MoUs: Italy Renewed; Egypt Still Pursued; Cambodia and Belize Get a CPAC Interlude

United States Customs and Border Protection (CBP) and the Treasury Department have promulgated rules, effective today, that extend import restrictions on archaeological material originating from Italy.

First erected by a Memorandum of Understanding (MoU) between the U.S. and Italy in 2001 and subsequently refreshed in 2006, 2011, and now 2016, the import barriers seek to deter cultural property looting and trafficking by denying entry to endangered pre-Classical, Classical, and Imperial Roman artifacts bound for the American marketplace.

The import barriers result from Italy's request for American assistance pursuant to 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.

Under import regulations authorized by the Cultural Property Implementation Act (CPIA), certain categories of 9th century B.C. through 4th century A.D. antiquities, armor, mosaics, jewelry, sculpture, and other archaeological material from Italy may be seized by CPB if trafficked across the U.S. border. The designated list of objects subject to the legal restrictions can be found here.

Italy asked for the latest MoU renewal in February 2015, and the Cultural Property Advisory Committee (CPAC) met in April last year to weigh the matter. The renewal process concluded within a usual time frame. By contrast, Egypt's first and only request for an MoU with the U.S. seems to have stalled without explanation.

Egypt asked CPAC to consider enacting protective import measures in April 2014, attracting a variety of public comments from preservationists, ancient coin collectors, the Association of Art Museum Directors, and other stakeholders. Yet despite CHL's admonitions in June 2011 and July 2013 for emergency legislation to protect at-risk Egyptian material, followed by a call in March 2014 to implement CPIA import restrictions "with all deliberate speed," import regulations covering ancient Egyptian artifacts still have not been approved.

CPAC, meanwhile, will be meeting in executive session next month for an interim review of MoUs covering jeopardized archaeological material from Cambodia and Belize, both approved in 2013. Public comments will be solicited at a later date should either agreement be considered for extension.

Photo credit: Matthew Strickland

Text copyrighted 2016 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.

Endangered Archaeology from El Salvador Protected by Renewed MoU with the United States

Maya mask subject to
renewed import restrictions
with El Salvador.

The United States has agreed to renew a bilateral agreement with El Salvador, which offers protections to cultural heritage in danger. The Central American nation is rich with history, including ancient Maya culture.

The State Department Assistant Secretary for Educational and Cultural Affairs has “concluded that the cultural heritage of El Salvador continues to be in jeopardy from pillage of Pre-Hispanic archaeological resources,” according to the Federal Register. As a result, the U.S. government has extended import controls on endangered archaeological material from that country through March 8, 2020. The terms are cataloged in a renewed Memorandum of Understanding (MoU).

Few offered comments about the MoU when the Cultural Property Advisory Committee (CPAC) consideredthe renewal.

The Lawyers’ Committee for Cultural Heritage Preservation (LCCHP)* backed the renewal, explaining that looting continues in El Salvador and that “numerous El Salvadoran objects that would be protected under the MOU are currently listed on ICOM’s Red List of Endangered Cultural Objects of Central America and Mexico.” LCCHP added that “El Salvador has long played an active role in safeguarding its property through legislation, enforcement, education, creation of inventories, and international cooperation.”

The Association of Art Museum Directors (AAMD), meanwhile, opposedthe MoU. In what may be a trendfor the organization, the group complained that “El Salvador has benefited from more than 27 years of import restrictions by the United States and in that period … there does not appear to be a significant reduction in looting that can be linked to those restrictions.” The AAMD argued that “El Salvador is one of the best examples of why the current system of simply renewing MOUs is ineffective and inconsistent with the CPIA. The absence of a significant legitimate market in the United States for El Salvadorian Prehispanic objects has apparently had little or no effect on looting in El Salvador.”

The U.S. and El Salvador first entered a bilateral agreement—authorized by the Convention on Cultural Property Implementation Act (CPIA)—twenty years ago, following American-imposed emergency import restrictions on endangered artifacts from the Cara Sucia region in 1987 and 1992. The MoU between the two nations has been renewed every five years since 1995.

Photo credit: U.S. Department of State

*The author is a board member of LCCHP.

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.

Italy Asks for MoU Renewal to Protect Cultural Heritage

The Italian government has asked the United States to renew a bilateral agreement or Memorandum of Understanding (MoU) restricting American import of archaeological artifacts in jeopardy of pillage.

