MoUs: Italy Renewed; Egypt Still Pursued; Cambodia and Belize Get a CPAC Interlude

United States Customs and Border Protection (CBP) and the Treasury Department have promulgated rules, effective today, that extend import restrictions on archaeological material originating from Italy.

First erected by a Memorandum of Understanding (MoU) between the U.S. and Italy in 2001 and subsequently refreshed in 2006, 2011, and now 2016, the import barriers seek to deter cultural property looting and trafficking by denying entry to endangered pre-Classical, Classical, and Imperial Roman artifacts bound for the American marketplace.

The import barriers result from Italy's request for American assistance pursuant to Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

Under import regulations authorized by the Cultural Property Implementation Act (CPIA), certain categories of 9th century B.C. through 4th century A.D. antiquities, armor, mosaics, jewelry, sculpture, and other archaeological material from Italy may be seized by CPB if trafficked across the U.S. border. The designated list of objects subject to the legal restrictions can be found here.

Italy asked for the latest MoU renewal in February 2015, and the Cultural Property Advisory Committee (CPAC) met in April last year to weigh the matter. The renewal process concluded within a usual time frame. By contrast, Egypt's first and only request for an MoU with the U.S. seems to have stalled without explanation.

Egypt asked CPAC to consider enacting protective import measures in April 2014, attracting a variety of public comments from preservationists, ancient coin collectors, the Association of Art Museum Directors, and other stakeholders. Yet despite CHL's admonitions in June 2011 and July 2013 for emergency legislation to protect at-risk Egyptian material, followed by a call in March 2014 to implement CPIA import restrictions "with all deliberate speed," import regulations covering ancient Egyptian artifacts still have not been approved.

CPAC, meanwhile, will be meeting in executive session next month for an interim review of MoUs covering jeopardized archaeological material from Cambodia and Belize, both approved in 2013. Public comments will be solicited at a later date should either agreement be considered for extension.

Photo credit: Matthew Strickland

Text copyrighted 2016 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

State Department Extends Cultural Property MoU with Nicaragua Despite AAMD Opposition

Earlier this year the Association of Art Museum Directors (AAMD) shifted its stance on bilateral agreements authorized by the Cultural Property Implementation Act (CPIA) when the group decisively opposed the renewal of U.S. import restrictions covering endangered archaeological material coming from Nicaragua. The State Department disagreed with the AAMD, and today backed a fresh memorandum of understanding (MoU) that extends these protective trade barriers for another five years.

Writing in opposition to Nicaragua's petition for a rejuvenated MoU, the AAMD argued in January that the Central American nation "simply fails to protect its own cultural property in the manner required by the CPIA."

The CPIA is the federal law that authorizes the enactment of heritage protection measures consistent with the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

"Refusing to extend the MOU could be the very wake-up call Nicaragua needs to undertake real and substantial efforts at a critical time in its history," the AAMD contended in a statement submitted to the Cultural Property Advisory Committee (CPAC), the group that reviews MoU requests.

The State Department's Assistant Secretary for Educational and Cultural Affairs, however, "determined that factors continue to warrant the imposition of import restrictions and no cause for suspension exists," the Federal Register reported. "Accordingly, these import restrictions will remain in effect for an additional 5 years, and the CBP [Customs and Border Protection] regulations are being amended to reflect this extension until October 20, 2020."

The import controls cover pre-Hispanic artifacts including ceramics, vessels, statues, mace heads, jewelry, and more. Similar barriers were first erected fifteen years ago in an effort to deter the looting of archaeological objects.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Endangered Archaeology from El Salvador Protected by Renewed MoU with the United States

Maya mask subject to
renewed import restrictions
with El Salvador.

The United States has agreed to renew a bilateral agreement with El Salvador, which offers protections to cultural heritage in danger. The Central American nation is rich with history, including ancient Maya culture.

The State Department Assistant Secretary for Educational and Cultural Affairs has “concluded that the cultural heritage of El Salvador continues to be in jeopardy from pillage of Pre-Hispanic archaeological resources,” according to the Federal Register. As a result, the U.S. government has extended import controls on endangered archaeological material from that country through March 8, 2020. The terms are cataloged in a renewed Memorandum of Understanding (MoU).

Few offered comments about the MoU when the Cultural Property Advisory Committee (CPAC) consideredthe renewal.

