SLAM Dunks Declaratory Judgment Action, Leaving Feds With No Forum to Claim That Ka Nefer Nefer is Stolen

Judge James Loken hinted during oral arguments in January that the federal government's effort to forfeit the Ka Nefer Nefer mummy mask still might have life even if the Eighth Circuit Court denied the government’s appeal. But now the federal government's case is truly dead.

Two weeks ago the court of appeals ruled against federal lawyers, halting their effort to forfeit the mummy mask on procedural grounds. And now district court Judge Henry Autrey has signed off on the St. Louis Art Museum’s (SLAM) notice to dismiss the museum’s separate declaratory judgment action.

Readers will recall that the declaratory judgment case was the initial SLAM mummy mask case, whereby the museum petitioned to establish exclusive title to the artifact. Before the U.S. government filed a forfeiture complaint in March 2011, SLAM started its own civil action for declaratory relief in federal district court, seeking to quiet the title of the 19th Dynasty Egyptian mask. The museum's February 2011 petition stated that the

Museum respectfully seeks declaratory relief to declare the respective rights of the parties with regard to the Mask, specifically that (1) the right of the United States to seek seizure and/or forfeiture pursuant to the provisions of the Tariff Act of 1930 (“Tariff Act”) is foreclosed by the applicable statute of limitations set forth in 19 U.S.C. § 1621, and (2) the provisions of Egyptian Law No. 215 [on the Protection of Antiquities] do not establish the Mask is Egypt's property, nor can the Defendants establish reasonable cause to believe the Mask was 'stolen, smuggled, or clandestinely imported or introduced' into the United States pursuant to 19 U.S.C. § 1595a.

During oral arguments about the forfeiture case, the Eighth Circuit suggested that the government could still argue the forfeiture claim as a defense in the declaratory judgment action. But with SLAM’s voluntarily withdrawal of the declaratory judgment suit last week, federal authorities are now left with no forum to argue their claim that the mask is stolen property that cannot be owned by SLAM.

Federal attorneys told the court of appeals earlier this year, "It was the museum that precipitated a judicial intervention by filing the declaratory judgment, explaining ""Our preference was to reach a mediated solution to this dispute ...."  But SLAM has now beaten the forfeiture case and, predictably, the institution has no interest arguing title.

What’s next? Perhaps nothing. Statutes of limitations may close the door on several legal alternatives. It is difficult to know what federal, state, legal, mediated, or political options are being discussed at this time, if any. But if such discussions are taking place, one would expect that SLAM’s governing structureis being probed as a possible requisite for action by private parties or public authorities (e.g., the Missouri attorney general). The museum is funded by property tax dollars, governed by a politically appointed board, and receives financial assistance from a supporting nonprofit organization. For now, however, the Ka Nefer Nefer case will stay in the afterlife.

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

Eighth Circuit Rules in the Case of the Ka Nefer Nefer Mummy Mask

[UPDATED June 19, 2014 and July 1, 2014]

The Ka Nefer Nefer Mummy mask will stay at the St. Louis Art Museum (SLAM), at least as far as the federal forfeiture case is concerned. That is the outcome of today’s Eighth Circuit Court of Appeals decision in U.S. v. Mask of Ka Nefer Nefer.

The appeals court let stand the lower court's 2012 ruling, which concluded that the government failed to plead sufficient facts in its original forfeiture complaint to show that the Ka Nefer Nefer mask was stolen and subject to seizure.

The companion declaratory judgment case of SLAM v. U.S., which focuses on whether SLAM has good title to the mummy mask, remains unaffected by today's appellate decision. (UPDATE: the declaratory judgment case has been withdrawn by SLAM).

Eighth Circuit Judge James Loken, who observed during oral argument that the government made mistakes, remarking “You now have to beg for a do-over,” authored today's lead opinion.

The issue raised on this appeal is whether the district court abused its discretion in denying the government’s post-dismissal motion for leave to file an amended civil forfeiture complaint. Underlying that issue is an attempt to expand the government’s forfeiture powers at the likely expense of museums and other good faith purchasers in the international marketplace for ancient artifacts. We affirm the district court’s procedural ruling and therefore leave this important substantive issue for another day.

Judge Loken's ruling peppered the government with criticisms for committing procedural missteps.

Judge Diana Murphy notably wrote an important concurring opinion to “express my concern about what the record in this case reveals about the illicit trade in antiquities.” She acknowledged that the lower court did not abuse its discretion when dismissing the government’s forfeiture case, commenting that “[t]he government was dilatory,” but the jurist penned several cautionary paragraphs to explain that institutions and individuals in the antiquities marketplace must act lawfully. Judge Murphy wrote, in part:

The substantive issues underlying this litigation are of great significance, and not only to museums which responsibly seek to build their collections. The theft of cultural patrimony and its trade on the black market for stolen antiquities present concerns of international import.
… 

While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world's international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases.

