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Saturday, April 29, 2017

National Antiquities Take-Back Day

Today is National Prescription Drug Take-Back Day. Each year the Drug Enforcement Administration coordinates with federal, state, county, and local police and police to collect millions of pounds of unused medications stored in household medicine cabinets, reducing the availability of addictive drugs.

Police departments and prosecutors' offices collect the drugs from individuals without asking questions, removing the fear of any potential law enforcement consequence.

In the same way, a National Antiquities Take-Back Day would allow collectors and their family members to return ancient statues, pots, coins, and other archaeological objects known to have been acquired illicitly or believed to have suspicious histories.

Such an event could be sponsored by Homeland Security's Cultural Property, Art, and Antiquities Program and the FBI Art Crime Team, who would supervise collecting the objects without no questions asked and who would repatriate the artifacts to their lawful owners.

Photo credit: pipp/freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, April 20, 2017

Federal Court Leaves CPIA Coin Import Regs Untouched

The District Court of Maryland once again has refused the Ancient Coin Collectors Guild's (ACCG) invitation to strike down or weaken import restrictions that protect endangered ancient coins. The court instead ordered the forfeiture of 15 ancient coins seized from the ACCG. But in a partial victory for the Guild, the court directed authorities to turn over seven coins to the advocacy group.

A sample of the seven Cypriot coins, three knife-shaped Chinese coins, and dozen other
disc-shaped Chinese coins in the Baltimore test case. On the top row (l-r)
are Chinese coins #1 (c.400 BC), #2 (c.300 BC), #3 (C.300 BC), #12, and #13.
The bottom row (l-r) displays coins #16, #17 and the envelope labeled Cyprus
Ptolemaeus Head of Zeus, and coin #19. The Maryland District Court says
that attorneys for the ACCG and the government "acknowledge an unexplained
discrepancy between the number of coins listed in the dealer’s invoice, 23,
and the number currently in CBP’s possession, 22."
The federal court's March 31 decision in the case of U.S. v. Three Knife-Shaped Coins et al. is the latest outcome in the ACCG's eight-year long legal struggle to attack American import restrictions placed on ancient coins in danger of cultural heritage looting and trafficking.

The Guild's test case began in April 2009 when it shipped 23 ancient Cypriot and Chinese coins to Baltimore. Spink, a dealer in London, supplied the coins, and the Guild had the archaeological material flown aboard a British Airways passenger flight to the United States. “According to the Spink invoice, each coin was minted in Cyprus or China, had '[n]o recorded provenance,' and had a '[f]ind spot' that was 'unknown,'" noted the district court.

Customs officers detained the artifacts because their entry violated CPIA import regulations authorized by the bilateral agreements (also called Memoranda of Understanding) in force between the United States and the nations of Cyprus and China.

U.S. Customs and Border Protection (CBP) and the Department of the Treasury classified certain "Coins of Cypriot Types" as protected cultural property subject to Convention on Cultural Property Implementation Act (CPIA) import controls on July 13, 2007, concluding that the "[c]oins constitute an inseparable part of the archaeological record of the island, and, like other archaeological objects, they are vulnerable to pillage and illicit export."

Meanwhile, on January 16, 2009, authorities designated certain bronze Chinese coins--among other bronze archaeological material such as vessels, sculpture, musical instruments, and weapons--as subject to CPIA import restrictions after the Department of State concluded on May 13, 2008 that "[t]the cultural patrimony of China is in jeopardy from the pillage of irreplaceable archaeological materials representing China's cultural heritage from the Paleolithic Period (c. 75,000 B.C.) through the end of the Tang Period (A.D. 907) ... (19 U.S.C. 2602(a)(1)(A))."

Following Customs' detention of the ACCG's shipment, the Guild announced on its web site that it "now plans to use this detention as a vehicle to strike down the unprecedented regulations banning importation of whole classes of ancient coins."

The ACCG first sought a declaratory judgment when the government delayed starting legal proceedings, which gave birth to Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs, a case that ultimately sided with the government and ruled against the ACCG.

Both the District Court of Maryland and the Fourth Circuit Court of Appeals in that case rejected the ACCG's claims (1) that import restrictions on Cypriot and Chinese ancient coins were the product of ultra vires (extralegal) acts, (2) that the government violated the Administrative Procedures Act (APA), or that (3) the government transgressed the First and Fifth Amendments of the U.S. Constitution. The courts found that federal agencies did not need to demonstrate, as the ACCG contended, that all coins of the types listed for restricted import were 'first discovered within'' their countries of origin. The case concluded after four years with the U.S. Supreme Court declining to hear the matter.

Federal prosecutors then sought title to the seized ancient coins. The U.S. Attorneys Office for the District of Maryland in April 2013 filed the civil forfeiture case of U.S. v. Three Knife-Shaped Coins et al. pursuant to 19 U.S.C. § 2609 of the CPIA, contending that the ACCG imported archaeological material designated in CBP Regulation 19 C.F.R. § 12.104g in violation of 19 U.S.C. § 2606 and 19 C.F.R. § 12.104a(b) and that that the Guild failed to produce any documentation to CBP that demonstrated the legitimacy of the import as demanded by 19 U.S.C. § 2606(b). The ACCG soon filed as a claimant.

