Rubin v. Iran: Harvard Art Museums and Boston Museum of Fine Arts File Appellate Briefs in First Circuit

Thursday, May 31, 2012
"The order of the district court should be affirmed."  That is the simple conclusion written in the Harvard Art Museums' appellate brief filed yesterday in the case of Rubin et al. v. Islamic Republic of Iran v. Museum of Fine Arts and Harvard University et al.  The appeal is pending in the U.S. Court of Appeals for the First Circuit.

The Boston Museum of Fine Arts
Source: Alex Feldstein.  CC.
The Boston Museum of Fine Arts (MFA) also filed an appellate brief. The museum argues that "[a]llowing Plaintiffs to execute on property long held and owned by an innocent third party, the MFA, does nothing to punish Iran," they write.

Jenny Rubin and other appellants filed an appeal with the First Circuit in March, contending that a federal district court in Massachusetts was wrong when it dismissed their attempt to attach Iranian cultural artifacts located in Boston area museums. The objects include eight stone reliefs from ancient Persepolis and two Luristan bronzes now at Harvard, as well as 977 artifacts acquired by the MFA through scientific expeditions during the 1930s at Rayy and Persepolis. Nearly 2000 artifacts in total are at issue in the First Circuit case.

Rubin and others filed a lawsuit in 2001 in the United States District Court for the District of Columbia and won a court judgment against Iran for its sponsorship of a terrorist attack in Jerusalem in 1997.  In order to collect the money owed to the appellants, the Rubin parties sought to attach Iranian assets in the United States.  They attempted to seize ancient Iranian artifacts housed at Harvard's museums as well as the Museum of Fine Arts (MFA) in Boston, but the effort failed in the district court. That is why the appellants filed an appeal.  Harvard and the MFA object.

Harvard's attorneys say this case "should never have been brought" against the Busch-Reisinger Museum, the Fogg Art Museum, Harvard University, the Harvard University Art Museums, the Peabody Museum of Archaeology and Ethnology, the President and Fellows of Harvard College, the Sackler Museum and the Semitic Museum.  They argue in a lengthy brief that the Rubin appellants "failed to prove that any Harvard artifact belongs to Iran." Harvard asserts that the claim by Rubin and others "fails because it rests on a meritless legal premise—that Iranian law ever gave Iran title to any object."

The MFA, meanwhile, criticizes the Rubin appellants/plaintiffs because they "have conceded that they have no evidence at all that Iran owns a single object at the MFA. Rather, Plaintiffs effectively contend that the possibility that some of the objects may have been illegally removed from Iran decades ago somehow allows Plaintiffs to attach the objects now as if they were property of Iran." "Allowing Plaintiffs to take property from the MFA to which Iran has no valid claim would force the MFA, not Iran, to pay for Iran’s misdeeds," the museum's lawyers complain.

The MFA's legal counsel argues that "the District Court correctly ruled that Iranian Law does not vest Iran with ownership of any of the objects" in its collection. The museum adds that cultural objects specifically not subject to attachment are at least 319 artifacts found outside Iran before November 3, 1930; 107 cultural objects excavated outside Iran's borders; at least nine artifacts made after 1779; scientifically excavated material dug up from Rayy as part of the Joint Expedition to Iran funded by the MFA and the University Museum at the University of Pennsylvania; and items from the Persepolis Expedition sponsored by the Oriental Institute at the University of Chicago, the University of Pennsylvania, and the MFA.

Both Harvard and the MFA take the appellants to task for claiming that Iran maintains a "regulatory" interest in Persian cultural objects.  The lawyers opine that a mere regulatory interest in property is not enforceable in an American court.  To enforce a regulatory interest would amount to "an unconstitutional taking of property," Harvard's counsel writes.

Harvard's attorneys add that the lower district court "correctly ruled that Iranian law does not vest Iran with ownership of the artifacts."  The MFA make a similar argument.  The two institutions maintain that the Rubin appellants cannot bring a legal action to dispute the ownership of ancient Iranian artifacts because such a claim is barred by a three year statute of limitations.

Harvard and the MFA, in any case, claim that they own the artifacts in their collections by adverse possession. "Even if Harvard did not acquire ownership of the objects by gift or purchase—and it did—Harvard acquired title to the objects by adverse possession."  The MFA says as well: "Here, because Iran has never made any claim of ownership to works in the MFA, despite knowledge for many decades that the MFA’s collection included numerous antiquities that originated in Iran, any such claim is time-barred. And because of the MFA’s well-known possession of such antiquities for those decades, the MFA has acquired title to the objects under the doctrine of adverse possession, also barring any claim of ownership by Iran."

Adverse possession is a legal doctrine that awards title of property to a possessor who maintains hostile, open, notorious, exclusive, and continuous possession of the property over a specified period of time. "Harvard’s possession has undisputedly been open and notorious, adverse, and exclusive and continuous for the three-year statutory period," argue its lawyers.

Alternatively, Harvard's attorneys maintain that "if the antiquities belong to Iran, they are immune from execution under" the Foreign Sovereign Immunity Act (FSIA).  The MFA joins Harvard's argument. Harvard's attorneys point out that FSIA's "commercial activity" exception does not apply.   They write that "the objects are not subject to the FSIA’s 'commercial activity' exception, because Iran never used them for a commercial activity in the United States."

