One Side of the Coin: ACCG Re-Argues Previously Decided Legal Issues in Baltimore Test Case

Some of the ancient coins in dispute in U.S. v. 3 Knife-Shaped Coins.

Court decisions in 2014 and 2015 rejected the Ancient Coin Collectors Guild’s (ACCG) demand to revisit legal issues already quashed by the courts in the forfeiture case of U.S. v. Three Knife-Shaped Coins Et al. and the related case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs. Nevertheless, the Guild continues to re-argue the same issues.

The litigation stems from the ACCG’s aim to strike down or erode customs regulations that regulate the import of specific types of ancient coins that have been determined to be in jeopardy of looting. The group minted a test case seven years ago when it intentionally imported undocumented and unprovenanced ancient Chinese and Cypriot coins to the United States. The Guild imported the archaeological materials from a London dealer and shipped them to Baltimore on a British Airways flight. The ancient coins had no accompanying documentation and offered no record of chain of custody or provenance.

Repeated losses suffered by the ACCG in the federal district court, the court of appeals, and the U.S.Supreme Court have not deterred the Guild from continuing its blitz on the import controls, which were erected under authority of the Convention on Cultural Property Implementation Act (CPIA) and are designed to curb transnational trafficking of at-risk archaeological material.

The latest round of ACCG court filings is a motion for summary judgment that repeats many arguments that already have failed to win judicial support. In its July 2016 motion, the Guild insists that it “has either rebutted the government’s prima facie case and/or the government has failed to meet its own burden. Accordingly, the Court should grant the Guild Summary Judgment, order the return of the Guild’s coins, and require the Government to pay the Guild’s attorney’s fees and costs.”

While the ACCG litigates the Three Knife-Shaped Coins case in federal district court in Maryland, it is expected that the Missouri-based group simultaneously will press the matter when the Cultural Property Advisory Committee (CPAC) meets in Washington, DC on October 25. That is when CPAC will hear public testimony about whether the White House should renew import controls to protect pre-classical and classical archaeological objects and Byzantine and post-Byzantine ecclesiastical and ritual ethnological materials from Cyprus, Docket No.DOS-2016-0054.

So far the ACCG’s defeats in the federal courts have produced favorable case law that strengthens law enforcement efforts to disrupt cultural heritage trafficking. The Fourth Circuit Court of Appeals, for example, decided that federal authorities properly listed the kinds of ancient Chinese and Cypriot coin artifacts that may be subject to CPIA import controls.

The appeals court also ruled that U.S. Customs and Border Protection (CBP) properly detained the ACCG's undocumented coins. The court explained that the burden therefore shifts to the Guild to prove that its actions were lawful, plainly articulating the clear rule that "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import.” “In short,” the court added, “CBP need not demonstrate that the articles are restricted; rather, the statute ‘expressly places the burden on importers to prove that they are importable.’”

The ACCG rejects this standard. Rather than offering information to show that the ancient archaeological materials qualify as a legal import, the ACCG instead filed motions for discovery and a motion for summary judgment attacking the validity of the import regulations themselves. Meanwhile, the Guild maintains that the government bears the high burden to prove that the restricted ancient coins were first discovered in and subject to the export controls of China and Cyprus.

At a motions hearing held earlier this year, Assistant U.S. Attorney Molissa Farber, representing the government, told the Maryland district court that the Guild's line of argument is “essentially an attack on the government's ability to classify the coins by type and category, which has already been well-settled that we can do.” “And I understand that Claimants [ACCG] disagree with that process,” the prosecutor said, “but that's already been litigated. That’s not at issue here. That part is done.”

AUSA Farber reminded the court that “the Fourth Circuit rejected the notion that the government was going to have to fight a case coin-by-coin. The Fourth Circuit said that the statutory structure allows us to list coins by type and category.”

She emphasized that “the evidence that the Guild seeks to introduceis not evidence pertaining to the specific defendant property here. They’re not seeking to introduce any kind of evidence that relates to these 22 defendant coins as far as when these specific 22 coins left China and Cyprus.What they want to introduce is general evidence that coins of this type of category circulated broadly and may have left China and Cyprus outside of the regulated period.”

Peter Tompa, attorney for the ACCG and the organization's current president, countered, “The coins at issue here are typical in the market. So we don't know where they were found or too much about them. And there’s nothing nefarious about that, Your Honor. It’s a situation where there’s just low value items, and it was not important until recently that such things would be -- that such things should have a documentary history. But we do know something about the coins, we know something at least. We know that they were exported from the UK by Spink, a well-regarded firm that's been around since the 1600s, and in compliance with both UK and EU law in April,19 2009.”

Attorney Tompa continued, “Well, assuming the government has established first discovery just by listening, we’re entitled to rebut that. And how we’re trying to do that here with regard [to] these specific coins is by offering the opinions of two experts, Mr. [Douglas] Mudd, who is the Curator at the American Numismatic Association in Colorado, and Mr. [Michael] McCullough, who’s an expert in the international exchange of cultural artifacts.”

