The Assyrian Head Repatriation: Filling in the Details of ICE's Investigation

This week U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) returned a looted fragmented limestone head of Assyrian King Sargon II to Iraq. The stone carving once sat atop a sculpted winged bull.

In remarks prepared for Monday's repatriation ceremony held at the Iraqi Consulate in Washington, D.C., Assistant Secretary of Homeland Security and ICE Director Sarah R. Saldaña declared, “ICE will not allow the illicit greed of some to trump the cultural history of an entire nation.”

ICE offered limited details in a press release about the artifact's history. But the agency revealed that, "[a]s part of 'Operation Lost Treasure,' HSI New York special agents received information on June 30, 2008, that an antiquities dealer based in Dubai was selling looted Iraqi antiquities to dealers around the world. The special agents seized the limestone statue on Aug. 13, 2008, after it was shipped to New York by a Dubai-based antiquities trading company owned by the antiques dealer."

Assyrian limestone head fragment of Sargon II
repatriated by the U.S. to Iraq on Monday. Courtesy ICE

The press statement added that the "investigation identified a broad transnational criminal organization dealing in illicit cultural property. Some of the network’s shipments were directly linked to major museums, galleries and art houses in New York."

ICE reported that its investigation "resulted in one arrest, multiple seizures of antiquities ranging from Libya, Egypt, and Afghanistan, and the return of many of artifacts. A repatriation ceremony with Afghanistan was held two years ago and future repatriations are anticipated."

Publicly available information fills in some of the details about the trafficked head fragment.

A CHL blog post dated July 24, 2013 reported that federal prosecutors petitioned to forfeit the Assyrian head in federal court in the Southern District of New York. The complaint, filed in the case of United States v. One Iraqi Assyrian Head, alleged that Dubai antiquities dealer Hassan Fazeli exported the artifact from the United Arab Emirates to the U.S. on July 30, 2008. Prosecutors, at the time, did not identify the head as a carving of Sargon II.

Prosecutors explained that Turkey was listed as the country of origin on the customs import form rather than Iraq. And the import form incorrectly listed the value as $6500 rather than $1.2 million, , according to the court complaint.

Prosecutors sent notice of the forfeiture to Hassan Fazeli Trading Company in Dubai, the potential civil claimant. But after time passed without a reply, on June 17, 2014 the federal district court entered a default judgment, awarding the Assyrian sculpture to U.S. authorities with instructions that the head must be repatriated within 90 days "or as soon thereafter as conditions in Iraq permit."

The court granted an extension for the repatriation after a request made by an assistant prosecutor, who told the court that more than 90 days would be needed to return the artifact "[i]n light of [the] current state of world affairs."

The judge asked why there had been a gap between the 2008 seizure of the artifact and the 2014 forfeiture. The assistant prosecutor responded:

I am not aware of why there was. I can offer that in many cases, your Honor, where there are assets to be forfeited, sometimes there are parallel investigations, criminal matters, and sometimes the government proceeds to file criminal charges in matters and items are forfeited in connection with criminal matters. Sometimes the government decides to just proceed civilly. This is a civil complaint in which the forfeiture is purely in rem and only the item that is at issue is being forfeited.

The assistant prosecutor told the court that a confidential source informed law enforcement officials that

Mr. Fazeli ... was attempting to sell this stolen item or an item that we believe to be removed from Iraq in violation of Iraqi law and in contravention of United States regulations as well. This individual, Fazeli, tried to sell it to the CS [confidential source] and based on recorded conversations, based on an investigation by Homeland Security, eventually was able to ship it to the United States with false documentation indicating false origin, actually indicated that the item was from Turkey.

Federal prosecutors in the Eastern District of New York named Hassan Fazeli Trading Company as a potential claimant in another forfeiture case. The civil case involved three ancient Egyptian limestone reliefs, a block statue, and a funerary boat valued at $57,000. It may be the one referred to by ICE on Monday when officials explained at the Iraqi repatriation ceremony that the investigation into the Sargon II head resulted in multiple seizures of antiquities, including from Egypt.

Docketed as U.S. v. One Ancient Egyptian Fragment Depicting Procession of Offering Bearers et al. and reported by CHL on March 23, 2013, the complaint alleged that the Egyptian archaeological material arrived in a FedEx shipment in August 2010 at Liberty International Airport in Newark, New Jersey. The ancient objects "were sold in and exported from Dubai, UAE by Hassan Fazeli Trading Company, LLC .... [They] were purchased and imported by [Salem] Alshdaifat, by and through Holyland [Numismatics],” claimed the prosecutors.

Alshdaifat pleaded guilty in December 2012 to a misdemeanor charge of accessory after the fact in the case of U.S. v. Khouli et al and received a sentence of a $1000 fine.

At this week's ceremony repatriating the Assyrian head to Iraq, ICE referred to a previous repatriation ceremony with Afghanistan that took place two years ago. The agency has only reported two repatriations to that country around that time, so ICE officials may have been referencing an event that occurred at the Embassy of Afghanistan in Washington, D.C. in September 2013.