The FSIA exception states:
"A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States."

[Author's sidebar: there has been much discussion recently about legislation to clarify the meaning of FSIA's "commercial activity" provision when applied to foreign art and artifacts in the United States.  See "The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S.2212) Should Be Passed" and "U.S. House Passes Foreign Cultural Exchange Jurisdictional Immunity Clarification Act"].

Harvard's lawyers also write that the Terrorism Risk Insurance Act (TRIA) does not put the objects in the hands of the appellants:  "Nor are the [cultural] objects subject to execution under TRIA’s limited authorization of execution against certain 'blocked assets' of terrorist states." "Congress provided that only blocked assets owned by a terrorist party may be used to satisfy judgments against that party," and the cultural artifacts at Harvard are neither owned by Iran nor "blocked assets," the attorneys argue.  The MFA further argues that the appellant's "interpretation of TRIA leads to a constitutional takings problem."

UPDATE August 2012: The plaintiffs-appellants filed their response to the museums' briefs.

For more on the parallel Seventh Circuit / U.S. Supreme Court case, click here.

Prosecution Specifies Laws Allegedly Violated in U.S. v. Khouli et al. Prosecution

The prosecution has more particularly identified the laws it will use to prosecute Joseph A. Lewis, II and Salem Alshdaifat, both indicted last year by a New York federal grand jury for crimes relating to alleged antiquities trafficking.  Earlier this month, Chief Magistrate Steven M. Gold denied the defendants' motion for a bill of particulars.  However, the court ordered government attorneys to further crystallize the laws it would rely on during trial.

The U.S. Attorney's Office for the Eastern District of New York, in part, explained the following in a recent letter to the court:

"The Indictment alleges that the defendants acted contrary to law by providing Customs with false declarations of county of origin, seller, consignee and purchaser; providing Customs with vague and misleading descriptions of shipments' contents; failing to declare that multiple shipments contained a single purchase or to declare the full value of that purchase; and failing to file entry on international mail shipments, and accordingly, failing to make required declarations regarding those shipments. . . . The applicable Customs regulations that were violated by the above-described conduct are contained in Title 19, Code of Federal Regulations, Part 141 (“Entry of Merchandise”), Part 142 (“Entry Process”), Part 143, Subpart C (“Informal Entry”), and Part 145 (“Mail Importations”). . . . "

"In addition, by making material false statements to Customs, the charged conduct was contrary to Title 18, United States Code, Section 542 (“Entry of Goods by Means of False Statements”). See, e.g., United States v. An Antique Platter of Gold, 184 F.3d 131, 134-37 (2d Cir. 1999)(finding that a false declaration regarding an item’s country of origin violated Section 542, and the importation was therefore “contrary to law” for purposes of forfeiture of that item pursuant to Section 545)."

Kortlander Objects to Government's Motion to Dismiss

Wednesday, May 30, 2012
Christopher Kortlander's new attorneys yesterday filed a long awaited objection to the government's motion to dismiss filed in January.  Kortlander, along with his associated business entities (e.g. The Custer Battlefield Museum, Inc. in Montana), sued the government in the United States Court of Federal Claims once prosecutors declined to prosecute him for allegations of dealing with federally historical artifacts and eagle feathers.  A federal district court in Montana dismissed a separate lawsuit against a Bureau of Land Management agent in 2011.

Attorneys for the United States filed a motion to dismiss Kortlander's tort, criminal, and constitutional law claims.  They argued 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.  Kortlander objects to the government's claims.

Kortlander's lawyers argue that federal agents seized over $34 million of merchandise, including "historical relics," and that the government will not give it back.  Kortlander therefore wants compensation.  His attorneys argue that the seizure of the property is an unconstitutional taking without just compensation under the Fifth Amendment.  They add that the lawsuit was filed properly in court and brought in the time permitted by the statute of limitations.

CONTACT: www.culturalheritagelawyer.com

Isn't That Convenient?

Monday, May 28, 2012
The client was adamant. He didn’t want birth control covered and he didn’t want abortion. And because he had over fifty employees and because the year was 1991, I could get his group health insurance policy issued to his specifications. Was this a decision based upon his values and personal religious beliefs? Not hardly. The elimination of these benefits reduced his premium. He was not concerned about the needs of his female employees. The spouses and children of his male employees were not his problem. His daughter-in-laws could afford birth control pills and his granddaughters were still in elementary school.

If that same conversation were held today, his request would be couched with religious overtones. But truth be told, he would have pretended to have been Catholic if it would have saved him 2%.

The Sunday Plain Dealer had a half dozen letters to the editor about the recent lawsuit. A group of forty-three Catholic organizations including the archdioceses of New York and Washington, the University of Notre Dame and Catholic University of America, are suing to block requirements of the Patient Protection and Affordable Care Act to provide birth control, IUD’s, and the morning after pill. The letters feature Catholics defining Catholicism, Catholics attacking anyone out of step with the current Pope, and Catholics clarifying their belief that theirs is the only true version of Christianity.

As a non-Catholic, non-Christian, I have the opportunity to observe what appears to be a lot of heat, but very little light.

The fun part of this is that the PPACA does not guarantee these benefits, just the fight.

Free Preventive Care, no copays, deductibles, or coinsurance, is a key element of the Patient Protection and Affordable Care Act. It is the Obama administration and Kathleen Sebelius, the Secretary of Health and Human Services, who chose to define birth control pills, IUD’s, and the morning after pill as part of Preventive Care. That was a deliberate choice.