The ACCG continued to challenge to validity of CPIA import controls throughout the forfeiture case, causing the district court, in June 2014, to repeat that there could be no "further challenge to the validity of the regulations.”

A little over two weeks ago, District Judge Catherine Blake ruled on the ACCG’s motion for summary judgment and the government’s cross-motion for summary judgment, reinforcing the legality of CPIA restrictions on specifically identified types of ancient coins. Citing the words of the Fourth Circuit Court of Appeals, Judge Blake wrote:
The appellate court addressed the ACCG's ... complaint "that [the Department of] State and CBP acted ultra vires by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were 'first discovered within' China or Cyprus." The [Circuit] court disagreed by explaining that "State and CBP are under no obligation to list restricted items with more specificity than the statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice
Judge Blake rejected the ACCG’s persistent “first discovered within" argument, pointedly expressing that the argument “misses the mark."

The "first discovered" argument imagines that federal attorneys, as part of their prima facie case to forfeit regulated imports, must show that ancient coins were “first discovered within” or were “subject to the export control of" a State Party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Put another way, the ACCG's argument posits that authorities may not seek to forfeit archaeological imports unless they first establish (1) that they are the type of cultural artifacts appearing on the designated lists of archaeological materials that are subject to import restrictions under the CPIA, which implements the 1970 UNESCO Convention in the United States; (2) that the artifacts were first discovered within and subject to the export control of the State Party to the 1970 UNESCO Convention; and (3) that the artifacts were removed unlawfully from the State Party only after the U.S. put the CPIA import restrictions in place.

If successful, the "first discovered" argument would have raised the legal bar for federal authorities to detain and forfeit unlawfully imported cultural property. That is because it is almost impossible to demonstrate the location where a looter first clandestinely dug up an ancient coin. The ACCG has argued instead that an ancient coin's find spot is difficult to determine because ancient coins circulated from one region to another, which is a claim that has been challenged.

Regardless of the merits of either argument, the Maryland district court rejected the ACCG's legal theory on statutory grounds, explaining in depth:
The Guild’s argument appears to conflate two terms defined in the CPIA: “archaeological . . . material of the State Party” ... and “designated archaeological . . . material” .... “Archaeological material of the State Party” is “any object of archaeological interest . . . which was first discovered within, and is subject to export control by, the State Party.” 19 U.S.C. § 2601(2). “Designated archaeological material” is “any archaeological . . . material of the State Party” which is “covered by an agreement under this chapter” and “listed by regulation under section 2604.” Id. § 2601(7). Only “designated” material is subject to import restrictions under § 2606 [of the CPIA] and potentially “subject to seizure and forfeiture” under § 2609 [of the CPIA]. Id. §§ 2606(a), 2609(a). 
The Guild’s source for the “first discovered within” and “subject to export control by” requirements is the reference to “archaeological material of the State Party” in § 2604 [of the CPIA], which provides that “the [US] Secretary [of the Treasury] . . . shall by regulation promulgate (and when appropriate shall revise) a list of the archaeological or ethnological material of the State Party covered by the agreement.” Id. § 2604. Rather than supporting the Guild’s arguments, however, this provision illustrates the distinction between “archaeological material of the State Party” and “designated archaeological material.” “Archaeological material of the State Party” includes all material that may be restricted by [US Customs and Border Protection] pursuant to an applicable agreement, whereas “designated archaeological material” is the subset that has been restricted through the process of creating or amending a designated list. See id. §§ 2601, 2604. By asserting that the government must prove in every forfeiture action that “designated archaeological material” does, in fact, constitute “archaeological material of the State Party,” the Guild seeks to impose a burden on the government that the CPIA does not: the requirement to prove, as part of its initial showing, that the decisions incorporated into its underlying regulations are sound. … Further, nothing in the statute or legislative history supports the Guild’s proposal to substitute one defined term, “archaeological material of the State Party,” for another, “designated archaeological material,” in §§ 2606 and 2609. The court declines the Guild’s invitation to rewrite the statute in this way.
Besides seeking to dismantle the CPIA's cultural property protections over ancient coins, the ACCG also pursued the more practical goal of reclaiming its imported Cypriot and Chinese coins from federal custody. Both sides scored a victory on this issue.

It was the government's burden to show "that the [detained] property has been 'listed in accordance with section 2604'" of the CPIA. "If so, 'the burden of proof . . . shifts to [the Guild] to establish, by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.'" Applying this analysis, Judge Blake assigned title of all the Cypriot coins and some of the Chinese coins to the United States, and gave the Guild seven Chinese coins. 