The protective MoU between the two nations has been renewed twice before. The current agreement, in place since 2011, covers pre-Classical, Classical, and Imperial Roman artifacts from Italy.

The Cultural Property Advisory Committee (CPAC) will meet in public session on April 8 in Washington, DC to discuss the latest request.

To submit written comments concerning the proposed MoU, click here. Comments are due to CPAC by March 20 and must relate to one, some, or all of the "four determinations" laid out by the Convention on Cultural Property Implementation Act (CPIA). These include:

(A) whether the cultural patrimony of Italy is in jeopardy from the pillage of archaeological or ethnological materials of the State Party; 

(B) whether the Italian government has taken measures to protect its cultural patrimony; 

(C) whether the application of the import restrictions, if applied in combination with similar restrictions by other nations individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and whether remedies less drastic are not available; and 

(D) whether the application of the import restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

Photo credit: Aculine

Text copyrighted 2015 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & PolicyResearch, Inc.

Opposition to MoU's: A Change in Policy for the Association of Art Museum Directors?

Museums are vital to the protection of cultural heritage. They preserve art and artifacts for the benefit of present and future generations, and they inspire visitors, students, and scholars to appreciate and safeguard history.

Most museums are tax exempt charitable corporations, holding the public's trust as stewards of human civilization. They are expected to lawfully and ethically acquire artifacts. They also are counted on to promote policies that preserve cultural objects.

So it is with interest that the Association of Art Museum Directors (AAMD) last Tuesday opposed the renewal of a Memorandum of Understanding (MoU) meant to retain American import barriers on endangered heritage objects from Nicaragua. The group's objection follows a sequence of opposition to MoU's begun in 2014. Does this mark a new policy direction for the organization?

The AAMD is made up of important stakeholders, representing the directors of some of the largest and most distinguished cultural institutions in North America. The group often recites that “it deplores the illicit and unscientific excavation of archaeological materials and ancient art from archaeological sites and the destruction or defacing of ancient monuments” and that it “is committed to the responsible acquisition of archaeological materials and ancient art.” From this point of departure, the AAMD traditionally has supported—albeit softly—cultural property protection agreements authorized by the Cultural Property Implementation Act (CPIA). Lately, however, even this mild support has given way to clear opposition to bilateral agreements, which serve to protect archaeological and ethnological objects in danger of destruction.

By way of background, the Cultural Property Advisory Committee (CPAC) reviews petitions submitted by foreign nations that request American help to safeguard endangered cultural material. The help given takes the form of U.S. import restrictions on archaeological and ethnological objects in jeopardy of looting. The process used to enact these import barriers is defined by the CPIA, the federal statute that gives effect to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The CPIA requires CPAC members to assess whether a requesting government has satisfied four determinations. The full committee then offers a recommendation to the President about whether he should enact import barriers to protect cultural heritage in jeopardy. If import controls are approved by the White House, a Memorandum of Understanding is signed between the U.S. and the petitioning government. The MoU is often referred to as a bilateral agreement.

When Bulgaria requested American restrictions on cultural goods in 2011, the AAMD told CPAC in a written statement that the "AAMD supports the request for a Memorandum of Understanding from the Republic of Bulgaria with … concerns …..” The organization’s concerns seemed to have swallowed its articulated support, but the AAMD, nevertheless, expressly backed the adoption of the MoU. When CPAC considered a renewed bilateral agreement with Guatemala in 2012, the AAMD once again articulated its “concerns,” but it still offered support for the agreement. The AAMD offered similar backing for the Mali renewal in 2012 (“Subject to the concerns set forth above, the AAMD supports the request of Mali for an extension of the 2007 MOU”). Moreover, the proposed MoU with Honduras in 2013 garnered the AAMD’s endorsement, along with the usual tempering language, “Subject to the concerns raised below….”

Cambodia’s request for a renewed bilateral agreement in 2013 notably attracted the organization's clearest affirmation for an MoU (“For the reasons set forth above, the AAMD supports the renewal of the MOU”). The AAMD, meanwhile, did not offer an express objection to the enactment of an MoU with China, even though its position might be characterized as nuanced.

Then, nine months ago, the AAMD struck an entirely different chord, capped by last week's written comment directly opposing the renewal of a bilateral agreement with Nicaragua.