The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP)* backed the renewal, explaining that looting continues in El Salvador and that “numerous El Salvadoran objects that would be protected under the MOU are currently listed on ICOM’s Red List of Endangered Cultural Objects of Central America and Mexico.” LCCHP added that “El Salvador has long played an active role in safeguarding its property through legislation, enforcement, education, creation of inventories, and international cooperation.”

The Association of Art Museum Directors (AAMD), meanwhile, opposedthe MoU. In what may be a trendfor the organization, the group complained that “El Salvador has benefited from more than 27 years of import restrictions by the United States and in that period … there does not appear to be a significant reduction in looting that can be linked to those restrictions.” The AAMD argued that “El Salvador is one of the best examples of why the current system of simply renewing MOUs is ineffective and inconsistent with the CPIA. The absence of a significant legitimate market in the United States for El Salvadorian Prehispanic objects has apparently had little or no effect on looting in El Salvador.”

The U.S. and El Salvador first entered a bilateral agreement—authorized by the Convention on Cultural Property Implementation Act (CPIA)—twenty years ago, following American-imposed emergency import restrictions on endangered artifacts from the Cara Sucia region in 1987 and 1992. The MoU between the two nations has been renewed every five years since 1995.

Photo credit: U.S. Department of State

*The author is a board member of LCCHP.

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Italy Asks for MoU Renewal to Protect Cultural Heritage

The Italian government has asked the United States to renew a bilateral agreement or Memorandum of Understanding (MoU) restricting American import of archaeological artifacts in jeopardy of pillage.

The protective MoU between the two nations has been renewed twice before. The current agreement, in place since 2011, covers pre-Classical, Classical, and Imperial Roman artifacts from Italy.

The Cultural Property Advisory Committee (CPAC) will meet in public session on April 8 in Washington, DC to discuss the latest request.

To submit written comments concerning the proposed MoU, click here. Comments are due to CPAC by March 20 and must relate to one, some, or all of the "four determinations" laid out by the Convention on Cultural Property Implementation Act (CPIA). These include:

(A) whether the cultural patrimony of Italy is in jeopardy from the pillage of archaeological or ethnological materials of the State Party; 

(B) whether the Italian government has taken measures to protect its cultural patrimony; 

(C) whether the application of the import restrictions, if applied in combination with similar restrictions by other nations individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and whether remedies less drastic are not available; and 

(D) whether the application of the import restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

Photo credit: Aculine

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & PolicyResearch, Inc.

Canadian Man Charged with Trafficking Dinosaur Fossils from China

U.S. District Court in Tucson, AZ.

A man has been arrested in Arizona for allegedly trying to sell dinosaur fossils imported from China to undercover federal agents. Jun Yang, a Canadian, faces criminal charges of archaeological smuggling and wildlife trafficking.

The charges, initiated by U.S. Homeland Security Investigations (HSI), likely will be challenged by defense lawyers because of legal irregularities.

Filed on Tuesday in federal district court (15-mj-07055), the complaint alleges that the defendant

did fraudulently and knowingly offer for sale and sell merchandise, namely one Psittacosaurus fossil and  approximately 15 Hadrosaur fossil eggs, after the merchandises' importation into the United States, knowing said merchandise had been imported into  the United States contrary to law; that is, ... Jun Yang knowingly sold said merchandise knowing that they are cultural property that had been imported into the United States from the People's Republic of China contrary to law, that is specially protected fossils are prohibited  from being sold to any foreigner or foreign organization, all in violation of Title  19, United  States Code  Section  2606(a) [the Cultural Property Implementation Act (CPIA)] and Title  18 United States Code Section 545 [the anti-smuggling law].
...
[and] did unlawfully and knowingly import in foreign commerce, transport, receive and acquire any wildlife, that is one Psittacosaurus fossil and approximately 15 Hadrosaur fossil eggs, knowing that said wildlife were taken, possessed, transported and sold in violation of the laws of the People's Republic of China. all in violation  of Title  16 United States Code. Sections 3372(a)(2)(A) and 3373(d)(l)(B) [the Lacey Act].

The CPIA, which is relied on by Count 1 in the charging document, is the federal statute that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. While the 1970 UNESCO Convention’s definition of "cultural property" includes "objects of palaeontological interest," the CPIA itself only applies to archaeological and ethnological objects. Palaeontolological material--like dinosaur fossils--are not archaeological or ethnological objects by definition. And while the U.S. has signed a bilateral agreement with China that restricts the import of designated Chinese archaeological and ethnological artifacts across America's borders, that agreement does not prohibit dinosaur fossils.

