Egyptian Coffins Successfully Detected and Recovered by Customs in Texas - Question of Proper Seizure Authority Remains - Updated August 10, 2012

Tuesday, July 31, 2012
Homeland Security's U.S. Customs and Border Protection (CBP) agency today announced the seizure of "two priceless Egyptian sarcophagi-type artifacts."  A CBP officer at the World Trade Bridge on the border with Mexico in Laredo, Texas is credited with the discovery that successfully recovered the pharaonic-era coffins.

No arrests were made and the transporter(s) has not been identified.  Meanwhile, the suggested legal authority given by CBP for seizing the coffins appears questionable even though there are legal arguments available that would support the seizure of the artifacts.

The coffins did not have export permits from Egypt.  "Working in coordination with HSI [Homeland Security Investigations] and with Office of Assistant Chief Counsel, CBP on July 9 determined that the artifacts would be seized due to a lack of export documentation to substantiate legal exportation of the artifacts from Egypt," CBP says in a press statement.

But the United States is unable to enforce a foreign nation's export laws.  CBP incorrectly explains in its press release that "[t]hrough the Convention on Cultural Property Implementation Act, the United States entered into a cultural property agreement with the Egyptian government to help protect archaeological and ethnological materials through import controls."  The United States and Egypt, however, do not have a bilateral agreement or Memorandum of Understanding (MoU) pursuant to the Cultural Property Implementation Act (CPIA).

[Sidebar: The CPIA is the federal law that implements in the U.S. the 1970 UNESCO Convention (the United Nations Educational, Scientific and Cultural Organization Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property).  It permits the U.S. to enact import protections and seize endangered cultural objects coming from nations which have a bilateral agreement with America.]

Last year, CBP authorities in Chicago misapplied the law in a case where officers seized a Nayarit figurine from Mexico.  The seizure was reportedly made on the basis of a violation of the CPIA because it was presumed that the United States and Mexico had a bilateral agreement in force under the CPIA.  But the U.S. and Mexico did not (and still do not) have such an agreement in place

Federal officials potentially could rely on the CPIA to seize the Egyptian coffins if they were stolen from a museum after January 12, 1983 and the artifacts were inventoried.  But CBP does not report that the coffins were unlawfully taken from a cultural institution in Egypt.

Federal authorities may choose to rely on alternative legal arguments, nevertheless, to seize, forfeit, and return the coffins to Egypt.  These legal theories are outlined in a 2011 blog post entitled Reclaiming Trafficked Egyptian Cultural Objects.

Instead of returning the coffins right away, the authorities could also choose to secure the coffins as evidence while they investigate and potentially indict suspects for possible violations of the law

CBP tells how the customs officer in Laredo "selected a shipment manifested as Egyptian sculptures for an enforcement examination. In the course of their examination, CBP officers discovered that the shipment included possible Egyptian antiquities . . . ."  CBP reports that it "had recently been made aware of possible stolen artifacts of Egyptian origin,"  It is unknown if the information the agency received was generic--such as the ICOM Red List--or whether CBP received specific intelligence about the shipment traveling through Texas.  In either case, the customs official at the border remained alert so as to intercept the cultural items.

CBP is to be commended for its detection and interdiction of the contraband Egyptian coffins.  Yet it is important that the agency accurately cite the proper legal authority for the seizure of the artifacts.  That is because the public relies on government officials for guidance so as to remain compliant with the law and to avoid the potential loss of property.

[UPDATE August 10, 2012: CBP has now revised its web-posted press release by striking any reference to the seizure of the Egyptian coffins under the authority of the federal Cultural Property Implementation Act. The agency finds support for the seizure by stating that neither sarcophagus had any accompanying export paperwork from Egypt.

CBP should clarify that it is not the lack of foreign regulatory paperwork that justifies the seizure of the cultural objects--although the lack of an export permit from Egypt can be an important piece of evidence to federal enforcement authorities--it is that American import and criminal laws are triggered by Egypt's legal ownership claims to the coffins.  The sarcophagi, for example, can be seized under 19 USC 1595a's "contrary to law" provision where there is probable cause to believe that the coffins constitute stolen property in the United States under the McClain/Schultz doctrine's interpretation of the National Stolen Property Act. To simplify, stolen property brought into the United States from abroad is contraband under federal law that may be seized by CBP officers and returned to the legal owner.]

CBP's press release may be found here.  Photos of the seized Egyptian coffins courtesy of CBP.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT:

Unveiling the Import and Export of Trafficked Heritage: The Kapoor/Art of the Past Case Examined

Monday, July 30, 2012
Source: Tamil Nadu Police
International antiquities trafficking networks will utilize legitimate and illegitimate shipping methods to advance cultural heritage crimes.  That is why a consideration of the solutions to combat illegal antiquities trafficking must examine how objects are imported and exported. The current American and Indian investigations into Subhash Kapoor offer a timely case study into the alleged transnational smuggling of cultural heritage.

Kapoor is currently under arrest in India, charged with idol trafficking.  He is an American citizen who owns Art of the Past gallery and Nimbus Import Export on Madison Avenue in New York.  Click here and here for further details.

Immigration and Customs Enforcement (ICE) reports that Homeland Security Investigations' (HSI) involvement in the case began in February 2007 after having been contacted by the government of India.  "The Indian Consulate advised HSI that an import and export company was expecting the arrival of a shipment containing seven crates manifested as 'Marble Garden Table Sets.' The consulate believed these crates contained stolen Indian antiquities. This merchandize (sic) was allegedly imported by Kapoor."

APL Alexandrite
The bill of lading reveals that the shipment weighed 1400 kg (3086 lb.) and occupied seven containers. The merchandise is described as "Garden Table Set."  The shipper is listed as Palae Knit Exports in Ludhianda, India.  The shipment left Jawaharlal Nehru, India on the Singapore flagged ship, APL Alexandrite, before arriving at the port of New York on February 10, 2007. The receiver of the goods is listed as Nimbus Import Export, Inc. with an address in West Nyack, NY. (It is important to note that neither the shipper nor the shipping company are implicated in any wrongdoing.)