Judge Blake explained the law of the case this way. Once the government establishes its burden to prove that detained coins are among the types listed on the CPIA's § 2604 designated list, then the claimant bears the burden to show that the coins are importable. The burden "'shifts to [the claimant] to establish, by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.' (Quoting U.S. v. Eighteenth Century Peruvian Oil, 597 F. Supp. 2d 618, 623 (E.D. Va. 2009))," meaning that the ACCG had to produce documentation that the coins were, as the earlier Fourth Circuit opinion declared, "(1) lawfully exported from its respective state while CPIA restrictions were in effect; (2) exported from its respective state more than ten years before it arrived in the United States; or (3) exported from its respective state before CPIA restrictions went into effect." The Guild failed to produce any documentation.

To satisfy its burden, the Guild wanted the court to accept expert witness testimony instead. While the court acknowledged that there was "the possibility … that the Guild could rely on expert testimony to prove that ‘these specific coins were exported from their respective States before CPIA restrictions went into effect," the ACCG failed to supply sufficient information about the specific Cypriot or Chinese coins at issue in the case.

The Guild's legal counsel, Attorney Peter Tompa, told the Maryland court in a letter dated May 27, 2009 that "[t]he Guild has admitted that it cannot provide the documentation ..." for any of the coins (labeled for clarity's sake in sequential numbers from 1 through 22). So the ACCG supplied alternative evidence in the form of expert testimony from Douglas Mudd, a numismatic expert and curator of the American Numismatic Association museum, and from Michael McCullough, a noted art and cultural property attorney based in New York.

The district court commented that 'the Guild offers Mudd’s testimony to prove, by a preponderance of the evidence, that the coins were “exported from [their] respective state before CPIA restrictions went into effect.' It offers McCullough’s testimony to prove, as a matter of law, that the Cypriot coins were 'lawfully exported from [their] respective state while CPIA restrictions were in effect,' and to raise an issue of material fact as to whether the Chinese coins were 'lawfully exported from [their] respective state while CPIA restrictions were in effect.'"

Federal prosecutors objected to the consideration of the ACCG's experts, pointing out that CPIA § 2606 does not authorize the evaluation of scholarly evidence, only permitting proof by way of "a certification or other documentation which certifies that such exportation was not in violation of the laws of the State Party." The ACCG countered that the broader federal customs statute, of which the CPIA is only a single chapter, in fact did allow for the use of learned evidence in forfeiture cases, citing 19 U.S.C. § 1615.

The court declined to resolve the dispute, leaving the evidentiary question open, because Judge Blake concluded that it did not matter. "If claimants in CPIA forfeiture actions are limited to the forms of documentation specified in § 2606, the Guild—which has conceded that it cannot provide such documentation—has failed to satisfy its burden to rebut the government’s prima facie case," wrote the judge. "If, on the other hand, § 1615 permits courts to consider scholarly evidence, the court still must look to the substantive law to determine whether the proffered expert testimony establishes the Guild’s entitlement to summary judgment or raises a disputed issue of material fact. Neither the Mudd nor McCullough testimony supports the Guild’s claims."

The court added that “even if 19 U.S.C. § 1615 provides the applicable evidentiary standard and authorizes the Guild to rely on scholarly evidence, that scholarly evidence must be particularized to the coins at issue... .The Mudd testimony and McCullough testimony regarding the Chinese coins are insufficiently particularized, and the McCullough testimony regarding both the Cypriot and Chinese coins fails as a matter of law. The Guild has provided no other evidence or argument that “establish[es], by a preponderance of the evidence, that the property is not subject to forfeiture, or . . . establish[es] an applicable affirmative defense.” See Peruvian Oil, 597 F. Supp. 2d at 623. Accordingly, the government is entitled to summary judgment as to coins 1-6, 12-13, and 16-22. See id.”

Still, the district court did suggest that an expert could have been used by the government to satisfy its burden that the Chinese coins ultimately returned to the ACCG were the kinds subject to CPIA import restrictions.

When the court reviewed whether the imported coins properly fell under the § 2604 CPIA restrictions lists, it found that government lawyers relied on an invoice from Spink, descriptions and photos of the coins that the litigants produced, and admissions made by the ACCG. And so, Judge Blake declared, “[r]egarding coins 1-6, 12-13, and 16-22, the court finds that the government has satisfied its initial burden to show that the coins are of restricted types. Indeed, the Guild admitted in response to the government’s request for admissions that coins 1-6 and 12-13 are of types that appear on the designated list for coins from China and that coins 16-22 are of types that appear on the designated list for coins of Cypriot type.”

But Judge Blake pointedly observed that the ACCG “did not concede ... that ... coins [numbered 7-11 and 14-15] are of types that appear on the designated list for China. Rather, it stated that it was 'unable to admit or deny whether [the coins] are of types that appear on the Chinese designated list' because it 'ha[d] no working knowledge of the Chinese language' [according to representations made by Attorney Tompa]. The court agrees that the relevant documents, including the Spink invoice, are insufficient to establish that coins 7-11 and 14-15 are of types that appear on the Chinese designated list."

Judge Blake concluded that "[b]ecause the government has not produced a Chinese language expert or provided any other evidence showing that the coins are of restricted types, the court finds that the government has failed to satisfy its initial burden regarding coins 7-11 and 14-15." As a result, the ACCG notched its first win in its test case.