Count 2 relies on the Lacey Act, a federal law designed to protect wildlife and other natural resources. Under the terms of the statute, it is illegal to import or sell designated wildlife that is taken, possessed, or sold in violation of any law, treaty or regulation of the United States. But are dinosaur fossils wildlife? While the statutory definition of "wildlife" includes a dead wild animal or an egg, would either a dinosaur fossil or dinosaur eggs actually be considered "wildlife"?

The defendant's arrest is explained by the allegations contained in the criminal complaint:

On or about February l0, 2015, in Tucson in the District of Arizona, agents of the Department of Homeland Security acting in an undercover capacity walked through the display area at [a gem and mineral show] .... Agents spoke with Mr. Yang about an item displayed and advertised as a Psittacosaurus Fossil. Mr. Yang stated the fossil was 100 to 130 million years old and from the province Henan and was "dug up" in  central  China  approximately 200-300 kilometers south of Mongolia. Mr. Yang stated the price of the Psittacosaurus Fossil was $15,000.00 (United States Currency) and was not negotiable because of the quality of the fossil. Agents heard Mr. Yang  speak with  another  customer regarding egg fossils adjacent to the Psittacosaurus fossil. Mr. Yang identified the eggs as Chinese dinosaur egg fossils  and told  the agents they were Hadrosaur  Eggs, a "duck billed" dinosaur in  China. A sign on the dinosaur egg fossils display box stated "$450.00" for each egg. 

On or about February 10, 2015, agents posing as shoppers ... again spoke with Mr. Yang about the Psittacosaurus fossil .... Mr. Yang stated that he illegally removed the fossils from China, put the fossils in containers with stone carvings, shipped them to the United States and didn't disclose that fossils were in the containers to US Customs and Border Protection, only paying tax on the stone carvings. 

When asked, Mr. Yang said that the exportation of the Psittacosaurus fossil and the Hadrosaur Eggs were in violation of Chinese law. Mr. Yang stated this was only a violation of the laws of China, not US. Mr. Yang stated he has no documents for any of the fossils. Agents asked for permission to photograph the fossils, and Mr. Yang agreed. 

The pictures were later sent to a Subject Matter Expert (SME) who, based on the photographs taken by the agents confirmed the fossils are a Psittacosaurus fossil and Hadrosaur Eggs and were indigenous to certain regions of China. The SME stated that these fossils are of high scientific value. A review of the law of the Peoples Republic of China prohibits the sale of specially protected fossils to foreigners or foreign organizations. 

On or about February 14, 2015 an agent acting in an undercover (UC) capacity entered the Arctic Products Inc. display area posing as a shopper. The UC agent started the conversation with Mr. Yang about the Hadrosaur Eggs that were on display and inquired as to how many they would be able to purchase for five-thousand dollars (USD-$5000.00). Mr. Yang stated that the Hadrosaur Eggs are from China, that they were very rare and that he used to have a lot, but may not be able to get them anymore. Mr. Yang stated that he already sold one (1) Hadrosaur Egg for four hundred fifty (USD-$450.00) but stated he would sell thirteen (13) Hadrosaur Eggs at a discounted rate for five-thousand dollars (USD-$5000.00) to the UC agent. 

The UC agent then inquired about the Psittacosaurus fossil.... Mr. Yang explained to the UC agent that the Psittacosaurus fossil was approximately 130-100 millions years old and it was for sale for fifteen thousand dollars (USD-$15,000). Mr. Yang stated that all the stuff was from China. Mr. Yang stated that he has had the Psittacosaurus fossil for a few years and that it was from the North-Eastern part of China. When asked how he got the fossils out of China, Mr. Yang stated the fossils are put in containers with the stone carvings and "we do not declare, we declare it as stone."

An arrest is not a finding of guilt; it is simply a process that initiates a criminal court proceeding. The prosecution bears the burden to prove that a defendant is guilty beyond a reasonable doubt.

Photo source: U.S. DoJ

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Opposition to MoU's: A Change in Policy for the Association of Art Museum Directors?

Museums are vital to the protection of cultural heritage. They preserve art and artifacts for the benefit of present and future generations, and they inspire visitors, students, and scholars to appreciate and safeguard history.

Most museums are tax exempt charitable corporations, holding the public's trust as stewards of human civilization. They are expected to lawfully and ethically acquire artifacts. They also are counted on to promote policies that preserve cultural objects.