Declaring that “scholarly evidence” can be used by the ACCG to show that the coins left their countries of origin before the enactment of U.S. import restrictions, Attorney Tompa offered that “Mr. Mudd's opinion is that the ancient coins at issue here are of a sort that circulated in significant numbers outside of China or Cyprus for thousands of years[,] first as currency and then as collectibles. So it’s unlikely and cannot be assumed that they left Cyprus or China after the date restrictions were imposed.”

“So because these things circulated for thousands of years first as collectibles -- first as currency, then as collectibles," Attorney Tompa reasoned that "it’s unlikely that they exited Cyprus or China after the date of the restrictions, just given the numbers outside of those two countries.”

“Mr. McCullough's report is that UK and EU law did not require expert [sic] certificates for the coins at issue in this case, or the Cypriot -- well, any of the coins at issue in this case. And such with respect to the Cypriot coins, that would satisfy Cypriot law, because, after all, Cyprus is a member the EU as well. Mr. McCullough also opines that the Chinese coins here could have exited Hong Kong legally without documentation in that export would satisfy Chinese law under both the laws of China and Hong Kong.”

AUSA Farber countered this argument by rejoining, “The most salient point I think to take away from this particular dispute over the scholarly evidence at least is the distinction between specific and general. And I believe what we just heard from Claimant [ACCG] was a lot of purported evidence regarding general coin circulation. The coins are of the sort that circulated broadly. I mean, Your Honor raised the point, what’s the ultimate implication here? And the implication is that if that argument is allowed, it undermines the CPIA, undermines the statutory structure, because it essentially holds the coins shouldn't have been listed in the first place based on their type of category. And that’s not permitted.”

U.S. District Judge Catherine Blake agreed. In a ruling dated February 11, 2016, Judge Blake pronounced “that the Ancient Coin Collector’s Guild (“the Guild”) seeks discovery not relevant to the issues the court will have to decide in this forfeiture action.” In particular, she highlighted that the ACCG “apparently will seek to prove that the export of these coins from Cyprus or China to England was lawful under EU law. It is unlikely that the export control status of the coins under foreign law will be a proper defense in this forfeiture action.” The judge added pointedly, “Further, to the extent the Guild argues that the government must prove ‘first discovery,’ beyond demonstrating that the coins at issue appear on the designated list, that argument is foreclosed by the CPIA and the Fourth Circuit opinion in Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (4th Cir. 2012). Listing by type and category is proper under the CPIA.”

Judge Blake also granted a protective order shielding two State Department employees from ACCG depositions, explaining that they “do not appear to have relevant personal knowledge.” Over the objections of Attorney Tompa, AUSA Farber attributed “ulterior motives” to the Guild's attempt to depose the purported witnesses, presenting the court with, what the federal lawyer called, an “Internet post written by a former director of the Coin Collectors Guild" criticizing one of the witnesses. Judge Blake remarked, “I'm more interested in probably the relevance than in motive.”

In June, Judge Blake issued a further order rebuking the ACCG's discovery requests, stating, “I will not at this time direct the government to provide any additional 30(b)(6) deposition testimony.”

Soon afterward, the ACCG filed its motion for summary judgment and, on July 29, the court adopted a schedule that allows the parties to fully brief their positions. Once completed in mid-October, CHL expects to review the parties’arguments.

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 works in cooperation with Red Arch Cultural Heritage Law & Policy Research, Inc.

"Antiques" from Syria: U.S. Cultural Property Import Stats Raise Suspicion

Imports of Syrian goods into the United States have fallen dramatically since war broke out in the Mideast nation in 2011 and since the White House expanded the Syria Sanctions Program. Yet, despite the decline in U.S. imports from Syria, there are now disquieting trade statistics from 2014--the most recent complete data available--that should stir the attention of customs officials, police, and policymakers concerned about looted archaeology, stolen mosaics, and illicitly excavated coins trafficked illegally into the U.S.

Overall, America imported about $429.3 million worth of declared goods from Syria in 2010. Last year, that total collapsed to roughly $12.4 million, a stark decline over the five year period.

Moving in the opposite direction for a period of time were U.S. imports of antiques over 100 years old from Syria, which spiked to $11 million in 2013, a spectacular 133% increase in declared customs value over the previous year. While this figure noticeably fell last year to roughly $4.9 million, the value is similar to the $4.7 million worth of imported antiques recorded in 2012.

The 2014 statistic on antiques is striking because the five year trend line for imports of Syrian antiques failed to fade to black like other U.S. imports of Syrian goods. Instead, as the graphic above demonstrates, antiques constituted a decidedly large slice of the American import pie last year. They accounted for a whopping 40% of the value of all imports of every kind from Syria. In fact, goods classified by importers as Antiques of an Age Exceeding 100 Years under Harmonized Tariff Schedule (HTS) 9706 were the #1 import into the U.S. from Syria. There simply was no other import category that ranked higher in value than antiques, including the #2 import of Syrian anise and cumin seeds and juniper berries classified under HTS 0909.