A few interesting highlights about this shipment, which may have alerted customs agents at the border, are that:
  • it was the weight of a subcompact car and not a garden table set;
  • the exporter was a garments and textiles supplier and not an outdoor furniture or stone supplier;
  • Nimbus Import Export, Inc. is Kapoor's import company, and he owns an antiquities shop rather than a garden furniture company; and
  • the shipping address of the company is not the same as the one listed in official New York State records. (As reported on July 18 on this blog, Nimbus Import Export's officially listed address is in Manhattan, at the same place as Kapoor's Art of the Past gallery, and not in West Nyack, NY.)
Comparing additional import records associated with Nimbus to information collected by Indian police yields further information about how cultural artifacts may have entered the United States.  Bills of lading explain that Nimbus Import Export received the following listed merchandise from Everstar International Services since 2006 (spelling errors in the original electronic bills of lading):
  • Handicraft Items (brass Ganesh, Brass Krishna, Brass Deve, Brass Nandhi) - U.S. arrival: 2/28/06
  • Indian Hand Made Artistic Handicraft Articles -  U.S. arrival: 6/10/06
  • Indian Hand Made Artistic Handictaft Artickes (brass Ganesh,brass Deepalakshmi,brass Murugan) -  U.S. arrival: 8/5/06
  • India Hand Made Artistic Handicraft Articles -  U.S. arrival: 9/13/06
  • Indian Artistic Handicraft -  U.S. arrival: 12/27/06
A 2009 document, published by the Idol Wing of the Tamil Nadu Police Department and which details the alleged trafficking of idols to the United States, reports that arrested export agent Packia Kumar ran a company called Ever Star International Services.  Everstar  (as it is spelled in the import records) purportedly exported newly crafted statues mixed with illicit commodities.  The report says that "part of the stole[n] antique idols were mingled with [n]ew metal idols. (Like 2 or 3 stolen idols with 4 or 5 new metal idols) and presented the export invoice with a false affidavit that all the idols in the consignment were recently manufactured."  The report goes on to describe how the export certificates listed the idols as  "Artistic Handicraft Products," and names Nimbus as the receiver of the alleged illegal exports.  This information confirms the information listed in the bills of lading outlined above.

Meanwhile, ICE describes the types of cultural objects that made their way to Kapoor in the United States, which went undetected by customs officials at the border (except for those objects perhaps recovered following the 2007 tip-off by Indian authorities, but it is unclear from ICE's press release what action the agency took in response to the call received from the Indian consulate). "By the end of January 2012, HSI special agents had seized dozens of antiquities" in New York, according to a July 26 ICE press release, including
  • a 1600 pound Buddha head
  • a life sized stone figure weighing 500 pounds
  • three Chola period bronze sculptures, depicting Uma Parvati, Sivagami Amman, and Murugan
  • A sandstone statue depicting Kubera, chief of the Yakshas, from the Indian Gupta period;
  • a grey schist statue depicting Herkules-Vajrapani from the Kandahran Kushan period; and
  • a sculpture depicting Shakyamuni Buddham from the Indian Chola period.
"This investigation has uncovered that Kapoor allegedly created false provenances to disguise the histories of his illicit antiquities," concludes ICE.

Art of the Past gallery in New York posts "Closed for Inventory,"
one day after ICE raided Subhash Kapoor's storage units.
Examining the import and export methods surrounding the Kapoor case not only can aid police in the United States and India in their current investigations targeting the alleged idol thief, but it can help policymakers, criminologists, and scholars think about better ways to detect, uncover, interdict, and prosecute future crimes of heritage trafficking. Indeed, the Kapoor case may even be the one that prompts stakeholders to give serious consideration to WikiLoot, a proposal that Chasing Aphrodite author Jason Felch describes as "an initiative to crowd-source the fight against the black market in looted antiquities."

Meanwhile, as museums and collectors hopefully research their collections to discover whether they own pieces acquired from Kapoor, they should take note that even modern and legitimately imported items in their collections may have been used to mask potentially illegal shipments of cultural objects.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. CONTACT:

One Hundred Days

Sunday, July 29, 2012
The woman on the phone was adamant. She demanded to know what benefits are now a part of new health policies and what does she have to do to change her old contract to a new one. Damn it, she wants her share of all of the free stuff. It was the second one of these today. I told her that she was already getting the no copay annual preventive care visit. Neither she, nor her twelve year old, had any need for the new birth control, IUD, and Morning After Pill benefit. And since her daughter is only twelve, the opportunity to stay on her parents’ policy to age twenty-six is hardly relevant. It didn’t matter. She KNEW that there was something that someone was getting that she wasn’t.

We have reverted to a nation of ten year olds, jealous of the kid who broke his arm and now has a cast. Where is our cast? I want my cast, and crutches, too.

And so we begin the next stage of the Patient Protection and Affordable Care Act (PPACA), the over-promise and under-deliver phase. The calls come in daily from people who believe that they are suddenly going to get fabulous coverage for free. “The doctor told me that I can’t be turned down or charged extra even though I have Type I Diabetes and a stent”, the gentleman insisted last week.

I have begged physicians to honor a simple agreement. I won’t practice medicine and they shouldn’t practice insurance. It makes sense to me.

It is important to again point out that we are not talking about health care. We are discussing the payment of health care services. Who is going to pay for the doctors, hospitals, and other medical providers and products?

In this highly politicized environment, this issue may be the most contentious of all. There are a couple of reasons for the heat:
  1. We are talking about almost 20% of the economy
  2. We are potentially discussing life and death
  3. We all have a stake in the final product
  4. We all think we know what we are talking about
Heat, but no light. The truth is that the differences between the real actions on the right vs. the left are hard to find. So the fight isn’t about real differences, but about vague notions of entitlement. The Republicans promise to repeal “Obamacare” and institute patient-centered health reform, a term that happens to test well in focus groups but means more than simply eliminating malpractice suits.

Look at Medicare Part D (Rx), a program that was created by a Republican controlled House, passed by a Republican controlled Senate, and signed into law by a Republican President. Here is a law that trampled on patients’ rights, states’ rights, and common sense. But it did help certain people get reelected and did a world of good for both the insurers and the drug companies.

When buying and selling are controlled by legislation, the first things to be bought and sold are legislators. - P. J. O'Rourke

So one side has a large segment of the population frothing at the mouth in anticipation of more free stuff, while the other side is desperately trying to convince Americans that the current system is a stone’s throw away from perfection. Of course, the only perfection is the cynicism that both sides have mastered.
Medical costs are rising as doctors and hospitals adjust pricing in anticipation of more government involvement. New fees, like facility charges, are appearing on our bills. Medical buildings are now hospitals, and that increases all charges. Your insurance premiums reflect those increases. There isn’t anything complicated in this. Every time the cost of care increases, every time you are given a new ‘free” benefit, every time the definition of what constitutes preventive care is expanded, your premium has to increase.

And if the government, an organization incapable of comprehending the concept of a balanced budget, prevents the insurer from raising the premium as the costs increase, the policy is terminated. Governments can print money. Insurers can not.

We have just less than 100 days till the election. Just under 100 days of exaggeration, distortion, and out-right lies from both sides. But one day, a year from now or maybe two, you will need to go to the doctor. Who negotiates the fees, who processes the paperwork, and who writes the checks will matter that day. If you happen to talk to any of the people running for office, ask them who is going to be doing that for you.