So it is with interest that the Association of Art Museum Directors (AAMD) last Tuesday opposed the renewal of a Memorandum of Understanding (MoU) meant to retain American import barriers on endangered heritage objects from Nicaragua. The group's objection follows a sequence of opposition to MoU's begun in 2014. Does this mark a new policy direction for the organization?

The AAMD is made up of important stakeholders, representing the directors of some of the largest and most distinguished cultural institutions in North America. The group often recites that “it deplores the illicit and unscientific excavation of archaeological materials and ancient art from archaeological sites and the destruction or defacing of ancient monuments” and that it “is committed to the responsible acquisition of archaeological materials and ancient art.” From this point of departure, the AAMD traditionally has supported—albeit softly—cultural property protection agreements authorized by the Cultural Property Implementation Act (CPIA). Lately, however, even this mild support has given way to clear opposition to bilateral agreements, which serve to protect archaeological and ethnological objects in danger of destruction.

By way of background, the Cultural Property Advisory Committee (CPAC) reviews petitions submitted by foreign nations that request American help to safeguard endangered cultural material. The help given takes the form of U.S. import restrictions on archaeological and ethnological objects in jeopardy of looting. The process used to enact these import barriers is defined by the CPIA, the federal statute that gives effect to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The CPIA requires CPAC members to assess whether a requesting government has satisfied four determinations. The full committee then offers a recommendation to the President about whether he should enact import barriers to protect cultural heritage in jeopardy. If import controls are approved by the White House, a Memorandum of Understanding is signed between the U.S. and the petitioning government. The MoU is often referred to as a bilateral agreement.

When Bulgaria requested American restrictions on cultural goods in 2011, the AAMD told CPAC in a written statement that the "AAMD supports the request for a Memorandum of Understanding from the Republic of Bulgaria with … concerns …..” The organization’s concerns seemed to have swallowed its articulated support, but the AAMD, nevertheless, expressly backed the adoption of the MoU. When CPAC considered a renewed bilateral agreement with Guatemala in 2012, the AAMD once again articulated its “concerns,” but it still offered support for the agreement. The AAMD offered similar backing for the Mali renewal in 2012 (“Subject to the concerns set forth above, the AAMD supports the request of Mali for an extension of the 2007 MOU”). Moreover, the proposed MoU with Honduras in 2013 garnered the AAMD’s endorsement, along with the usual tempering language, “Subject to the concerns raised below….”

Cambodia’s request for a renewed bilateral agreement in 2013 notably attracted the organization's clearest affirmation for an MoU (“For the reasons set forth above, the AAMD supports the renewal of the MOU”). The AAMD, meanwhile, did not offer an express objection to the enactment of an MoU with China, even though its position might be characterized as nuanced.

Then, nine months ago, the AAMD struck an entirely different chord, capped by last week's written comment directly opposing the renewal of a bilateral agreement with Nicaragua.

The AAMD’s statement on the renewal of the MoU with Nicaragua voiced unequivocal disapproval. “The AAMD respectfully recommends that the Cultural Property Advisory Committee … decline Nicaragua’s request…." For the first time, the organization included a paragraph captioned, “All Four Required CPIA Determinations Cannot Be Made for Nicaragua,” although the AAMD actually argued that only two determinations could not be satisfied. Regardless, the group expressed clear opposition to the adoption of an MoU.

The AAMD characterized Nicaragua's request as a plea for an “extraordinary type of protection” that could only be granted if the requesting nation itself proved "significant improvement in the protection of cultural property." The AAMD disquietingly added, “Any time that a country requests and is granted import restrictions without strict compliance with the requirements of the CPIA, the entire program contemplated by the CPIA is placed in jeopardy.”

The objection to a renewed U.S.-Nicaragua agreement followed demurrals aimed at petitions filed by El Salvador and Egypt last year.

The AAMD withheld its support for El Salvador’s renewal request this past September, gingerly writing, “The AAMD encourages the Cultural Property Advisory Committee … to carefully review El Salvador’s compliance …  In addition, the AAMD questions whether renewal of the MOU would meet the test of  19 U.S.C. § 2602(a)(1)(C)(i),” one of the CPIA’s four determinations. “Looting does not appear to have been significantly curtailed even after more than 27 years of United States import restrictions,” the organization added, and it asked “whether a new and different approach to an MOU is necessary.”