The district court criticized federal attorneys for trying to place the government's initial burden on the ACCG, emphasizing that the “initial burden lies with the government to show that the coins have been 'listed . . . in accordance with section 2604,' not with the claimant to prove that they have not. 19 U.S.C. § 2610. As the government has provided no evidence to establish that the coins are of types that appear on the designated list, there was no 'initial showing' for the Guild to rebut.”

The court, meanwhile, struck down the ACCG's Fifth Amendment due process claims, which alleged that the judiciary changed the burden of proof standard set by lawmakers and that CPIA import regulations did not give adequate fair notice of what was prohibited:
First, as explained above, the burden-shifting framework in CPIA forfeiture actions is governed by a combination of generally applicable laws and provisions of the CPIA. Reading 19 U.S.C. § 1615 and 19 U.S.C. § 2610 together, Congress placed the initial burden on the government and the burden of rebuttal on the claimant. In forfeiture actions involving material subject to § 2606, the government must establish “that the material has been listed . . . in accordance with section 2604.” 19 U.S.C. § 2610. The burden then transfers to the claimant to rebut the government’s prima facie case. Peruvian Oil, 597 F. Supp. 2d at 622-23 (citing 19 U.S.C. § 1615). Because this analysis gives effect to, rather than altering, the burden-shifting framework created by Congress, the Guild has not raised a valid due process claim. 
Second, the Guild argues that the regulations fail to provide it with “fair notice” of what is prohibited. In a CPIA forfeiture action, the relevant regulations are the designated lists. See 19 U.S.C. §§ 2606, 2609. The Fourth Circuit previously concluded that the designated lists satisfy 19 U.S.C. § 2604’s “fair notice” requirement, holding that “CBP has listed the Chinese and Cypriot coins by type, in accordance with 19 U.S.C. § 2604.” Ancient Coin Collectors Guild, 698 F.3d at 183; see 19 U.S.C. § 2604 (requiring that the designated lists “be sufficiently specific and precise to insure that . . . fair notice is given to importers and other persons as to what material is subject to such restrictions”). The Guild does not appear to argue that the alleged due process violations arise from a lack of specificity or precision in the designated lists. Rather, the Guild grounds its “fair notice” claim in the premise that 19 C.F.R. § 12.104 conflicts with the “first discovered within” and “subject to export control by” requirements of the CPIA. As discussed above, however, the provisions of the CPIA that govern this action—including §§ 2606, 2609, and 2610—relate to whether a given type of material has been added to a designated list, not whether it should have been. Thus, for purposes of this forfeiture action, it does not appear that a conflict involving the “first discovered within” and “subject to export control by” requirements would deprive the Guild of fair notice, so long as the designated lists included sufficiently specific and precise descriptions of the types of items subject to forfeiture. Further, to the extent that the Guild seeks to relitigate its challenge to the validity of the regulations in the form of a due process claim, that argument is inappropriate here.
The court's Memorandum Opinion may be accessed here.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Wednesday, April 19, 2017

Drusus Head Revisited

Steve Litt reports that the Cleveland Museum of Art is returning a marble head depicting Drusus Minor to Italy because the object was stolen in 1944.

When the Cleveland Museum acquired the ancient piece in 2012, several commentators raised questions about its provenance. Among them were David Gill.

CHL conducted its own research and published a post in August 2012 titled, "Unable to Obtain Documentary Confirmation" - Due Diligence and Questions Posed by the Collecting History of The Cleveland Museum of Art's Drusus Minor Head." The post is worth revisiting in light of this week's repatriation announcement.

Photo source: Cleveland Museum of Art

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Saturday, March 25, 2017

US Supports UN Security Council Resolution Condemning Heritage Destruction by Terror Groups

The United Nations Security Council unanimously passed Resolution 2347 yesterday. The resolution "Deplores and condemns the unlawful destruction of cultural heritage ... as well as the looting and smuggling of cultural property from archaeological sites, museums, libraries, archives, and other sites, in the context of armed conflicts, notably by terrorist groups."

Ambassador Michele Sison, US Deputy Permanent Representative to the UN, decried cultural heritage trafficking and denounced war-time destruction of cultural and religious sites. Ambassador Sison's excerpted remarks follow:

"Over the past two decades, we have seen damage to and destruction of our shared cultural heritage on an unprecedented scale.

"Those engaged in conflict and terror deliberately destroy cultural property to create fear, undermine governments, and cause animosity among different groups within a society. The wanton devastation by ISIS, Al Qaeda, and others in Iraq and Syria, by the Taliban in Afghanistan, and by other groups elsewhere has taken a devastating toll not only on human lives, but also on our common cultural heritage.

"This destruction tears at the very fabric of our societies.

"The policy of the United States government is clear: the unlawful destruction or trafficking of cultural heritage is deplorable – we unequivocally oppose it, and we will take all feasible steps to halt, limit, and discourage it.

"The United States seeks to hold accountable those who engage in the illegal trade of cultural property and the perpetrators of deliberate cultural heritage destruction.