Notably, every Syrian import classified as an HTS 9706 antique was shipped to the customs district of New York City, the location of one of the largest and most important art and antiquities markets in the world.

What we do not know is what kind of objects these "antiques" were. They may have been at-risk archaeological objects like cuneiform tablets or ancient pottery, deliberately mislabeled by smugglers as being "of an age exceeding 100 years." Customs officials need to find out.

Enforcement officials also need to investigate the #3 American import from Syria in 2014, commodities classified by a code smugglers might use to disguise imports of ancient mosaics. Mosaics, of course, are architectural features made of stone, glass, and/or ceramic. They are spotlighted in the International Council of Museum's Emergency Red List of Syrian cultural property, which is why the import of $1.4 million worth of HTS 6802 goods--11% of the total value of all Syrian imports to the U.S.--is concerning. HTS 6802 is intended to cover worked monumental or building stone; mosaic cubes of natural stone; and artificially colored granules, chippings and powder of natural stone. Yet the code may have been used by traffickers to unlawfully classify 5th century mosaics.

Together,  the declared imports of HTS 9706 and HTS 6802 goods accounted for 51% of the total imports of all Syrian commodities by value in 2014, a striking statistic that simply cannot be overlooked by cultural property watchers focused on spotting trafficked heritage objects that may have illegally piggybacked on legitimate international trade.

Classified by HTS 9705 and amounting to approximately $303,000, collections of historical and archaeological material of Syrian origin was the #5 import by value in 2014. This number was almost a triple increase from the $118,000 imported the year before.

Looking deeper into this trade category, we find that the bulk of HTS 9705 imports from Syria to the United States consisted of Numismatic (Collectors') Coins, Except Gold, classified by HTS 9705.00.0060, having a declared import value of approximately $265,000, which was a quarter of a million dollar jump from the exiguous value of $12,064 declared in 2013. Just like imports of Syrian antiques, every Syrian collectors' coin declared under this HTS category went through the New York City customs district. Were these coins ancient Roman, Byzantine, or Islamic like the ones identified on the Red List? Customs enforcement officials need to find out.

Given the reasonable articulable suspicion that Syrian cultural contraband may be moving to the U.S. through ordinary channels of international trade, police and customs investigators are justified in scrutinizing import paperwork and asking detailed questions of importers and customs brokers that will confirm or dispel this suspicion. To protect cultural heritage in jeopardy, to defend against money laundering, and to protect against terror financing in Syria, it is vital to know exactly what cultural property has been shipped to the U.S. from Syria under the HTS 9705, 9706, and 6802 classifications and why heritage goods makes up such a large portion of imported Syrian commodities.
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Data source: CHL compiled, arranged, and assessed the import figures presented here using raw data collected by the U.S. International Trade Commission and the U.S. Bureau of the Census.

Copyright notice: Although the data presented here is sourced from publicly available information, it is an original work of authorship that has been carefully selected, coordinated, arranged, and analyzed so that it is an original work of authorship subject to copyright protection as a compilation and/or a derivative work by CHL. The publication, retransmission, or broadcast of this compiled data is strictly prohibited without CHL's express consent.


Note: Import data is reported to U.S. Customs and Border Protection by the owner, purchaser, or licensed broker of the consignee. They file the entry documents, not the customs officials who are unable to inspect and document every cargo shipment. So whether cultural commodities are properly classified as HTS 9705 archaeological material or HTS 9706 antiques is the responsibility of the importer. In fact whether imports are falsely classified so that they can be smuggled across the border or whether they are mistakenly classified because of an error in judgment is a function of the importing party. The import classification process is a self-reporting system, part of a shared compliance program overseen by U.S. Customs that obliges the trade community to regulate itself and follow federal law. Shared compliance allows the U.S. to competitively engage the world in global commerce. Smugglers, nevertheless, will try to exploit gaps and loopholes.

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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.

Steering Clear of ISIS Loot: Don't Buy, Apply Strict Due Diligence

Ancient artifact collectors share a passion for history, culture, and aesthetics. The best collectors embrace their role as stewards of heritage by dutifully caring for cultural material through conservation, storage, display, and study. But as fighting in Syria and Iraq intensifies, principled collectors are asking how to avoid purchasing "blood antiquities."

Like archaeologists, heritage preservationists, and the concerned public, collectors have seen the disconcerting satellite images of looters' pits that confirm severe damage to the archaeological record, and they have listened to assessments by law enforcement officials pointing out that ISIS/ISIL/Da’esh engages in the looting and sale of antiquities. They are also cognizant of the U.N. Security Council's unanimous decision in February to adopt Resolution 2199, which plainly expresses that terrorists "are generating income from engaging ... in the looting and smuggling of cultural heritage items ... in Iraq and Syria...." And today they learn that the U.S. Senate Foreign Relations Committee will take up S.1887, legislation that is similar to H.R. 1493, which authorizes emergency protections for endangered Syrian cultural property.