With respect to Egypt, the AAMD staunchly advised CPAC in May that it “not recommend any memorandum of understanding … between the government of the United States and the government of the Arab Republic of Egypt … or emergency restrictions at this time.” The AAMD questioned the foreign state's request, pointedly quizzing “Is Egypt Meeting the CPIA Determinants?” and answering the query in the negative, simultaneously downplaying archaeologists' observations of site looting in that country. “At this time, Egypt fails to satisfy at least two of the four determinants,” the AAMD flatly contended.

Given its opposition to bilateral agreements between the U.S. and Nicaragua, El Salvador, and Egypt, will the AAMD oppose future requests for American assistance under the CPIA? If this is the group's new policy, will all 237 members back it?

A number of art museums have been traveling a different road. While countless books and news articles have chronicled how museum collections formed, in part, from plundered archaeological, ethnological, and paleontological material, more than a few major institutions have turned away from--or are starting to turn away from--this legacy of loot.

In fact, the past few years have witnessed a greater awareness among art museum administrators of heritage trafficking. In 2013, for example, the Metropolitan Museum of Art repatriated two Khmer sculptures discovered to have been stolen from Cambodia. The Museum of Fine Arts, Boston (MFA) meanwhile, developed a close cultural exchange partnership with Italy after taking fresh steps to resist the accession of contraband antiquities from that country. The MFA even hired a curator for provenance to bring real integrity to its collecting practices. The Cleveland Museum of Art, the Minneapolis Institute of Art, and the Philadelphia Museum of Art joined the MFA, and they are now among the institutions that employ full-time provenance researchers who perform due diligence investigations to find out the true collecting histories of pieces. Dallas Museum of Art director Maxwell Anderson, moreover, spearheaded the effort to deaccession and repatriate artifacts believed to have been looted and smuggled. He earned praise for injecting principles of fairness and transparency to the discussion on heritage preservation as chair of the AAMD's Task Force on Archaeological Materials and Ancient Art.

Whether the AAMD continues to oppose bilateral agreements or chooses a different direction, only time will tell.

Photo credit: Mike Thorn

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law& Policy Research, Inc.

House Bill Calls for Cultural Property Protection Czar and for Import Restrictions on Syrian Heritage in Jeopardy

“The fight to preserve our common cultural heritage, as well as to deny extremists such as ISIL [Islamic State in Iraq and Syria] resources from the sale of blood antiquities, is yet another front on the global war against terror,” proclaimed Congressman Chris Smith (R-N.J.-4) in a press statement issued last week.

Congressmen Eliot Engel and Chris Smith, sponsors of the
Protect and Preserve International Cultural Property Act.

Rep. Smith, together with Rep. Eliot Engel (D-N.Y.-16), introduced the Protect and Preserve International Cultural Property Act (H.R. 5703) in the U.S. House of Representatives on Thursday. The bill would create a cultural property protection czar and set up import restrictions to prevent looted and smuggled Syrian heritage material from crossing America's borders.

Rep. Engel, the lead sponsor of the bill, emphasized its importance: “Since World War II, the United States has been a leader in protecting cultural property. Today, ISIL and other terrorist organizations have found a lucrative source of revenue in artifacts they traffic out of areas of conflict. America must respond by denying terrorists and criminals the ability to profit from instability by looting the world of its greatest treasures.”

The proposed legislation would advance four articulated U.S. policy goals designed to

(1) protect and preserve international cultural property at risk of destruction due to political instability, armed conflict, or natural or other disasters;

(2) protect international cultural property pursuant to its obligations under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and customary international law in all conflicts to which the United States is a party; 

(3) prevent, in accordance with existing laws, importation of cultural property pillaged, looted, or stolen during political instability, armed conflict, or natural or other disasters; and 

(4) ensure that existing laws and regulations, including import restrictions imposed through the Office of Foreign Asset Control (OFAC) of the Department of the Treasury, are fully implemented to prevent the trafficking in stolen or looted cultural property.

To promote these objectives, the lawmakers want the White House to appoint a Coordinator for International Cultural Property Protection who will

(1) coordinate and promote efforts to address international cultural property protection activities that involve multiple Federal agencies, including diplomatic activities, military activities, law enforcement activities, import restrictions, and the work of the Cultural Antiquities Task Force established pursuant to the Consolidated Appropriations Act, 2004 (Public Law 108-199); 

(2) submit to the appropriate congressional committees an annual report on interagency efforts to protect international cultural property based on information required under section 5 of this Act; 

(3) provide policy recommendations, if necessary; 

(4) resolve interagency differences in a timely, efficient, and effective manner; and 

(5) work and consult with domestic and international actors such as foreign governments, nongovernmental organizations, museums, educational institutions, research institutions, and the U.S. Committee of the Blue Shield on efforts to promote and protect international cultural property.

