Peru Fails to Stop Spain in Odyssey Marine Case

Saturday, February 25, 2012
Outside the US Supreme Court
The case of Republic of Peru v. Kingdom of Spain et al. (11A795)--related to Odyssey Marine Exploration, Inc. v. Kingdom of Spain, et al.--saw a last minute emergency appeal quashed Thursday. Peru made the final effort to stop coins, believed to be from the galleon called Nuestra Senora de las Mercedes, from returning to Spain. Spain has insisted that the so-called Black Swan treasure was taken unlawfully by salvor Odyssey Marine because the company impermissibly removed the items from a ship flying the Spanish flag.

US Supreme Court Justice Clarence Thomas denied Peru’s appeal on February 23, just two days after that country filed its application to stay. Peru made claims in federal court that the coins were minted in that country.  Justice Thomas also denied Odyssey Marine's application for a stay on February 9.

The high court's decision clears the way for the 17 ton load of coins to be transferred to Spain.  Odyssey Marine's stock fell nearly 4% on Friday.


List of Stolen Objects from Olympia Museum in Greece

Tuesday, February 21, 2012
David Gill has posted a useful blog entry listing the objects looted from the Archaeological Museum of Olympia in Greece.  For background on last week's theft, see the video below.


ACCG Makes Allegations in Baltimore Coin Case Reply Brief

Monday, February 13, 2012
CBP agents are pictured in this file photo
discussing strategies before airport
passengers arrive.  Source: CBP
The Ancient Coin Collectors Guild (ACCG) today filed its reply case in the case of ACCG v. US Customs and Border Protection et al.  The reply is a response to the brief by federal attorneys last month. The court case first started when the ACCG imported ancient Chinese and Cypriot coins through Baltimore, Maryland without a permit in an effort to challenge import protections put in place by the Cultural Property Implementation Act (CPIA).  The case is now on appeal in the Fourth Circuit after the ACCG lost in the lower federal district court.

The judiciary possesses the authority to review implementation of import controls over listed Chinese and Cypriot ancient coins coming into the United States. That is what the ACCG contends in its legal brief.  The organization summarizes its position in the argument title: "The District Court Possessed Ample Authority to Review the Government's Decision to Impose Import Restrictions on Collectors' Coins."

The group casts the controversy as a contest between "collectors' coins," which are of interest to the organization's small numismatic businesses and hobbyists, versus "serious substantive and procedural irregularities" on the government's part.  It complains that "[t]he Government … insists that its efforts to suppress the long-standing trade in common collectors' coins is either a foreign policy matter or one fully committed to agency discretion, leaving the Guild and the small businesses and collectors it represents without recourse." The group challenges authorities who believe they are "empowered to seize any undocumented coin that 'likely' was found in either Cyprus or China, notwithstanding explicit statutory language [in the Cultural Property Implementation Act] to the contrary."

The ACCG's brief levels "serious allegations," claiming that US State Department staff "worked behind-the-scenes with members of the archaeological lobby to orchestrate a change in existing precedent exempting coins from import restrictions ...." and that "staff added coins to the Chinese import restrictions without a formal request from Chinese officials."  The ACCG also alleges that an undersecretary of state "ordered [Cypriot] import restrictions … as a 'thank you' to Greek and Cypriot-American advocacy groups which had given him an award" and that an assistant secretary of state "did not recuse herself from approving the 2007 extension of the Memorandum of Understanding (“MOU”) with Cyprus after she had accepted a new position with an international financial institution that likely has business interests with Cyprus …."  The group additionally claims that the "State [Department] then misled Congress and the public about CPAC's true recommendations against import restrictions on coins."  CPAC is the Cultural Property Advisory Committee that advises the president about adopting import controls over cultural property in jeopardy from pillage.