And more importantly, ask them where the money is coming from.


Homeland Security Investigations Returns Artifacts to Nigeria - No Arrests or Indictments Announced

Thursday, July 26, 2012
Nok statues repatriated to Nigeria.  ICE
U.S. Immigration and Customs Enforcements (ICE) officials found themselves busy in New York today.  ICE raided a Manhattan storage area linked to an alleged antiquities trafficking network.  Meanwhile, Homeland Security Investigations (HSI) repatriated ten Nok statues and one carved tusk to Nigeria.

James T. Hayes Jr., special agent in charge of HSI New York, commented on the return of the Nigerian cultural objects seized by U.S. Customs and Border Protection:  "Smugglers who thrive on greed place very little interest in the preservation of cultural property when they plunder ancient artifacts to sell to the highest bidder."  No arrests or indictments were announced.

ICE reported in a press statement that "HSI special agents at John F. Kennedy International Airport (JFK) first learned of the stolen Nok statues in April 2010 after receiving information from French customs officials. . . . HSI Chicago had also previously seized two Nok statues and a carved ivory tusk at Chicago O'Hare International Airport.  After an investigation with assistance from French authorities, the Louvre in Paris, Interpol and the International Council of Museums, HSI special agents determined the Nok statues were in fact antiquities and not just handicrafts and personal effects as was diclosed on the importation documents provided to U.S. authorities."

Nigerian Consul General Habib Baba Habu pledged that the "ten figurines and one carved tusk will be returned to the national museum for display, at a ceremony to be presided by the minister of foreign affairs."

Nigeria does not have a bilateral agreement with the United States under the Cultural Property Implementation Act.

This post is researched, written, and published on the blog, Cultural Heritage Lawyer Rick St. Hilaire at  Post text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC.  CONTACT:

U.S. Investigators Retrieve Cultural Objects from Kapoor's Rented Storage in New York - What Might Happen Next?

Source: ICE
American authorities participating in the Subhash Kapoor investigation today seized cultural and religious artifacts from a storage facility in Manhattan, according to the New York Post.  The newspaper reports that Immigration and Customs Enforcement (ICE) took away several dozen pieces.

Kapoor, an American citizen and owner of both Art of the Past gallery and Nimbus Import Export in Manhattan, is accused by police in India of involvement in antiquities trafficking.  Artifacts from Kapoor are reportedly located in American museums' collections.

The New York Post article describes today's raid and tells about a prior seizure of artifacts: 

"ICE said the probe into Kapoor had previously results in the seizure of dozens of antiquities worth nearly $10 million, including a five-foot tall head of Buddha weighing about 1,600 pounds and a life-sized stone figure weighing about 500 pounds. 'Both items were also seized from a storage unit allegedly leased by Kapoor in New York,' ICE said.

"ICE said that some of the artifacts previously seized in the probe had been displayed in 'major international museums worldwide,' and that other pieces that match those listed as stolen 'are still openly on display in some museums.'

"ICE also said that the Indian Consulate in New York contacted Homeland Security investigators in February 2007 asking for help in a probe of smuggling of Indian antiquities into New York."

It is unknown whether the raids in New York are part of a federal investigation into violations of U.S. criminal and/or import laws, or whether ICE executed the search warrants simply to support the investigation and prosecution of Kapoor in India.  In either case, federal authorities may be contacting museums across the United States that have acquired objects from Kapoor.  Forfeiture actions and/or search warrants may be forthcoming if Homeland Security Investigations (HSI) develops probable cause to believe that accessioned objects may be linked to illegal artifacts trafficking.

The New York Post article appears here in its entirety.

UPDATE 7/26/12: The New York Times is now reporting that the "Manhattan District Attorney’s office issued an arrest warrant for the dealer, Subhash Kapoor, on charges of possessing stolen property."

It should be remembered that prosecutors applying New York state law recently charged and convicted Arnold Peter Weiss, even as federal authorities worked with the Manhattan District Attorney's office to investigate the coin case.  This example of federal-state cooperation may be taking place now in the Kapoor case.  An arrest warrant issued for Kapoor by a county prosecutor's office (the New York County District Attorney, a.k.a. the Manhattan District Attorney) may signal the Manhattan DA's increased determination to deploy state law to combat culture crime.  In fact, District Attorney Cyrus Vance, Jr. recently concluded a prosecution that convicted ivory dealers under New York criminal law.  That case saw a collaborative investigation between the DA's office, the state Department of Environmental Conservation (DEC), and the federal United States Fish and Wildlife Service (USF&W).

Federal-state cooperation and the use of state criminal law--as opposed to federal criminal law--to prosecute international antiquities trafficking may be taking shape in New York City, which is the heart of the antiquities market.

The United States and India have an extradition treaty.

UPDATE 7/26/12: NBC4 in New York has video of the raid.

View more videos at:

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at  Text copyrighted 2012 Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC.  CONTACT:

Objection Filed: Prosecution Outlines Factual Claims in U.S. v. Khouli et al.

Monday, July 23, 2012
Assistant United States Attorneys Karin Orenstein and Claire Kedeshian have filed an 87 page objection in response to motions filed on April 30, 2012 by Joseph Lewis, II and Salem Alshdaifat.  The government objects to the defendants' efforts to scuttle the case of United States v. Khouli et al., and the prosecutors take the opportunity to present the court with their evidence.

Lewis and Alshdaifat were charged by a federal grand jury in 2011 with crimes related to antiquities trafficking.  They are presumed innocent unless the government proves beyond a reasonable doubt that they had knowledge of the illegality and acted unlawfully. Another defendant in the case, Mousa Khouli, pleaded guilty to charges in April, while a fourth alleged conspirator, Ayman Ramadan, remains a fugitive at large.

In its objection filed with the U.S. District Court for the Eastern District of New York, the government argues, in part, that
  • the warrants authorizing searches of Lewis' home in Virginia and Alshdaifat's home in Michigan and their execution by federal agents were proper;
  • the search of the two defendants' emails were reasonable and properly authorized by three valid warrants;
  • Alshdaifat did not suffer violations of his right to remain silent or his right to counsel;
  • the smuggling statute (18 USC 545) is not unconstitutionally vague;
  • the government did not engage in any alleged overreaching or misconduct in the case;
  • the venue of the court (eastern district of New York) is proper; and
  • the money laundering conspiracy charge is valid.
Source: ICE
To support its legal arguments, and to paint a picture of the alleged smuggling and money laundering conspiracy, the government presents the court with a narrative describing the movements of an allegedly smuggled Greco-Roman coffin, a mummy board, a 3-piece nesting Egyptian coffin set, and Egyptian boats and limestone artifacts.

