Protecting Cultural Heritage by Revising the Customs Entry Form

Customs Entry Form 6059B

When people become aware of the rampant looting, smuggling, and destruction of cultural property, they show concern about preserving humanity's shared cultural heritage. And when U.S. Customs and Border Protection (CBP) officers are able to identify specific cultural objects imported into America, they are better positioned to interdict at-risk archaeological, ethnological, religious, and other cultural heritage material at the border.

It is for these reasons that the Customs Entry Form should be revised slightly.

Those who have flown back home from a trip overseas undoubtedly have spotted a flight attendant strolling down the aircraft aisle handing out the ubiquitous blue paper known as Form 6059B, the double-sided document used by travelers to declare goods that they are bringing into the United States.

By checking off the simple “Yes” or “No” boxes found at question #11, travelers easily notify CPB upon their arrival whether they have:

• fruits, vegetables, plants, seeds, food, insects;
• meats, animals, animal/wildlife products;
• disease agents, cell cultures, snails;
• soil or have been on a farm/ranch/pasture.

But, surprisingly, the Entry Form does not include an interrogatory that covers regulated cultural heritage goods. There is no “Yes” or “No” box for travelers to check when carrying an ancient Greek vase, Roman coin, Maya wall art, Byzantine mosaic panel, Tellem textile, Khmer statue, Tyrannosaurus bataar fossil, or the like. That is why a new line under #11 should be added on the Customs Entry Form to say:

I am (We are) bringing...

antiquities/antiques, archaeological material/artifacts, ancient coins, tribal objects, fossils
Yes __  No __

This new Q and A would alert travelers about the existence of regulations that govern imported cultural goods. Such laws include the Convention on Cultural Property Implementation Act; the Pre-Columbian Monumental or Architectural Sculpture or Murals Act; the Protect and Preserve International Cultural Property Act; the National Stolen Property Act; and many more.

A person checking the "Yes" box would prompt CBP officers to inquire further about whether a particular cultural heritage object could be imported legally or whether its entry was subject to restriction. A false "No" response might trigger CBP to contact Homeland Security Investigations to examine if someone was knowingly concealing an illegal import.

In addition to the questions found under #11, the Customs Entry Form currently directs travelers to “[d]eclare all articles on this declaration form and show the value in U.S. dollars.” It cautions them about bringing potentially prohibited objects into America like agricultural and wildlife products, controlled substances, obscene articles, toxic substances, and merchandise that infringes intellectual property rights. "Failure to declare such items ... can result in penalties and the items may be subject to seizure," Form 6059B warns. By adding specific language about legally protected cultural property to this part of the Form, travelers would be alerted further about their duty to declare a variety of protected cultural heritage objects.

Retired customs officer Domenic DiGiovanni, who worked extensively with cultural heritage material when he was with CBP, tweeted that these changes to the Form would be a "great idea" because customs officers would ask follow-up questions in person that "could elicit a behavioral response" from the traveler, which in turn could "lead to more questions."

There is plenty of space remaining on Form 6059B to improve the paperwork, and the small changes would go a long way toward protecting cultural heritage.

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 is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Federal Agents Easter and DiGiovanni Lauded in Heritage Trafficking Documentary

Click here to watch "The Real-Life Indiana Jones"

A new documentary lauds the hard work undertaken by Homeland Security's Senior Special Agent Brent Easter and retired Port of Newark Customs and Border Protection Officer Domenic DiGiovanni to uncover the Kapoor cultural heritage trafficking scheme.

The law enforcement officers are unsung heroes who have fought resolutely against transnational criminals who steal history and culture from abroad and then traffic their loot in the United States.

The pair have been singled out in the just released documentary titled "The Real-Life Indiana Jones," produced by ESPN's FifeThirtyEight Films.

Now we simply need specially designated federal prosecutors who will support these police investigations by indicting and convicting antiquities traffickers in U.S. courts of law.

Text copyrighted 2015 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.

Antiquities Trafficking Investigation Reveals Suspected Ties to Terrorism and Money Laundering -- "Seize and Send" Outcome Flags Need for Special Prosecutors

ICE returned smuggled antiquities to Afghanistan
during a photo-op held in Washington, DC in 2013.
No prosecutions resulted from the case.

Newly obtained documents released by Immigration and Customs Enforcement (ICE) reveal that ICE Homeland Security Investigations (HSI) investigated a suspicious shipment of cultural heritage objects imported into the United States, but no prosecutions resulted.

In 2011, U.S. Customs and Border Protection (CBP) and the HSI New York El Dorado Task Force (EDTF) seized a falsely labeled package that bore the hallmarks of antiquities trafficking. ICE investigators voiced concern about the possibility of money laundering, ties to terrorism, and how the same importers already had been involved in previous investigations. Meanwhile, they openly spoke about artifacts pouring out of Afghanistan and Pakistan. Authorities seized the goods because of violations of federal law, including the commission of felony crimes.

Yet the investigation produced no arrests, no indictments, no prosecutions, and no convictions even for those who lied on the customs forms. In fact, the newly released documents confirm that no prosecutor was assigned to the case.