Under the terms of the legislative proposal, the Secretary of State, Attorney General, Secretary of Defense, and United States Agency for International Development Administrator would be required to submit reports to the cultural property protection czar that describe each department’s efforts to protect cultural property from the threats of armed conflict, political unrest, crime, construction activities, and natural disaster.

The bill curiously omits any duties that might have been placed on the Secretaries of Treasury, Interior, or Homeland Security to supply reports directly to the Coordinator. These cabinet officials supervise agencies that have an impact on international cultural property policy—agencies like the the Office of Terrorism and Financial Assistance, the Financial Crimes Enforcement Network, the Internal Revenue Service, U.S. Fish and Wildlife, and Immigration and Customs Enforcement's Homeland Security Investigations and Customs and Border Protection divisions. At best, the proposed legislation would have the Attorney General simply offer a report "in consultation with the Secretary of Homeland Security."

Reps. Engel and Smith also want to implement safeguards to protect endangered Syrian cultural property. Their bill would mandate the President to immediately enact emergency import restrictions under the terms of the Convention on the Cultural Property Implementation Act (CPIA) 19 U.S.C. 2603 in order to stop looted and smuggled antiquities from entering the American marketplace.

The legislation attempts to offer a solution to the CPIA's cumbersome statutory framework, which currently requires Syria’s government—under whatever form that might be at present—to first ask the State Department for American import controls restricting cultural objects. Recall that the White House recognized the rebels as the legitimate governing authority of the Syrian Arab Republic in 2012.

The proposed Protect and Preserve International Cultural Property Act, in both substance and procedure, mirrors the Emergency Protection of Iraqi Cultural Antiquities Act of 2004 as well as CHL’s 2013 recommendation for an Emergency Protection of Egyptian Cultural Antiquities Act.

It remains to be seen whether the 113^th Congress will take up these critical requests for a cultural property policy coordinator or for import controls to protect threatened heritage. Congress is in a lame duck session following the GOP's sweeping election victory earlier this month. Yet the proposed legislation already has been referred to the House Committees on Foreign Affairs, Ways and Means, Armed Services, and Judiciary. The bill's sponsors, more importantly, are well-known fixtures in the House. They hail from from safe districts where constituents regularly vote them back in office by wide margins.

Rep. Engel is the ranking minority member of the Committee on Foreign Affairs. He is a liberal Democrat who recently earned a fourteenth term after facing no opponent in a district that encompasses New York’s Westchester County and the Bronx. Rep. Engel is known for his sponsorship of the Syria Accountability and Lebanese Sovereignty Restoration Act.

Rep. Smith, meanwhile, first arrived on Capitol Hill following the election of 1980. He is a popular conservative Republican representing Trenton and central New Jersey. He possesses expertise on the topics of foreign affairs and organized crime, serving as senior member of the House Committee on Foreign Affairs; chair of the Commission on Security and Cooperation in Europe; chair of the Subcommittee on Subcommittee on Africa, Global Health, Global Human Rights, and International Organizations; and chairman of the Congressional Human Trafficking Caucus. Last year Rep. Smith introduced a resolution to establish a Syrian war crimes tribunal.

The full text of H.R. 5703, the Protect and Preserve International Cultural Property Act, can be found here.

Photo credit: House.gov

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Conservator's Records To Be Subpoenaed As Prosecutors Score Triple Victory in Peruvian Artifacts Forfeiture Cases

Federal prosecutors recently scored three court victories in two forfeiture actions and one subpoena case involving allegedly contraband Peruvian artifacts.

A federal magistrate in New Mexico recommended that a conservator, who may have handled contraband objects, turn over his business records to prosecutors under subpoena, a decision that certainly will attract attention among conservation professionals since they are rarely the subject of cultural property claims filed by the government.

A federal judge in Miami, meanwhile, ruled that the two cases seeking to forfeit the Peruvian objects could not be halted by a parallel criminal investigation, if one even existed. The court also denied a request to dismiss the forfeiture cases in their entirety.

The Peruvian artifacts forfeiture cases began in 2010 when U.S. Customs and Border Protection (CBP) seized 33 objects from Jean Combe Fritz’s luggage. Authorities suspected Combe Fritz and his father of engaging in a smuggling ring, according to information supplied by court papers. The two made 21 trips to Miami in ten years, returning to Peru after one or two days’ stay, which caught customs officials’ attention.