Federal prosecutors outline how Khouli and Ramadan smuggled the Greco-Roman coffin into JFK Airport in New York by transferring two payments of $10,000 and $3400 and submitting false customs information.  "While Lewis and Alshdaifat are not charged with smuggling the Greco-Roman coffin . . . the facts surrounding this transaction are revealing with regard to Lewis’s mens rea [i.e. criminal knowledge] for his subsequent transactions with Khouli," write the attorneys. The attorneys highlight that the customs papers listed the Greco-Roman coffin's country of origin as United Arab Emirates and not Egypt and described the coffin as "antique wood panel" valued at $3400. Prosecutors also tell how a sales invoice that did not originate from the actual seller, who was Ayman Ramadan/Nefertiti Eastern Sculptures Trading, was attached to the customs papers.

The government's lawyers go on to describe that the first artifact purchased by Lewis from Khouli was a mummy board, eventually seized by federal agents during a July 13, 2011 search of Lewis' Virginia home:

"Khouli sold an Egyptian mummy board to a customer .... A mummy board is a decorated wooden board that fits inside a coffin along with a mummy. On January 9, 2009, before [the customer] took physical possession of the mummy board from Khouli, Lewis purchased it from [the customer] for $60,000.  The bill of sale between Lewis and [the customer] included a photograph of the mummy board and identified its prior owners as Khouli’s company, Windsor Antiquities (“Windsor”), and previously, a private Dutch collection that acquired the item in the 1960s. The mummy board depicted in the bill of sale appears to have a transverse cut across the middle. On January 14, 2009, several days after the sale, Khouli and Lewis were in direct e-mail contact about shipping the mummy board from Khouli to Lewis.

"On February 10, 2009, Khouli advised Lewis by e-mail that he had obtained the mummy board from a restorer and offered to ship it to Lewis. Lewis inquired as to whether the repair at the 'joints' was invisible, referring to where the cut pieces were joined together."

On the same day, February 10, 2009, an Immigration and Customs Enforcement Agent (ICE) agent questioned Khouli about the importation of the Greco-Roman coffin.  The government reports that "[o]n the following day, February 11, 2009, Khouli offered Lewis two Egyptian antiquities: the Greco-Roman coffin and a bronze figure. Khouli advised Lewis by e-mail, 'Let me know what you think about the two Egyptian pieces[;] these are from my dad[’]s collection[;] he passed away about three years ago and my brothers and I want to sell them and split the money.'"  Lewis reportedly purchased the coffin for $32,500, not $65,000 as proposed by Khouli.

Because "[n]o mention was made of any other objects remaining from Khouli’s father’s collection [and because] Lewis’s dealings with Khouli the previous month indicated that Khouli had ... acquired the mummy board from a private Dutch collection, not from his father," federal prosecutors argue that "[t]hese facts belie Lewis’s argument that he had a basis for believing that every item he purchased from Khouli came from Khouli’s father’s collection."

In fact, government attorneys suggest that Khouli signaled to Lewis that the Greco-Roman coffin did not actually come from his father, stating:

"On March 6, 2009, after Khouli and Lewis had agreed to the sale of the Greco-Roman coffin, but months before Lewis took possession of it, Khouli offered Lewis a mummy linen and mask, writing in an e-mail, 'I just got th[e]s[e] items[;] i described them to you last week . . . .' (Gov’t Exh. 1; emphasis added). On the same date, Lewis responded, in sum and substance, that he already had four such items and that they were not very expensive. Khouli replied on the same date, 'It is very interesting[;] it was inside the coffin you bought from me according to the owner but he sold I[t] to me separately son of a gun.' (Id.; emphasis added). The statement that the Greco-Roman coffin had belonged to a separate 'owner' who 'sold' both the coffin and a related mummy linen and mask to Khouli was inconsistent with Khouli’s earlier representation that the Greco-Roman coffin had been sitting in his father’s collection for decades.  Upon learning this information, Lewis did not cancel the Greco-Roman transaction or request a new provenance from Khouli. Rather, he agreed to purchase the mummy linen and mask. In addition, despite Lewis’s only information about the mummy linen and mask’s provenance being that Khouli had 'just' received them and they were 'sold' to Khouli by another dealer, Lewis’s records for these antiquities include a Windsor bill of sale stating that these items were 'legally acquired by the late Jack Khouli in Israel in the 1960s.' While Lewis is not charged with smuggling the Greco-Roman coffin, his experience with Khouli in early 2009 told him that (1) not every Egyptian antiquity Khouli sold was from his father’s collection, and (2) any provenance that included Khouli’s father was unreliable."

The next day, on March 7, 2009, Khouli offered Lewis both a middle and outer coffin of an ancient Egyptian nesting coffin set, according to the prosecution.  Khouli reportedly went to Dubai in April to view them and discovered a third inner coffin.  Prosecutors say that  "Lewis’s e-mail messages indicate that he believed that the inner coffin was part of the same set as the middle coffin and outer coffin lid, making a three-piece nesting set. In these email messages, Khouli advised Lewis that the inner coffin had already been sold to another buyer and Lewis agreed to pay $150,000 for the inner coffin to avoid breaking up the set. The total agreed price for the nesting set was $310,000. Nothing in these e-mail exchanges suggested that Khouli had previously been aware of any of these coffins let alone that they had ever been in his father’s collection."

The government's lawyers add:
"On April 12, 2009, Lewis sent an e-mail message to Khouli confirming the details of the sale of the three piece coffin set. Lewis’s terms included that Khouli would provide “[p]rovenance from [his] late father’s collection, Israel 1960s” and a guarantee that the items would be cleared by Customs within 30 days of arrival. Khouli agreed to these terms. (Gov’t Exh. 4)."

The nesting coffins were sent to the United States in pieces using different transportation methods--international mail, air cargo, and sea cargo--and sent through separate points of entry, specifically JFK Airport in New York and the Port of Newark in New Jersey.  Prosecutors write in their pleading that the shipments were variously described for Customs as wooden panels, Indian furniture, purchased by a Connecticut third-party, or valued at $900. The coffin set was delivered to a Connecticut address.

Prosecutors further allege that Lewis knew that the Egyptian coffin parts required assembly.  "Lewis was therefore aware that pieces of the inner coffin and the remaining parts of the coffin set were being shipped in pieces, over an extended time period, because there was some risk attached to their importation."  Federal attorneys describe how Khouli sent an email to Lewis on April 29, 2009: "“i (sic) got the first half of the cut inner coffin the second half is on the way, shall I send it to you or should I wait for the second half and have [a certain person] look at it and have it fixed?” (Gov’t Exh. 6; emphases added). Lewis responded, “[The certain person] needs to put them together, when will the other two coffins arrive?” (Id.; emphasis added)."