ICE is the investigative arm of the Department of Homeland Security (DHS). It is tasked with conducting criminal investigations; combating transnational crimes that exploit legitimate trade, travel and financial systems; enforcing the customs and immigration laws; and protecting the nation against criminal and terror organizations. HSI was formed in 2010 through the unification of ICE's former Offices of Investigations, Intelligence and International Affairs.

While the police agency routinely announces numerous arrests and prosecutions in cases ranging from child exploitation, illegal narcotics, human trafficking, financial crimes, contraband cigarettes, and more, ICE rarely generates criminal prosecutions in cultural property cases.

CHL readers will recall, for example, the highly publicized return of an Assyrian limestone head fragment earlier this year when ICE ambiguously reported "one arrest" related to Operation Lost Treasure--a police program focused on antiquities smuggling--but announced no arrests, indictments, prosecutions, or convictions connected with the illegal importation of the $1.2 million head from Iraq. The object had been brought to the United States illegally in 2008 from the United Arab Emirates.

This "seize and send" policy is starkly revealed in ICE's 2011 antiquities trafficking investigation, the details of which have now been revealed by documents disclosed under the Freedom of Information Act (FOIA). CHL filed the FOIA request in September 2013.

ICE's investigation was part of the touted Operation Lost Treasure program. In place of grand jury indictments, ICE held a photo-op ceremony in Washington, DC in September 2013, returning the evidentiary fruits of its investigative work to Afghanistan.

The carefully redacted and cherry-picked documents released on July 31, 2015 show that authorities intercepted a small shipment passing through New Jersey's international airport during March 2011. The package contained a pitcher and ancient gold objects, and HSI had reason to suspect a link to terrorism.

After the shipment arrived at the Central Air Cargo Examination Facility (CACEF) at Newark Liberty International Airport, CBP notified the HSI Special Agent in Charge New York (HSI SAC/NY), "requesting assistance with the importation of possible smuggled cultural property via express consignment (Fed Ex)," according to a police report dated April 21, 2011.

The customs paperwork accompanying the package obscurely declared, "Brass Jug, Plated Pendants, Unmanifested Gold Pieces" from Great Britain. "No Antique Statement nor provenance supplied," a CBP officer noted.

According to a document titled "Case Agent Cultural Property Art and Antiquities Repatriation Checklist," the import consisted of more than simple housewares and jewelry from England. Instead, there were cultural heritage objects that included:

Oinochoe seized by ICE and sent to Afghanistan.

1. A late Roman oinochoe, or wine pitcher, 5th-8th century A.D. of ovoid form with reeded body and central band of figures within arched reserves, shaped handle Height 4 (sic) 

2. Three (3) Scythian gold repousse, foil appliques. 5th century B.C., each depicting Antelopes. Height of each: 4 inches. Width of each: 3-1/4 inches 

3. Two (2) antique coiled gold ornaments, possibly 17th century. Height of each 3.8 inches. Weight of each: 2 ounces (approximate)

Authorities retained an appraiser who found that the retail values of the objects totaled $29,000 USD, almost 30 times greater than the trifling £650 GBP ($1,048.94 USD) claimed by the importer on the customs paperwork.

The objects had been devalued significantly, probably to bypass the formal customs entry, the kind of entry typically used when importing goods for commercial or resale purposes and the kind of entry that would have required more oversight. The importer likely knew that devaluing the objects below $2000 would cause the shipment to be less eye-catching. The value threshold today for an informal customs entry is $2500.

According to the appraiser, the values that should have been listed on the customs form were:

• Oinochoe, Fair Market: $4,000; Retail: $8,000
• 3 Gold Repoussé, Fair Market, $6,000; Retail: $12,000
• 2 Gold Ornaments, Fair Market, $6,000; Retail: $9,000

A federal investigator confirmed, "It is ... suspected from prior case experience ... that this shipment is being imported improperly as an informal entry versus a formal entry. ... Cultural Property smugglers often utilize this tactic to avoid having their express consignments garner added scrutiny. Formal entries are required to have Harmonized Tariff Schedules, proper provenance or affidavits, invoices, shipping documentation, etc. The failure to provide adequate paperwork also makes this shipment subject to seizure and forfeiture according to 19 CFR 145.11 and 145.12, 18 USC 542, 18 USC 545, 19 USC 1595a (c) 1(a)." Such forfeitures are predicated on individuals committing illegal conduct, especially prosecutable crimes.

An email sent by the CBP Supervisory Officer assigned to Newark Liberty International Airport and dated April 22, 2011 explained that officials actually seized two shipments in March 2011. In addition to the oinochoe and the gold objects, which the customs officer initially believed to have been from the first century, authorities seized Iranian artifacts:

On April 21, 2011 Officer from CACEF-FedEx/UPS along with Special Agents from SAC/NY, El Dorado Task Force (EDTF) Financial Group VI seized two cultural property shipments. 

In one shipment UPS officers targeted and examined a shipment listed as ''Antique Decorative Persian Metalwork". Research by CBPO ... and ICE SA ... determined that the items were from around the 12th century and the actual origin of the shipment to be Iran. The items were being shipped in violation of the 1987 United States Executive Order 12613 imposing an import embargo on Iranian origin goods and services.

In the second shipment FedEx officers targeted and examined a shipment coming from Great Britain that was manifested as "BRASS JUGS PLATED PENDANTS". 