But when it comes to the PPACA, almost everyone is pro-choice. The Democrats chose to ignore the parts they don’t like. Republicans choose to ignore the parts that they once endorsed or created.

Are there people truly offended by the birth control provision or the individual mandate? Of course. But like my client of twenty years ago, much of this appears to be convenient agitation. They don’t want to implement the program and this is the excuse du jour. There are costs involved with any improvement in access to care or treatment. In our system, it will be the employers who will bear that burden. There are also some Americans who will disagree with this President no matter what. Some of those people are now, for the first times in their lives, rooting for Notre Dame.

Will the Supreme Court drop-kick the individual mandate? Will the Catholic Church have its day in court? Your guess is as good as mine.

I still contend that none of this really matters.

DAVE

www.bcandb.com

Blue Star Museums Offer Free Admission to Military

More than 1500 cultural institutions throughout America will now offer free admission to active duty military and their families from Memorial Day through Labor Day.  These "Blue Star" museums and science centers include institutions such as the Isabella Stewart Gardner Museum in Boston, the Museum of Modern Art in Manhattan, The Museum of Fine Arts in Houston, and the Currier Museum of Art in Manchester, New Hampshire.

The Blue Star Museums program is a collaboration between the National Endowment of the Arts, Blue Star Families and the U.S. Department of Defense.  Find a complete listing of participating cultural institutions here.

Facts? We Don't Need No Stinkin' Facts!

Tuesday, May 22, 2012
Governor Ted was on a roll. Ted Strickland, our previous governor, is a national co-chairman for President Obama’s reelection campaign. It is his job to tell one side of the story. It is his job to shape the issues to his candidate’s advantage. And, if necessary, it is his job to bypass a fact or two en route to his desired destination. Governor Ted was born for this job. Lucky for him, the reporters were the Plain Dealer’s Sabrina Eaton and Stephen Koff.

The article, Health care law may be big issue for young voters, appeared in last Sunday’s Plain Dealer. The online version linked here is slightly different from the version that appeared in the Plain Dealer. The crux of the article was that young adults are thrilled to be able to stay on their parents’ group health insurance policies. Dumping the Patient Protection and Affordable Care Act (PPACA) could cost the Republicans the votes of everyone under age 28.

This is where Governor Ted comes in.
Without the health care law, this group could lose coverage under their parents’ plans and “it’s impossible to be able to afford an individual policy unless you’re a wealthy or semi-wealthy person,” Strickland says.
It’s impossible? Balderdash!

This act of journalistic sloth, printing that claim by the President’s reelection campaign without question, is inexcusable. The Plain Dealer reporters could have interviewed any health insurance agent. They could have contacted an insurer, like Medical Mutual of Ohio who, unlike the Plain Dealer, is still headquartered in downtown Cleveland. Or, they could have gone online and run a couple of quick quotes.

They chose to do nothing.

And speaking of nothing, covering your children on your employer’s group policy is not nothing. The employer may be paying some or even the entire premium. The parent may be paying all of the cost. Ask your boss how much, if anything, you are paying to cover your children.

Let’s look at some numbers. Medical Mutual of Ohio. Elite policy with an office copay, Rx card, and a $2,500 deductible. Cuyahoga County (most expensive in Ohio). Healthy non-smoker.

......Male..........................Female
....$107.95..........21........$136.50
....$110.56..........26........$150.57

There are less expensive policies. You would never know any of this if your only source of information is the Plain Dealer.

Is $107.95 a month less than your employer’s policy? Most definitely. And if you are paying for this coverage, you may be able to save money by ignoring Governor Ted.

I am not running a campaign, so I will tell you the whole story. Some adult children are benefitting from the PPACA. If your child is unhealthy, if your child has had a major illness or injury, or if your daughter is pregnant, your employer’s group health coverage and the law that allows your child to remain on your policy, is a godsend. That is not dramatic or scary, but it is real.

We need more access to quality health care, not less. We need more facts, not less.

DAVE

www.bcandb.com

U.S. v. Khouli et al. Update: Judge Denies Defendants' Discovery Motion... With An Exception

Monday, May 21, 2012
"In general, defendants' motion for a bill of particulars is denied ...."  That was the order of Chief Magistrate Steven M. Gold in the alleged antiquities trafficking cases of Joseph A. Lewis, II and Salem Alshdaifat. Together with Mousa Khouli and Ayman Ramadan, the defendants were indicted by a New York federal grand jury in 2011.  Lewis and Alshdaifat deny the charges.  Khouli  pleaded guilty to the charges in April. Ramadan remains a fugitive from justice.

Cultural property seized in U.S. v. Khouli et al.
Courtesy ICE
On April 11, 2012 co-defendants Lewis and Alshdaifat submitted a bill of particulars requesting more specific discovery from the prosecution.  The prosecution objected, saying "the government has already provided more than the law requires."

After a hearing last Friday, the U.S. District Court for the Eastern District of New York ruled against the defendants "with the exception that the United States shall, by May 25, 2012, identify any regulations, treaty provisions, or foreign laws it will rely on at trial as 'laws' in connection with the charge that defendants 'fraudulently or knowingly import[ed or brought] into the United States, any merchandise, contrary to law' in violation of 18 USC 545."