Today's appellate decision stops government lawyers from litigating the allegations made in their late-filed amended complaint that the mummy mask is stolen property and remains in the U.S. "contrary to law." The government might be able to raise this claim in SLAM's declaratory judgment action, but that case could prove to be an uphill battle for federal attorneys.

The case of U.S. v. Ka Nefer Nefer started when the United States Attorney in St. Louis moved to take the mummy mask from SLAM in 2011 in order to return it to Egypt. The U.S. Attorney filed the action in response to SLAM first filing a declaratory judgment suit seeking judicially-recognized ownership of the mask. While the declaratory judgment action remained stayed, district court judge Henry Autrey brought the government’s forfeiture case to an end in April 2012 after concluding that the government's complaint failed to specifically articulate how the mask was allegedly stolen and smuggled, or how it was brought into the U.S. contrary to law. Federal prosecutors filed a motion to reconsider, and in May 2012 the government revealed new information that it said would support an amended complaint. Judge Autrey denied the motion to reconsider, but prosecutors submitted their proposed amended complaint anyway. The district court repeated that it had dismissed the case. The government thereafter appealed to the Eighth Circuit, and the parties offered oral arguments in January.

Today’s appellate decision can be found here, and a complete list of CHL's posts chronicling the litigation may be found by clicking here.

Questions that remain as a result of the halted litigation have been raised by David Gill here.

Photo credit: Jason Morrison

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

SLAM Mummy Mask Appeal: "You now have to beg for a do-over"

"All we want here is an opportunity to get in the gate," argued U.S. Department of Justice Attorney Sharon Swingle before the Eight Circuit Court of Appeals yesterday. But Patrick McInerney, attorney for the St. Louis Art Museum (SLAM), told the court that he wanted finality in the government's failed attempt to take the Ka Nefer Nefer mummy mask from his client.

Archaeologist Mohamed Zakaria Goneim discovered the more than 3,000 year old mask in Egypt in the 1950's. Despite SLAM's purchase of the mummy mask from a gallery in 1998 for approximately a half million dollars, authorities in the U.S. and Egypt say the mask remains a stolen object that was illegally removed from Egypt.

Government lawyers still want a chance to present this argument to the Missouri federal district court by filing a newly amended complaint that would restart the process to forfeit the Ka Nefer Nefer mask from SLAM. But they first need the approval of the court of appeals.

The forfeiture case known as U.S. v. Ka Nefer Nefer was first begun in 2011 by the U.S. Attorney in St. Louis. However, the lower court dismissed the government's claim in 2012, saying the the complaint was deficient. The district court turned the government down again after attorneys tried to rejuvenate the case with a newly minted complaint alleging more facts surrounding the mask's theft. Justice Department lawyers then appealed the district court's technical decision dismissing the proceedings, setting the stage for Monday's oral argument before a three judge appellate panel.

Circuit Court Judge James Loken bluntly observed during yesterday's oral argument that the government made mistakes in the eyes of the district court. "You now have to beg for a do-over," Judge Loken told the lawyers for the government.

But Swingle protested that the grounds for the district court's dismissal was not based on some "fundamental legal defect." She stressed that the law favors deciding legal cases on their merits, not simply dismissing them before they are substantively argued. In fact, the law favors granting at least one opportunity to amend a complaint before dismissing it with prejudice, she argued.

McInerney contested Swingle's assertions. "It's really whether the government is entitled to an advisory opinion from the district court, with the help of defense counsel here, as to what the proper pleading elements are for their claim under the Tariff Act. Because that's really what they want."

If the government were successful in its appeal to restart the forfeiture case, McInerney suggested that it would be the first time that happened in the Eight Circuit under the federal rules. He argued that no special exception should be made for the government in this case.

Judge Loken may have given the impression that the government was out of luck, but he also hinted that the government's case might have life remaining if the appeal were denied by the appeals court. Judge Loken asked more than once during oral argument whether the declaratory judgment action might still go forward if the forfeiture case were dismissed. The so-called "DJ" case is the original and still active companion case to the forfeiture action where SLAM petitioned to establish exclusive title to the Ka Nefer Nefer mask. The appellate court suggested that the government could still argue its forfeiture claim as a defense in the DJ case. Swingle was not so sure, however.

Judge Diana Murphy inquired about allegations surrounding the sellers of the mask, remarking to Swingle, "When did facts come out about this company in Switzerland? ...which has a cloudy past I gather ...." Swingle replied by describing specific criminal complaints made against the gallery's owners.

McInerney, during his oral presentation, addressed what he called "some illegality" by saying,  "It ought to noted ... that [illegality] had absolutely no connection with this case; none whatsoever." "The facts don't show it." Any criminal conduct claimed by the government "post-dated by four years the acquisition of the mask" by SLAM. "This left-handed suggestion that there was some ... sort of misconduct in connection with the mask doesn't stand," McInerney protested.