Examination of the shipment revealed a brass jug, gold colored embossed plates and two gold colored pieces. Research by CBPO ..., ICE SA ... determined that these items were being brought in with a false country of origin, undervalued and were from approximately 100 B.C. These items were seized for being violation of 18 USC 545 - Smuggling Goods into the United States." 

Supervisory Special Agent  

Intellectual Property Art and Antiquities Investigations 

Department of Homeland Security

The released documents reveal nothing further about the Iranian objects.

With regard to the shipment containing the jug and gold items, not only did the importer provide bogus descriptions and phony values on the customs paperwork, the importer also misleadingly claimed that the goods originated from Britain. Because the package had been shipped from the Walthamstow neighborhood in London, the importer probably hoped that he could get away with this misrepresentation.

An April 21, 2011 investigative report expounded on this legal violation. "On April 18, 2011, the SME [subject matter expert] further elucidated that none of the items in this shipment could have had Great Britain as a country of origin." As a result, the report recorded that "[t]his importation contained a material false statement related to the country of origin," It pointedly added, "Individuals who smuggle cultural property often utilize false countries of origin to avoid Customs scrutiny in order to import controlled antiquities. Listing a false country of origin is a violation of 18 USC 542 (Material False Statement). If this shipment was destined to an antiquities dealer, they should know and would be responsible to know the country of origin. In this instance [it] is suspected that the false country of origin listed as Great Britain was a known false statement and a violation of 18 USC 545 (Smuggling). The shipment would be subject to seizure under 19 USC 1595 a (c) (Introduction Contrary to Law)."

The oinochoe and gold pieces were supposed to be delivered to a man living in New York City who resided at the same address as a registered New York corporation, referred to here simply as "Bactrian Global Enterprises" (BGE). DHS investigative report number 20 dated October 11, 2011, classified "BGE" as "a business that is suspected of antiquities smuggling and money laundering."

Concerns about smuggling, money laundering, and ties to terrorism almost certainly should have prompted a prosecutor to be assigned to the case. But the documents released by ICE reveal that no prosecutor was assigned. Whether ICE failed to ask for one or whether a U.S. Attorney's Office declined to assign one is unknown. What is known is that no prosecuting attorney was attached to a case flagged as one involving transnational felony conduct. A May 9, 2011 reply to an email sent a few days earlier from a chief CBP paralegal in the Office of Fines Penalties & Forfeitures explicitly confirmed that no attorney had been designated. The Paralegal Specialist asked if there was an Assistant U.S. Attorney involved. "No AUSA" was the dispiriting reply given.

By way of contrast, wildlife trafficking crimes, which are typically investigated by special agents of the U.S. Fish and Wildlife Service (USFWS), have designated prosecutors at the Justice Department's Environmental Crimes Section (ECS) available for consultation. Following the best practice of assigning a prosecuting attorney to a serious or complicated felony-level investigation, the Justice Department points out, "An ECS prosecutor often gets involved early in an investigation, such as when the investigator swears out a search warrant or when a grand jury’s investigative power is needed.  Once the necessary evidence is collected, the prosecutor presents the case to the grand jury for indictment. After indictment, the prosecutor guides the case through complex white collar and environmental law issues and prepares it for trial." ECS prosecutors also partner and coordinate with front-line prosecutors based at U.S. Attorneys' offices.

Repouseé gold foil applique depicting antelope
seized by ICE and sent to Afghanistan

Because ICE failed to arrest, indict, prosecute, or convict any individuals connected with the 2011 investigation, CHL will not identify the names of those who imported the cultural heritage objects or disclose the specific address where the shipment was bound.

With that said, ICE agents paid a visit on September 16, 2011 to the Manhattan address of "BGE" on the pretense of hand-delivering a property seizure notice prepared by a paralegal specialist four days earlier. Delivering it "would be a perfect excuse for an interview," a September 2, 2011 email divulged.

Two federal agents arrived at the Chelsea residence and found an unassuming building, the kind of four-story low-rise that New Yorkers walk by each day and never take a second look. Inside were unspecified antiquities. An agent summarized the encounter in a report dated October 11, 2011. (ICE redacted references to any names in the original report):

On September 16, 2011, Special Agents [   ] and [   ] conducted an interview with [   ] located at [BGE] located at [   ] New York, NY 10011. The interview contained but was not limited to the following topics of conversation: Special Agents [   ] identified themselves [   ] and asked permission to enter… Permission was granted and agents observed the address to be a basement level apartment of approximately two large rooms. One room was set-up as a residential space where two people appeared to be living. The second room appeared to be a large storage room with a computer. Stored in the room there appeared to be large quantities of crafts, jewelry and antiquities. [   ] stated that he lived at the address with his cousin and that the apartment was the location of a jewelry and craft business, and a real estate business. … [   ] relayed that he and his father are in the business known as [BGE] together and he was able to produce a business card attesting to this fact. The card also listed [   ] the cousin living at the address, as an employee of [BGE]. [   ] explained that the business is set-up to predominantly sell costume jewelry and textiles. 

