The Cultural Property Cases of AG Nominee Loretta Lynch

U.S. Attorney Loretta Lynch

It is not every day that an attorney general nominee actually has a record of handling cultural property forfeitures and prosecutions. But that is the case with Loretta Lynch, U.S. Attorney for the Eastern District of New York.

Lynch is President Barack Obama's choice to replace outgoing Attorney General Eric Holder.

Lynch's office has handled a few heritage trafficking cases, including...

1. U.S. v. One Alioramus Dinosaur Skull

Lynch's office filed a civil forfeiture complaint last month to forfeit a 65 million year old dinosaur skull. Prosecutors alleged that a fossil dealer unlawfully attempted to import an Alioramus head by failing to declare that it was real, that it originated from Mongolia, and that it had a value of $250,000.

2. U.S. v. One Ancient Roman Sarcophagus Lid with Sculpture of Reclining Woman
Litigation over a sculptured coffin cover came to a successful conclusion in September when Lynch's office finalized an agreement to forfeit the object from a collector so that it could be returned to Italy. The Roman sarcophagus lid was featured as an illicit antiquity in the Becchina archive.

3. U.S. v Victor Gordon
After a federal district court sentenced an ivory smuggler in June to a sentence of 30 months in prison, two years supervised release, a $7500 fine, and the forfeiture of $150,000 plus one ton of elephant ivory, Lynch remarked that “preventing the flow of illegal ivory through and within our borders” is an important American commitment. “This prosecution–which resulted in the seizure and forfeiture of one of the largest known caches of illegal elephant ivory in the United States and the imprisonment of the person who acquired and attempted to profit from it – is emblematic of that commitment.”

4. U.S. v. Khouli et al.
An antiquities trafficking case that U.S. Immigration and Customs Enforcement billed in 2011 as "a ground breaking case for Homeland Security Investigations" ended with mixed results for Lynch's office. Only two out of four men were convicted. One case netted a sentence of house arrest for a New York gallery owner. Another saw a felony charge dropped to a misdemeanor; the defendant paid a fine. Prosecutors later dropped a third man's case after he satisfied a deferred prosecution agreement. And authorities later gave up looking for a fourth man, a fugitive from justice, after litigation came to an abrupt halt in 2013.

Lynch posted a vibrant press statement at the start of the prosecution when her office charged the defendants with conspiring to smuggle ancient artifacts, engaging in money laundering, and making false statements to carry out their crime. She said, "Antiquities dealers and collectors are on notice that the smuggling of cultural patrimony will not be tolerated." But her office's only other press release, issued the following year, was muted and devoid of any direct quotes from the U.S. Attorney.

The objects involved in the case included Egyptian sarcophagi, Iraqi glass vessels and clay relief plaques, and Iranian (Luristani) bronzes.

Photo source: U.S. Department of Justice

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.

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

Federal-State Cooperation on Display in Heritage Trafficking Prosecution of Kapoor Relative

In July 2012, CHL wondered whether federal-state cooperation and the use of state criminal law--as opposed to federal criminal law--to prosecute international heritage trafficking may be taking shape in New York City. Sushma Sareen's arrest last week answers that question.

Tom Mashberg of the New York Times broke the story that Sareen is charged with crimes related to the Indian idol trafficking case of Subhash Kapoor. Kapoor is Sareen's brother. He was detained in Frankfurt, Germany in 2011 under authority of an INTERPOL Red Notice and was later extradited to India on July 14, 2012. Kapoor is currently awaiting trial. He owns Art of the Past gallery and Nimbus Import Export on Madison Avenue in New York City.

It was reported in July 2012 that the Manhattan District Attorney's Office issued an arrest warrant for Kapoor, charging him with possession of stolen property. Sareen, meanwhile, is charged with four counts of criminal possession of stolen property under New York State penal law. A Manhattan criminal court released her on $20,000 bond, $10,000 cash, scheduling her next appearance for January 8, 2014.

The charges against Sareen are serious offenses. They allege receiving property valued at $1 million or more. The property alleged to have been possessed are four Chola bronze statues that include two of Shiva of Nataraja, which are valued at $3.5 million and $5 million, respectively; one statue of Uma Parameshvari valued at $2.5 million; and one statue known as Uma-Parvati valued at $3.5 million. 

A person is guilty of criminal possession of stolen property in the first degree in New York, which is a Class B felony punishable by imprisonment, when the person "knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars." PL 165.54.

Available information shows that the Kapoor/Sareen heritage trafficking case rounded the circuit from Indian police to INTERPOL to U.S. Homeland Security to Manhattan authorities, illustrating the type of enforcement cooperation that is possible when combating transnational criminal activity.