18 USC 545 is the federal smuggling statute.  That law states in relevant part:

"Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—

Shall be fined under this title or imprisoned not more than 20 years, or both.

Proof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section."

CONTACT: www.culturalheritagelawyer.com

Prosecutors Reveal New Details of Theft Claim in St. Louis Art Museum Ka Nefer Nefer Mask Forfeiture

Friday, May 18, 2012
St. Louis Gateway Arch
Source: Sue Ford, National Park Service
Prosecutors in the case of United States v. Mask of Ka-Nefer-Nefer today filed a Reply in Support of Its Motion to Reconsider.  The U.S. Attorney for the Eastern District of Missouri hopes to reverse a judge's April dismissal of the case.  The government ultimately seeks to forfeit the allegedly stolen Ka Nefer Nefer mummy mask located at the St. Louis Art Museum (SLAM) and return it to Egypt.  SLAM denies that the mask is stolen and asserts ownership over the artifact.

The museum filed an objection earlier this week to the government's motion requesting the judge to reconsider the dismissal of the case.  Today's pleading by the government responds to the museum's objection.

The government says that it should be permitted to amend its original complaint if the court continues to uphold its dismissal order.  The prosecution goes on to reveal more specific allegations that it would articulate in a revised complaint:

"To the extent ... that a fuller explanation of the new allegations to be incorporated into an amended complaint would aid the Court in assessing the United States’ request for time to seek leave to amend, the United States is glad to elaborate. If deemed necessary by the Court, the United States' proposed amended complaint would:

• expressly allege that the Mask was stolen from box number fifty-four at Saqqara between 1966 and 1973;

• recite the provisions of the controlling Egyptian cultural patrimony law, Law No. 215, which provides that ancient artifacts excavated after 1951 are the national property of the Republic of Egypt, and establish the absence of any facts that would authorize the Museum’s ownership of the Mask under Egyptian law;

• summarize the relevant Egyptian export laws, which required application to be made to the Egyptian government before the Mask could be exported from Egypt, and allege the absence of any record of lawful exportation;

• detail the sale agreement between the Art Museum and the sellers for the purchase of the Mask, including the obligation of the sellers to provide copies of applicable export and import licenses, and allege the breach of those obligations;

• advance allegations regarding the sellers’ knowledge of the falsity of the Mask’s supposed provenance, as well as information regarding the criminal history of the sellers, to suggest the illicit nature of the sale;

• describe the Museum’s merely pro forma “investigation” into the Mask’s provenance to support the inference that it knew or was willfully blind to the fact that the Mask was stolen property both before and after its importation; and

• offer citations to numerous other provisions of law, including but not limited to Egyptian [patrimony] law No. 215 and 18 U.S.C. §§ 2314 and 2315 [the National Stolen Property Act], to bolster the conclusion that the Mask was imported into the United States 'contrary to law.'"

Federal attorneys further argue that "that the Museum apparently now concedes, for the first time on this Motion, that probable cause, not a preponderance of the evidence, is the ultimate trial burden that the United States will have to bear.  The Museum also appears to agree that the United States should not have to allege 'the date, location, or motive behind the stealing, let alone the identity of the thief' in order to meet that burden, so long as it can establish that the Mask is 'stolen.' The Museum likewise appears to admit that an artifact is considered 'stolen' if its private ownership violates originating country’s patrimony laws."

Prosecutors add that SLAM does not correctly construe the law or the facts of the case.  The U.S. Attorney's Office writes

"The Museum takes a detour, however, when it attempts to distinguish United States v. One Lucite Ball Containing Lunar Material on the ground that 'until 1983, there was no Egyptian law that unequivocally established Egyptian ownership of items like the Mask.'  That claim is not only outside the face of the complaint; it is also incorrect. As the United States set out in its Motion to Strike the Museum’s claim for lack of standing, Egyptian law has provided for national ownership of cultural artifacts like the Mask since at least 1951. While it will ultimately be for the Court to determine whose interpretation of Egyptian law is correct, any such determination is a matter of law that did not need to be pled, and in fact was not pled, on the face of the complaint. Thus, any such contention of the Museum’s is beyond this Court’s consideration on this motion."

[Blogger's sidebar: United States of America v. One Lucite Ball containing Lunar Material (one Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque is a federal district court case where authorities successfully seized a moon rock originally given by President Richard Nixon to Honduras.  The rock was bought for $50,000 by claimant Alan Rosen, who purchased the moon rock from a retired Honduran military officer.  The moon rock went missing from the Honduran presidential palace during the 1990's.  The case resulted in the forfeiture of the lunar rock to the federal government in 2003 after government lawyers argued that the rock was stolen from Honduras and smuggled into the United States in violation of 19 U.S.C. 1595a(c)(1)(A), the same statute invoked in the Ka-Nefer-Nefer case.]

CONTACT: www.culturalheritagelawyer.com

Court Denies Sotheby's Request for Discovery Conference in Cambodian Statue Forfeiture Case

Tuesday, May 15, 2012
A federal judge sitting in the southern district court of New York yesterday denied a request by Sotheby's for a discovery conference.  That decision came in the matter of United States v. A 10th Century Cambodian Sandstone Sculpture Located at Sotheby's in New York, New York.