SA [   ] stated he was there to deliver a seizure notice regarding an importation previously destined for [   ] at the address. [   ] stated that he was aware of it but that only his father knows about that specific shipment. [   ] stated that the merchandise for [BGE] comes from Pakistan. When asked specifically where the antiquities come from [   ] interrupted the conversation and stated that the antiquities were all from central Asia. [   ] was able to provide that their Customs Broker's name is [   ]. [   ] also stated that the shipment was sent to his father to sell on consignment and that his father didn't know much about it. SA [   ] explained to [   ] about the seizure notices and the accompanying paperwork and had him sign a sheet acknowledging receipt of the hand carried mail.

That no one knew anything of consequence is a fair summary of this same interview as memorialized by an HSI special agent's supplemental email dated October 5, 2011:

• He and his father are in the business together. They sell costume jewelry and textiles. 

• The father is the one that knows about the shipment.

• He did not know anything about the shipment.

• [   ] is their [customs] broker.

• There was another individual that was a real estate business partner of the father but not with ["BGE"]. Subject name was [   ] unknown proper spelling.

• [   ] stated that the shipment was sent to sell on consignment and that the father didn't know much about it."

Shortly after the interview, and for reasons not explained in the released documents, government information networks rang with alarm. Documents confirm that on Wednesday, October 5, 2011 computer terminals at U.S. border entry points flashed warnings over the Treasury Enforcement Communications System (TECS):

 

"INDIVIDUAL IS SUSPECTED OF DEALING IN ILLICIT CULTURAL PROPERTY DETAIN ALL SHIPMENTS AND IF ENCOUNTERED CONTACTED CASE AGENT...."

"BUSINESS IS SUSPECTED OF DEALING IN ILLICIT CULTURAL PROPERTY BEING SMUGGLED FROM AFGHANISTAN AND PAKISTAN. PLEASE DETAIN ALL SHIPMENTS AND CONTACT THE CASE AGENT...."

Before HSI agents actually conducted their interview in Manhattan, they made an effort to secure a search warrant for "BGE." But they never got one. That likely sparked the idea of serving the property seizure notice as a justification for visiting the importer.

Interestingly, ICE went outside the jurisdiction for help with getting a search warrant. Based on the both the substance and style of a conversation archived in an email string sent on the afternoon of May 10, 2011, one unidentified party, who could be an investigative agent based in the jurisdiction of the Southern District of New York (probably Manhattan), and the other unidentified party, who could be a federal prosecutor in the Eastern District of New York (probably Brooklyn), spoke about the matter.

The email string revolves around a request for an email search warrant. The presumed agent wrote that he or she learned that the suspect(s) already had been investigated for possible terrorism ties to Afghanistan, smuggling, and money laundering. Those cases were closed, and now there was a request for a fresh warrant. The emails offer the following exchange:

Agent: "I received this email a couple of months ago from a source and the pieces being offered are straight out of the ground. I recently seized a package in Newark destined for the address of ["Bactrian Global"] but the ultimate consignee was [    ]. When I inspected the shipment in person, the box (not the shipping label) was addressed to [   ] the principle behind ["Bactrian Global Enterprises"].

"The shipment was seized because it contained a false C/O [country of origin], and contained golden antiquities that were not declared. The shipment was seized on 4/21/2011.

"Would this all be recent and good enough for an email S/W [search warrant] in your opinion? If so, would you do it or could you recommend someone? I can send the ROI [report of investigation] related to the seizure and pictures if interested."

Prosecutor: "Is there any connection to the EDNY [Eastern District of New York]? How much do you think these pieces are worth? True CDO [country of declared origin]?"

Agent: "True C/O [country of origin] is most likely Iraq or somewhere in the middle east[,] the expert couldn't give one country 100% but she was 100% certain it was not GB [Great Britain]. Attached is the report. No estimate on value yet, but we are pretty certain it is more than declared because they failed to declare much of the shipment.

"Just learning that the principles (sic) have prior (failed and closed) investigations into them for money laundering, Cult. Prop. [cultural property] smuggling, and possible terrorism ties to Afghanistan.

"Does the same source who worked the UC op [undercover operation] that took place via JFK [Airport in New York] work [in order to form some legal tie to the Eastern District of New York]? Also, most of their shipments are via JFK. This one wasn't but it also used the wrong name on the shipping label."

Prosecutor: "I don't think we have venue here... I hate that there's dirt caked on them. Though it's so dirty, it makes you wonder if they're trying to increase value by faking a find."

Under the circumstances, a search warrant probably was not issued from the Eastern District of New York because the suspects were located in Manhattan, in the Southern District of New York. A specially assigned heritage trafficking prosecutor based at the Department of Justice in Washington probably could have facilitated this search warrant request by coordinating with the right U.S. Attorney's office. But no such specialist prosecutor exists.

So what looked like a criminal investigation into antiquities trafficking quickly turned into a seize and send case. Instead of holding the evidence and building the investigation for possible grand jury review, indictment, and conviction after trial or plea, ICE sought title to the antiquities through the forfeiture process, eventually sending the cultural heritage objects back to their country of origin. This seize and send disposition effectively terminated any chance of successfully prosecuting those responsible for lying on the customs entry paperwork.

 

An email dated January 25, 2012 from a Supervisory Legal Specialist at CBP 's Office of Fines, Penalties, and Forfeitures touched on this administrative process: "Please be advised that the cultural property in FP&F Case #: [   ] associated with OI #: [   ] has been administratively forfeited. I have attached the appraisal conducted on the seizure of this merchandise so you can determine the repatriation of these items to their rightful nations as per the seizure narrative of this case."