Indian officials contacted U.S. Homeland Security in February 2007 to report that antiquities were perhaps being smuggled into New York, according to Homeland Security Investigations (HSI). That same year, federal prosecutors in the Central District of California concluded a customs-related false statements prosecution on the west coast, according to information contained in the criminal complaint against Sareen. The defendant in that federal case then began to serve as an informant for HSI, working on the Kapoor investigation.

The Sareen complaint describes how the informant went to Kapoor's Art of the Past gallery in New York on December 4, 2008 and was offered the $3.5 million Shiva of Nataraja. The informant returned to the gallery on September 27, 2011, this time wearing a wire. He reportedly recorded a meeting with Kapoor who presented the Shiva for sale along with another Shiva statue. The Sareen criminal complaint alleges that "Kapoor indicated ... that he had been holding both of the items for a few years, and further stated that he expected the items to appreciate by 10 to 15 percent per year from the current fair market values of $3.5 and $5 million."

The complaint states that photographs obtained from an Art of the Past CD show the two Shivas plus the two Umas in pictures dated February 26, 2008. S. Selvaraj, Deputy Superintendent of Police, Idol Wing Criminal Investigation Department (CID), told HSI Special Agent Brent Easter that these statues were stolen from the Varadharaja Perumi temple in Tamil Nadu sometime between February and April 2008.

One month after the September 2011 meeting with the informant, German authorities detained Kapoor on October 30 at the Frankfurt airport.

Back in the U.S., the criminal complaint claims that Sareen was in knowing possession of the Shivas and Umas on November 1, 2011. It is unclear how she was in possession of them on the time and at the place alleged since the complaint declares that Sareen possessed the items at 1 Hogan Place, which is the address of the Manhattan District Attorney's Office. The complaint additionally explains that a November 3, 2011 letter from Kapoor to a certain individual gave instructions that the Shivas and Umas should be given back to a named person. Neither the certain individual nor the named person were Sareen. And the certain individual moved the bronzes to the named person's apartment, according to the complaint.

Both the certain individual to whom Kapoor wrote the letter and the named person who was directed to receive the Shivas and Umas are implicated in the criminal complaint as having known that the items were stolen. But a search of state and federal court records does not reveal that either has been charged, which is why they are unnamed here.

The complaint goes on to state that HSI executed a search warrant on January 5, 2012 at both Art of the Past and the gallery's storage units on Manhattan's west side. That action, according to information conveyed to federal agent Easter, prompted the named person to not "want[] the four stolen bronzes kept in her apartment." "It was arranged with defendant Sareen that the four bronzes would be picked up and moved to a 'safe location'" so that the bronzes would be "safer with her [Sareen]," the complaint alleges, adding that Sareen made the shipping arrangements, having deciding not send the bronzes back to the Art of the Past gallery. The "safe location" has not been identified. This contention in the complaint, nonetheless, conveys that Sareen had control over the bronzes at this particular time.

Further questions are raised by the complaint's recitation that the "defendant [Sareen] has been closely involved with the illegal business of Art of the Past since Kapoor's arrest in 2010." Kapoor was arrested in 2011 as described above. Where the complaint describes how Sareen "traveled to India, assisted with wire transfers, and contacted antiquities smugglers with prior dealings with Kapoor," it is uncertain whether these allegations cover a time frame since 2010 or from October 30, 2011, when German authorities arrested Kapoor.

Court records do not list when exactly New York authorities became involved with the Kapoor investigation. It is clear, nevertheless, that federal and state authorities were engaged by July 2012. That is when Homeland Security returned to Art of the Past's warehouse location--along with the media--and mentioned for the first time that the Manhattan District Attorney's Office was a local partner. Where the federal judiciary presumably issued the warrants for the searches executed on January 5, 2012 and July 26, 2012, the first date given in court documents showing a search warrant issued by a state court--the Supreme Court of New York City--is March 16, 2013. The execution of that warrant yielded emails from Art of the Past, which were reviewed by special agent Easter. Those emails allegedly reveal efforts by "another gallery owner in New York inquiring about and attempting to sell for commission the $5M Shiva ..." and "yet another individual ... in email negotiations with Kapoor to purchase the $5M Shiva" along with the two Umas.

Easter's federal investigation supports the state court complaint filed by Assistant District Attorney Matthew Bogdanos against Sareen. This cooperation follows on the heels Bogdanos' recent conviction of Arnold Peter Weiss with help from HSI, and the Manhattan District Attorney's prosecution of ivory dealers with assistance from U.S. Fish and Wildlife Service.

See chasingaphrodite.com for their in-depth coverage of the Kapoor investigation.  They have also posted a copy of the complaint.

Photo credit: aschaeffer

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