The ACCG's brief further "alleges that the Government: (1) confused 'cultural significance' with 'archaeological significance' when it comes to objects that exist in multiples, like coins; (2) ignored evidence that Cypriot and Chinese coins circulated widely beyond their place of manufacture such that the 'first discovery requiremen'’ could not be met; (3) ignored or misapplied the CPIA’s requirements that less drastic measures like treasure trove laws or regulation of metal detectors be instituted before imposing restrictions; (4) ignored or misapplied the CPIA's 'concerted international response requirement;' and (5) wrongfully imposed import restrictions on coins without regard to their find spots."

The group argues that "the court has an obligation to ascertain whether coins were properly designated for restriction." That is, in part, because "CBP [Customs and Border Protection] acted in an arbitrary, capricious, or illegal manner under the APA [Administrative Procedures Act] when it allowed [the] State [Department] to assume authority over the preparation of the designated [import control] List."

The ACCG contends that it took action in court, not because it did not follow the rules as federal lawyers assert, but because the federal government failed to file a forfeiture action. The organizations says in its brief that the "Government’s claim that a forfeiture action provided an adequate remedy for the Guild borders on the Kafkaesque."

Note: Citations of authorities contained in the original ACCG brief are omitted from the quotes above.


The Guy With The Scalpel? He's My Attorney!

Frank O. had been an agent for over twenty years the day I started with Prudential in October of 1979. My desk was next to his. Fifteen months later I was his manager and my desk was in a private office. I asked to spend a day in the field with Frank, not because he needed me, not even because he wanted me. At best, Frank tolerated me. No, I needed to learn what he was doing and how he had survived for so long as an agent.

The first stop was a longtime client of Frank’s. Climbing up the front steps, I noticed that my employee was walking to the side door. The side door? Frank reminded me that we were not related to the client. We weren’t family. We weren’t their friends. We were service providers and service providers enter via the side door.

It was at that moment that I realized how little I knew about the insurance business.

I was reminded of that humbling experience as I watched President Obama and Health and Human Services Secretary Kathleen Sebelius stumble, again, as they attempted to control the delivery and payment of health care. The biggest difference was that I, at age 26, realized how much I had to learn. Our President and his staff seem surprised that their frequent missteps are so apparent and so unacceptable.

My last post, The Ongoing Religious Battle, addressed the Obama administration’s decision to classify Birth Control Pills, IUD’s, the Morning After Pill, and some forms of Sterilization as preventive Care. The Patient Protection and Affordable Care Act (PPACA) includes a provision that preventive care is FREE. That is the government’s definition of affordable, FREE.

The predicted firestorm erupted. The Vice-President and other committed Catholics in the administration had warned of problems. The White House Chief of Staff resigned. Last Friday the President announced his solution. As long as you don’t care about the moral implications, the money, how insurance works, or intellectual honesty – it was the perfect compromise.

Everything is still free. The insurance company will pay for it.

(Before we go any further, let me assert that I am totally in favor of most forms of birth control and voluntary sterilization. Let me also remind you that this has nothing to do with me, personally. This is about us, all of us.)

It only took a few hours for the double talk of the compromise to become apparent. Senator Roy Blount (R-MO) quickly released a statement via email. It stated, in part:

It’s clear that President Obama does not understand that it isn’t about the cost – it’s about who controls the religious views of faith-based institutions. President Obama believes that he should have that control. Our Constitution states otherwise.
Just because you can come up with an accounting gimmick and pretend like religious institutions do not have to pay for the mandate, does not mean that you’ve satisfied the fundamental constitutional freedoms all Americans are guaranteed.

A little dramatic? Perhaps. I suspect that the Supreme Court will be the final arbiter as to whether this crosses the line. But, Senator Blount was absolutely right when he called out the President for his sleight of hand.

The insurance companies are just going to pay for Birth Control Pills, IUD’s, the Morning After Pill, and certain forms of sterilization? Really? How do they show that on their books? These are claims that are eventually paid by the employer. And of course, large employers, such as hospitals and universities, are often self-insured. The insurance company simply processes the claims and organizes the market.