"Please send the seizure notice and Hold Harmless to [   ] Cultural Attache[,] The Embassy of Afghanistan...," requested an HSI SAC/NY special agent in an email dated April 5, 2013.

How Afghanistan and not Iraq or Pakistan came to be identified as the true country of origin remains unknown from the FOIA-released paperwork. Iraq had been mentioned as a possible country of origin in the police reports, and a special agent from HSI SAC/NY mentioned Pakistan in an email dated April 4, 2013, which pointed to the smuggling problem originating from South Asia. "You should see how much Afghan and Pakistani material we have from the [   ] case," the agent exclaimed. An unclassified but redacted email dated April 2, 2013 by an unknown government official echoed this troubling sentiment, "So much material is flowing out of Afghanistan and Pakistan; it really is a shame."

Although the repatriation essentially concluded the case, one undated document from HSI's Office of International Affairs insisted on the continuing nature of ICE's probe:

HSI New York's Operation Lost Treasure is an ongoing investigation targeting an organization smuggling items of world cultural heritage into the United States. The objects enter the antiquities market and the proceeds are laundered. Antiquities have been traced to Afghanistan, Iraq, Greece, Italy, Egypt and Iran and the funds have been traced to Dubai and London. To date, approximately 50 objects have been recovered with an estimated value of $2.5 million.

Whether ICE has probed this four year old case recently is unknown. What is known is that, according to NYS Department of State Division of Corporations Records, "BGE" today lists its principal office on the Upper West Side in New York City. "BGE," formed in 2006, is listed in the Yellow Pages as a home furnishings business that provides arts and crafts supplies. The company is a likely outgrowth of a preceding import/export company begun in the 1980's and now dissolved. Persons connected with "BGE'" and the 2011 investigation appear to use aliases that are subtle variations of their names, and the Manhattan address where HSI agents once visited currently houses at least four registered real estate corporations and an unregistered soft drink/grocery business, according to open source records. As of last month, an apparent relative of "BGE's" owner appears to have formed a brand new company at that address, which seems to be in the same type of business as"BGE."

HSI Assistant Director John Connolly emphasized during the repatriation ceremony of the artifacts to Afghanistan how HSI is "beating back this illicit trade through dedicated law enforcement efforts." But such a declaration remains inconsequential so long as crimes are committed and no perpetrators are brought before the courts. The participation of prosecutors are needed to do that. A designated group of specialist prosecutors working with HSI on their investigation may even have averted another "failed and closed investigation[]," as ICE put it, of cultural property trafficking.

Wildlife trafficking investigations should serve as a model for cultural heritage trafficking prosecutions. Because successful inroads have been made to combat this transnational crime, now more is being done. For the last five years, specialist prosecutors at ECS and their counterparts across the globe have been supported in their mission by the International Consortium on Combating Wildlife Crime (ICCWC), a group of five international organizations--including INTERPOL and the World Customs Organization. The ICCWC's mission is "to usher in a new era where perpetrators of serious wildlife and forest crime will face a formidable and coordinated response, rather than the present situation where the risk of detection and punishment is all too low." USFWS notes that the consortium "was formed to increase prosecution and punishment for caught smugglers and poachers."

Cultural heritage traffickers need to be prosecuted and punished too, and the inside look into ICE's 2011 seize and send case illustrates the point.

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 CulturalHeritage Law & Policy Research, Inc.

Bagpipes Seizure by U.S. Customs May Spur Police Involvement in Ivory Ban Debate

This week’s seizure by U.S. Customs and Border Protection (CBP) of two teenagers’ vintage bagpipes may serve to increase public opposition against the current blanket ban on the movement and trade of ivory. This time among police officers.

Pipes | Drums reported the confiscation of the teens’ heirloom bagpipes, writing that the 17 year olds from Massachusetts possessed CITES permits (permits under the Convention on International Trade in Endangered Species of Wild Fauna and Flora) for the ivory that ornamented their 1936 and 1958 pipes. The pair crossed into Canada for a competition, only to have federal customs officials take away their musical instruments at the Vermont-Canada border on the way back.

The story of the bagpipe seizure has now spread among police officers on social media because many officers throughout the country are part of police associations' pipe and drum corps. While federal officials eventually returned the bagpipes to the teens, a local news report intimated that the return may only have come in response to intervention by a U.S. senator's office. 

Elephant poaching is a transnational crime that slaughters thousands of elephants each year. In fact, monitoring the Killing of Elephants (MIKE) reportedthat 22,000 were killed illegally in Africa in 2012. That devastation to endangered wildlife is why the United States and the international community strongly support measures to combat ivory trafficking.

But the unilateral administrative ban on the transfer of ivory, promulgated by the White House in February, remains an immoderate response that serves only to build public dissatisfaction since the ban covers more than just illegal modern-day ivory. The ban essentially forbids the complete commercial sale of elephant ivory objects and restricts many imports and exports regardless of their age or legal acquisition. More importantly, it has instantly turned many innocent owners of old ivory into current possessors of contraband when the focus of domestic enforcement should be on transnational smuggling networks, dealers and collectors who operate illegally, and the muddied ivory market with its links to the opaque antiquities market.

