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.

Stipulation Puts a Lid on Litigation Over Roman Sarcophagus Cover Featured in the Becchina Archive

The Roman sarcophagus lid. ICE

A marble Roman sarcophagus lid is expected to be forfeited and returned to Italy after federal prosecutors and the potential claimant signed a stipulation last week.

Litigation over the sculptured coffin cover--the so-called Defendant in rem--was avoided when the parties finalized their September 14 agreement over the stolen cultural object, which features in the Becchina archive.

The stipulation filed in the United States District Court for the Eastern District of New York recites in part:

WHEREAS, Mr. [Noriyoshi] Horiuchi [of Tokyo, Japan] states that, by and through agents, officers and employees of Art & Archaeology Inc. ("A&A"), an entity owned by Mr. Horiuchi, A&A obtained ownership of the Defendant inrem sometime in the late 1980s or early 1990s, after the Defendant inrem had been publicly exhibited in a Swiss museum in 1982 and 1983, and its exhibition had been published in an accompanying catalogue; 

WHEREAS, Mr. Horiuchi states that he relied in good faith on the representations made by the seller of the Defendant in rem and the fact that it had been publicly exhibited and presented in a publication during its exhibition in the Swiss museum in 1982 and 1983, to conclude that the Defendant in rem was not stolen; 

WHEREAS, Mr. Horiuchi, by and through his attorneys, agents, officers and employees, properly declared the Defendant in rem to the United States Customs Service upon the importation of the Defendant in rem into the United States in February 2001; 

WHEREAS, Mr. Horiuchi states that he believed in good faith that the Italian Government did not claim ownership to the Defendant in rem because, as Mr. Horiuchi further states, he previously had disclosed his acquisition and possession of the Defendant inrem to the Italian Government; 

WHEREAS, Mr. Horiuchi states that the Defendant in rem was transferred to him by A&A and that in approximately 2012 A&A was dissolved; 

WHEREAS, Mr. Horiuchi, upon his receipt of notice of the Defendant in rem's seizure in the United States and the claim of ownership by the Italian Government, cooperated with the United States Attorney's Office in the above-captioned forfeiture action; and 

WHEREAS, all parties now agree that the Defendant in rem should be forfeited with the intent that it be returned to Italy....

The U.S. Attorney’s Office in Brooklyn filed its forfeiture complaint on February 27, a case captioned as U.S. v. One Ancient Roman Marble Sarcophagus Lid With Sculpture of Reclining Woman.

Prosecutors wrote that the sculpted cover was in the possession of Gianfranco Becchina and his Basel, Switzerland gallery. A Manhattan gallery later displayed the $4 million lid in May 2013 before transferring it to a storage unit in Long Island City, NY in October that same year. Homeland Security Investigations uncovered the lid in its crate at the storage facility in February 2014.

Federal attorneys built their case around 19 U.S.C. § 1595a(c)(1)(A), the statute that prohibits stolen, smuggled, or clandestinely imported goods from being introduced into the U.S.

The district court in Brooklyn is expected to approve the stipulation.

In July, a federal district court in Albany, NY forfeited two other antiquities appearing in the Becchina archive in the unrelated case of United States v. One Attic Red-Figure Skyphos and One Apulian Red-Figure Bell Krater.

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.

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.

U.S. v. One Ancient Roman Sarcophagus Lid: Prosecutors Present Legal Arguments in Support of Forfeiture and Offer Exhibit B

The Roman sarcophagus lid. Source: ICE

Tom Mashberg broke the story in The New York Times last week about the seizure of a Roman sarcophagus lid by U.S. Homeland Security Investigations (HSI) in New York. A review of the forfeiture complaint filed in the Eastern District of New York reveals the facts and law supporting the government's claim.

In the case of U.S. v. One Ancient Roman Sarcophagus Lid with Sculpture of Reclining Woman, Assistant U.S. Attorney Karen Orenstein argues that the lid (also known as the “in rem”) is stolen property, which was illegally brought across America's borders "contrary to law."

To support its forfeiture claim, the government offers the tried and true customs statute of 19 U.S.C. § 1595a(c)(1)(A), which says, "Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall be ... seized and forfeited if it is stolen, smuggled, or clandestinely imported or introduced."

Attorney Orenstein offers the familiar arguments of the McClain/Schultz doctrine, the National Stolen Property Act at 18 U.S.C. § 2314, and Italy's cultural patrimony laws from 1909 and 1939 to weave the argument that the lid is stolen property from Italy unlawfully imported into the U.S. It therefore must be returned to Italy.