The case involves an effort by U.S. Attorney Preet Bharara to forfeit a Khmer statue known as the Duryodhana, claiming that the statue was stolen from a temple.  Sotheby's placed the statue up for auction this spring.  Now Sotheby's and Ruspoli di Poggio Suasa, who alleges that her husband purchased the statue in 1975 in the United Kingdom, are claimants in the forfeiture action.

In a case seemingly dominated by letters to the court--which are not easily accessible to the public as compared with the filing of formal motions--Sotheby's Inc. reportedly sent a letter to the court to ask for a discovery conference under Rule 37.  That Federal Rule of Civil Procedure is generally used to compel discovery.  The judge ruled: "Claimant Sotheby's Inc.'s letter request for a Rule 37.2 conference to seek the court's assistance with a discovery dispute regarding the production and translation of foreign law is DENIED."

The motions deadline in the case has been set for June 5, 2012.

CONTACT: www.culturalheritagelawyer.com

SLAM Opposes Government's Motion to Reopen Ka Nefer Nefer Mummy Mask Case

Monday, May 14, 2012
Attorneys for the St. Louis Art Museum (SLAM) oppose reopening the case of United States v. Mask of Ka-Nefer-Nefer.  Last week U.S. Attorney Richard Callahan's office urged the eastern district federal court in Missouri to reconsider its March 31 dismissal of the forfeiture caselaunched to recover the mummy mask. SLAM's lawyers today filed their objection.

Mohammed Zakaria Goneim originally excavated the 19th Dynasty mask at Saqqara, Egypt during the 1950's. The museum bought it on the antiquities market in 1998. Federal authorities say that the mask is illegal contraband, while the museum maintains that it is the owner of legitimate property.

St. Louis Art Museum
 Source: Colin Faulkingham. Public Domain
SLAM's pleading argues that the district court should not reconsider its decision to dismiss the case, and the court should not permit the government to file a newly amended complaint. The museum's attorneys suggest that the government's remedy is to appeal the dismissal of the case to the Eight Circuit Court of Appeals.

The museum's lawyers complain that federal prosecutors
  • did not state any new evidence that should reopen the case,
  • failed to explain any exceptional circumstances that would prompt a reexamination of the dismissal,
  • did not submit an amended complaint when it had the chance, and
  • failed to show that Egyptian law declared ownership over cultural property prior to 1983.
Several passages from SLAM's memorandum of law, quoted below with legal citations omitted, provide both a sketch and the flavor of the museum's arguments.

"In the Eighth Circuit, where an order dismisses a complaint for failure to state a claim but remains silent on whether the order is final, whether it dismisses the entire action, and whether the plaintiff has the right to amend, the entire action is dismissed.... The March 31st Order of this Court is silent ...: it does not state whether it is final, whether it dismisses the entire action, or whether the Government may appeal. As such, the Order was plainly a dismissal of the entire action."

"In its Motion for Reconsideration, the Government does not allege that it has discovered new evidence since the Court’s dismissal of this action that would warrant alteration or amendment of this Court’s Order. Instead, the Government offers evidence it 'could' now present evidence that could have been presented before the dismissal of this case. The Government had ample time between its decision to initiate this lawsuit and the dismissal of this action to provide evidence necessary to bolster its case, but has now missed its opportunity to do so."

"In its Motion for Reconsideration, the Government did not allege any exceptional circumstances that warrant a reexamination of the Court’s final judgment in this case. The Government has had a fair and full opportunity to offer evidence in opposition to Claimant Museum’s Motion to Dismiss, either in the Government’s responsive pleadings or by way of an amended complaint. In fact, the Government now brings to the Court the very same arguments it made in its responsive pleadings to the Claimant Museum’s Motion to Dismiss. Other channels of relief are available to the Government, as it has the option to seek redress from this Court’s Order by appeal to the Eighth Circuit. For all these reasons, this Court should deny the Government’s Motion for Reconsideration."

"The appropriate time for the Government to submit an amended Complaint was at some point during the nearly eleven months between the Claimant Museum’s Motion to Dismiss and the Court’s Order dismissing this action due to those very insufficiencies. Now, more than a year after the Museum first identified the deficiencies of the Verified Complaint, the Government offers only facts it 'could' include in an amended Complaint. But the Government stops there, without submitting a proposed amended Complaint, any documentary evidence of the additional facts the Government 'could' provide, or even a specific description in its Motion of what facts exist to cure the myriad defects identified by the Court."

"[O]ne of the marked deficiencies in this case [is that] until 1983, there was no Egyptian law that unequivocally established Egyptian ownership of items like the Mask.  It is well settled that such a clear declaration of ownership is necessary before exportation of an article constitutes theft. The Government’s objection about being required to 'establish the date, location, or motive behind the stealing, let alone the identity of the thief' overstates what the court expected. In its Order, the Court used the absence of those very basic 'factual and logical steps' to illustrate the utter lack of any facts connecting the Mask’s absence from Egypt with its 'theft.'"

"[T]he Government in this case offered no facts regarding: the date (or even the year) of the theft; the place from which the Mask was stolen; the identity of the thief or thieves (or even so much as speculation as to the identity); the location of the Mask at any time between its suspected location in 1966 and its purchase by the Museum in 1998; the year in which the Mask was exported from Egypt; that there was any law enforcement investigation conducted and, if so, what it revealed; the chain or suspected chain of custody; the identity of any witnesses to either the theft, recording, transport, storage or possession of the Mask in the intervening three decades; or the Egyptian patrimony law that purportedly established Egypt’s ownership of the Mask."