President Obama decided that insulting observant Catholics and other people of faith wasn’t enough. He decided to insult our intelligence, too. The President declared that insurance companies should pay for Birth Control Pills, IUD’s, the Morning After Pill, and even sterilizations from company coffers because it will save them money. By eating these costs, the insurers won’t be paying for unwanted, unplanned pregnancies. Ignoring the fact that it isn’t the insurer’s money or responsibility, perhaps we should take this to its illogical extreme. If we want to save money and eliminate unwanted and unplanned pregnancies, why don’t we have the insurers hand out chastity belts? Of course that’s silly, but it is no less honest nor illogical as the President’s suggestion.

It is time to remind you that none of this is about contraception, women’s rights, or even preventive care. It is about creating an environment where private insurance becomes unaffordable and only a government solution will work. Whether that is by accident or on purpose is for you to decide. But if you have someone restructuring the delivery and payment of health care in this country who doesn’t understand the basics of the market and insurance, you might as well have your attorney remove your appendix.


Ivory Smuggling Case Moves Forward

Saturday, February 11, 2012
Carved African ivory seized by US Fish and Wildlife in the case against Victor Gordon..
Source: USFWS
Plea negotiations continue in the case of United States v. Victor Gordon, according to a recent letter filed in court by Gordon's attorney. The US District Court for the Eastern District of New York has scheduled a status conference in the matter for March 15, 2012.

A federal grand jury indicted Philadelphia art dealer Victor Gordon in July 2011 for unlawfully importing and selling illegal African elephant ivory. Gordon is charged with conspiracy to smuggle elephant ivory, four counts of smuggling, and five Lacey Act violations.  Agents arrested him in July.  A person indicted is presumed innocent unless prosecutors prove guilt beyond a reasonable doubt in a court of law.  

The Lacey Act 16 USC 3371 et seq. protects wildlife and other natural resources. Under the law, it is illegal to import, transport, sell, receive, acquire or purchase specified wildlife taken, possessed, transported or sold in violation of any law, treaty or regulation of the United States.

The indictment also cites the Endangered Species Act 16 USC 1531 et seq., which makes it illegal to possess or trade illegal African ivory under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Legal import into the United States only occurs when a person obtains an import permit plus a foreign export permit issued by the country of origin or a foreign re-export permit issued by the country of re-export.

The indictment alleges that between 2006 and 2009 Gordon paid a person to travel to Africa on multiple occasions to "purchase raw elephant ivory and have it carved to Gordon's specifications. In advance of each trip, Gordon provided [the person] with photographs or other depictions of ivory carvings to serve as templates. Gordon also directed [the person] to stain or dye the elephant ivory specimens so that the specimens would appear to be old."  The ivory was brought through JFK International Airport in New York inside luggage before being sold by Gordon at his store in Philadelphia.

Federal prosecutors seek criminal forfeiture of the items seized. Specifically, they seek cash and objects that include nearly 500 ivory tusks and carvings seized between 2009 and 2010 in Pennsylvania, New York, Missouri, Kansas, Florida, and California.

If convicted, Gordon could face up to 20 years in prison.


State Department Gives Seizure Immunity to Cultural Objects from Kazakhstan

Friday, February 10, 2012

The State Department’s Bureau of Educational and Cultural Affairs has granted cultural objects from Kazakhstan immunity from judicial seizure.  The protected pieces will be part of a 2012 exhibition called “Nomads and Networks: The Ancient Art and Culture of Kazakhstan.”

The exhibit is to be held at the Institute for the Study of the Ancient World at New York University from March 6, 2012, to June 3, 2012.  The exhibition catalog describes a presentation of cultural objects from the sixth to the first century BC, including saddles, objects from the Berel valley, and gold mortuary ornaments from Shilikty and Kargali.

Under the federal statute known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), foreign lenders are encouraged by Congress to lend cultural objects to museums without risk that those objects will become targets of litigation while on American soil.  The statute protects imported objects determined to be (1) of cultural significance, (2) intended for temporary, nonprofit exhibition, and (3) in the national interest.

Museums importing objects for temporary display must apply for this legal protection.  The notice of immunity is then published in the Federal Register.