Then in May 2009, Alshdaifat allegedly sold Khouli two ancient Egyptian funerary boats and five limestone figures for $40,000, which made their way from Ramadan to Khouli by international mail and then to Lewis. Prosecutors say that Ramadan sent the shipping label, which described the package as "antiques," to both Alshdaifat and Khouli.

The defendants may file a reply to the government's objection.  Meanwhile, Khouli's sentencing hearing is scheduled for next month.

(c) 2012 Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

...nuevos Seguros de Salud Internacionales!

Saturday, July 21, 2012

Dinosaur Forfeiture Case Rescheduled as Court Waits for Claimant's Verified Claim

Thursday, July 19, 2012
HSI seizes the dinosaur bones.
Today's court conference in the matter of United States of America v. One Tyrannosaurus Bataar Skeleton (2012-cv-04760) was rescheduled to September 5 after federal prosecutors issued a gentle reminder that the government remained the sole party in the case.  In a letter submitted to the southern district court of New York, prosecutors wrote:

"This is a forfeiture matter and at the present time the only party to the action is the Government. In order for an individual or entity to become a party to the action, they are required to file a Verified Claim.  As of the date [of] this letter there have been no Verified Claims filed with the Court and the time period for filing has not yet expired. The time period to file a Verified Claim expires on August 26, 2012."

Ancient coin dealer advocates and attorneys Michael McCullough and Peter Tompa filed court appearances in June announcing their representation of Eric Prokopi, the purported claimant seeking the dinosaur bones' return.   They are expected to file a Verified Claim arguing why the dinosaur bones should be awarded to Prokopi.

The U.S. Attorney for the Southern District of New York filed a forfeiture complaint this spring alleging that the dinosaur skeleton was illegally imported into this country in March 2012.  Federal prosecutors seek to repatriate the bones to Mongolia, the country of origin.

More details regarding this seizure and forfeiture case may be found here.


American Museums and Subhash Kapoor's Artifacts

Wednesday, July 18, 2012

Inside the Art of the Past gallery in New York.
Source: Google Local
The arrest and extradition of Subhash Kapoor has made headlines in India and garnered the attention of several cultural heritage observers.  He stands accused by Indian police of allegedly participating in an antiquities trafficking ring.  Artifacts from Kapoor are reportedly located in American museums' collections.

Kapoor is an American citizen and antiquities dealer who last year celebrated 35 years on Madison Avenue in New York City. Kapoor is the owner of the Art of the Past, Inc. gallery in Manhattan as well as Nimbus Import Export, a corporation formed on August 17, 2005 and bearing the same address as Art of the Past according to New York Department of State records.

Kapoor wrote in his March 2011 Art of the Past catalog, “There have been some obstacles and hardships during the past thirty-five years, but there have been many more rewards.” A hardship currently faced by Kapoor is his arrest in Germany on October 30, 2011, which resulted in his extradition to India on July 14, 2012.

Kapoor is presumed innocent. India follows the common law system where the burden is on the prosecution to show a crime has been committed beyond a reasonable doubt before a person is judged guilty.

The Art of the Past web site, now shut down, once described how its gallery’s artifacts could be found in the collections of major American cultural institutions. The “About Us” web page noted that “[t]he gallery has sold to some of the most celebrated public and private collections in the world. These include The Metropolitan Museum of Art, New York City; Arthur M. Sackler Gallery, Washington D.C.; Los Angeles County Museum of Art, Los Angeles; Museum of Fine Arts, Boston; Asian Art Museum of San Francisco, San Francisco (sic); The Art Institute, Chicago; and Virginia Museum of Fine Arts, Richmond; Honolulu Academy of Arts, Honolulu ....”  An internet search shows that the Birmingham Museum of Art in Alabama and the Norton Simon Museum in California list objects from Kapoor.

The Toledo Museum of Art, in its fiscal year 2007-2008 annual report, catalogs the accession of many Indian pieces from Kapoor in 2007.  A representative sample of the 44 objects gifted to the museum include:

• Indian, Gupta Period, Seated Mother, 5th century, terra cotta, terra cotta, Gift of Subhash Kapoor, 2007.107

• Indian (Chandraketugarh), Mithuna Plaque, 1st century B.C.–1st century A.D., terra cotta, Gift of Subhash Kapoor, 2007.109

• Indian (Chandraketugarh), Fertility Goddess Sitting with Star, 1st century B.C.–1st century A.D., terra cotta, Gift of Subhash Kapoor, 2007.116

• Indian (Uttar Pradesh), Gupta Period, Head, 5th century, terra cotta, Gift of Subhash Kapoor, 2007.147

• Indian (Western India), Female Head, Gupta period, 5th century, terra cotta, Gift of Subhash Kapoor, 2007.158

It is unknown if any museums are currently examining the provenances of their collections.



Follow The Money

Tuesday, July 17, 2012
This may come as a total shock to some of my readers, but even here, in the USA, the greatest country EVER, there are poor people. For the purposes of this blog post, it doesn’t matter why some Americans are poor. It is irrelevant as to whether the poor have had access to help or if they have abused the programs designed to lift them from poverty. It doesn’t even matter if there aren’t enough jobs or if they are too lazy to work.

I simply need for you to admit that there are poor people. Nod your head if you are with me.

Great. Now that we all accept that there are poor amongst us, we are no longer capable of pretending that they don’t exist. They do exist and the poor – adults and children – have health care needs. They can’t help it. They are human. The poor get sick. Their children suffer injuries.

Who pays for the health care of the poor? We do. We pay in the higher taxes that fund Medicaid. Our costs for doctors’ visits, hospital stays, and major testing are inflated to help cover the costs of the uninsured and the lower reimbursement rate of Medicaid. And hospitals bear the burden of “charity” care.

Medical providers may not like Medicaid, where their payments are a political football, but some compensation is better than none. That’s why our major local hospitals are counting on the Medicaid expansion of the Patient Protection and Affordable Care Act (PPACA). The possibility of extending coverage to 133% of the federal poverty level, which is about $30,000 for a family of four, would protect a lot of people.

Two other key elements: The PPACA adds childless adults to Medicaid, people usually not covered by this program. And, in an effort to encourage more primary care doctors to accept Medicaid patients, family doctors will now be paid at the Medicare rate.

The recent Supreme Court ruling made that expansion optional. Some states may participate. Some may not. Governor Kasich is still weighing his options. There are reasons, beyond the political, for each state to participate or to pass on this program.

The negatives are easy: Yes, the federal government is committed to covering the bulk of the initial cost, but what happens if the money stops? Can the federal government, regardless of who is in the White House, be counted on to honor this obligation? History casts doubts on Congress’s willingness to fund Medicaid, cut expenses, or resolve issues. Worse, the money, if it does come, isn’t forever. No one really knows how much this will cost the states after 2020.