"Nevertheless, the Government requests leave to amend its Verified Complaint. It is interesting that after more than six years during which the Museum has repeatedly sought--first from the Egyptian government, then from the United States government--any evidence suggesting theft or even that the Museum’s possession of the Mask was less than legitimate, the Government now hints at but still does not specify what additional facts may satisfy its burden. The Government has clearly had sufficient time, even within the time frame of this case, to amend its Verified Complaint to cure the deficiencies."

CONTACT: www.culturalheritagelawyer.com

Gordon Ivory Smuggling Prosecution on Trial Track

Sunday, May 13, 2012
The case of United States v. Victor Gordon appears on track for trial. The US District Court for the Eastern District of New York has issued a schedule that slates the trial for December 3, 2012. Motions are due in July.

U.S. Attorney Loretta Lynch
A federal grand jury indicted Philadelphia art dealer Victor Gordon last summer for allegedly importing and selling illegal African elephant ivory. U.S. Attorney Loretta Lynch's office is prosecuting the case.  Her office is also handling the alleged antiquities smuggling case of United States v. Mousa Khouli et al.

An indicted defendant is presumed innocent unless proven guilty beyond a reasonable doubt. 

Cultural Property Law Course at Plymouth State University, College of Graduate Studies

Saturday, May 12, 2012
Registration is now open for Cultural Property Law, part of Plymouth State University's Historic Preservation program.  This graduate studies course examines the international, national, and state legal frameworks covering the protection and movement of cultural property.

This concentrated course starts July 3 and meets Tuesday, Thursday, and Saturday over the course of two weeks. The final class is a field trip to a major museum.

The class meets in Concord, New Hampshire--an easy drive from Boston, Massachusetts and other points in New England.

Motion to Reconsider Urges Court to Resurrect St. Louis Art Museum Mummy Mask Case

Monday, May 7, 2012
U.S. Attorney Richard Callahan
Source: USDOJ
Reopen the St. Louis Art Museum (SLAM) mummy mask case. That is what the U.S. Attorney for the Eastern District of Missouri is asking a federal district court judge to do.  In a Motion to Reconsider filed today, U.S. Attorney Richard Callahan's office seeks to resurrect the case of United States v. Mask of Ka-Nefer-Nefer.

A judge dismissed the suit last month, claiming that the government's legal complaint to forfeit a mummy mask from SLAM was insufficient.  The complaint failed to articulate how the mask was stolen and smuggled, or how it was brought into the United States "contrary to law," the court ruled.

But the prosecution says in today's motion that the complaint does not need to be more specific about how the mask was stolen or smuggled. And the government does not need to prove any more than probable cause to believe that the mummy mask was stolen.

Assistant United States Attorney (AUSA) Richard Finneran writes, "While it is true that the Verified Complaint does not disclose the identity of the thief, the exact date of the theft, or 'why' the Mask was stolen, it does allege circumstances that reasonably give rise to the inference that the Mask was unlawfully taken from Egypt’s possession without its permission, and is therefore 'stolen' property  ...."  The AUSA adds that "the United States . . .  must merely establish probable cause to believe that the property is subject to forfeiture" then "the burden then shifts to the Museum to prove the lawful importation of the Mask by a preponderance of the evidence."

The prosecution describes that "one may rightfully infer the stealing of property without direct evidence of all the circumstances underlying the theft."  An analogy is given:  "If a homeowner were to return from a trip abroad to find that all of the electronics in his house were missing, it would certainly be reasonable for him to conclude that they had been stolen, even if he could not identify the thief or the exact time of the theft."

In its motion to reconsider, the prosecution also attempts to correct the court's conclusion that the government "should have alleged the [specific] law under which the Mask should be considered 'stolen.'" AUSA Finneran argues that "Section 1595a itself prohibits the importation of stolen property into the United States, regardless of whether any other law has been violated in the process of importation."  That statute, 19 USC 1595a, states:

Merchandise which is introduced or attempted to be introduced into the United States contrary to law shall
be treated as follows:
(1) The merchandise shall be seized and forfeited
if it—
(A) is stolen, smuggled, or clandestinely imported
or introduced . . . .

The government says that its arguments are sufficient to renew the forfeiture case.  But if not, prosecutors are asking the court to allow the filing of an amended complaint.  AUSA Finneran writes that "the United States believes that an amended complaint could allege numerous alternative bases to believe that the Mask’s importation was 'contrary to law' . . . if such allegations are deemed necessary."

The prosecution says it can offer additional allegations in an amended, verified complaint:  "Among other things, an amended complaint could more explicitly allege the approximate date range and location from which the Mask was stolen. It could also allege additional and alternative bases to believe that the Mask was imported 'contrary to law,' including facts relating to the absence of records and licenses reflecting the lawful import or export of the Mask, the content of the applicable Egyptian cultural property laws, and circumstances relating to the Museum’s purchase of the Mask from its seller. Finally, it could identify particular statutes, regulations, and provisions of foreign and common law which establish that the illegality of the Mask’s importation." 

The prosecution draws the court's attention to the generally accepted principle that "[d]istrict courts routinely do not terminate a case at the same time that they grant a motion to dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice and give the plaintiff at least one opportunity to amend its complaint."