US Supreme Court Rules Against Odyssey Marine's Request for Stay

Thursday, February 9, 2012

Associate Justice Clarence Thomas
 The US Supreme Court has denied Odyssey Marine Exploration's application for a stay pending the filing and disposition of a petition for a writ of certiorari (i.e. a request to have the court review the case). Justice Clarence Thomas ruled on the matter today, docketed at 11A745.

Days ago the eleventh circuit court of appeals ruled in the case of Odyssey Marine Exploration, Inc. v. Kingdom of Spain, et al. that Odyssey could not postpone the return of the so-called Black Swan treasure to Spain while the commercial salvor appealed the case to the nation's highest court. Odyssey took the items from a Spanish galleon--the Nuestra Senora de las Mercedes--that sank in 1804 and was discovered in 2007.  Spain has contended that the galleon is a Spanish warship subject to protection from salvage.

On February 3, attorneys for Odyssey Marine filed their application to stay the court of appeals' decision.  The supreme court's denial followed on February 9.


Barry Landau Pleads Guilty to Theft of Historical Documents

Wednesday, February 8, 2012

Barry Landau yesterday pleaded guilty to conspiracy and theft charges related to stealing historical documents from several institutions along the east coast.  In December 2011, Landau’s attorney filed a motion to suppress evidence of the crime found by federal agents.  But yesterday Landau entered a plea agreement with the Maryland United States Attorney’s Office.  Sentencing will be held on May 7, 2012 [UPDATE: Rescheduled to June 27, 2012].

Landau admitted in his plea in federal district court to taking historical documents from museums in Maryland, Pennsylvania, New York, and Connecticut and selling some for financial gain.  His accomplice, Jason Savedoff pleaded guilty to the same charges in October 2011.

Documents by Alexander Hamilton
were stolen by Landau and Savedoff.
Library of Congress image.
Institutions targeted by the pair included the Maryland Historical Society, the Historical Society of Pennsylvania, the Connecticut Historical Society, the University of Vermont, the New York Historical Society, and the Franklin D. Roosevelt Presidential Library.  They pretended to be researchers and walked away with important papers by hiding them in clothing.  According to the US Attorney’s Office, “Landau and Savedoff often took the card catalogue entries and other ‘finding aids,’ making it difficult for the museum to discover that an item was missing. Documents that had been copied on microfilm were often avoided because of the increased possibility the theft would be discovered by the library or repository.”

Items taken included papers by prominent figures in American history, including John Jay, Alexander Hamilton, George Washington, Benjamin Franklin, and Abraham Lincoln.   The documents’ historical value is priceless.  On the open market, some of the papers fetched high sums.  For example, four reading copies of speeches by Franklin Roosevelt sold for $35,000.

Both Landau and Savedoff face sentences of up to five years in prison for conspiracy and 10 years for theft.


Egyptian Red List Now Available From ICOM

Monday, February 6, 2012
Th Emergency Red List of Egyptian Cultural Objects at Risk is now available.  You may view it here.  Published by the International Council of Museums (ICOM), the Red List illustrates various types of cultural objects that are vulnerable to archaeological site looting and theft.


Motion to Dismiss Filed in Kortlander Case - US Court of Federal Claims Issues Show Cause Order for Party's Failure to Appear

Sunday, February 5, 2012
Little Bighorn River.  Courtesy NPS.
Federal lawyers recently filed a motion to dismiss Christopher Kortlander's multimillion dollar claim against the government, while Kortlander's attorney reportedly failed to appear for a January 26 court status conference.  The United States Court of Federal Claims therefore issued an order for a show cause hearing, stating: "The court reached defendant’s counsel and agency counsel, but was unable to reach plaintiffs' counsel at the appointed time, although the court attempted to reach plaintiffs' counsel twice. Therefore, on or before Monday, February 13, 2012, plaintiffs' counsel, in writing, in the electronic filing system, shall show cause why this case should not be dismissed for failure to prosecute and comply with the rules of this court ...."