The alleged facts listed by the prosecution in support of the forfeiture complaint include the following

• the lid was shipped from Italy to Switzerland in 1981;

• a Manhattan gallery displayed the $4 million lid in May 2013;

• the gallery later shipped the lid to a storage unit in Long Island City, NY on October 29, 2013;

• HSI agents photographed the lid in its crate at the storage facility on February 20, 2014 and then presented the photos to the Italian Carabinieri's Division for the Protection of Cultural Heritage, the "TPC";

• the TPC identified the lid as cultural property obtained illegally by Gianfranco Becchina, who was convicted in an Italian court of antiquities crimes in February 2011.

The prosecution's Exhibit B showing the lid in two parts

The forfeiture complaint recites in more detail how the lid came to be in the hands of Gianfranco Becchina and his Basel, Switzerland gallery called Palladion Antike Kunst:

The Becchina archive contains images of the Defendant in rem prior to its restoration and documents relating to the piece, including:  

a. A German article about the Defendant in rem, described as a Roman kline statue of a sleeping woman, which included photographs matching the Defendant in rem, including one full-length photograph. See Exhibit B. The article appeared in a catalog that coincided with an exhibition at the Historical Museum of Bern from November 6, 1982 until February 6, 1983. In the photographs, the Defendant in rem appears to be in two pieces and other damage is visible.  

b. …  

c. A receipt dated August 8, 1981 showing that Palladion purchased the Defendant in rem, describe as a marble Roman sarcophagus in two pieces from Carlo Ciochetti in Rome.  Attached to the receipt was a Swiss customs form dated August 14, 1981 bearing the destination "Gianfranco Becchina, Palladion" in Basel, Switzerland.  

d. A receipt dated September 15, 1981 showing that Palladion sold the Defendant in rem, described as a marble kline sculpture of a girl, to George Ortiz. Attached to the receipt was a copy of the full-length photograph of the Defendant in rem in Exhibit B.

No crime has been charged in this case. The government, at this time, only seeks civil forfeiture of the statue in order to repatriate it to Italy.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Adversaries No More: The Carabinieri and MFA Enjoy Cultural Exchange Partnership

News stories from 1998 once chronicled the acquisition of looted archaeological material by Boston's Museum of Fine Arts (MFA). And the Boston Globe critically reported in 2006 that the MFA "has long contended it did not know of any stolen objects in its collection."

Col. Luigi Cortellessa speaks with an audience member at
the Museum of Fine Arts, Boston.

That is why Luigi Cortellessa's presence Thursday night at the MFA is so remarkable. He serves as Colonel in Italy's Carabinieri Division for the Protection of Cultural Heritage (TPC).

Cortellessa praised the cultural exchange partnership now enjoyed between his country and the MFA, and presented photos in the museum's lecture hall of looted objects repatriated to Italy that were previously in the MFA's collection.

To demonstrate the importance of the TPC's mission to protect cultural heritage from theft and plunder, Cortellessa showed slides poignantly illustrating the catastrophic destruction of archaeological sites in Italy, including heavy damage caused by looters using a construction excavator.

Between 1970 and 2012 the Carabinieri recovered 1,058,499 archaeological artifacts from all sources and secured 30,621 criminal indictments, Cortellessa explained to an engaged audience.

Cortellessa's appearance in Boston, along with Consul General Giuseppe Pastorelli and other Italian government officials, signals the changed direction the MFA has traveled in recent years to resist the accession of contraband antiquities. It is a path that contrasts with other major institutions that continue to acquire questionable archaeological artifacts even when conceding that they are "unable to obtain documentary confirmation of portions of the provenance."

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

Upcoming MFA Lecture: "The Role of the Carabinieri in Combating Art Theft in Italy"

"The Role of the Carabinieri in Combating Art Theft in Italy" is the title of this week's lecture at the Museum of Fine Arts, Boston. Colonel Luigi Cortellessa of the Carabinieri Division for the Protection of Cultural Heritage will be the featured speaker.

The event will be held at the MFA at 6:30 p.m. on Thursday, September 12.  For complimentary museum admission, email hstockton@mfa.org.

The lecture is held in conjunction with the 2013 Year of Italian Culture, featuring the MFA's exhibition of Piero della Francesca’s Senigallia Madonna, one of three stolen paintings recovered in 1975 by Italy’s Carabinieri.

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