At that ceremony, federal authorities returned an ancient Roman oinochoe, three 5th century B.C. gold foil appliques, and two 17th century gold ornaments from approximately the 17th century. ICE explained in an accompanying press release:

On March 21, 2011, U.S. Customs and Border Protection and the HSI New York El Dorado Task Force seized a shipment containing the gold artifacts and the ancient vase at Newark Liberty International Airport, Central Air Cargo Examination Facility, after HSI New York special agents discovered they were destined for a New York City man and later to a New York business suspected of dealing in looted cultural property. Through the investigative process, the antiquities were found to have originated in Afghanistan. On Jan. 25, 2012, the shipment was administratively forfeited.

If these artifacts from Afghanistan somehow were tied to the Assyrian sculpted head fragment from Iraq, that connection has yet to be explained by ICE.

Hopefully the federal agency will provide more complete details describing the investigation, recovery, and return of the Assyrian head fragment now that the matter has been concluded by ICE.

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.

Cultural Heritage Trafficking Requires Deterrence

Police officers are good at tracking down and arresting criminals. Prosecutors are good at securing convictions, even in some of the most complex cases. So why aren't police and prosecutors routinely investigating and prosecuting cultural heritage traffickers?

HSI officials returned smuggled cultural artifacts to the Turkish government
during a ceremony held last week in New York City. Source: ICE

Last week Homeland Security Investigations (HSI) repatriated ancient arrowheads, coins, and jewelry to Turkey, which were smuggled into Newark International Airport in February 2013. The objects represented some of the "more than 7,150 artifacts [that] have been returned to 27 countries" since 2007, which HSI touted in a press release.

No arrests were announced. In fact, the number of criminals taken into custody over the years for heritage trafficking has been infinitesimally small. That may be why HSI does not regularly report the number of arrests or convictions resulting from its cultural property, art, and antiquities investigations.

The impact of HSI's "seize and send" policy is that criminal infrastructures are left intact--i.e. bank accounts, smuggling routes, transshipment points, warehouses, and the like--while looters, smugglers, fences, couriers, and other offenders are returned to their criminal enterprises without consequence.

Cultural heritage trafficking needs to be deterred. It is the job of police and prosecutors to apply the law to combat this criminal activity, holding accountable those who illegally import contraband heritage and methodically dismantling the frameworks that facilitate trafficking operations.

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.

ABC Radio Australia and Other News Reports on Cambodian Statue's Repatriation

Credit: Ante Vecik

Last week's agreement between the U.S. government and Sotheby's auction house to repatriate a 10th century sandstone sculpture continues to be widely publicized.

Chasing Aphrodite has a recent informative report, which supplies commentary by cultural property experts Tess Davis and Simon MacKenzie. The Phnom Phen Post, meanwhile, provides an update on repatriation plans for the statue. And readers should take note of Tom Mashberg's and Ralph Blumenthal's original news breaking article in The New York Times.

CHL provided commentary on the federal district court case to ABC Radio Australia yesterday. Listen to the broadcast by ABC's Liam Cochrane by clicking here: Sotherby's agrees to return 10th century statue to Cambodia | Asia Pacific | ABC Radio Australia

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

New York's Highest Court Rejects The Right to Pillage

It is no surprise that New York's Court of Appeals decided last week that a "spoils of war" legal theory could not be upheld. That state's highest court ruled that pillaging during World War II does not invest a possessor of stolen cultural heritage with title.

In the case of In the Matter of Riven Flamenbaum, Flamenbaum's attorney offered astonishing oral arguments to the Court of Appeals affirming the right of pillage, justifying the legal right of Soviet soldiers to steal Nazi looted art, and conceding that the client may have been a thief.

The case involved the Vorderasiatisches Museum in Berlin, which sought recovery of a 3,000 year old Assyrian gold tablet found by German archaeologists from the Ishtar temple in Ashur, Iraq and excavated before World War I. The tablet had been in the museum's collection since 1926 but went missing in 1945. The museum remained closed during World War II, placing the Ashur objects in storage. The tablet later appeared in the collection of Riven Flamenbaum in New York in 2003 when it was discovered in his estate following his death.

The museum argued that Flamenbaum never could have acquired title to the tablet. Flamenbaum's estate, meanwhile, contended that the museum was time-barred from petitioning the court for return of the object because the museum took no action to find the tablet until decades later.

In its opinion issued November 14, the state appeals court held, "The 'spoils of war' theory proffered by the Estate—that the Russian government, when it invaded Germany, gained title to the Museum's property as a spoil of war, and then transferred that title to the decedent—is rejected."

The court noted that there was no proof the Russian government ever had possession of the tablet. But the justices pointedly added, "Even if there were such proof, we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force."

In reaching its decision, the justices noted that  it was the official policy of the United States during World War II to forbid pillaging of cultural artifacts."

The Court of Appeals expressed some concern during oral argument about the museum's action, or lack thereof, to locate the tablet. But the court concluded in its decision:

While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent's death, that he was in possession of the tablet.
...
While the Estate argued that it had suffered prejudice due to the Museum's inaction, there is evidence that at least one family member (decedent's son) was aware that the tablet belonged to the Museum. And, although the decedent's testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity.