Kortlander, owner of the Custer Battlefield Museum in Montana, was once under federal investigation after the Bureau of Land Management (BLM) received complaints that he was selling artifacts on eBay that were claimed to have been recovered from the Little Big Horn battlefield.  The battlefield is a protected national memorial dedicated to the U.S. Army's 7th Cavalry and the Sioux and Cheyenne.  It is the site of George Custer's famous "last stand."  The investigation of Kortlander led to the execution of search warrants by authorities in 2005 and 2008. But the prosecution in 2009 declined to prosecute.

Since then Kortlander has engaged in litigation, including filing an action against the government in the court of federal claims on September 19, 2011 for $188,500,000 in damages.  That action was filed days after a federal district court in Montana dismissed Kortlander's lawsuit against a BLM agent.

Attorneys for the United States filed a motion to dismiss Kortlander's tort, criminal, and constitutional law claims on January 17, 2012.  They contend in their pleading that Kortlander's case lacks jurisdiction, fails to state a claim upon which relief may be granted, fails to meet the statute of limitations, and fails to meet certain pleading standards.  Some of the arguments the government puts forward in the motion are the following (legal citations in the original have been omitted):

"Plaintiff [Kortlander] appears to allege that Federal agents violated his Fourth Amendment rights to be free from unreasonable searches and seizures.... He also alleges throughout his complaint that the search warrants justifying the 2005 and 2008 searches of his property in Garryowen [Montana] were not supported by probable cause.... However, the law is well established in the Court of Federal Claims that the 'Fourth Amendment provides no right to money damages for its breach.'"

"The Court also lacks jurisdiction over plaintiff's allegations that Federal agents violated his Fifth Amendment due process rights, because the Due Process Clause is not a 'money-mandating provision.'"

"The tort claims of slander and defamation fall outside the jurisdiction of the Court."

"Any effort by plaintiff [Kortlander] to allege a claim of tortious interference with business relationships by the Federal agents does not fall within the Court’s jurisdiction, for the same reasons."

"Further, any efforts by plaintiff to allege tortious invasion of privacy, or tortious harassment and intimidation by another person, fall outside the Court’s jurisdiction."

"Mr. Kortlander has failed to state any claims upon which relief may be granted. The majority of his claims are barred by the six-year statute of limitations."


State Department Grants Seizure Immunity to Mexican Artifacts

Saturday, February 4, 2012
The State Department’s Bureau of Educational and Cultural Affairs last week granted immunity from judicial seizure to artifacts on loan from Mexico.  The pieces will be part of a 2012 exhibition called "Children of the Plumed Serpent: The Legacy of Quetzalcoatl in Ancient Mexico," which will take place at the Los Angeles County Museum of Art in California and at the Dallas Museum of Art in Texas.

Under the federal statute known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), foreign lenders are encouraged by Congress to lend cultural objects to museums without risk that those objects will become targets of litigation while on American soil.  The statute protects imported objects determined to be (1) of cultural significance, (2) intended for temporary, nonprofit exhibition, and (3) in the national interest.

Museums importing objects for temporary display must apply for this legal protection.  The notice of immunity is then published in the Federal Register.

Xochicalco temple of the plumed serpent. Photo: Giovani V; CC.


Court Orders Odyssey Marine to Return Black Swan Treasure to Spain

Thursday, February 2, 2012
A Spanish galleon.
The U.S. Eleventh Circuit Court of Appeals has denied Odyssey Marine’s motion to stay a decision ordering the commercial salvor to return coins and objects to Spain.  The so-called treasures of the "Black Swan" (the Nuestra Senora de las Mercedes) were taken from the sunken 19th century Spanish galleon, discovered by Odyssey in 2007 “lying at a depth of approximately 1100 meters, beyond the territorial waters or contiguous zone of any sovereign nation approximately 100 miles west of the Straits of Gibraltar,” according to court records.