UPDATE: SLAM's lawyers filed their objection to the government's motion to reconsider on May 14, 2012.

Part II: Motions Filed by Lewis and Alshdaifat in U.S. v. Khouli et al. Take Aim at the Government -- Smuggling Statute Claimed to be Overbroad

Thursday, May 3, 2012

Continued from yesterday.

CC. Source: www.legaleducation.org.uk
Salem Alshdaifat’s attorney also filed an omnibus motion in the matter of U.S. v. Khouli et al.  He claims that his client was a broker or middleman who did not participate in the importation of the cultural objects that are part of the criminal case.   He seeks to dismiss all counts of the indictment against Alshdaifat; suppress physical and digital evidence; suppress post-arrest statements of his client; have an evidentiary hearing to resolve any factual disputes related to the motions; compel the government to produce expert witness discovery; provide notice of any “prior bad acts” evidence; and have permission to join in motions filed by Joseph A. Lewis, II.

Specifically, Alshdaifat contends that the smuggling statute (18 U.S.C. § 545) is void for vagueness.  Therefore, Alshdaifat cannot be prosecuted under the statute.  To quote from Alshdaifat’s memo of law:

“The federal smuggling statute … has been interpreted by federal courts to mean different things depending on where a defendant conducts his business. Mr. Alshdaifat could not be charged with a smuggling crime had the merchandise been mailed to New Jersey, Pennsylvania, or Delaware because the Third Circuit has ruled since 1994 that Section 545 requires an intent to deprive the United States of revenue.  In this case, the merchandise involved in the Section 545 offenses are classified as 'antiques,' and under the Harmonized Tariff Schedule of the United States, Heading 9706, they are duty free. Thus, in the Third Circuit, there would be no crime here. However, in the Second Circuit [covering New York], the Section 545 smuggling crime has been more expansively interpreted to cover conduct beyond an intent to defraud the United States of its right to revenue. Given that the courts cannot agree on the meaning of this statute, ordinary people will find it difficult to understand what conduct is actually prohibited by the statute.” (Citations omitted).

Alshdaifat’s lawyer adds that “the current expansive interpretation in the Second Circuit of Section 545's ‘intent to defraud’ provision is unconstitutionally vague,” requiring dismissal of charges against the defendant.

Improper venue is also argued as a basis for dismissing the charges.  Counsel for Alshdaifat contends that points of entry for certain goods that are the subject of the indictment are not articulated, or that points of entry mentioned in the discovery materials specifically relate to places outside the Eastern District of New York such as Manhattan or Connecticut.

Alshdaifat’s motion additionally argues that evidence must be suppressed that was derived from “defective” search warrants granting seizure of emails.  Alshdaifat’s lawyer claims that one warrant lacked probable cause for the government to believe that “evidence of a crime would be found within the Alshdaifat Yahoo! e-mail account.”  “This request … was quite expansive and intrusive. It sought authorization to search literally tens of thousands of e-mail communications of several individuals.” Alshdaifat’s lawyer adds that the Magistrate issuing the warrant was “misled.”  A second warrant authorizing the search and seizure of emails must also be struck down, it is argued, because it is tainted by the fruits of the first search warrant.

Meanwhile, federal agents’ search of Alshdaifat’s Michigan home is alleged to be improper because the magistrate's warrant was based on tainted evidence, the warrant was unconstitutionally overbroad, and the agents who executed the warrant went beyond their authority.  The evidence gathered must therefore be suppressed.

Alshdaifat’s lawyer takes pointed aim at statements made in the warrant affidavit by one Immigration and Customs Enforcement (ICE) agent, which describe a past allegation of smuggling by Alshdaifat in Detroit.  The Agent's account of this incident is emblematic of the reckless way the government conducted this investigation and how they repeatedly misreported information to force the ‘facts’ to fit their theory,” writes counsel. “The Agent's rendition of the incident at Detroit Metro Airport with Mr. Alshdaifat should not contribute to a probable cause showing to invade his home because it does not suggest crimes involving violations of Customs laws or the National Stolen Property Act.” (Citations omitted).

The manner in which federal agents searched Alshdaifat’s home last year also earns scrutiny by legal counsel:  “While the Warrant's Attachment specifically limited the items to be seized to those ‘which are evidence of . . . art or antiquities that were illegally imported,’ the searching agents took everything—every last coin and trinket in the house. There was no attempt to connect these items with evidenc[e] that they were illegally imported—none at all.”

Moreover, it is argued that statements made by Alshdaifat to authorities should not be introduced at trial because the defendant was represented by legal counsel when authorities questioned him outside his home in Michigan.  The attorney writes that “Mr. Alshdaifat requested the opportunity to call his lawyer, and was denied. Under these circumstances, Mr. Alshdaifat did not voluntarily waive his right to have counsel present at his post-arrest interview and his statements were far from voluntary.  Moreover, because at the time of his arrest, Mr. Alshdaifat was already under indictment in the Eastern District of New York and represented by counsel on matters related to that indictment, the government also violated his attached Sixth Amendment right to counsel.” (Citations omitted).

The prosecution will have a chance to respond to the omnibus motions filed by Lewis and Alshdaifat.