"Enhanced international law enforcement cooperation to counter these destructive and destabilizing activities is already showing results.

"For example, the United States shared information with our international partners about the activities of the deceased Abu Sayyaf, a former high-ranking ISIS official who was responsible for financing the group’s terrorist activities, including through the illicit sale of antiquities.

"Growing international coordination and cooperation among law enforcement and other agencies enabled the United States to take direct action in order to seek the recovery of these items.

"We believe that there are no “one-size-fits-all” strategies for cultural heritage preservation in armed conflict. Complex situations around the world warrant a variety of responses.

"Many states have demonstrated the ability to safeguard their cultural treasures in conflict zones during times of crisis.

"It is a long-standing U.S. policy to preserve cultural heritage in situ whenever possible, thereby avoiding the need to remove cultural property from its country of origin."

Sources: https://usun.state.gov/remarks/7721 and http://www.un.org/press/en/2017/sc12764.doc.htm
Photo credit: marmit/freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, February 2, 2017

Obama's CPAC Scheduled to Review Cultural Property Agreements for President Trump

The newly fashioned Cultural Property Advisory Committee (CPAC), with all eleven members appointed or reappointed by former President Barack Obama shortly before leaving office in January, is expected to review extensions of bilateral agreements between the United States and Belize, Mali, and Guatemala during a meeting in Washington, DC beginning on March 21. It will be CPAC's first announced meeting after President Donald Trump's inauguration last month.

Maya ruins in Lamani, Belize
CPAC advises the president or his designee on countries' requests for protection of cultural heritage under Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

Longtime Washington insider Evan Ryan used to be the president's designee as Assistant Secretary of State for Educational and Cultural Affairs, but she left the State Department last month to enter the private sector. Principal Deputy Assistant Secretary Mark Taplin, who is a career official, temporarily fills the vacancy now.

The bilateral agreements, also called Memoranda of Understanding (MoU), authorize US import restrictions on endangered cultural heritage originating from the three nations. The agreements have a five year life-span under the terms of the Cultural Property Implementation Act (CPIA).

Belize first entered an agreement with the US in 2013. It is set to expire in February 2018.

Mali, meanwhile, received help in 1993 when the US erected  emergency import restrictions on cultural material in September that same year. The two nations signed a formal bilateral agreement in 1997 and have renewed their MoU every five years thereafter. The last renewal was in 2012, and the next renewal comes again in September 2017, on the heels of a recently issued International Council of Museums Red List, which flags an artifacts trafficking emergency confronting Mali's cultural heritage, and this past fall's International Criminal Court conviction of Ahmad Al Faqi Al Mahdi, who destroyed cultural and religious heritage in the African nation.

The American MoU with Guatemala expires in September 2017, and there have been import restrictions on designated cultural property from that country since 1991. The last renewal took place in 2012 when the White House expanded the import protections to cover ecclesiastical objects from approximately 1524 to 1821 A.D., in addition to Pre-Columbian archaeological artifacts dating from 2000 B.C. to 1524 A.D.

Photo credit: Shmuel Shoshtari/freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Saturday, January 14, 2017

President Obama Fills Last CPAC Positions

With just nine days left before exiting the White House, President Barack Obama has completed the last four appointments to the eleven member Cultural Property Advisory Committee (CPAC).

On Thursday the president announced the appointments of John Frank and Karol Wight, and the reappointments of Lothar von Falkenhausen and Nancy Wilkie.

The White House announcement comes on the heels of President Obama's reappointments of Rosemary Joyce and James Wright Willis on January 5.

The president named five others to CPAC late last year, including Dorit D. Straus on December 15 and Adele Chatfield-Taylor, Shannon Keller O'Loughlin, James K. Reap, and Jeremy Sabloff on September 16.

CPAC members give advice when foreign nations petition the United States under the 1970 UNESCO Convention for help to protect cultural heritage in danger of looting.

President-elect Donald Trump is scheduled to replace Obama on January 20.

Photo credit Sara Moses/freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Saturday, January 7, 2017

President Obama Fills More Cultural Heritage Policy Positions


Two weeks ahead of President-elect Donald Trump's inauguration, President Barack Obama made further appointments to cultural heritage policy posts.

The White House announced the reappointment of the following individuals on Thursday:
  • Rosemary Joyce - Cultural Property Advisory Committee; first appointed to CPAC in 2011
  • James Wright Willis - Cultural Property Advisory Committee; first appointed to CPAC in 2003
  • Joan Ellyn Silber - Commission for the Preservation of America’s Heritage Abroad; first appointed to the Commission in 2015
In 111 days, the Obama administration has filled seven of the eleven total CPAC positions.

Photo credit: Mike Thorn

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Thursday, December 29, 2016

Ahead of Term's End, President Makes Several Cultural Heritage Board Appointments

President Barack Obama, over the past few months, appointed several men and women to serve on key boards, commissions, and committees that impact cultural heritage policy. His term in office ends on January 20, 2017.