The AAMD’s statement on the renewal of the MoU with Nicaragua voiced unequivocal disapproval. “The AAMD respectfully recommends that the Cultural Property Advisory Committee … decline Nicaragua’s request…." For the first time, the organization included a paragraph captioned, “All Four Required CPIA Determinations Cannot Be Made for Nicaragua,” although the AAMD actually argued that only two determinations could not be satisfied. Regardless, the group expressed clear opposition to the adoption of an MoU.

The AAMD characterized Nicaragua's request as a plea for an “extraordinary type of protection” that could only be granted if the requesting nation itself proved "significant improvement in the protection of cultural property." The AAMD disquietingly added, “Any time that a country requests and is granted import restrictions without strict compliance with the requirements of the CPIA, the entire program contemplated by the CPIA is placed in jeopardy.”

The objection to a renewed U.S.-Nicaragua agreement followed demurrals aimed at petitions filed by El Salvador and Egypt last year.

The AAMD withheld its support for El Salvador’s renewal request this past September, gingerly writing, “The AAMD encourages the Cultural Property Advisory Committee … to carefully review El Salvador’s compliance …  In addition, the AAMD questions whether renewal of the MOU would meet the test of  19 U.S.C. § 2602(a)(1)(C)(i),” one of the CPIA’s four determinations. “Looting does not appear to have been significantly curtailed even after more than 27 years of United States import restrictions,” the organization added, and it asked “whether a new and different approach to an MOU is necessary.”

With respect to Egypt, the AAMD staunchly advised CPAC in May that it “not recommend any memorandum of understanding … between the government of the United States and the government of the Arab Republic of Egypt … or emergency restrictions at this time.” The AAMD questioned the foreign state's request, pointedly quizzing “Is Egypt Meeting the CPIA Determinants?” and answering the query in the negative, simultaneously downplaying archaeologists' observations of site looting in that country. “At this time, Egypt fails to satisfy at least two of the four determinants,” the AAMD flatly contended.

Given its opposition to bilateral agreements between the U.S. and Nicaragua, El Salvador, and Egypt, will the AAMD oppose future requests for American assistance under the CPIA? If this is the group's new policy, will all 237 members back it?

A number of art museums have been traveling a different road. While countless books and news articles have chronicled how museum collections formed, in part, from plundered archaeological, ethnological, and paleontological material, more than a few major institutions have turned away from--or are starting to turn away from--this legacy of loot.

In fact, the past few years have witnessed a greater awareness among art museum administrators of heritage trafficking. In 2013, for example, the Metropolitan Museum of Art repatriated two Khmer sculptures discovered to have been stolen from Cambodia. The Museum of Fine Arts, Boston (MFA) meanwhile, developed a close cultural exchange partnership with Italy after taking fresh steps to resist the accession of contraband antiquities from that country. The MFA even hired a curator for provenance to bring real integrity to its collecting practices. The Cleveland Museum of Art, the Minneapolis Institute of Art, and the Philadelphia Museum of Art joined the MFA, and they are now among the institutions that employ full-time provenance researchers who perform due diligence investigations to find out the true collecting histories of pieces. Dallas Museum of Art director Maxwell Anderson, moreover, spearheaded the effort to deaccession and repatriate artifacts believed to have been looted and smuggled. He earned praise for injecting principles of fairness and transparency to the discussion on heritage preservation as chair of the AAMD's Task Force on Archaeological Materials and Ancient Art.

Whether the AAMD continues to oppose bilateral agreements or chooses a different direction, only time will tell.

Photo credit: Mike Thorn

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.

Nicaragua and Mali on CPAC's Agenda

The Federal Register has posted the following announcement:

There will be a meeting of the Cultural Property Advisory Committee January 21-23, 2015 at the U.S. Department of State, Annex 5, 2200 C Street NW., Washington, DC. Portions of this meeting will be closed to the public, as discussed below. 

During the closed portion of the meeting, the Committee will review the proposal to extend the Agreement Between the Government of the United States of America and the Government of the Republic of Nicaragua Concerning the Imposition of Import Restrictions on Archaeological Material from the Pre-Hispanic Cultures of the Republic of Nicaragua (“Nicaragua Agreement”) [Docket No. DOS-2014-0027]. An open session to receive oral public comment on the proposal to extend the Nicaragua Agreement will be held on Wednesday, January 21, 2015, beginning at 11:00 a.m. EST. 