Judge Lavenski Smith attempted to clarify the timetable of the government's requests to the district court to reconsider the dismissal of its case. He raised a question about the many months that went by between SLAM's filing of the petition to dismiss the forfeiture complaint, the district court's later dismissal, and the "equity to the government" concerning the opportunity to amend. In other words, Judge Smith  wanted to know why the government failed to petition for leave to amend its complaint during an apparently available ten month time period. Conversely, he wanted to know what specific prejudice the museum would suffer if the case were allowed to continue and not dismissed.

Swingle maintained that the government's actions were timely and, even if not, there was no disadvantage to SLAM.

Swingle, in her argument before the justices, endeavored to demonstrate that the government had been taking the high road in the litigation. "Our preference was to reach a mediated solution to this dispute ...," she explained. "It was the museum that precipitated a judicial intervention by filing the declaratory judgment."

McInerney countered with several critiques. He cited federal lawyers' failure to show that the mask was stolen. "In order to get to theft in the first place you have to get to ownership." SLAM's attorney argued that it was not enough for the government to allege that the mask was in one place at one moment and another place at another moment without alleging an actual theft. "They still can't show that the item was ever owned by the Republic of Egypt," he exhorted.

McInerney further contended that the government could have appealed the case in a timely fashion but did not. They kept the case in district court, he charged, because "...they were banking on the district court writing a recipe for an appropriate [forfeiture] complaint ...." It was 401 days after SLAM filed its motion to dismiss when the government finally presented what it believed was a factually compelling forfeiture complaint to the district court, presenting "satisfactory allegations" that "still don't suffice," pressed McInerney.

Swingle particularly objected that one of the grounds the district court relied on to dismiss the government's forfeiture case concerned an issue not even briefed by the litigants, instead raised by the district court sua sponte (on its own). The government needed to allege facts showing that the mask was imported "contrary to law," ruled the district court, not simply that that the mask was stolen. While Swingle objected to this "contrary to law" requirement, McInerney responded that "contrary to law" was not a new element raised by the district court, it was just the district court recognizing what is required for a forfeiture claim filed under 19 U.S.C. §  1595a of the customs law.

On Judge Murphy's mind was the district court's failure to clarify why it denied the government's request to amend the forfeiture complaint. She asked early in the oral argument whether the district court abused its discretion. Later, she posed the question to McInerney, "You concede ... that the district court did not say much?"

Whether the district court abused its discretion is the ultimate issue that the judges will decide when they issue a ruling at a future date. The appellate argument can be heard in its entirety by clicking here.

Photo credit: Thomas Ricks

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

Oral Arguments Scheduled in Ka Nefer Nefer Mummy Mask Appeal

The Eight Circuit Court of Appeals has scheduled oral arguments for January 13, 2013 in the case of U.S. v. Mask of Ka Nefer Nefer.

The case involves federal prosecutors' efforts to forfeit the Ka Nefer Nefer mummy mask from the St. Louis Art Museum (SLAM). Government lawyers wrote in July 2011 that SLAM's “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum."

Prosecutors allege that the ancient burial mask, which archaeologists discovered during an authorized excavation in 1952, was stolen from Egypt. SLAM purchased the cultural object in 1998 for approximately half a million dollars.

A Missouri federal district court brought the government’s forfeiture case to an end in April 2012, concluding that the government's complaint failed to specifically explain how the mask was allegedly stolen or smuggled, or how it was brought into the U.S. illegally.

The U.S. Attorney's Office filed a motion to reconsider the court's decision, and in May 2012 the government revealed new information that it said would support a proposed amended complaint. Judge Henry Autrey denied the motion to reconsider, and federal prosecutors filed a proposed amended complaint anyway. The district court rejected the government's case a second time.

Source: Eight Circuit Court of Appeals

Attorneys for the government appealed to the Eight Circuit, arguing that the lower court abused its discretion by not allowing them to file an amended complaint. Lawyers for SLAM rebuffedtheir argument by contending that there is "no basis on which to find [that] the District Court abused its discretion in denying the Government’s fatally late and insufficient submission of its Proposed Amended Complaint." SLAM chided federal officials for "the liberties the Government takes ...."

The appellate case is expected to be heard by Circuit Judges James Loken, Diana Murphy, and Lavenski Smith. Loken is former chief judge of the appellate court, nominated to the bench by President George H. W. Bush in 1990. Murphy is a 1994 Clinton appointee, and Smith is a 2002 appointee nominated by George W. Bush.

UPDATE January 14, 2014: A summary of the oral argument can now be found here.