The five people named to the Cultural Property Advisory Committee included Dorit D. Straus, appointed on December 15, and Adele Chatfield-Taylor, Shannon Keller O'Loughlin, James K. Reap, and Jeremy Sabloff, appointed on September 16. Mr. Sabloff was designated as CPAC chairman, replacing Dr. Patty Gerstenblith. CPAC members supply advice when foreign countries petition the United States for help to protect cultural heritage in jeopardy of looting under the terms of the 1970 UNESCO Convention. The committee consists of 11 members.

The National Museum and Library Services Board, meanwhile, saw the appointment of nine people. The board guides the Institute of Museum and Library Service director on policy matters and consists of 20 members of the general public. The three appointed on December 15 included Lynne M. Ireland, Mort Sajadian, and Kenneth J. Schutz, and the six appointed on November 21 included Sayeed Choudhury, Luis Herrera, Homa Naficy, Tey Marianna Nunn, Jane Pickering, and Beth Takekawa.

On December 21, the President named Reno Keoni Franklin to the Advisory Council on Historic Preservation (ACHP). He serves as the new Native American/Native Hawaiian member of the ACHP. Earlier on November 3, the President appointed Leonard Andrew Forsman as member and vice chair. The most recent appointment before that was Luis G. Hoyos on August 4. The 23 member ACHP, created by the National Historic Preservation Act, advises the federal government on historic preservation policy.

President Obama also appointed Lesley Israel to the Commission for the Preservation of America’s Heritage Abroad on December 7. A day earlier, he appointed Rebecca Hankins and Naomi L. Nelson to serve on the National Historical Publications and Records Commission.

The Commission of Fine Arts, made up of seven experts who advise the government about Washington, DC's architecture, saw the appointment of two members on November 3 and two more on October 28. Named to the commission were Earl A. Powell III, Elizabeth K. Meyer, Toni L. Griffin, and Alex Krieger.

Finally, on September 28, the President sent two names to the Senate for appointment to the National Council on the Arts, Virginia Johnson and Sylvia Orozco.

Photo credit: Pond5.com/PublicDomain

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Wednesday, December 28, 2016

New Cultural Heritage Laws Enacted

President Barack Obama put his signature this month on three pieces of legislation that are important to cultural heritage protection. Enacted into law on December 16 were the Holocaust Expropriated Art Recovery Act (HEAR), the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA), and the National Park Service Centennial Act (NPSCA).

The HEAR Act (Public Law No: 114-308) makes it easier for claimants to recover stolen World War II era artwork. The law softens statute of limitations hurdles by permitting a six year window to file a lawsuit after the art is found:
Notwithstanding any other provision of Federal or State law or any defense at law relating to the passage of time, and except as otherwise provided in this section, a civil claim or cause of action against a defendant to recover any artwork or other property that was lost during the covered period because of Nazi persecution may be commenced not later than 6 years after the actual discovery by the claimant or the agent of the claimant of—
(1) the identity and location of the artwork or other property; and
(2) a possessory interest of the claimant in the artwork or other property.
The HEAR Act enjoyed bipartisan support on Capitol Hill. Senators John Cornyn (R-TX), Ted Cruz (R-TX), Chuck Schumer (D-NY) and Richard Blumenthal (D-CT) introduced the measure, which the Senate Judiciary Committee unanimously adopted on September 15. House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Congressman Jerrold Nadler (D-NY) introduced the bill in the House. 

Watch the video below, courtesy of C-SPAN, of a joint hearing conducted by two Senate Judiciary subcommittees that discussed the HEAR Act in June.

President Obama also signed into law this month the FCEJICA (Public Law No: 114-319), which CHL reported in an earlier blog post. This law also earned broad bipartisan support on Capitol Hill. It buttresses legal safeguards to protect foreign art on temporary loan to US museums from judicial seizures.

Finally, the NPSCA became law (Public Law No: 114-289). It amends the National Historic Preservation Act (NHPA) to transform the part-time chairman of the Advisory Council on Historic Preservation (ACHP) into a full-time post, effective January 20, 2017. The ACHP is a body that advises the President and Congress on national historic preservation policy. The new law also endows the General Chairman of the National Association of Tribal Historic Preservation Officers (NATHPO) with voting rights on the ACHP.

The NPSCA passed the Senate by unanimous consent on December 10 and passed the House by voice vote on December 6 before becoming law.


Photo credit: Tim Nooteboom/freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Wednesday, December 21, 2016

Felony Charges Against NY Antiquities Dealer Begins Cultural Property Prosecution in State Court

New York antiquities dealer Nancy Wiener has been charged with three felony counts by the Manhattan District Attorney's Office. A pre-arraignment deposition was given today, and bail was set at a combination of $25,000 bond plus $25,000 cash.

A charge begins the criminal court process. It is not a finding of guilt. A defendant is presumed innocent unless proven guilty beyond a reasonable doubt.