To steer clear of collecting potential ISIS loot, Richard Stengel, Under Secretary of State for Public Diplomacy and Public Affairs, recently tweeted this judicious guidance, “Don't sell; don't buy. That's one solution." Collectors would be well advised to heed this recommendation and avoid purchasing cultural heritage objects that appear to have surfaced from war-torn Syria or Iraq.

Yet a number of undaunted collectors will continue to shop the nubilous marketplace, optimistic that they will discover authentic and legal artifacts that, hopefully, do not contribute to terrorist funding or money laundering. For them, caveat emptor should remain the guidepost and strict due diligence the rule, particularly since mounting evidence offers abundant reasonable suspicion that would compel an ethical collector of ordinary caution to demand clear answers from a dealer about the exact origins, export, import, transshipment, and chain of possession of art, artifacts, or antiquities believed to have originated from the Middle East.

The justifiable suspicion that heritage trafficking funds terrorism received added confirmation in May when U.S. Special Operations Forces seized 700 cultural objects during a raid on an ISIS compound in the al-Amr region of eastern Syria. That area borders Iraq's Anbar and Nineveh provinces. The Department of Defense (DoD) implicated the owner of the collection in ISIS combat operations and asserted that the man, known only as Abu Sayaff, "helped direct the terrorist organization's illicit oil, gas, and financial operations as well."

The captured trove reportedly included bronze coins with Greek, Latin, and Arabic inscriptions (top); silver dirhams (right); copper bracelets (bottom left); gold dinars; cylinder seals; and more. As is typical with the black market trade, the genuine articles appear to have been mixed together with reproductions.

U.S. Ambassador to Iraq, Stuart Jones, offered the opinion that the raid revealed more than the ordinary measure of evidence. He contended, during a ceremony repatriating the objects, “These artifacts are indisputable evidence that Da’esh—beyond its terrorism, brutality, and destruction—is also a criminal gang that is looting antiquities from museums and historical sites and selling them on the black market."

Given the totality of data uncovered over the last several years linking trafficked heritage with terrorism, war, and money laundering, the largest community of collectors—museums—have taken steps to warn the public about the proliferation of the black trade. The International Council of Museums (ICOM) in September 2013 published a Red List spotlighting Syrian cultural objects at risk of plunder, and just last month the organization distributed a refreshed Red List covering Iraqi artifacts. The Red Lists help readers identify the kinds of artifacts looted from archaeological sites, stolen from museums, or smuggled across borders so that the distribution and sale of these precious heritage objects can be stopped.

The Red Lists signal extreme caution, and collectors of all stripes would gain peace of mind by provisionally abstaining from the purchase of objects that are believed to have originated from Syria or Iraq. Curbing consumer demand at the present time would have the added benefit of sending a message to suppliers that even the slightest hint of conflict-related commodities will not be tolerated in the legitimate stream of commerce.

Collectors determined to remain in the market, meanwhile, should employ a strict due diligence strategy to sharply limit the chances of acquiring possible contraband or facilitating money laundering. One suggested due diligence guideline—authored by individual collectors and presented to the pro-collecting Ancientartifacts forum in 2009—is titled A Code of Ethics for Collectors of AncientArtifacts. It remains a useful resource today, admonishing collectors to:

• protect archaeological heritage and uphold the law

• check sources,

• collect sensitively,

• recognize the collector’s role as custodian,

• keep artifacts in one piece and consider the significance of groups of objects,

• promote further study, and

• dispose of artifacts responsibly.

To achieve these goals, the ethics code highlights common sense due diligence and acquisitions advice, including:

• "Ask the vendor for all relevant paperwork relating to provenance, export etc."

• "Take extra care if collecting particular classes of object which have been subjected to wide-scale recent looting.”

• "Verify a vendor’s reputation independently before buying. Assure yourself that they are using due diligence in their trading practices, and do not support those who knowingly sell fakes as authentic or offer items of questionable provenance."

• "Do not dismember any item, or acquire a fragment which you believe to have been separated from a larger object except through natural means."

•  "Consider the implications of buying an item from an associated assemblage and the impact this could have on study."

• "Liaise, where possible, with the academic and broader communities about your artifacts."

Collecting can play a constructive role in the stewardship of legally acquired and suitably documented artifacts. But in today's conflict-ridden environments in Syria and Iraq, guarding against criminal trafficking and the facilitation of terrorist financing is a heightened concern, which should prompt collectors to effectuate appropriate safeguards. "Don't buy" is the best protective measure, while strict due diligence remains a secondary, yet imperfect, line of defense for those willing to assume the risks in the traditionally opaque marketplace.

Photo credit: U.S. Department of State

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.

Maryland District Court Rejects ACCG's Attempt to Relitigate Matters Already Decided in Ancient Coins Case

The United States District Court for the District of Maryland has said no to the Ancient Coin Collectors Guild’s (ACCG) request to challenge issues previously argued in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection.