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: www.culturalheritagelawyer.com

Ka Nefer Nefer Forfeiture Case: SLAM Appellate Brief Strongly Criticizes Government

Lawyers for the St. Louis Art Museum (SLAM) this week answered the government's appellate brief in the case of U.S. v. Mask of Ka Nefer Nefer, saying there is "no basis on which to find [that] the District Court abused its discretion in denying the Government’s fatally late and insufficient submission of its Proposed Amended Complaint." SLAM also chides federal officials for "the liberties the Government takes with the statements in its Proposed Amended Complaint."

By way of background, the U.S. Attorney in St. Louis, Missouri moved to forfeit the Ka Nefer Nefer mummy mask from SLAM in 2011. District court judge Henry Autrey brought the government’s case to an end in April 2012 when he concluded that the government's forfeiture complaint failed to specifically articulate how the mask was allegedly stolen and smuggled, or how it was brought into the U.S. contrary to law. The U.S. Attorney's Office filed a motion to reconsider, and in May 2012 the government revealed new information that it said would support a proposed amended complaint. Judge Autrey denied the motion to reconsider, but federal prosecutors submitted the proposed amended complaint anyway. Thereafter, the district court reiterated its dismissal of the case, and the government appealed to the Eight Circuit Court.

SLAM explains in its August 5, 2013 brief that the district court's order dismissing the federal government's forfeiture complaint against the mummy mask, in fact, dismissed the case. "The operative language of the Dismissal directed 'that plaintiff’s complaint is dismissed,' writes SLAM's attorneys. "As such, and as a matter of law, the Order and Dismissal dismissed the entire action," adding, "The District Court’s March 31, 2012 Order and Dismissal could not have been clearer ...."

SLAM's lawyers further argue that the district court exercised proper discretion when denying prosecutors' attempts to amend the forfeiture complaint.

The museum blasts the government for allegedly diverting attention away from the question of whether the district court improperly dismissed the case. "Despite framing the issue presented as whether the District Court abused its discretion in denying the Government’s Motion for Leave ... the arguments presented by the Government on appeal do an inviting job of transforming a procedural, rule-driven question into a vigorous attempt to have this Court consider the merits of the claims made in the Government’s untimely and failed Proposed Amended Complaint." SLAM's lawyers therefore contend, "In doing so, the Government patently urges this Court to divert its attention from the issue as stated and to back-handedly make a judgment on the sufficiency of what it says would be the amended claims."

SLAM emphasizes that the circuit court "should wholly disregard the issue of whether the amended claims are sufficient under the law." The attorneys contend that "[i]t is not appropriate for consideration and - even at this late hour - the allegations the Government 'would have' or 'could have' made remain short of the mark."

Nevertheless, SLAM explains that the "government's factual assertions [in the proposed amended complaint] are both so conjectural and so clearly incorrect that they present a risk that the factual underpinnings of the case will be fundamentally misunderstood." That is why SLAM offers several criticisms of the government's proposed amended complaint in its appellate brief, which include the following:

• "Paragraphs [of the amended complaint] discuss the 'illicit antiquities market' that purportedly exists - and the practice of 'laundering' the provenance of an item - but [federal prosecutors] allege no connection between this information and the Mask at issue."

• "The Government’s interpretation of [Egyptian patrimony] Law No. 215 and its application to the present case is inaccurate and, worse, absolutely counter to established United States case law. Indeed, Article 5 of Law No. 215 itself specifically provided for the Egyptian government to 'exchange moveable antiquities found in duplicate' with museums and private owners, and Article 22 of Law No. 215 recognizes private ownership of antiquities sold or gifted by the Egyptian government, a provision the Government covers with the conclusory statement that '[t]he Mask was not given to the discoverer as partage.'"

• The Government "offers a) that the importers of the Mask were convicted of export violations years after the Mask was imported and that - presumably because of this - they 'knew or were willfully blind to the fact that Egypt was the true owner of the Mask.' In raising the subsequent alleged conduct of the owners of the company that sold the Mask to the Appellee Museum, the Government presumably and desperately seeks to defame the parties closest to the Appellee Museum in the chain of purchase, albeit with conduct that has no relation whatsoever to this case and occurred years after the purchase of the Mask."

• "[T]he Government discusses asserted defects with the Appellee Museum’s provenance investigation prior to purchasing the Mask, suggesting that it was 'pro forma' and incomplete, leading to the conclusion that 'at the time it imported the Mask . . . the Museum either knew or was willfully blind to the fact that the Mask had been stolen from Egypt.' Again, these statements contain no factual information regarding the alleged theft or stolen nature of the Mask. These conclusory statements are included to undermine the suggestion that the Appellee Museum acted in good faith or was an innocent owner of the Mask."

[UPDATE August 12, 2013: The appeals court is expected to schedule oral arguments in the case now that the government has filed a reply brief as of August 8, 2013.  The reply brief reiterates the government's argument that the lower district court abused its discretion by not allowing federal prosecutors to file an amended verified complaint.]

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