In March, Homeland Security Investigations (HSI) in partnership with the Manhattan District Attorney’s Office seized Asian artifacts from the Nancy Weiner’s Gallery on Manhattan’s East Side during Asia Week, one of the city's leading art and cultural events. HSI and another Immigration and Customs Enforcement Agency, US Customs and Border Protection, had been working on their long-running investigation dubbed Operation Hidden Idol ahead of Asia Week, confiscating a number of artifacts originating from Asia that authorities concluded were illegal.

The Chasing Aphrodite blog reports the factual allegations of the Wiener case. CHL will offer a thumbnail sketch of the law based on publicly available records published by the New York State Unified Court System.

Wiener faces three felony offenses. They include
  1. Criminal Possession of Stolen Property in First Degree - NY PL § 165.54
  2. Conspiracy in the Fourth Degree - NY PL § 105.10
  3. Conspiracy in the Second Degree - NY PL § 165.52
The most serious charge is criminal possession of stolen property (CPSP) in the first degree. The statute recites that “a person is guilty of criminal possession of stolen property in the first degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars.” The offense is punishable by up to 25 years in prison.

Readers of the CHL blog know that state law prosecutions of cultural property dealers have certain advantages. In New York, there is the presumption described in NY PL § 165.55 that “a person in the business of buying, selling or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it.”

Moreover, there is no defense that the person who actually stole the property may not have been identified or convicted; no defense that the charged defendant had no part in the actual theft; and no defense that the theft may have happened outside the boundaries of New York.

Interestingly, the incident date of one or more of the charges against Wiener is December 20, 1999, according to court records. A crime that occurred 17 years ago may present legal and factual challenges to the prosecution.

The case is docketed at 2016NY073118.

Errata 12/23/16: State court records show that Wiener was indicted. CHL now has obtained the prosecution's charging document. It is a complaint, not an indictment, and this blog post has been updated to reflect this current information.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Tuesday, December 20, 2016

Antiquities Forfeiture Under USA PATRIOT Act Marks Milestone in Cultural Heritage Law

One of four artifacts targeted by federal prosecutors for
forfeiture, featured in a photo found in the possession of ISIS.
Prosecutors last week filed a forfeiture complaint in federal district court to acquire legal title to cultural property accumulated by the terror group ISIS, also known as ISIL. The civil action is the first of its kind, rooted in one of America's most robust anti-terrorism laws.

After the 9/11 attacks on the United States, Congress and President George W. Bush enacted the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). Signed into law on October 26, 2001, Section 806 of the Act created sweeping language in 18 USC § 981(a)(1)(G)(i) to deprive terrorists of a wide range of assets, similar to the Racketeer Influenced and Corrupt Organization Act's (RICO) broad forfeiture provisions found at 18 USC § 1963(a)(2)(D).

The US Attorney’s Office for the District of Columbia triggered the USA PATRIOT Act when it filed its civil forfeiture complaint last Thursday. The Department of Justice (DOJ) said in a press release, "The lawsuit marks the first time that the United States has filed an action to forfeit antiquities that are foreign assets of ISIL."

But of greater significance to cultural property legal watchers is the DOJ's reliance on the PATRIOT Act. The fact that government lawyers tapped the anti-terrorism statute to form the cornerstone of their case showcases the PATRIOT Act as a promising legal tool to combat transnational antiquities trafficking, and the move concretely demonstrates that a fresh legal argument can be forged from facts on the ground showing a link between terrorist activities and antiquities trafficking. This cultural heritage law milestone cannot be overlooked.

The government's complaint is also noteworthy when one considers that most cultural property civil forfeitures filed in federal court are based on 19 USC § 1595a(c)(1)(A), a customs law found in Title 19 of the US Code that allows seizure and forfeiture of stolen and smuggled property brought into the US. The PATRIOT Act 's forfeiture terms, in contrast, are rooted in Title 18, the criminal law portion of the US Code, at section 981. And unlike other kinds of civil forfeitures permitted under 18 USC § 981, which narrowly authorizes the confiscation of property "involved in," "derived from," or "traceable to" a crime, § 981's broader PATRIOT Act authority allows
  • forfeiture of "all assets, foreign or domestic" from any "individual, entity, or organization" engaged in terrorism against the United States and
  • forfeiture of "all assets, foreign or domestic, affording any person a source of influence over any such entity or organization."
This portion of the PATRIOT Act is formidable because it declares that forfeitable property does not have to be part of the proceeds of terrorism, meaning that the assets do not have to be connected in any way with actual acts of terror. The assets do not even have to be connected with theft, smuggling, or any other crimes. The assets simply have to be property (a) from either a terrorist or terrorist organization or (b) from any person that derives influence over a terrorist group because of the property.

These thresholds certainly are lower than those found in other 18 USC § 981 forfeitures. Yet the US Attorney's Office in its forfeiture complaint targeting ISIS antiquities goes the extra mile to allege a nexus between the cultural property it wants forfeited and ISIS's terror financing.

The government's civil complaint seeks title to four cultural objects, consisting of an ancient Hellenistic/Roman gold ring, two ancient Roman gold coins, and a Neo-Assyrian stone carving. The attorneys assert that the cultural properties "are forfeitable as foreign assets of ISIL and as foreign assets affording a source of influence, as ISIL has and is engaged in planning and perpetrating federal crimes of terrorism . . . ." (Federal crimes of terrorism are defined by 18 USC § 2332b(g)(5), which lists a series of grave offenses ranging from bombing to hostage taking).