Prosecutors alleged in court pleadings that “[i]n August 2010, Combe-Fritz attempted to smuggle thirty-two ancient Peruvian artifacts into the United States through the Miami International Airport. Because Customs officers could not confirm the authenticity of the apparently-ancient artifacts without an expert appraisal, Combe was released that day. The U.S. Attorney’s Office Major Crimes section subsequently declined to prosecute the criminal case because Combe had returned to Peru.”

Without the possibility of prosecution, federal attorneys decided to seek title to the objects through civil forfeiture with the intent to return the heritage objects to Peru.

Prosecutors filed a civil action in Miami federal district court on May 10, 2013 to forfeit 29 objects consisting of a Moche bone carving (pictured here), a 12 piece Inca burial bundle, an Early Horizon/Chavin stone carving, and more. They argued that the Convention on Cultural Property Implementation Act (CPIA) forbade their entry into the United States.

Prosecutors filed a second forfeiture complaint on July 18, 2013 seeking to forfeit three more objects, this time arguing that they should be forfeited under 19 U.S.C. § 1595a(c)(1)(A) because they were stolen, smuggled, or clandestinely introduced into the United States.

While it is rare for a claimant to step forward in a cultural property forfeiture case, Jean Combe Fritz did, and his lawyers have vigorously battled the government ever since.

They have argued that the CPIA does not apply, that the objects seized cannot be shown to be Pre-Columbian or Colonial, that it is not possible to determine whether Peru is the source country, 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 case stalled for one year after federal attorneys attempted to depose Combe Fritz, an effort resisted by the claimant’s lawyers on grounds that the government cannot go searching for criminal evidence by using the civil court process. Prosecutors countered by accusing the claimant of delay.

Combe Fritz’s lawyers filed a motion to stay the civil forfeiture proceedings until federal authorities concluded their criminal investigation. But prosecutors objected, writing on July 10, 2014 that there was no criminal investigation and no possibility of prosecution. “The Government disclosed this fact to counsel early in the litigation,” they explained.

Notwithstanding this representation by the government, one day earlier, on July 9, federal prosecutors in New Mexico targeted the conservator who allegedly handled pre-Columbian artifacts brought to the U.S. by Combe Fritz. Prosecutors told the court that the conservator was not implicated in any wrongdoing, but that they wanted information from him to find out who was running Peruvian artifacts between Miami and New Mexico.

The claimant’s lawyers tried to convince the Miami federal court that the existence of the New Mexico case clearly revealed that a criminal investigation was underway. But the judge in Miami would not stop the forfeiture cases. The court even denied the claimant’s motion to dismiss the matters outright, not just delay them.

The federal magistrate in New Mexico, meanwhile, authorized a subpoena to be issued to the conservator for information relating to the Miami forfeiture cases despite his objections.

The conservator objected to turning over specific information to the government, stating that the information sought was irrelevant to the forfeiture cases in Miami; insisting that he had not received any material from Combe Fritz; protesting that the disclosure of business records would violate the confidentiality necessary to conduct conservation work for his clients; and complaining that retrieving company's records would be too burdensome.

The magistrate noted that the conservator was “willing to provide some information and submit to deposition questioning about certain matters,” but that the conservator says “he does not know Combe Fritz, was never contacted concerning any of the 32 items at issue in the Florida cases, and has no reason to believe that any of his clients has anything to do with Combe Fritz or the 32 items.”

The magistrate sided with the government, nevertheless, reasoning in his recommended disposition of August 29,

I agree with the United States that the information sought is relevant to its claims …. It is beside the point whether the government already has some evidence to prove its claims. There is no limit on the quantum of evidence that the government may amass—within the rules—to make its case as strong as possible. See Fed. R. Civ. P. 26(b)(1). I find that [the conservator’s] records and knowledge are reasonably calculated to lead to the discovery of evidence that is admissible and relevant to the elements that the government must prove …. 

The United States … argues that the information sought pursuant to the subpoena is relevant to the elements that it must prove…. The government's aim is not merely to identify the intermediary. Rather, the government's aim is to identify the intermediary and, more importantly, to secure his/her testimony as an "eyewitness[] to acts of the conspiracy and the persons involved in it, as would be the person who was to transport the textile from Miami to New Mexico[;] that information could be critical to the government's case." [Doc. 9] at 4.