Judge Catherine Blake, writing a June 3 memorandum opinion in the matter of U.S. v. Three Knife-Shaped Coins Et al., rejected the ACCG’s plea to relitigate a challenge to the validity of import regulations authorized by the Cultural Property Implementation Act (CPIA). Her decision also halts a repeat of arguments concerning the decision made by U.S. authorities to enact import protections covering ancient Chinese and Cypriot coin artifacts in jeopardy of pillage, saying this matter had already been addressed.

In fact, the Fourth Circuit Court of Appeals decided in 2012 that the federal government properly identified Chinese and Cypriot coins subject to U.S. import restrictions under the CPIA and that the detention of the coins by customs officials was proper. The appeals court pointed out that, under these circumstances, the burden shifted to the ACCG to prove that the import of the coins was lawful.

Judge Blake’s two page opinion declared that “it is abundantly clear that the claimant, Ancient Coin Collectors Guild (“the Guild”) seeks to expand the scope of this [federal district court] forfeiture action well beyond the limits set by the Fourth Circuit …. The Fourth Circuit’s opinion forecloses any further challenge to the validity of the regulations.” The judge added:

As the government notes in its motion to strike the initial answer, much of the [ACCG’s] answer and most if not all of the affirmative defenses seek to relitigate issues concerning the validity of the regulations and the government’s decision to impose import restrictions on certain Cypriot and Chinese coins. For example, in its Surreply opposing the motion to strike, the Guild suggests that the government will be required to establish that the coins were “first discovered within” and  “subject to the export control” of either Cyprus or China. (Surreply, ECF No. 18, at 1-2.) The Guild is not correct. This argument also is foreclosed by the Fourth Circuit’s opinion. Ancient Coin Collectors, 698 F.3d at 181-82.

The ACCG has responded by filing a motion to reconsider. In court papers filed this week, the Guild has contended that the “first discovered” argument is central to due process and must be litigated:

Due process afforded under the U.S. Constitution, the governing statute, and general principles of forfeiture law, all place the burden on the government to establish a factual basis for its contention that the coins at issue were “first  discovered within” and “subject to the export control” of either Cyprus or China.

The ACCG’s “first discovered” claim maintains that the U.S. State Department and CBP acted outside their authority by placing CPIA import restrictions on coins of certain types without initially showing that they were "first discovered" within their countries of origin. The Fourth Circuit has already struck down this claim, saying “We are not persuaded,” explaining that "State and CBP are under no obligation to list restricted items with more specificity than the [CPIA] statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.”

The battle of U.S. v. Three Knife-Shaped Coins traces its roots to 2009 when the Guild transported ancient coins from London to Baltimore to start a test case. The ACCG declared to U.S. Customs and Border Protection (CBP) that the coins were from China and Cyprus but failed to offer information about any known provenance. CBP took custody of the coins, and the Guild started litigation to challenge the validity of the CPIA’s cultural heritage import protections. After the ACCG lost, the U.S. Attorney in Maryland filed a forfeiture complaint in May 2013 to retain the coins. The ACCG filed a response soon thereafter.

The Maryland federal court is expected to rule on the ACCG’s motion to reconsider once a reply is offered by the government. The court will also set a discovery schedule as the case proceeds to trial.

Meanwhile, the ancient coin lobby has raised the possibility of a "coin looter's exemption" being proposed by Congress while the present district court action continues. Such an exemption to the CPIA could potentially affect the current litigation. The Lawyer's Committee for Cultural Heritage Preservation and the Archaeological Institute of America have issued calls to action in response.

A copy of the court's decision and the ACCG's motion to reconsider may be found on the Guild's web page here.

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

LCCHP Issues Call to Action Over Looted Coins Exemption - AIA Joins with a Petition

Dangerous. That is the term used by a reference document cited by the Lawyers’ Committee for Cultural Heritage Preservation (LCCHP) to describe a potential legislative proposal that would allow looted archaeological coins to enter the United States legally.

LCCHP has issued a call to actionto halt the coin looters’ exemption before it might be introduced. The nonprofit posted a statementon its web site that explains what is happening:

Members of Congressman Charles B. Rangel’s (Dem-NY) and Congressman Steve Israel’s (Dem-NY) staff are considering the introduction of legislation that would specifically exempt coins from trade restrictions under the Cultural Property Implementation Act (CPIA). This initiative is being heavily lobbied for by coin collectors. LCCHP opposes the passage of this legislation, which would weaken protection of cultural heritage and allow collectors to more easily purchase coins discovered during illicit excavations.… We encourage our members within the relevant districts to contact the Congressmen regarding this legislation.

LCCHP President Elizabeth Varner and Vice President Diane Penneys Edelman wrote the lawmakers to say, “Such an exemption is neither needed by the coin trade nor warranted by CPIA’s provisions, and would cause irreparable harm to international relations."

The Archaeological Institute of America (AIA), meanwhile, has launched a petition.to voice public concern over the looted coins exemption, saying "Rep. Rangel and Israel need to hear from their constituents like you who oppose this exemption."