The case has persisted since April 9, 2007.  That is when Odyssey Marine filed a complaint in federal district court in Tampa, Florida under admiralty and maritime law (known as an admiralty in rem action).  The salvor argued that it should either own the shipwrecked vessel under the law of finds (a type of “finders keepers” claim) or it should be entitled to “a liberal salvage award” from the vessel under the law of salvage.  Odyssey lost the case, and the case now captioned as Odyssey Marine Exploration v. Kingdom of Spain et al. continues.

Last September, the federal circuit court of appeals upheld the lower district court’s decision that ordered Odyssey “to release the recovered res [i.e. the shipwreck materials] to the custody of Spain.”  Odyssey hoped to stay this decision as it appealed the case to the U.S. Supreme Court.  The company argued in its December 2, 2011 petition to the circuit court that once it delivered materials to Spain the objects would not be returned to Odyssey if the salvor ultimately won the case in the highest court in the land.  That is because it is "Spain's position that it is not subject to the jurisdiction of the U.S. Courts ....," according to the motion.  Odyssey also cited its belief that there are seven legal errors that remain to be challenged in the case.  The appellate court was unpersuaded, writing by hand the word “denied” on its final order issued Tuesday.

At stake for Odyssey is a haul reportedly worth $500 million.  For Spain, “[t]his sentence gives Spaniards back what was already theirs,” according to culture minister José Ignacio Wert who was quoted in The Daily Mail.

Hat tip to Gary Nurkin for forwarding The Daily Mail story.

The Ongoing Religious Battle

Wednesday, February 1, 2012
Can you force your employees to live YOUR creed? More importantly, can you make it unpleasant and expensive for your employees to break your personal religion’s rules? The answer, as it is so often, is Yes and No.

Preventive Care is a key benefit of the Patient Protection and Affordable Care Act (PPACA). Katherine Sebelius, Secretary of Health and Human Services, recently decided that Birth Control Pills, IUD’s, and the Morning After Pill are all FDA approved forms of contraception and as valid a part of preventive care for women as mammograms and Pap tests.

The PPACA therefore forces employers to not only cover Birth Control Pills, IUD’s, and the Morning After Pill, but it also eliminates the copays for these items. They are free to the insured employee. This shifts the cost for these items to the insurance which in turn shifts the cost to the employer.

So, if you own a factory and you are opposed to these forms of birth control, you will soon be paying for your employees’ pills. Fair? Most of us will say Yes. We don’t want our employers to dictate moral positions to us.

But what if we aren’t talking about a factory? What if we are discussing a church or a church funded organization? Is there a difference? According to the Obama administration, the answer is No. Every employee has a right to preventive care and preventive care includes birth control. The Supreme Court may disagree.

We are constantly trying to define property rights in this country. Ron Paul takes the Libertarian position that the government doesn’t have the right to force you to conform to other people’s wishes. If you don’t want to serve African-Americans in your restaurant, the market should push you to reconsider, not the law. That is one extreme. The other extreme has the government involved in many of the day to day decisions of businesses. This involvement manifests itself in smoking bans in bars, the elimination of trans fats in restaurants, and forcing businesses to not only provide health insurance, but to determine the very nature of the coverage. This is where we are again.

Where is the line? Can the Catholic Church, which is adamantly opposed to most contraceptives, limit access to its priests, nuns, and church employees? Can the Church limit access to the employees, Catholic and non-Catholic, of its schools? What about Catholic hospitals that may employ hundreds of non-Catholics? How much influence is the employer granted?

The Supreme Court, in a 9 – 0 decision, recently ruled that the First Amendment “gives special solicitude to the rights of religious organizations” in how they treat their employees. This decision was reached in response to a lawsuit brought by a teacher who had been terminated by her employer, a Lutheran school. Chief Justice Roberts challenged “government interference with an internal church decision that affects faith and the mission of the church itself”.

Will the Patient Protection and Affordable Care Act allow you to provide access to birth control for all of your full-time employees? Yes. Will you as an employer pay for it? Yes. Will you be forced to provide access if you don’t want to? If you are a business the answer is still Yes. If you are a church or a religious based institution, the jury is still out.