Also, during the closed portion of the meeting, the Committee will conduct an interim review of the Agreement Between the Government of the United States of America and the Government of the Republic of Mali Concerning the Imposition of Import Restrictions on Archaeological Material from Mali from the Paleolithic Era (Stone Age) to Approximately the Mid-Eighteenth Century (“Mali Agreement”). Public comment, oral and written, will be invited at a time in the future should the Mali Agreement be proposed for extension.

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.

Egypt Officially Asks U.S. for MoU to Protect Cultural Heritage

The Cultural Property Advisory Committee (CPAC) is scheduled to take up Egypt's formal request to have American import protections placed on endangered archaeological material originating from that country. The Federal Register today pre-published a notice announcing that CPAC will begin a review of Egypt's proposed Memorandum of Understanding (MoU) on June 2.

Temple of Isis at Philae in Egypt.

CHL has been calling for greater protection of archaeological sites, religious structures, and monuments since 2011 because of increasing perils to cultural heritage in Egypt. These threats have been chronicled in several CHL blog posts including here and here.

The International Council of Museums itself alerted the world to this swelling problem in 2012 by publishing the Emergency Red List of Egyptian Cultural Objects at Risk.

To submit comments concerning the proposed MoU, go to the Federal eRulemaking Portal and enter Docket No. DOS-2014-0008. Comments must be sent to CPAC by May 14. They must relate to the "four determinations" laid out by the Convention on Cultural Property Implementation Act (CPIA). These 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.

Photo credit: Martyn E. Jones

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

U.S.-Honduras MoU Extended, Ecclesiastical Ethnological Heritage Added to Import Rules

Copán archaeological site in Honduras.

The Treasury Department and Customs and Border Protection today issued final rules in support of a five year extension of the cultural property Memorandum of Understanding (MoU) between the U.S. and Honduras.

The import rules, which protect endangered cultural heritage from Honduras, were finalized in response to the State Department's conclusion that "conditions continue to warrant the imposition of import restrictions on the archaeological materials from Honduras...."

The renewed MoU contains added import protections covering threatened ecclesiastical ethnological material dating from Honduras' Colonial Period. Sculpture, paintings, and metalwork such as chalices and crucifixes are now objects subject to American import controls.

A complete list outlining the full range of archaeological and ethnological objects subject to import restrictions may be found here.

Voices from the collecting and museum communities last year expressed concern or outright opposition to a renewed agreement that would have protected Colonial and Republican cultural heritage objects. The Association of Art Museum Directors, for example, offered support for the Honduran MoU but cautioned that care should be taken to define exactly what objects should be protected and what dates should be used. The final rules issued today appear to have responded to these concerns by specifying ecclesiastical ethnological goods dating from c.1502-1821 A.D.

The U.S. first entered into a bilateral agreement with Honduras in 2004 after the cultural patrimony found in that Central American nation was found to be in jeopardy from pillage, particularly from archaeological site looting. The U.S. later renewed the MoU in 2009 for another five years, the time frame allowed by the Convention on Cultural Property Implementation Act (CPIA), which gives legal force to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

Cultural objects covered by the MoU's import rules may legally pass through American borders when accompanied by either an export permit or proof showing that they left Honduras prior to the adoption of the restrictions. Prohibited cultural material may be detained, seized, and forfeited by customs authorities as contraband, and smugglers could face criminal prosecution.

Importers would do well to remember that the 1973 Pre-Columbian Monumental or Architectural Sculpture or Murals Statute still applies, permitting import of the goods designated in the law so long as the importer produces a valid export certificate or offers proof that the imported heritage objects left Honduras before June 1, 1973.

Photo credit: Krzysztof Szkurlatowsi

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

Plea Deal Reached with Chinese Artifacts Dealer Charged with Obstruction

An antiquities gallery and its manager entered agreements with federal prosecutors last week to plead guilty to obstruction of justice under 18 U.S.C. § 1512(c)(2).

U.S. Attorney Wifredo Ferrer

The U.S. Attorney for the Southern District of Florida last month charged Lorin & Son, LLC, a Nevada-based company doing business in Florida as Asiantiques, as well as its manager, Francois Lorin, with illegally tampering with the customs process by supplying false information about imported Chinese artifacts.