Readers of CHL are keenly awarethat the CPIA is the federal statute that authorizes U.S. Customs and Border Protection to keep out specifically designated archaeological coins—among other archaeological materials in jeopardy of pillage—from the stream of American commerce. The law's definitions cover ancient coins.

International Numismatic Council President Carmen Arnold-Biucchi has reiterated the same. Writinglast month to the U.S. Cultural Property Adivsory Committee (CPAC) in support of U.S. import protections for ancient coins from Egypt, the numismatist and archaeologist clarified that the CPIA targets illegal ancient coin artifacts and not the trade as a whole:

As I have stated in my support of the inclusion of coins in the MOU [Memorandum of Understanding] with Cyprus, my arguments and position are not against collecting or trading coins: museums and scholars have always benefited from the collaboration and knowledge of collectors and dealers, most of whom are ethical and respect the law. The restrictions and MOUs pertain to illegal activities, looting and theft. (Emphasis in the original).

Adopting a coin looters’ exemption would turn the CPIA on its head by providing a safe haven for contraband archaeological coin artifacts imported from abroad— culturally significant artifacts that Arnold-Biucchi has called “invaluable documents of material culture and a primary source of information for the history, religion and art of those cities or rulers.”

If pursued, the legislative measure would follow the ancient coin lobby’s failed legal attempts to divorce archaeological coin artifacts from the CPIA’s import requirements. In the case of Ancient Coin Collectors Guild (ACCG) v. U.S. Customs et al., the Fourth Circuit Court of Appeals told coin lobby advocates in clear terms that ancient coins were archaeological objects covered by the CPIA.

The appeals court added that the CPIA does not create undue burdens on importers, writing that “[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import.”

A congressional initiative to carve out a coin looters’ exemption would directly challenge the Fourth Circuit’s ruling. It would also drag the legislative branch into the active federal district court case of U.S. v. Three Knife-Shaped Coins, Twelve Chinese Coins, and Seven Cypriot Coins, the bitterly contested spin-off of ACCG v. U.S. Customs that pits the coin lobby against Maryland’s top federal prosecutor and the U.S. State Department.

Better than a change to the CPIA would be a record keeping law that brings integrity to the purchase and sale of ancient coins. Such a bill would require dealer record keeping of purchase and sales transactions and the chain of custody of archaeological coin artifacts imported and sold. A record keeping law, framed along the lines of one previously proposed by CHL, would help to spotlight and separate the black trade that has latched onto the legitimate marketplace and thereby help to safeguard an increasingly threatened archaeological record.

Staffers in Rep. Israel’s office might find this measure more appealing, particularly since the congressman has spearheaded other consumer protection bills including the Counterfeit Drug Enforcement Act, which proposed increased penalties for the sale of adulterated prescriptions and strengthened record keeping requirements to document the chain of custody of medications.

Documenting the chain of custody of heritage objects from dirt to dealer requires significant improvement, especially when it comes to legally importing archaeological coin artifacts. But a looters’ exemption to the CPIA would not offer a solution. Instead, this kind of exemption would expandtransnational heritage trafficking into the American marketplace. That is why LCCHP and AIA have issued calls to action, urging those who care about preserving evidence of the past to contact Representatives Rangel and Israel before an exemption may be proposed.

Photo credit: A Schaeffer

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

The Cultural Property Implementation Act Covers Ancient Coins

The Convention on Cultural Property Implementation Act (CPIA) classifies designated ancient coin artifacts as archaeological material. That ancient coins serve as evidentiary sources of the past makes perfect sense. Ancient coins that have been scientifically excavated, observed, and documented in their original context can absolutely date ancient sites of human activity, tell archaeologists about the available currencies that circulated during different time periods, and offer material evidence about the societies that used these artifacts. As a result, ancient coins are significant cultural objects..

The Fourth Circuit Court of Appeals agrees. In the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection et al., the court acknowledged that "[c]oins are portable objects," but added, "that is not the whole story." In a unanimous ruling the judges wrote, "The often worn and mysterious beauty of ancient coins renders them invaluable cultural artifacts, helpful not only in dating archaeological finds but in revealing how distant civilizations once conducted their civic and commercial life.”

Tearing artifacts from the ground without concern for their evidentiary value and without regard for the archaeological sites from which they were stripped irreparably destroys critical evidence of the past. That is why there are strong legal, political, and social efforts to stop looters from engaging in this malicious activity.

The CPIA’s defines “cultural property” as “articles described in article 1(a) through (k) of the [1970 UNESCO] Convention whether or not any such article is specifically designated as such by any State Party for the purposes of such article.” 19 U.S.C. § 2601(6).

Turning to Article 1 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property shows that “cultural property” includes ancient coins, which are "(c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; [and] ... (e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals[.]" (Emphasis added).