The Obama administration recently relaxed the ban for the benefit of museums and holders of antiques, but only after pressure had been exerted by interest groups. State, county, and local police officers may be the next group of citizens to pressure the White House.

In the meantime, if police pipers or others plan to travel with bagpipes that have any amount of ivory in them, U.S. Fish and Wildlife has a permit process that must be followed. It is described on the agency’s web site.

Photo credit: D. Carlton

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

Another Due Diligence Lesson as Becchina Archive Produces U.S. Court Forfeiture of Antiquities from Italy

Yesterday’s order of forfeiture in the case of United States v. One Attic Red-Figure Skyphos and One Apulian Red-Figure Bell Krater provides another example of why dealers and collectors must exercise stringent due diligence when acquiring antiquities.

The case involved the seizure and forfeiture of the two archaeological objects that were alleged to have been the fruits of the Gianfranco Becchina antiquities trafficking ring. The forfeiture order issued by the federal district court in northern New York resulted from a stipulation between American and Italian authorities to turn over the archaeological material to the Italian people

The U.S. Attorney in Albany filed a seizure and forfeiture complaint this past April when information from Customs and Border Protection (CBP), Homeland Security Investigations (HSI), and the Italian Carabinieri Command for the Protection of Cultural Heritage (TPC) revealed that the two antiquities, valued at $55,000 in total, entered America’s border illegally. They were bound from Canada to Christie’s auction house in New York City.

American officials seized the objects from Walter M. Banko Enterprises, Ltd. Of Montreal on grounds that they were stolen, smuggled, and clandestinely imported merchandise brought into the U.S. contrary to law pursuant to 19 U.S.C. § 1595a(c)(1)(A). They were first seized in 2011 after the TPC notified HSI that the objects had been taken unlawfully from Italy.

Federal prosecutors alleged in their complaint for forfeiture that false statements were used to illegally import the antiquities into New York.  They also contended that the artifacts were stolen from Italy and referenced Italian statutes asserting title to the pieces, specifically Italian Law number 364 of 1909 governing the ownership and export of any “unmovable or movable items that have a historic, archaeological, paleontological or artistic interest” and Italian Law number 1089 of 1939 covering “moveable and immoveable property with artistic, historic, archeological or ethnographic value.”

Banko made no legal claim to the items in federal district court for the Northern District of New York. Italy did, however, so that the nation could reclaim the looted artifacts.

The prosecutors claimed that convicted antiquities trafficker Becchinahad possession of the skyphos and krater. The lawyers wrote in court papers, “Banko falsely claims on the documentation provided at the time of importation to the United States that the Skyphos was acquired from the Swiss collection of Dr. Elie Borowski in Basel in 1968, adding “Becchina’s warehouse and gallery contained images of the Skyphos and documents referencing the Skyphos dated from 1982….”

Prosecutors further argued in their court complaint that the krater appeared in the Becchina archive, a dossier retrieved in 2001 by Swiss law enforcement officials containing thousands of records and Polaroids cataloging looted antiquities.

The wine vessel was not from any authorized Italian archaeological excavation, the federal lawyers wrote. “In the documents provided by Banko to HSI, Banko indicated that the Krater was acquired in the 1960s from the personal collection of Andre Matton. [Yet] Becchina’s warehouse and gallery contained images of the Krater and documents referencing the Krater dated from 1992….” The attorneys added in some detail,

Documents recovered from the search of Becchina’s gallery and warehouse reveal the occurrence of the following events: in February of 1992, Becchina purchased the Krater, in fragments, from Raffaele Monticelli. On or about October 24, 1992, Becchina delivered the Krater to Ettore Bruno who was to restore the Krater. On or about July 15, 1993, Ettore Bruno sent a photograph of the restored Krater to Becchina. On or about August 10, 1993, Robert Guy answered Becchina regarding the Krater’s attribution and the scientific study of the Krater. Ettore Bruno returned the Krater to Becchina in March of 1994. Becchina paid 8,490 Swiss francs for the restoration of the Krater. On May 1, 1994, Bechina noted that the Krater was then located in his warehouse at Porto Franco di Basilea (Switzerland). 

An export certificate issued by the Ministry of French Culture accompanied the Krater during its exportation from France into Canada on March 10, 2011. The certificate makes no reference to the origin of the Krater and does not provide documentation supporting the Krater’s origins. 

Nowhere on Banko’s shipping documents does Banko say that either of the two defendant properties was acquired from or ever owned by Becchina.

Dealers and collectors should continue to be on the lookout for any other objects linked to the Becchina archive by getting meaningful answers to two basic due diligence questions:

Where did this object come from?

How and when did it get to the United States?

Photo credit: Jason Morrison.

Hat tip: Gary Nurkin

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

CPIA-Related Obstruction Case Concludes with Probation, a Fine, and Forfeiture of Chinese Cultural Objects

Sentencing of a Chinese artifacts dealer and his company for obstruction of justice took place last week in the Southern District of Florida. The U.S. Attorney in Miami commenced the prosecution when the defendants tried to thwart import restrictions authorized by the Convention on Cultural Property Implementation Act (CPIA).