Another issue is the increase in pay to primary care physicians. There was a real interest in funding this provision when the Democrats controlled the House of Representatives. Today, none at all. If this is initiated and funding for this part of the program ends, can the Ohio legislature, for example, screw the Cleveland Clinic and cut physician compensation? Congress budgeted $11 Billion for 2013 and 2014. It takes a willing Congress to allocate another penny.

It is important to remember that all cost estimates are, at best, guesses. New diseases, new treatments, new rules, and greed will all affect the final taxpayer outlay. Did anyone predict the AIDS epidemic in 1980 and the costs associated with the treatments? New and expensive medications and treatments are being developed here, in Cleveland, and around the world. It is impossible to predict, with certainty, the costs for care three, four, or eight years from now. We are writing Blank Check commitments.

Rule changes must also be a major concern. Did any member of the House or Senate know in March 2010 that the Preventive Care Benefit of the PPACA would include free birth control pills, IUD’s, and the Morning After Pill? Of course not. What will suddenly be covered, for free, under the Medicaid expansion?

So what are the positives? There is only one. If we accept that there are, and always will be, poor amongst us, then we have to make a decision as to whether or not we care. Are the poor our responsibility? If so, then we must craft a proper plan designed to meet their needs. If not? Well, I prefer to not think about a country that chooses “If not”.

This program, the Medicaid expansion, fails like so much of the Patient Protection and Affordable Care Act because of its lack of straight forward purpose. It is time to stop pretending that spending money will save us money. The Obama Administration needs to sell its vision to the American public. Tell us why we need to take action and how much it will cost.

This isn’t about health care. It is about how doctors, hospitals, and other medical providers get paid. And if you want to understand this, you have to follow the money.


Fagan Attempts to Restart Claim Against Czech Republic After Florida Court Halts "Victims of Holocaust Art Theft" Case

Museum of Decorative Arts.  CC Kirgyt12.
Edward Fagan has filed a lawsuit to obtain artwork--alleged to have been looted by the Nazis--following a dismissal of his initial legal claim.  A Florida district court judge dismissed the case of Victims of Holocaust Art Theft v. Czech Republic; National Gallery in Prague; Museum of Decorative Arts of Prague after the plaintiff failed to obtain a lawyer.

The United States District Court, Southern District of Florida, ruled on June 4 that the newly created organization called Victims of Holocaust Art Theft needed an attorney by July 5 or the case would be dismissed.  Fagan, disbarred from the practice law, could not serve as the the organization's attorney.  He filed a lengthy pleading on June 29 urging the court to allow him to go forward in the case pro se (without an attorney) in recognition of the fact that he and "Victims of Holocaust Art Theft" were one and the same.  Michal Klepetář filed a separate letter on the same date stating that he wished Fagan to represent his interests.

District Court Judge James Cohn dismissed "Victims" case on July 9, writing in a footnote (citations omitted):

In response to the Court’s June 4 Order, Fagan filed a “Motion for Permission for Plaintiff Pro Se to Proceed Under the Name ‘Victims of Holocaust Art Theft’ and for other relief.” In that Motion, Fagan asserts that Plaintiff is not a legal entity apart from Fagan himself but instead is a fictitious name that Fagan is using to bring claims in his individual capacity. As the Court previously noted, however, the allegations of the Complaint indicate that other individuals besides Fagan have an interest in Plaintiff.  But even if the Court were to assume that Fagan alone owns and controls Plaintiff, it remains clear that Fagan is seeking to represent the interests of persons other than himself.  More troubling, Fagan reveals for the first time in his Motion that he is “a disbarred lawyer” and that “[e]ven after [his] disbarment,” he has been “sought out by persons and groups with restitution claims who wanted [him] to assist and consult with them.”  This disclosure suggests that Fagan, despite being disbarred from the practice of law, may be using Plaintiff as a vehicle to represent other persons before this Court.  For these reasons, Fagan’s Motion does not alter the Court’s conclusion that Plaintiff may not proceed without counsel, and the relief sought in that Motion is denied.

The next day, Fagan responded by filing a new lawsuit in his own name, captioned Edward D. Fagan v. Czech Republic; National Gallery in Prague; Museum of Decorative Arts of Prague docket 9:12-cv-80743-KAM.

In order to file a civil complaint to obtain property, one must have standing to sue.  Fagan claims in his latest complaint that he "is an owner of certain rights to The Popper Art Collection which were obtained / acquired from Michal Klepetář (Klepetář ), the Popper heir/legal successor.  It remains to be seen if the court will permit the case to go forward.


U.S. Renews MoU Import Controls on Cultural Heritage From Cyprus

Friday, July 13, 2012
Byzantine glass lamp.  U.S. State Dept.
U.S. Customs and Border Protection and the U.S. Treasury Department today published notice of America's extension of import controls governing archaeological and ethnological materials from Cyprus.

The decision renews a Memorandum of Understanding (MoU) between the United States and Cyprus, which serves to protect cultural patrimony in jeopardy from pillage under the terms of the Cultural Property Implementation Act (CPIA).  The CPIA implements the1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.  Import protections granted under a Memorandum of Understanding--also known as a bilateral agreement--last for five years and may be renewed.

The import restrictions forbid designated cultural objects from importation into the United States unless authorized by permit.  Categories of cultural property protected under the renewed import protections include archaeological objects such as ceramics, sculpture, architecture, jewelry and coins from pre-classical and classical periods.  Other import controls regulate ecclesiastical and ritual ethnological materials such as liturgical crosses, painted icons, glass church lamps, and mosaics from the Byzantine and post-Byzantine periods.

Comments submitted earlier this year to the Cultural Property Advisory Committee (CPAC) in support and opposition to renewing import controls may be found here.


No Arrests Announced as ICE Officials Seize and Send Cultural Objects to Peru

ICE: Artifact returned to Peru on July 12.
United States Immigration and Customs Enforcement (ICE) reported no arrests or indictments during a repatriation ceremony yesterday that returned stolen and smuggled cultural objects to Peru. 

In a press statement, ICE’s Homeland Security Investigations (HSI) said that it mounted an “undercover Internet operation” and recovered the artifacts “in five separate investigations in . . .  New York; West Virginia; Wilmington, Delaware; and Austin and Houston, Texas.”  HSI concluded that the objects were illegally imported into the United States in violation of U.S. customs laws after having been illegally removed from Peru.

ICE agent watching over a monstrance.
With assistance from the U.S. Department of Justice and INTERPOL, HSI seized and sent to Peru nine 18th century religious paintings, pre-Columbian pottery, an Andean textile, a monstrance, a Moche jar, and a tumi blade.