Part I: Motions Filed by Lewis and Alshdaifat in U.S. v. Khouli et al. Take Aim at the Government -- SLAM Forfeiture Lawsuit and Sotheby's Cambodian Case Cited

Wednesday, May 2, 2012

Objects seized in U.S. v. Khouli et al.




Attorneys for Joseph A. Lewis, II and Salem Alshdaifat both filed omnibus motions this past Monday in the criminal case of U.S. v. Khouli et al.  They argue multiple grounds for relief.

A federal grand jury sitting in the Eastern District of New York indicted antiquities collector and businessman Lewis as well as ancient coin dealer Alshdaifat for their roles in an alleged antiquities trafficking conspiracy.  They are presumed innocent.  Their efforts appear more vigorous now that a third co-defendant, antiquities dealer Mousa "Morris" Khouli, pleaded guilty last week.  A fourth co-defendant, Ayman Ramadan, remains a fugitive.

Joseph Lewis’ lawyers seek to dismiss the case against their client; suppress evidence seized by authorities from email accounts; dismiss specified counts of the indictment; have the grand jury minutes reviewed by the court; seek to obtain advance notice of any prior bad acts by Lewis that the prosecution may raise at trial; and join arguments made by Alshdaifat’s attorney.  Some of the arguments made by Lewis’ lawyers are discussed here.

Lewis’ attorneys say that the evidence obtained by court issued search warrants must be suppressed.  The attorneys argue that affidavits in support of searches of Lewis’ home and emails were misleading and contained material omissions.  “In each supporting affidavit the government repeatedly presented exaggerated, conclusory assertions and omitted contextually important material facts.  Most blatantly, these affidavits painted Mr. Lewis and the alleged conspirators as grave robbers trafficking in stolen property, when the government knew that that was not true and more important, that it lacked proof to support these allegations.”  For example the government “never disclosed the absence of proof that any piece was stolen, preferring instead to create an aura that such proof did exist.”  The government also did not mention anything about Lewis’ inquiries to Khouli, made in order to confirm the provenance of an Egyptian coffin, instead implying that Lewis “asked [Mr. Mousa] Khouli to create a false provenance ….”  Had the government presented a full picture of its evidence and not made improper implications, Lewis’ attorneys contend that the “Magistrate Judge would have been deeply troubled by the [search warrant] application …”

The lawyers for Lewis protest that “the government baldly asserted . . . that ‘persons who smuggle cultural property of questionable provenance into the United States typically avoid detection by Customs by means of false statements . . . .”  Lewis’ attorneys attack this line of reasoning, in part, because they say that Lewis was never part of the importation process of antiquities and because “hundreds of foreign antiquities … lawfully exist throughout the United States despite their bearing explicitly uncertain provenances.”

To support their client’s claims, Lewis’ attorneys cite the recent dismissal of the federal government’s forfeiture case in the matter of US. v. Mask of Ka Nefer Nefer:  “[I]t has become the practice of the government in the antiquities field [to make assertions] without regard for the truth as was shown recently, when the government was badly rebuffed and excoriated in a recent effort to seize an antiquity from the St. Louis Art Museum.”

Lewis’ attorneys also contend that federal agents acted beyond the scope of the warrant authorizing a search of Lewis’ Virginia home last year.  Instead of simply taking relevant antiquities—e.g. a Greco Roman coffin, an Egyptian nesting coffin, limestone figures, and funerary boats—as well as related items such as documents, the agents took items well beyond what the warrant authorized.  The attorneys claim that the seizure of documents related to Lewis’ insect collection, personal documents, and more was outside the scope of the warrant’s authority.  The lawyers state that “U.S. Fish and Wildlife Service agents were inappropriately invited to participate, undoubtedly contributing to the massive number of unrelated and unauthorized seizures.”  The only way to cure the problem of an overly broad execution of a search warrant is to suppress the evidence obtained by it, the lawyers argue.

Attorneys for Lewis further argue that the case against their client should be dismissed because of government excesses.  They urge the court to drop the criminal case against Lewis because of the alleged misconduct described above, because of reckless media statements, and because of selective prosecution.  The attorneys say that Lewis has been unfairly characterized in the press by government misrepresentations, and that there is “an overall campaign to harm Joe Lewis” as illustrated by “damaging accusations” made to CNN, The New York Times, and elsewhere. 

Lewis has also been unfairly targeted for prosecution, they say.  “Indeed, outside of this case, the number of traded antiquities with dubious , questionable or unknown provenances are too numerous to count and yet none of those sellers or buyers have been prosecuted based on questionable provenance alone—the only factor here,” the lawyers argue. (Emphasis in the original).  To further illustrate the claim, Lewis’ lawyers point to the lack of prosecution occurring in the Sotheby’s case involving forfeiture of a Cambodian statue.

Legal counsel also asks the court to dismiss the money laundering count against Lewis, in part, because the charge is not based on Lewis paying money for the importation of cultural property.

Because Customs seized the components of an Egyptian nesting coffin in Newark, New Jersey, the case should also be dismissed for improper venue.  The court for the Eastern District of New York does not cover cases arising in Newark, Lewis’ lawyers say.

Attorneys for Lewis conclude by asking the court to review the transcript of the grand jury session.  Normally grand jury proceedings are confidential.  But the attorneys state that the government’s excesses were so pervasive in this case that a judge should review the testimony given to the grand jury.

To be continued tomorrow ...