In the cases of U.S. v. Francois B. Lorin and U.S. v. Lorin & Son, LLC, federal district court judge Jose E. Martinez fined Lorin & Son (doing business as Asiantiques) $25,000 plus an assessment of $400. He also placed the company's manager, Francois Lorin, on probation for a period of three years, imposing a special condition that he "shall provide complete access to financial information, including disclosure of all business and personal finances, to the U.S. Probation Officer."

Today, the court issued a further order forfeiting 22 Chinese objects seized from the defendants in 2011. The forfeiture is part of the plea agreement reached between the parties this past December.

Prosecutors say that the defendants supplied fake paperwork to U.S. Customs and Border Protection (CBP) in an effort to convince authorities that the Chinese artifacts arrived in the U.S. prior to the enactment of a bilateral agreement between the U.S. and China. That bilateral agreement, also known an MoU, was adopted in 2009 under authority of the CPIA. It restricts imports of designated archaeological materials from China unless specifically authorized. Import restrictions enacted under the U.S.-China MoU were renewed by the President last month.

If the defendants could show that the archaeological objects to be imported were located in the U.S. prior to January 14, 2009—the enactment date of the U.S.-China MoU—then the archaeological objects could be re-imported with little difficulty. So when the defendants offered fraudulently backdated customs paperwork to prove that the goods were in the U.S. as early as May 9, 2006, Miami's top federal prosecutor charged the defendants with obstruction under 18 U.S.C. § 1512(c)(2). The U.S. Attorney's office further alleged to the court that the defendants declared false values for the imports and failed to declare some others. Fuller details of the facts can be found here and here. 

When sentencing Francois Lorin, Judge Martinez agreed to depart downward from the federal sentencing guidelines, a move supported by both the government and the defense. That is to say that the court agreed with the parties' recommendation that a term of probation could be imposed on the 75 year old defendant without sending him to prison.

Today's court order describes the objects forfeited to the government as part of the plea deal reached with the government:

• Nephrite Jade “Bi” Disk composed of Three “Huang” from the Neolithic or Shang Dynasty.

• Nephrite jade “Bi” disk composed of three Huang from the late Shang or Western Zhou Dynasty.

• Pan Bronze Footed Tray with Two handles from the Archaic-Zhou Dynasty, first millennium BC.

• Nephrite Jade Insignia Blade from the Late Neolithic Period.

• Lion and Grapevine mirror with elaborate wood.

• Nephrite Jade “Bi” Disk from the Han Dynasty.

• Nephrite Jade “Bi” Disk from the Han Dynasty.

• Three-part Nephrite Jade “Bi” Disk from the Shang Dynasty.

• Gold and Silver Inlaid Bronze Cylindrical Lidded Container from the Late Zhou Dynasty.

• Nephrite Jade Phoenix from the Warring States Period.

• Nephrite Jade Bird hand piece from the Neolithic Period, possibly Hongshan culture.

• Nephrite Jade model of a pig from the Han Period.

• Nephrite Jade Falcon-type Bird from the Neolithic Period, said to be Hong Shan.

• Nephrite Jade “humanoid'' Figure from the Shang Dynasty.

• Nephrite Jade Three-pong Attachment from the Neolithic Period, perhaps Liangzhu Culture, 5th 6^th Millennium BC or Hongshan Culture, 5th-3rd Millennium BC.

• Nephrite Jade “Bi”' Form from the Warring States.

• Nephrite Jade Fish Toggle from the Neolithic Period.

• Bronze and Nephrite Jade Lidded Container (“Lian'') from the Han Dynasty, Early Western Han, Xang.

• Archaic, yellow jade blade from the Han Dynasty or earlier.

• Bronze mirror with fish and birds from the Tang Dynasty.

• Four Chinese Bronze weapons or articles of adornment from an undetermined Period, possibly Qin-Han Period. Pre-907 AD.

• Bronze mirror with fish and birds from the Tang Dynasty.

Photo credit: Jason Morrison

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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

Plea Deal Reached with Chinese Artifacts Dealer Charged with Obstruction

An antiquities gallery and its manager entered agreements with federal prosecutors last week to plead guilty to obstruction of justice under 18 U.S.C. § 1512(c)(2).

U.S. Attorney Wifredo Ferrer

The U.S. Attorney for the Southern District of Florida last month charged Lorin & Son, LLC, a Nevada-based company doing business in Florida as Asiantiques, as well as its manager, Francois Lorin, with illegally tampering with the customs process by supplying false information about imported Chinese artifacts.

The plea agreement filed by U.S. Attorney Wifredo Ferrer's office last Thursday in federal district court makes the following offer of proof:

Pursuant to a Memorandum of Understanding between the United States and the People's Republic of China entered into as of January 14, 2009 (the ''MOU'') archaeological materials representing China's cultural heritage from the Paleolithic Period (c. 75,000 B.C.) through the end of the Tang Period (A.D. 907) could not be imported into the United States absent specific prior government approvals, If, however, such items were already in the United States as of the MOU date, the items could be re-imported without prior authorization.  

On or about May 14, 2011, Asiantiques exported a shipment of Chinese artifacts to Hong Kong for an antiques trade show. The value upon export was declared as $1,592,695. On or about June 10, 2011, Asiantiques submitted a Formal Entry Form 3461 to U,S. Customs and Border Protection ("CBP"') in order to import what purported to be the same shipment of Chinese artifacts back to the United States through the Port of Miami, in Miami-Dade County, Florida. Upon return of the shipment to the United States, the shipment was described as "return exhibition of goods'' and was valued at $1,470,965.   