Import controls enacted under the CPIA must regulate cultural property that is "archaeological material." By the terms of 19 U.S.C. §2601(2)(C), that is material

which was first discovered within, and is subject to export control by, the State Party.For purposes of this paragraph—(i) no object may be considered to be an object of archaeological interest unless such object—(I) is of cultural significance; (II) is at least two hundred and fifty years old; and (III) was normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water; and

Ancient coins covered under currently enacted CPIA import protections include what is described in the definition above, namely those that are dug up and at least 250 years old. They are also artifacts of cultural significance because of their archaeological value. The Federal Register(Jan. 19, 2011), for example, chronicled the CPIA bilateral agreement with Italy by reporting, “Coins constitute an inseparable part of the archaeological record of Italy, and, like other archaeological objects, they are vulnerable to pillage and illicit export.”

The Ancient Coin Collectors Guild (ACCG) unsuccessfully argued to the federal courts that the U.S. State Department and Customs and Border Protection "acted ultra vires [outside the law] by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were 'first discovered within'' the countries of origin. A federal appeals court struck down this assertion saying “We are not persuaded.” The Fourth Circuit explained that "State and CBP are under no obligation to list restricted items with more specificity than the [CPIA] statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.”

In the same case, the ACCG complained that collectors do not always have documents supporting the import of most ancient coins. The Fourth Circuit acknowledged that there may be cultural property imported into the U.S. that lack provenance or export permits, but pointed out that there is a process allowing importers to show that the objects are legal. The court observed:

In those cases, the [CPIA] statute expressly provides that CBP may seize the articles at the border: ‘If the [importer] of any designated archaeological or ethnological material is unable to present to the customs officer” the required documentation, the “officer concerned shall refuse to release the material from customs custody ... until such documentation or evidence is filed with such officer.’ 19 U.S.C. § 2606(b). In short, CBP need not demonstrate that the articles are restricted; rather, the statute “expressly places the burden on importers to prove that they are importable.”

The court highlighted that, under the CPIA, "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import."

The customs law, pursuant to 19 U.S.C. § 1484, obliges the importer of record to use reasonable care when entering, classifying and determine the value of imported items. That includes the importer’s duty to list the country of origin of any ancient coins imported into the U.S. More about the importer's responsibility can be found here.

Photo credit: Patrick Moore

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

UPDATED > Proposed U.S.-Egypt MoU Attracts Contrasting Comments from Heritage Preservationists and Ancient Coin Collectors

“Please exempt ancient coins. Don't ruin my hobby. Thanks[.]” That reaction summarizes many comments submitted to the Cultural Property Advisory Committee (CPAC) by dozens of ancient coin collectors worried about the adoption of a Memorandum of Understanding (MoU) between the United States and Egypt. The MoU, if recommended by CPAC and approved by the president, would restrict endangered Egyptian archaeological and ethnological objects from import into the U.S.

Egyptologists, archaeologists, and preservationists cited the increased looting of archaeology occurring in Egypt since 2011 as a prime reason to adopt the MoU. “Many major tourist sites have experienced intensified looting ...,” said the Society for American Archaeology in its public comment. And Egyptologist Dr. Monica Hanna offered several graphic photographs of the ravages of looting.

Last month, the U.S. State Department issued notice of Egypt’s request for an MoU under the Convention on Cultural Property Implementation Act (CPIA). The agency announced:

Egypt, concerned that its cultural heritage is in jeopardy from pillage, made a request to the Government of the United States under Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The United States Department of State received this request in April 2014. Egypt's request seeks U.S. import restrictions on archaeological and ethnological material from Egypt representing its prehistoric through Ottoman heritage.

The written public comment period closed yesterday, attracting over 350 submissions.

Ancient coin collectors joined an organized effort to convince CPAC to either reject the adoption of the MoU or to simply exempt ancient coins. One illustrative comment declared:

Ancient coins should not be included in this ban. They are of a different nature than other antiquities, being mass produced in large establishments of ancient governments. In addition, if historical historical (sic) information is considered important, banning the import of these coins will have the opposite effect, forcing coins into the illicit end of the market; if legalized, there would be no such need for smuggling, and historical information could be preserved.

Another submission, evidently carved from a template seen in other comments, stated, “The request of the United (sic) Arab Republic of Egypt should be denied. It does not meet the requirements established by the CPIA [in the] early eighties.” The Ancient Coin Collectors Guild, the International Association of Professional Numismatists, and the Professional Numismatists Guild all urged the removal of coins from CPAC's consideration of potential import restrictions on jeopardized archaeological material.

Organizations representing archaeology and heritage preservation universally submitted comments supporting the adoption of a bilateral agreement between the U.S. and Egypt. With a collective membership of over 230,000, the Archaeological Institute of America (AIA), the Society of American Archaeology (SAA), the American Anthropological Association (AAA), and The American Schools of Oriental Research (ASOR) submitted a joint statement highlighting “the loss of archaeological context and thus our ability to understand temporal and social relationships and political structures as they impacted daily life, birth, and death.”

