Dinosaur Cases Offer Due Diligence Lesson

Cultural property attorneys should inform their dealer and collector clients that due diligence and a transparent marketplace are necessary to steer clear of contraband heritage that is offered for sale. That is an important lesson taught by the cases of U.S. v. Eric Prokopi and United States v. One Tyrannosaurus Bataar Skeleton.

The companion cases involved the criminal prosecution of Prokopi for fossil smuggling and the seizure and forfeiture of dinosaur bones. They allowed Manhattan’s top federal attorney on Thursday to repatriatean astonishing 18 trafficked dinosaur skeletons to the Mongolian people.

Prokopi’s cooperation helped to wrap up a two-year law enforcement investigation into fossil trafficking networks, which stripped irreplaceable paleontological evidence from the Gobi Desert and inserted black market fossils into the stream of legitimate commerce.

Some of the paleontological material returned to Mongolia
by U.S. officials last week. Courtesy ICE

The items returned included the bones of two Tyrannosaurus bataars. Federal officials repatriated another virtually complete Tyrannosaurus bataar last year following Prokopi’s 2012 guilty plea to conspiracy, unlawful import of goods by means of false statements, and transportation of goods converted and taken by fraud.

The cases remind observers that even though a seller may claim to offer artifacts legally, that does not necessarily mean the goods are legitimate. They must be checked out.

To discover the truth about whether artifacts have been stolen, illegally exported, or smuggled requires buyers and the marketplace as a whole to ask pointed questions and to demand credible documentation. That is why finding out where cultural objects originated from and obtaining their shipping and import documents must be an important function of cultural property attorneys who advise dealers and collectors about due diligence. To counsel clients otherwise may be unwise.

For example, Prokopi’s lawyers in the federal forfeiture case told the court in 2012 that government officials and “a media campaign stirred up by academic paleontologists” combined to unjustly target their small business clients. The attorneys, who regularly represent the interests of ancient coin dealers and collectors, wrotein pleadings filed with the court that the “commercial paleontologist” properly bought fossil bones on the open market, devoted time and expense to restoring and mounting the bones and, for this trouble, was unfairly targeted by the justice system.

They raised claimssimilar to those used to bolster the undocumented transnational trade of ancient coin artifacts:

• The dinosaur bones were not stolen.
• U.S. officials failed to publish proper country of origin and valuation rules for fossils.
• The bones could not be proven to have actually originated from Mongolia.
• It could not be proven that the bones were taken without the Mongolian government’s permission.
• Mongolian law was ambiguous and unenforced.

Despite the arguments, the cases resulted in the production of information verifying that the fossils were in fact stolen, smuggled, and bound for the highest bidders, presumably to be bought by individuals who would not ask where the objects came from or how they made their way to the market. That prompted Homeland Security Investigation’s Special Agent-in-Charge James Hayes, Jr., to issue a statement last week warning that “HSI will not allow the illicit greed of some to trump the cultural history of an entire nation.”

Cultural property lawyers can help dealers and collectors avoid entanglements with heritage traffickers and their illegal goods by promoting strict due diligence practices to investigate the origins and transportation of cultural artifacts. Attorneys can also take the lead to protect cultural heritage by supporting legislative reforms that would shine a spotlight on the black trade. This would be a significant step in the right direction now that the fossil smuggling cases in New York have come to a successful conclusion.

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. Prokopi: Sentence Mitigated as Prosecutors Declare, "Not an Active Fossil Investigation That Has Not Been Informed ... by Information Given by Prokopi"

Calling Eric Prokopi “a unique and important cooperating witness in the annals of national resource crime,” federal prosecutors urged leniency for the accused dinosaur smuggler who pleaded guilty in 2012 for his involvement in illegally importing dinosaur bones into the United States, which included a Tyrannosaurus Bataar skeleton looted from Mongolia and auctioned for more than $1 million.

New York federal judge Alvin K. Hellerstein heeded the request and yesterday sentenced Prokopi to three months' custody; one year and three months supervised release, of which the first three months shall be community confinement; $300 special assessment; and community service during the year of supervised released.

Prokopi's sentence followed his earlier conviction to an information charging conspiracy to smuggle goods into the United States, conspiracy to commit bribery using federal funds, entry of goods by means of false statements, and transportation of stolen goods.

In a sentencing memorandum filed on Monday, prosecutors representing the U.S. Attorney’s Office for the Southern District of New York wrote that “Prokopi provided information that was and remains crucial in law enforcement’s revitalized efforts to police what had essentially become a black market in stolen national treasures that operated in plain sight.”

Prosecutors welcomed Prokopi’s cooperation after the defendant's lawyers in the forfeiture case—widely known for their ancient coin dealer and collector advocacy—vigorously contended that the Bataar skeleton was not stolen.

Demonstrating that the prosecution of cultural property crimes potentially offers law enforcement opportunities to learn about criminal techniques and to develop or confirm investigative leads—opportunites that may not be presented by the mere seizure and repatriation of contraband cultural heritage—government attorneys highlighted in their sentencing memorandum the advantages gained by Prokopi’s cooperation with federal investigators:

Prokopi met with agents and representatives of our Office and the Department of Homeland Security, Homeland Security Investigations numerous times, spent many hours giving information about the fossil trade not only to this office, but to three other offices as they developed their understanding of the fossil trade. Prokopi developed their knowledge of the players in the trade of not only dinosaur fossils, but other natural treasures. Since Prokopi’s cooperation, other fossils have been seized and individuals arrested. Although these owe to leads developed separately and in some cases before Prokopi’s cooperation, it is safe to say that there is not an active fossil investigation that has not been informed, to some degree, by information given by Prokopi in this case.

Prokopi’s lawyer argued for an entirely non-custodial sentence in light of the defendant’s cooperation, his background, the lack of jail sentences handed down to similarly situated defendants, and his acceptance of responsibility. A May 23 sentencing memorandum filed by defense counsel claimed that “Prokopi was led to believe that as long as the proper Mongoliangovernment permits were obtained, it would be lawful for a privateindividual to purchaseMongolian fossils for export.” The defense attorney argued more fully that:

Prokopi went awry, however,when, after having learned that the containers to be shipped from Mongolialacked what he believed to be the necessary export permits, he nevertheless facilitated their entry into the UnitedStates by makingfalse declarations on customs forms.He does not seek in any way to excuseor minimize this offense conduct. Rather, the distinction between transporting fossilsout of Mongolia in contravention of that  nation's  laws  and  procuring  stolen  fossils  from  within  Mongolia  is  underscored simply to dispel the notion of Prokopi as a black market ringleader who surreptitiously removedbones from the Gobi Desertin the dead of night.This distinction was all but lost in the mediafrenzy that followedProkopi's arrest on October 17, 2012.

The court, nevertheless, felt that some incarceration was needed in the case and imposed the three month prison term.

Fossils recovered by authorities from Prokopi are expected to be repatriated to Mongolia just as the Bataar skeleton was returned to that nation last year.

For more complete background about the criminal case of U.S. v. Prokopi and the forfeiture case of U.S. v.  One Tyrannosaurus Bataar Skeleton, see hereand here.

Photo credit: ICE

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 is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com