The shipment from Hong Kong was interdicted by CBP at the Port of Miami on or about June 4, 2011. CBP officials conducted an inventory of the shipment and observed anomalies between the contents of the shipment and the invoice and other paperwork that had been submitted. While the shipment consisted of approximately 488 items, the paperwork accompanying the shipment failed to list approximately 50 items. Upon further review, questions were raised about the provenance: of certain items contained within the shipment, including items of Chinese fine art that pertained to the time period prior to 907 A.D. (the "Pre-907 items'). It was later determined that the shipment had approximately 27 Pre-907 items.  

... 

Subsequent to the items being interdicted at the Port of Miami, CBP officers observed four Chinese artifacts contained within a FedEx box located in the shipment that were not listed on any invoice or manifest, two of which were Pre-907 items, Other items in the shipment were not listed on any invoice or manifest. ... An appraiser hired by CBP determined that the domestic value of the shipment was approximately $3,177,825. 

The government adds that the defendants' "'proof' that the Pre-907 items contained in the shipment were in fact inside the United States prior to January 14, 2009" consisted of paperwork falsely backdated to May 9, 2006. Prosecutors contend that the defendants supplied the fake paperwork in an effort to convince authorities that the artifacts arrived on American soil prior to the enactment of the MoU between the U.S. and China.

Sentencing of the defendants is expected to take place in February.

Photo credit: U.S. Department of Justice

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

Korean Artifacts Seizure Prompts Question of Legal Authority

Last week in San Diego, California, Homeland Security Investigations (HSI) of Immigration and Customs Enforcement (ICE) seized nine national and royal seals originating from the Korean Empire and the Joseon Dynasty. They are described in an ICE press statement as "invaluable to South Korea." But the legal authority justifying the seals' seizure remains unclear, requiring further explanation by ICE.

ICE reports, "The cultural artifacts were turned over to HSI special agents by the family of a deceased Marine lieutenant, who had served in the Korean War. The lieutenant had found the seals in 1950 in a ditch near the Deoksugung Palace, which had just been ransacked by Chinese and North Korean soldiers."

ICE says that the seals were exported illegally to the United States. But an illegal export, by itself, would not be grounds to seize the seals. ICE mildly hints that this export may have triggered a violation of American law, but it is conceded that the agency does not explicitly cite the illegal export as a basis to seize the seals.

Korean seals seized by ICE in San Diego.

ICE states more directly that the "seals were seized pursuant to [an] abandonment of property form ...." 

Abandonment, which is the relinquishing of legal rights to property, is justification for a seizure because it is a renunciation of property interests. Abandonment permits another party like the federal government to assume those property interests (i.e. possession or title) provided there is lawful authority.

Abandonment is a persuasive legal justification for seizing the seals. So what remains unclear is ICE's additional explanation justifying the seizure, what the agency claims is a "violation of the Cultural Property Implementation Act." That is because the CPIA would not seem to have any legal authority in this case.

ICE states, "On Feb. 14, 1983, South Korea became a signature country to the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property."

South Korea may be a signatory to the 1970 UNESCO Convention, but that nation has no memorandum of understanding (also known as a bilateral agreement) with the U.S. The CPIA is the law that implements the 1970 UNESCO Convention in the U.S., and an MoU authorized by the CPIA is necessary before America can institute import restrictions to seize jeopardized cultural artifacts crossing into the U.S. There are no import restrictions to date. As a result, there appears to be no authority for ICE to seize the Korean seals under the 1970 UNESCO Convention or the CPIA.

Unless the seals were inventoried in and stolen from a museum during or after 1983 (and they were not according to the information supplied), South Korea's adoption of the 1970 UNESCO Convention would bear no relevance on whether federal agents could seize the seals under authority of the CPIA.

In its press statement, ICE goes on to recite that "South Korea’s applicable cultural patrimony laws are the Korean National Property Act, enacted April 8, 1950 and the Korean National Property Act-Enforcement Decree, enacted June 10, 1950. According to the Korean National Property Act, the aforementioned seals fall under the category of Korean national property, which is illegal to transfer or export."

While an assessment of these statutes would be relevant to whether U.S. law recognizes South Korea's rightful ownership of the objects, the foreign statutes' export regulations would be of no interest to American law since U.S. law only enforces American import restrictions, not foreign export controls.

In fact, ICE does not appear to base its seizure on the rationale that the seals were owned by South Korea and stolen from that country in violation of its patrimony laws. If the seals were characterized as stolen, they would likely have been taken by ICE under 19 USC § 1595a's "contrary to law" provision that allows federal authorities to seize stolen property brought into the U.S. and to return the property to the legal owner. 

Perhaps ICE is using Korea's patrimony law to support a claim that the now "abandoned" seals belong to South Korea. We do not know for sure.

There have been legal questions surrounding seizures by ICE before, such as last year when customs agents seized Egyptian coffins in Texas or in 2011 when agents seized a Mexican figurine in Chicago.

A clearer legal explanation of what happened in the current South Korean case would help attorneys, collectors, auction houses, museums, preservationists, and other stakeholders better understand the federal government's cultural property enforcement actions.

Photo credit: ICE

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