Writing on behalf of the American Research Center in Egypt, Brown University professor and Egyptologist Laurel Bestock offered a first-hand account of the looting threat in Egypt:

Coins and statues are some of the prime types of artifacts that are traded on the antiquities market, and there is no doubt that those my team found would have been immediately saleable had they been uncovered by looters. We found these objects in January of 2011, only days before the revolution began. In the aftermath of the revolution, looting at Abydos increased significantly; I would not be at all surprised if the discovery of the cache had some role in this, as the decision to avoid a public announcement could hardly keep their existence from being known locally. The very area where these were found was the subject of a nightime looting attempt while I was excavating in 2013. Thankfully the local police as well as the head workmen from my excavation, our guards, and our house staff responded immediately. On this occasion no looting was done. But as Dr. O’Connor noted, Abydos has had hundreds of looters pits dug since the revolution. These have been documented by comparing satellite imagery before and after January 2011, and archaeological fact-checking on the ground. To walk across the site is to see holes with bricks and pots thrown aside, gaping wounds in the archaeological landscape. While the incidence of looting has decreased significantly, the threat to the site and the information it contains remains very real. Abydos stands in the middle. Some sites have seen nearly no looting, and some have seen looting that has nearly destroyed them, has made it impossible for archaeologists to conduct work there.

The Penn Cultural Heritage Center submitted a meticulously researched and rigorously documented letterdetailing the recent pillage of archaeological material in Egypt, noting that its institution currently maintains 700+ reports of “looting incidents or cultural heritage damage” since the 2011 Egyptian revolution. The letter argued that “there is a condition of extraordinary pillage of cultural patrimony in Egypt.”

The letter touched on all aspects of the “four determinations” that CPAC must consider under the CPIA, which include:

(A) [whether] the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;
(B) [whether] the State Party has taken measures consistent with the Convention to protect its cultural patrimony;
(C) [whether] --(i) the application of the import restrictions . . . with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties [to the 1970 UNESCO Convention]) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and (ii) remedies less drastic than the application of the restrictions set forth in such section are not available; and
(D) [whether] the application of the import restrictions . . . in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

With regard to the third determination, The Penn Center noted:

Already, there is a strong international response to the pillage in Egypt. As CPAC is well aware, countries implement the 1970 UNESCO Convention in different ways. Most states party grant reciprocal recognition to the export restrictions of other counties. Such is the system in Canada, for example, which, in 2007, intercepted a Greco-Roman bust smuggled from Egypt. Switzerland is the only country with a protection regime involving bilateral agreements similar to those in the United States. Switzerland entered into an agreement with Egypt in 2010. Major market countries such as Belgium, Canada, France, Germany, Israel, and the United Kingdom have all been involved in the recovery and return of Egyptian material …. The United States would therefore not be alone in responding to the situation of pillage in Egypt with import restrictions.

A public hearing on the MoU proposal will be held in Washington, DC in June.

Photo credit: Enrico Nunziati

This post was updated on May 16, 2014.

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

The U.S.- Bulgaria Bilateral Agreement and Ancient Coins: Some Thoughts

The recent adoption of a bilateral agreement between the United States and Bulgaria under the Convention on Cultural Property Implementation Act (CPIA) brings to mind two thoughts.

First is the rationale that supports protective import measures covering designated jeopardized cultural property, specifically ancient coins that are "first discovered" within a country of origin.

Fourth Circuit Court Judge James Harvie Wilkinson III provides an explanation. Appointed to the federal bench by President Ronald Reagan, he authored the unanimous decision in the 2012 case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs:

Section 2601 narrows the universe of articles that may be subjected to import restrictions under the CPIA. Only an object of archaeological or ethnological interest “which was first discovered within, and is subject to export control by” the requesting state may be restricted. 19 U.S.C. § 2601(2). The [Ancient Coin Collectors] Guild alleges that [the U.S. Department of] State and CBP  [U.S. Customs and Border Protection] acted ultra vires by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were “first discovered within” China or Cyprus. Guild Br. at 21–22. According to the Guild, the government and the district court effectively read the “first discovered” requirement out of the statute. Id. at 24. 

We are not persuaded. As an initial matter, the CPIA is clear that defendants may designate items by “type or other appropriate classification” when establishing import restrictions. 19 U.S.C. § 2604. State and CBP are under no obligation to list restricted items with more specificity than the statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.

That raises the second thought.  What is the cultural property importer's responsibility?

Judge Wilkinson and his colleagues acknowledge that there are undoubtedly cultural objects, such as ancient coins, which are imported into the U.S. without provenance or export permits. But the court of appeals describes the process that allows importers to show that the objects are legal:

If the [importer] of any designated archaeological or ethnological material is unable to present to the customs officer” the required documentation, the “officer concerned shall refuse to release the material from customs custody ... until such documentation or evidence is filed with such officer.” 19 U.S.C. § 2606(b). In short, CBP need not demonstrate that the articles are restricted; rather, the statute “expressly places the burden on importers to prove that they are importable. (Citation omitted).

The court implies that the burden of proof imposed on importers by the CPIA is not as high as one might think because "[t]he importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import."

More details about the legal responsibilities borne by cultural property importers can 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 2010-2014 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