The plea agreement filed by U.S. Attorney Wifredo Ferrer's office last Thursday in federal district court makes the following offer of proof:

Pursuant to a Memorandum of Understanding between the United States and the People's Republic of China entered into as of January 14, 2009 (the ''MOU'') archaeological materials representing China's cultural heritage from the Paleolithic Period (c. 75,000 B.C.) through the end of the Tang Period (A.D. 907) could not be imported into the United States absent specific prior government approvals, If, however, such items were already in the United States as of the MOU date, the items could be re-imported without prior authorization.  

On or about May 14, 2011, Asiantiques exported a shipment of Chinese artifacts to Hong Kong for an antiques trade show. The value upon export was declared as $1,592,695. On or about June 10, 2011, Asiantiques submitted a Formal Entry Form 3461 to U,S. Customs and Border Protection ("CBP"') in order to import what purported to be the same shipment of Chinese artifacts back to the United States through the Port of Miami, in Miami-Dade County, Florida. Upon return of the shipment to the United States, the shipment was described as "return exhibition of goods'' and was valued at $1,470,965.   

The shipment from Hong Kong was interdicted by CBP at the Port of Miami on or about June 4, 2011. CBP officials conducted an inventory of the shipment and observed anomalies between the contents of the shipment and the invoice and other paperwork that had been submitted. While the shipment consisted of approximately 488 items, the paperwork accompanying the shipment failed to list approximately 50 items. Upon further review, questions were raised about the provenance: of certain items contained within the shipment, including items of Chinese fine art that pertained to the time period prior to 907 A.D. (the "Pre-907 items'). It was later determined that the shipment had approximately 27 Pre-907 items.  

... 

Subsequent to the items being interdicted at the Port of Miami, CBP officers observed four Chinese artifacts contained within a FedEx box located in the shipment that were not listed on any invoice or manifest, two of which were Pre-907 items, Other items in the shipment were not listed on any invoice or manifest. ... An appraiser hired by CBP determined that the domestic value of the shipment was approximately $3,177,825. 

The government adds that the defendants' "'proof' that the Pre-907 items contained in the shipment were in fact inside the United States prior to January 14, 2009" consisted of paperwork falsely backdated to May 9, 2006. Prosecutors contend that the defendants supplied the fake paperwork in an effort to convince authorities that the artifacts arrived on American soil prior to the enactment of the MoU between the U.S. and China.

Sentencing of the defendants is expected to take place in February.

Photo credit: U.S. Department of Justice

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

Chinese Artifacts Case: Florida U.S. Attorney Files Obstruction Charges

An antiquities gallery and its manager/director were charged by federal prosecutors last week for obstructing justice. Lorin & Son, LLC and Francois Lorin were both charged with obstruction of proceedings under 18 USC § 1512(c)(2). That statute declares, "Whoever corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so" is guilty of a crime. The maximum penalty is a fine of $500,000 for a corporation and 20 years imprisonment plus a fine of $250,000 for a person.

The criminal information filed by the U.S. Attorney for the Southern District of Florida alleges that Lorin and his company illegally tampered with the customs process by supplying, through their lawyer, false information concerning the import of Chinese artifacts.

A person or corporation is innocent unless the prosecution proves guilt beyond a reasonable doubt.

The criminal complaint alleges that the defendants did

frustrate the ability of CBP [U.S. Customs and Border Protection] to implement and carry out the terms of the Tariff Act of 1930 ... with regard to examination of merchandise imported to the Port of Miami on or about June 4, 2011 ... by causing their attorneys ... to submit to CBP correspondence dated June 30, 2011 and a Petition for Expedited Procedures and Early Release dated July 3, 2012, containing false and fraudulent information and phony supporting documentation, falsely alleging provenance for items of Chinese fine art contained in the shipment, including false information related to items dated to the period pre-907 A.D ., in order to frustrate the ability of CBP to accurately determine whether such items were lawfully imported into the United States.

CBP reportedly sought to inspect the objects to find out if they were restricted imports under the terms of the Convention on Cultural Property Implementation Act's Memorandum of Understanding (MoU) covering Chinese archaeological and ethnological material in jeopardy of pillage.

The shipment number, identified in the criminal information as EQY-0001437-3, suggests that the defendants allegedly used or purported to use a Miami-based shipping logistics company to import the objects. The format of the shipment number appears consistent with the three digit alphanumeric filer code, seven digit entry number, and one digit check typically entered on Form 7501.