ICE Director John Morton observed that "[t]he plundering of cultural property is one of the oldest forms of organized cross-border crime and has become a world-wide phenomenon that transcends frontiers.” Deputy Attorney General James Cole added, "Like other criminal acts, cultural property crimes are borderless and require a coordinated law enforcement response among countries.... [The objects] were stolen by those whose selfish acts and greed sought to deprive a people and the public of their cultural treasures."

No mention was made during Thursday's public ceremony held in Washington, DC of any arrests, grand jury investigations, indictments, or continued law enforcement probes into the alleged criminal activity.  HSI's seize and send policy has been critiqued because of its disproportionate focus on the repatriation of cultural objects over needed efforts to deter transnational cultural heritage crime by prosecuting antiquities traffickers when they violate U.S. law.

HSI outlined details of its investigation in its press statement:
“Of the objects returned July 12, two of the Cusco oil paintings – Saint Ignatius of Loyola, and Virgin and Child – were sold at an auction house in Austin. Seven other Peruvian antique paintings were being sold from a Houston gallery. The pre-Columbian Chimu-Inca whistling pot and Andean textile were being sold on eBay. In an undercover Internet operation, HSI special agents in West Virginia targeted sellers of illicit pre-Columbian artifacts operating from this Internet site. The monstrance was listed for sale at Christie's auction house in New York and HSI special agents discovered it was consigned by an art collector associated with museums in Puerto Rico and Denver. HSI's investigation revealed that the monstrance had been stolen from Saint Stephen the Martyr, a small Catholic church in Yaurisque, located in the Cusco region of Peru. The Moche ceramic jar and the bronze ceremonial knife were consigned by an estate trust in order to be sold at an auction house in Madison, N.J., and necessitated grand jury subpoenas issued by the U.S. Attorney's Office for the District of Delaware.”

Assistant United States Attorney David Hall from the Delaware U.S. Attorney's Office was responsible for investigating two of the Cusco school paintings involved in the case, according to a statement released by that office.  An image of one of the paintings appears at right.  Hall is a 2010 SAFE (Saving Antiquities for Everyone) Beacon Award winner.

The repatriation ceremony comes one month after the United States renewed import controls covering Peruvian cultural property determined to be in jeopardy from plunder.

Rubin v. Iran Update: Illinois District Court Gets Case Back Following Supreme Court's Rejection of Appeal -- U.S. Files Amicus Brief in First Circuit Supporting Museums

Monday, July 9, 2012
The case of Jenny Rubin, et al. v. Islamic Republic of Iran has been restarted in federal district court in Illinois (docket 03-cv-9370).  That is because the United States Supreme Court on June 25 declined to hear the Rubin plaintiffs' request to review the Seventh Circuit decision, which ruled against them. Justices Antonin Scalia and Elena Kagan did not participate in the decision.

Rubin and the other plaintiffs are trying to recover a court-awarded money judgment against Iran for that nation's sponsorship of a deadly terrorist attack that harmed the parties.  They wish to acquire Persian artifacts located at Chicago's Field Museum and the University of Chicago in order execute the judgment. The case moved from the federal district court in northern Illinois to the circuit court of appeals.  The case was to be sent back to the district court by the appeals court, but the Rubin plaintiffs sought review by the U.S. Supreme Court. The high court has now returned the case to the district court, where a status hearing  is scheduled for July 18 at 3:00 p.m.

[UPDATE July 18, 2012:  The Illinois district court held a status hearing and wrote: " The court heard arguments on the competing discovery plans submitted by the parties back on August 5, 2011.  The court will review and consider other orders and documents identified by the parties in open court and issue an order by August 3, 2012, detailing its discovery plan. Parties will then be invited to submit objections to the court's plan, if any, by August 10, 2012.]

In a companion case now in the First Circuit Court of Appeals, the same parties seek to acquire Persian artifacts held at the Museum of Fine Arts (MFA) in Boston and at Harvard.  The United States filed an amicus brief (friend of the court brief) on June 7 in support of the MFA, the Harvard museums, and Iran.

Federal lawyers argue two points in their brief to the First Circuit.  They say that the Terrorism Risk Insurance Act (TRIA) does not authorize the attachment of property not owned by a terrorist state.  Second, the government asserts that Iranian property cannot be “contested” within the meaning of the Iranian Assets Control Regulations because "Iran itself has not articulated any claim to the property in question."

The government writes:
"The United States emphatically condemns the act of terrorism that grievously injured the plaintiffs, and has deep sympathy for their suffering. The United States remains committed to disrupting terrorist financing and to aggressively pursuing those responsible for committing terrorist acts against U.S. nationals. In addition, however, the United States has a strong interest in ensuring that courts properly interpret TRIA’s scope. Normally, unless a person obtains a license from the Treasury Department’s Office of Foreign Assets Control (OFAC), that person is barred from attaching assets that are blocked under various sanctions programs, such as the Iranian Assets Control Regulations."

The lawyers add:
"The district court found that Iran does not, in fact, own the assets in question. The United States takes no position on the question of ownership. If this Court affirms the district court’s holding, however, that ruling will also preclude attachment of the assets under TRIA. TRIA does not, as plaintiffs contend, permit them to attach the artifacts possessed by the Museums if those assets are not owned by Iran."

The government concludes that the court  "should hold that the Museums’ artifacts cannot be attached under TRIA unless the plaintiffs establish that Iran owns the artifacts. Additionally, if the Court reaches the issue, it should hold that an asset is not 'contested' for purposes of [the Iranian Assets Control Regulations] unless Iran itself is claiming an interest in the asset."

Photo by Asana Mashouf.  Creative Commons.


Weiss Pleads Guilty to Attempted Possession Charges in New York - State Criminal Law Applied Successfully in Cultural Property Case

Tuesday, July 3, 2012
Dr. Arnold Peter Weiss, originally charged with a felony, pleaded guilty today in a New York state court to misdemeanor counts of attempted criminal possession of stolen property in the fourth degree. Chasing Aphrodite has more on the case, and they report that Weiss's arrest for possessing stolen ancient coins turned into convictions for possessing forged coins Weiss believed to be real.

Weiss' plea agreement with the prosecutor, which was accepted by the court, calls for a sentence of community service, fines of $3000, and an order to write an essay about responsible coin collecting.  Other coins in Weiss' possession are to be forfeited.  Court records report that sentencing is scheduled for September 17.

Authorities charged the Rhode Island hand surgeon in January 2012 with Criminal Possession of Stolen Property over $50,000. They arrested Weiss and seized what Weiss and authorities then believed were ancient Greek coins originating from Italy.  The coins were to be sold at the International Numismatic Convention taking place in Manhattan.