The Archaeological Institute of America, Lawyers' Committee for Cultural Heritage Preservation, U.S. Committee of the Blue Shield, and others joined together to file an amicus brief. They argued that "looting and illegal removal of cultural objects during wartime by a conquering or occupying military force or by individuals is anything other than outright theft [which] is contrary to United States' domestic law and to international law—international principles which the United States has played a leading role in developing."

Photo credit: plex

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

Restitution and Repatriation: The Return of Cultural Objects Symposium

Restitution and Repatriation: The Return of Cultural Objects is a symposium that will be held at DePaul University in Chicago on November 14, 2013. It will address the underlying legal, ethical and moral reasons and policies behind the return of cultural objects.

Panels will discuss provenance research, museum acquisitions, the 1970 UNESCO Convention and historical appropriations, and the ethical issues that come into play when requests for repatriation are made.

The featured Lecturer is Jack Trope, Executive Director of the Association on American Indian Affairs. In addition, several other distinguished speakers and moderators will be present, including

• Lori Breslauer, Acting General Counsel of the Field Museum of Natural History;

• Simon Frankel, partner at Covington & Burling LLP;

• David Franklin, Director of the Cleveland Museum of Art

• Patty Gerstenblith, Director of DePaul's Center for Art, Museum, and Cultural Heritage Law

• Thomas Kline, counsel at Andrews Kurth

• Richard Leventhal, Director of the Penn Cultural Heritage Center

• Jane Levine, Worldwide Compliance Director at Sotheby's

• Victoria Reed, Curator for Provenance at the Museum of Fine Arts Boston

Further information and registration details may be found here.

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

Seize and Send: No Arrests Announced as ICE Sends Evidence Back to Afghanistan

Roman oinochoe. Courtesy of ICE.

U.S. Immigration and Customs Enforcement (ICE) this week sent back evidence of cultural heritage trafficking to Afghanistan without making any arrests. The items returned include an ancient Roman oinochoe (right), 5th century B.C. gold foil appliques, and 17th century gold ornaments.

U.S. Customs and Border Protection (CBP) and the Homeland Security Investigations (HSI) New York El Dorado Task Force seized the objects at Newark Liberty International Airport's cargo facility on March 21, 2011, says ICE. An ICE news release reports that "HSI New York special agents discovered they were destined for a New York City man and later to a New York business suspected of dealing in looted cultural property. Through the investigative process, the antiquities were found to have originated in Afghanistan."

Customs administratively forfeited the items on Jan. 25, 2012. It may be reasonable to infer that those responsible for the illegal trafficking operate in the U.S., Great Britain, and the Middle East judging from ICE's announcement that "HSI New York, London and Dubai are conducting this ongoing investigation."

HSI Assistant Director John Connolly is quoted as saying, "Today marks HSI’s fourth cultural repatriation to Afghanistan since 2005. We are committed to the continued cooperation between our countries and beating back this illicit trade through dedicated law enforcement efforts, partnerships and training thus preserving and protecting the world’s ancient and valued treasures." Connolly's prepared remarks make no mention of either arrests or indictments.

The pattern of ICE returning evidence of cultural heritage trafficking without prosecution is common. There is an apparent policy of "seize and send" promoted by ICE leadership whereby the agency seizes illegally stolen or smuggled cultural objects and sends them back to their country of origin. This policy has been criticized before because it overemphasizes the recovery and repatriation of cultural heritage objects at the expense of investigating and indicting smugglers, fences, and receivers of stolen property who knowingly contribute to the destruction of cultural heritage. It is expected that fraud, money laundering, and other felony crimes too escape criminal prosecution as traffickers convert illegally obtained antiquities into cash.

While ICE's financial crimes investigations yield numerous arrests and prosecutions, ICE's cultural property, art, and antiquities investigations do not regularly result in criminal prosecutions.

HSI claims that its investigation surrounding the Afghani objects returned this week is "ongoing." But what direction the investigation is going in remains unclear. Will criminal indictments be pursued? Or will ICE's latest repatriation of cultural artifacts serve as a further reminder that the agency's leadership will seize cultural contraband but not arrest the criminals who unlawfully steal, smuggle, transport, sell, or buy them?

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

Korean Currency Plate Returned

Currency plate repatriation ceremony. Source: ICE

U.S. Immigration and Customs Enforcement (ICE) today returned the Hojo currency plate seized as evidence in the criminal prosecutions against Wong Young Youn and James Amato. Prosecutors dismissed the pairs' cases earlier this year.

ICE today clarified in a public statement, "To avoid criminal prosecutions, both men entered into agreements with the government forfeiting their claims to the currency plate." The agency added, "Youn, a Korean native who was illegally present in the United States, agreed to voluntarily depart the country and returned to his native country July 31. Amato entered into an agreement for pretrial diversion and has satisfactorily met the following conditions: 90-days of supervised release; payment of $35,000; and 40 hours of community service."

U.S. Ambassador Sung Y. Kim transferred the currency plate during a ceremony held in Seoul, pictured above.


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