The U.S. Attorney's Office describes Lorin & Son as "a Nevada limited liability company

registered to do business in Florida and that conducted business from a location in Winter Park." And a November 4 Immigration and Customs Enforcement (ICE) bulletin says that "Lorin & Son, LLC conducted business in Florida under the name 'Asiantiques.'"

A review of available public records in Nevada reveals that Lorin & Son, LLC filed as a domestic limited liability company on September 16, 2003 and that it's business license expired on September 30, 2013. Francois Lorin and others are listed as Managing Members. Florida corporate filings show that Asiantiques, Inc. formed on September 29, 1988 and administratively dissolved on September 25, 2009 after the company failed to submit an annual report. Francois Lorin is listed as a director of the corporation, but the name Lorin & Sons does not appear in the index of Florida's records. Asiantiques web site states that the business has been operating since 1978.

Although the of January 14, 2009 MoU between the U.S. and the People's Republic of China prohibits archaeological materials from China entering the U.S. without permission, the defendants in the case are not being charged with smuggling contraband items. They are instead charged with supplying information to authorities claiming that the Chinese artifacts seized by CPB were already in the U.S. prior to the adoption of import restrictions.

The criminal information alleges that the defendants "imported a shipment of approximately 488 items of merchandise from Hong Kong to the Port of Miami, in Miami-Dade County, Florida .... The shipment included approximately 27 items of Chinese fine art that dated to periods prior to the year A .D. 907. The shipment was interdicted by CBP...."

ICE's bulletin adds:

invoices accompanying the shipment indicated that the entire contents had originated in Florida and were being returned to the United States after having been shipped to Hong Kong for a trade show. After the items were interdicted by U.S. Customs and Border Protection (CBP) inspectors, Francois B. Lorin and others created false documents to justify provenance for certain items in the shipment that were prohibited from entering the United States without such provenance. Thereafter, Lorin & Son, LLC and Francois B. Lorin, through counsel, filed a petition for remission with CBP and provided supporting materials, in which they argued for release of the interdicted items by using false invoices and providing other false information. The invoices that were submitted were backdated, falsely claimed that items had been acquired from third-parties before the MOU date, and otherwise falsely claimed that these documents established “proof” that the items could be lawfully imported.

Shipping records covering goods arriving in Miami on June 4, 2011 from Hong Kong show 362 entries on that day, but they do not describe imports bound for Asiantiques or Lorin & Sons.

The artifacts seized by CBP include objects from the Ancient and Imperial periods such as bronze mirrors, weapons, and containers as well as nephrite jade bi disks.

The defendants have waived indictment, and the federal court has set bail at $100,000 surety.

U.S. Attorney Wifredo Ferrer's office, notably, is also handling the current forfeiture case targeting Peruvian cultural artifacts.

Photo credit: linder6580

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

Upcoming CPAC Meeting To Consider Honduras MoU Renewal - El Salvador Interim Review Also Expected

Today's Federal Register announces the U.S. Secretary of State's intention to propose a renewal of the cultural property Memorandum of Understanding (MoU) with Honduras. The request to extend the five year bilateral agreement, which restricts the importation of protected cultural property under the Convention on Cultural Property Implementation Act (CPIA) will be considered during a public session to be held on October 30, 2013 at 10:00 a.m. in Washington, DC.

Maya carving in Copán in western Honduras.

The U.S. and Honduras entered bilateral agreements in 2004 and 2009 after Honduras' cultural patrimony was found to be in jeopardy from pillage, particularly from looting at thousands of archaeological sites across the country.

The Honduran MoU currently covers archaeological and ethnological material dating from 2000 B.C. to 1550 A.D. This time the State Department announces that "the Government of Honduras has asked that the MOU be amended to include material representing the Colonial and Republican periods of its cultural heritage" as well.

The Cultural Property Advisory Committee (CPAC) met in January 2013 to anticipate the Honduran renewal. That meeting was carried out in executive session. The upcoming meeting will have both a public session and an executive session.

Public comments regarding the Honduran MoU renewal may be submitted to CPAC by October 17 at Regulations.gov.

When CPAC meets from October 30 through November 1, it will also give an interim review of the bilateral agreement with El Salvador. That MoU served as the supporting basis for a federal smuggling conviction in U.S. v. Perez when authorities discovered that the defendant was selling pre-Columbian and pre-Hispanic pots imported illegally into the U.S. from El Salvador.

Public comments are expected to be accepted by CPAC on the bilateral agreement with El Salvador at a future date.

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