Assistant District Attorney Matthew Bogdanos handled the case.  He is the author of Thieves of Baghdad, which describes his and others' efforts to retrieve artifacts from Iraq's national museum after its looting in 2003. Bogdanos employed a scanning electron microscope to determine that three coins, which were the subject of the case, were in fact forgeries and not authentic ancient coins.  Nevertheless, Weiss thought that the coins were authentic and that they were stolen from Italy, subjecting him to accountability for an "attempt" crime.

The convictions for attempted criminal possession will have to be studied in the coming weeks.  That is because the convictions represent a breakthrough for the successful application of state criminal laws, as opposed to federal criminal laws alone, to combat international cultural property trafficking.  Fakes and forgeries of antiquities, ancient coins, and other cultural property are found in the illicit market along with authentic trafficked artifacts, so today's courtroom result is no less significant.

Indeed, all fifty states have receiving stolen property laws on the books, which can be applied in cases where a person is in criminal possession of stolen cultural property.  The states also have "attempt" laws, which would cover a person's attempt to possess stolen cultural property or possession of forged cultural property believed to be authentic.  Beyond these statutes, the states maintain consumer protection laws with applicable penalties to guard against the appearance of fraudulent and stolen items in the marketplace.  The states also have nonprofit enforcement statutes that may be applied to specific cultural institutions or boards of directors that acquire illegal art, archaeological finds, or ethnological artifacts.

It should be noted that there is no request or court order to destroy the Weiss coins that were discovered to be fakes.  Meanwhile, sources indicate that the investigation in this case is of a continuing nature.


Federal Attorneys and Sotheby's Agree to Keep Designated Information Confidential in U.S. v. A 10th Century Cambodian Sandstone Sculpture

Image courtesy of
Attorneys for both Sotheby's and the United States have signed a stipulation dated June 29 to keep designated information confidential.  Published on July 2 in the forfeiture case of United States Of America v. A 10th Century Cambodian Sandstone Sculpture, Currently Located at Sotheby's, the stipulation says that relevant documents can be kept secret in pleadings and hearings if the information reveals Sotheby's:
  • potential, current, or past clients,
  • any consignment agreements or sales,
  • proprietary aspects of the auction house's compliance program, and/or
  • its sales strategies.
The stipulation allows Sotheby's to mark such information "CONFIDENTIAL," and the government may challenge the designation.

Specific documents that are to be kept confidential include a "Family Agreement" and a "Sales Agreement for Works of Art" supplied by Decia Ruspoli di Poggio Suasa, the reported consignor of the Cambodian sculpture to Sotheby's.

Meanwhile, lawyers for the United States may request that Sotheby's produce non-confidential documents with confidential information redacted.  At the conclusion of the case, secret information shall be returned or destroyed according to the terms of the stipulation.

The U.S. Attorney for the Southern District of New York petitioned a federal district court in April to seize and forfeit the temple statue, alleging that it was "illicitly removed from the Prasat Chen Temple at the historic and archeological site of Koh Ker, Preah Vihear Province, Cambodia."  Sotheby's filed a motion to dismiss the claim in June.  A hearing on the motion is currently scheduled for September 27.

Given that the forfeiture case is a public matter launched by federal officials and not a lawsuit between private parties; given that the case involves alleged violations of the federal customs law rather than violations of terms of a private contract; and given that compliance methods with respect to public laws on import and/or penal matters are at issue in the case as opposed to trade secrets, the stipulation will perhaps be the subject of debate by observers of the case.

(c) Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC

A Rose By Any Other Name

Monday, July 2, 2012
“As a Democrat, you should be outraged”, the client said in lieu of “Hello”. I paused for a moment and he identified himself. I replied that I’m seldom outraged. “Weren’t you shocked by the decision?” Of course, if he had ever read this blog he would have known the answer. “Nope, I’m not shocked.” “You knew that Roberts would do this”, he asked incredulously. “No”, I replied. “I had no idea. No one did. The pundits and blowhards on both sides told their audiences what they wanted to hear. No one really knew. I never wasted a moment worrying about the Supreme Court or guessing the outcome. You can only be shocked if you believed in the prognostications of a bad guesser.”

“But it is a tax! Obama said it wasn’t a tax, but it is. This is the largest tax hike in U.S. history.”

If I may quote the hero of the right, Ronald Reagan, “There you go again.” Every time a Democratic president raises revenue, it is the largest tax hike in U.S. history. What possible pleasure could they derive from yelling “Wolf!” so often? When will even they grow tired of this refrain?

And so I reminded the client and others that I’ve talked with over the last few days that a rose by any other name would smell as sweet. Governments tax us. Period. Sometimes the legislators use the word TAX. Sometimes we are treated to the threats of penalties or fines. We are forced to purchase licenses and permits for everything from driving a car, to fishing, to installing a new hot water heater in certain suburbs. They are all taxes.

A new law was recently passed in Beachwood forbidding the use of a hand operated cell phone while driving. Does Beachwood really care? Get serious. How often have you seen a Beachwood patrol officer driving while talking on a cell phone? But this new law carries a fine (tax) of $101 and two points on your driving record. This is just another way to fill the depleted coffers.

I view all taxes, fees licenses, etc… the same. They feed the addiction politicians have to other people’s money. Some of us place a great value on defense and military spending. Some of us feel that more help should be given to the poor and less fortunate. And of course, there are those that believe that our job creators need more help and incentives. If funds are unlimited, there is no conflict. But funds aren’t unlimited, so the arguments continue. What we have not had is an honest debate about priorities. Do we care enough about defense, healthcare, poverty, et al to spend some of our own money to solve these problems?

So, let’s stop the silliness about taxes and get back to the matter at hand. Does the Patient Protection and Affordable Care Act (PPACA) cover the uninsured (allegedly 50 million Americans) and control costs? My answer is still NO. Have the Republicans put forth a comprehensive alternative? Also, still NO.

You can’t beat something with nothing.

Millions of dollars have been spent by insurers, government entities at every level, and businesses to comply with the PPACA. Simply repealing the law makes all of that money wasted. Though some Americans have been hurt by the law, others have benefited. Repealing the law runs the risk of eliminating their insurance coverage. Repeal without a better, more comprehensive solution, is irresponsible.

Repeal and Replace is cynical political rhetoric if there isn’t another option ready to fill the void. Responsible lawmakers, more focused on governing and the public good, might consider a different R word, Revise.

Working together, something that has yet to be tried, our legislators could attempt to create an amended PPACA that might have a better chance at accomplishing a couple worthwhile goals. That law might not be as useful as a fundraising tool, but could help to deliver affordable care to more Americans.

What will it take? The first step may be a little intellectual honesty. The second is to notice the flowers hiding amongst the thorns.