The artifacts have not yet been seized by American authorities, and they are not located on US soil. The property may not even be in the hands of ISIS at present. But title transfer would give American officials the ability to assert a valid claim to the objects if they turned up in the marketplace, allowing authorities to take lawful possession.

Although the four artifacts apparently were not located among the approximately 700 cultural objects recovered by US Special Operations Forces during a May 2015 raid on an ISIS compound in eastern Syria, they were depicted in digital photographs found in the possession of Abu Sayyaf, an ISIS terrorist that the Department of Defense has said "was involved in ISIL's military operations and helped direct the terrorist organization's illicit oil, gas, and financial operations . . . ." The forfeiture complaint directly identifies Abu Sayyaf as President of the terror group's Antiquities Department. He died in last year's American military operation. The US, meanwhile, repatriated to Iraq the antiquities seized from him.

Abu Sayyaf's "electronic media had a number of images of antiquities," prosecutors write in their court complaint. "The documentary style, lighting, and focus of the photographs indicate that these images were prepared for marketing in order to sell the photographed items internationally." The attorneys describe how "[m]any of the antiquities seized at the time of the raid appeared to have been in the process of being sold internationally," explaining that "the antiquities were cleaned and maintained in a manner consistent with the preparation for sale." "Through law enforcement’s investigation, additional information was discovered regarding these photographed items. These items, which constitute the 'Defendant Properties,' were identified as being connected to ISIL’s antiquities trade."

The forfeiture complaint describes how "ISIL has controlled much of the territory in Syria and Iraq and extorts antiquities excavators working in ISIL-controlled territory. ... [B]ased on their historical characteristics, the Defendant Properties most likely were excavated from areas under ISIL control." Prosecutor contend that "[o]ther documents on Abu Sayyaf’s hard drive indicate that Abu Sayyaf, on behalf of ISIL, received at least 20% of the proceeds of items excavated in ISIL-controlled areas and in some instances personally sold the archeological items. These transactions were often in U.S. dollars."

More factual details can be found on Jason Felch's blog, Chasing Aphrodite.

Because the photographed property is located in a foreign country, the DOJ filed its forfeiture case in Washington, DC, according to the terms of 28 USC § 1355(b)(2). That statute declares, "Whenever property subject to forfeiture under the laws of the United States is located in a foreign country, or has been detained or seized pursuant to legal process or competent authority of a foreign government, an action or proceeding for forfeiture may be brought . . . in the United States District Court for the District of Columbia."

This expansive extraterritorial jurisdiction gives added firepower to the government's cultural property forfeiture based on the PATRIOT Act. The US Attorneys' Manual points out, "The ability to obtain civil forfeiture orders in the United States for property abroad can result in substantial benefits to international forfeiture efforts, both by facilitating the repatriation of illicit assets to this country for disposition and sharing under U.S. law and by providing a means to assist foreign governments in the confiscation and disposition of assets pursuant to their own laws." The risks, alternatively, are "certain issues of foreign sovereignty and domestic resource allocation and coordination ... raised by the jurisdictional law relating to forfeitable property abroad."

Assigned to this notable forfeiture case is Chief Judge Thomas Hogan. The case is captioned of United States of America v. One Gold Ring with Carved Gemstone, An Asset of ISIL Discovered on Electronic Media of Abu Sayyaf, President of ISIL Antiquities Department et al. (16-cv-02442-TFH)

Photo credit: US Department of Justice

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Tuesday, December 13, 2016

UN Anti-Terrorism Resolution Targets Cultural Property Trafficking

A United Nations resolution aimed at cementing police and judicial cooperation in the fight against terrorism unanimously passed the Security Council yesterday.

Resolution 2322's language, in part, focuses on cultural property trafficking. The adopted text states:

"Particularly concerned at the growing involvement of terrorist groups, especially in areas of conflict, in the destruction and the trafficking in cultural property and related offences, and recognizing the indispensable role of international cooperation in crime prevention and criminal justice responses to combat such trafficking and related offences in a comprehensive and effective manner,
...
"Urges States to develop, including, upon request, with the assistance of UNODC [UN Office on Drugs and Crime] and in close cooperation with UNESCO [United Nations Educational, Scientific and Cultural Organization] and INTERPOL, broad law enforcement and judicial cooperation in preventing and combating all forms and aspects of trafficking in cultural property and related offences that benefit or may benefit terrorist or terrorist groups, and to introduce effective national measures at the legislative and operational levels where appropriate, and in accordance with obligations and commitments under international law and national instruments, to prevent and combat trafficking in cultural property and related offences, including considering to designate such activities that may benefit terrorist or terrorist groups, as a serious crime in accordance with article 2 of the UN Convention against Transnational Organized Crime [“Serious crime” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty]."

Photo credit: marmit/freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.