The magistrate carefully reframed the government’s original subpoena to restrict overbroad language and to confine the document disclosures to narrowly tailored information about pre-Columbian textiles. Indeed, the conservator’s lawyer informed the district court that his client worked in textiles alone and not with other types of artifacts.

Approximately three weeks before the magistrate's recommendation to issue the subpoena, the federal district court in Miami ruled that the forfeiture cases would push forward despite the claimant’s request that the court process stop temporarily . The court wrote,

Claimant argues that "by engaging in discovery and offering evidence in support of his interest in the seized objects, he will be forced to incriminate himself in violation of his Fifth Amendment rights." (D.E. 74 at 2). The Government has not indicted Claimant and further states that no actual prosecution or criminal investigation is in progress.  

....

The mere existence of parallel criminal and civil proceedings does not compel a stay of the civil proceeding. 

Under the circumstances presented here, the Court finds that a stay is not warranted. Claimant has submitted no evidence that his invocation of the privilege against self-incrimination would compel an adverse judgment against him. . . . If "special circumstances" arise that Claimant believes warrants a stay during the course of litigation, then Claimant may re-file his motion.

The claimant’s attorneys raised “special circumstances” in their motion to reconsider dated August 16. They claimed that “new facts clearly reveal that the Government is using civil discovery in this case to further its criminal inquiry,” asserting that “new evidence will show that the criminal inquiry is active and ongoing, despite the Government’s unsubstantiated protestations to the contrary.”

The claimant’s lawyers said federal prosecutors’ efforts to compel the conservator to turn over documents “strongly supports Claimant’s position that the Government is improperly using civil discovery to supplement its ongoing criminal inquiry or as an improper substitute for an open and outright criminal investigation. Indeed, the non-party witnesses in New Mexico have corroborated this position and presented compelling, independent evidence in support of the same …[demonstrating] that the Government’s purported civil discovery demands were in fact issued in order to generate evidence of a criminal smuggling ring.”

The court rejected such claims and ruled on September 9 that "[e]ven if the Government is engaged in an active and ongoing criminal inquiry, the mere existence of parallel criminal and civil proceedings does not compel a stay of these civil proceedings.”

The court soon thereafter ruled against the Claimant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, Denial of Due Process of Law, and Failure to State a Cause of Action, a pleading that had been pending for one year. Judge Joan Lenard weighed both the claimant’s argumentsand the government’s objection, which included the government’s position that “…smuggling protected cultural property is not ‘commercial trade’: it is criminal[] activity.”

In its ruling against the motion to dismiss, the Miami federal district court first determined that it had jurisdiction to hear the case. “Because this action involves the forfeiture of property and does not involve the recovery of civil penalties, the recovery of a bond, or the recovery of customs duties, the Court has jurisdiction….,” the court wrote. The case was not required to be heard by the Court of International Trade as the claimant’s lawyers argued.

Second, the district court concluded that prosecutors sufficiently stated their claims in both the CPIA forfeiture complaint and the 15 U.S.C. § 1595a forfeiture complaint.

Citing in part Ancient Coin Collectors Guild v. U.S. Customs, Judge Lenard ruled that the CPIA forfeiture complaint “demonstrated that the artifacts in this action consist of Pre-Columbian perishable remains, lithics, metal objects, and textiles. (First Compl. ¶ 16). Such items are listed on a designated list within the meaning of the CPIA. See 19 C.F.R. 12.104g; Archaeological and Ethnological Material From Peru, 62 Fed. Reg. 31712-01 (June 11, 1997). Claimant has failed to demonstrate that the artifacts are legally importable by providing a State Party issued certification or any other documentation certifying that the artifacts may be legally imported into the United States.”

The § 1595a forfeiture complaint was also sufficient, the court explained:

Here, the artifacts were stashed in Claimant’s luggage. CBP officers located the artifacts in Claimant’s luggage only after conducting a secondary examination. When questioned about the artifacts, Claimant made false statements regarding how he came to possess the artifacts, his purpose for bringing the artifacts into the United States, and the individuals to whom he intended to deliver the artifacts. Additionally, Plaintiff alleges that the introduction of the artifacts into the United States was a violation of Peruvian law. Based on these facts set forth in the Second Complaint, the Court finds that there is probable cause to believe that Claimant clandestinely introduced the artifacts into the United States contrary to law.

The forfeiture cases have been captioned as U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru and U.S. v. Three Artifacts Constituting Cultural Property of Peru.

By Rick St. Hilaire Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.