Prosecutors Allege Customs Violations in Koh Ker Statue Forfeiture

Prosecutors have amended their complaint which seeks to forfeit this Koh Ker Khmer statue. Much of the press coverage focuses on whether the colonial French government or some other legal enactment created ownership rights in the statue before the time it was removed.  I don’t have a pacer account and access to these court filings, but based on the reporting it appears prosecutors saw a difficult path to victory in attempting to apply colonial French law to the statue. Instead they are also seeking a more straightforward argument: arguing that the importers of the statue lied on their customs forms. From the NYT:

Prosecutors say that in 2010, when the statue was being imported into the United States, the owner submitted an inaccurate affidavit to American customs officials, at Sotheby’s request, stating the statue was “not cultural property” belonging to a religious site. The government contended in its filing on Friday that both parties knew the statue, a mythic Hindu warrior known as Duryodhanna, valued at up to $3 million, was stolen when they agreed to ship it from Belgium to New York. The government says it can prove that the statue in fact came from a Khmer Dynasty temple, Prasat Chen, part of a vast and ancient complex called Koh Ker.

If prosecutors can establish these statements were inaccurate, the more difficult question of which law might apply to the statue would be largely irrelevant. This is the same legal principle used when prosecutors successfully forfeited a 4th-century B.C. ancient golden phiale from Michael Steinhardt in 1999. Lying to customs officials is a violation of the law, with its own forfeiture provision. If the prosecutors can establish this, a successful forfeiture seems very likely.

  1. Tom Mashberg & Ralph Blumenthal, Sotheby’s Accused of Deceit in Sale of Khmer Statue, The New York Times, November 13, 2012, http://www.nytimes.com/2012/11/14/arts/design/sothebys-accused-of-deceit-in-sale-of-khmer-statue.html (last visited Nov 14, 2012).
  2. United States v. An Antique Platter of Gold, 184 F. 3d 131 (2nd Cir. 1999).
Questions or Comments? Email me at derek.fincham@gmail.com

Will US Attorneys Appeal after latest Ka Nefer Nefer setback?

A judge has dismissed the federal government’s request to reconsider an earlier ruling dismissing the government’s forfeiture request for the Ka Nefer Nefer mask currently on display at the St. Louis Art Museum. Rick St. Hilaire notes the U.S. Attorney must now make the decision whether to appeal the ruling on to the 8th Circuit. 


The problem with the government’s initial case—at least in the district court’s view—was the government failed to allege the particular circumstances under which a crime took place as the mask left Egypt. This problem can be examined by referencing recent case law broadening the principle that looted and smuggled objects are considered tainted when they leave their country of origin, even in the absence of direct evidence of wrongdoing. I’m thinking for example of the Barakat ruling in the English High Court which offered claimant nations a broader platform of potential laws with which a nation of origin can claim theft. 


But in this case the federal prosecutors had a difficult prospect as Egypt was unable to offer enough evidence establishing a crime had been committed. So despite the research the SLAM conducted when it acquired the mask in 1998, the government was unable to offer enough to convince a judge to forfeit the object and force SLAM to make its case. It is an open question whether the district court would have taken such rulings on board, likely not. But an appeals court is in a more favorable position to make broader inquiries in the law based on policy and foreign authority. 

Questions or Comments? Email me at derek.fincham@gmail.com

US Government’s Claim to Ka Nefer Nefer Mask Dismissed

The Ka Nefer Nefer Mask will be staying in St. Louis for now

The Ka Nefer Nefer mask, subject of two lawsuits in federal court, seems likely to stay in St. Louis for the near future. On Monday the U.S. District Court dismissed the U.S. Government’s forfeiture claim for the mask, as Rick St. Hilaire reported. The St. Luis Art Museum also has a parallel declaratory judgment action seeking to prevent the government from pursuing a forfeiture in the future.

You can generally read the tea leaves in the first few lines of a court opinion, and when the court wrote “the Government boldly states that it seeks the forfeiture of all rights, title and interest in a 3,200 year old Egyptian Mask . . .” you have a pretty good idea that the U.S. attorney was not able to convince the court to forfeit the mask. It most certainly was involved in a crime, yet the government was unable to allege enough “circumstances” surrounding the mask’s journey from Saqqara in Egypt in 1952 to the antiquities market some time later.

The government undercooked its legal analysis of the illegal activities giving rise to a forfeiture in its first forfeiture attempt here. For now it may amend its complaint. If it does, it should perhaps note that Egypt has laws establishing ownership of its antiquities, and there is no set of circumstances under which this mask could have rightfully left Egypt. Perhaps noting that may lead to a different result this time around.

The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally.

The court was concerned that the government failed to establish precisely how the mask became stolen property. There is plenty of precedent on point for this legal principle, but the lawyers for the government failed to include enough of it in the complaint. Now the U.S. attorneys will have to return to the drawing board and establish a firmer legal framework for the illegal removal of the mask from Egypt. Making the government’s task more difficult, is the lack of evidence provided to them by Egypt establishing how and when the mask was stolen. As a consequence, if I was working on the case, I’d essentially treat it like an antiquities looting case. The theft itself is lost to history. But you don’t need those facts, just enough to put the  burden back on the museum’s case to show how far back its chain of title can go.

The museum will likely respond that it had no reason to believe the Aboutaam brothers were antiquities dealers to avoid in 1998. Was it established that they routinely dealt in looted objects in 1998, even if that can be established now? The SLAM conducted a search, and while certainly not ideal, it posed questions to officials in Egypt. For lots of background on the mask, see here.

We can ask whether the Museum should do the right thing, but the government attorneys had an opportunity to force them to and failed to allege enough concrete circumstances in its complaint to trigger what would have been a very uncomfortable forfeiture proceeding for the museum—one that coupled with reasonable public pressure exerted by Egypt would have certainly made continued possession of the mask in St. Louis untenable.

Lee Rosenbaum has posted a .pdf of the opinion:
  Ka-Nefer-Nefer Opinion

Questions or Comments? Email me at derek.fincham@gmail.com

Not Just Bad Paperwork

In July, Immigration and Customs Enforcement announced that it had indicted four men and dismantled an entire antiquities smuggling network. The indictments in what I’ll call the “Lewis Smuggling Network” alleged that the four men sent objects from Egypt to Dubai before coming to America. The case brings to mind another similar kind of prosecution in which an individual was accused of not properly declaring the history and value of antiquities being imported into the United States. The case offers a number of similarities to an older case involving customs declaration.

In 1980 a gold phiale, called the golden phiale of Achyris, pictured here, probably of Sicilian origin, was sold by a collector in Sicily to another collector and coin dealer, who in turn sold the work to William Veres, an art dealer based in Zurich, Switzerland (it gets confusing and we still haven’t reached the ultimate endpoint). The phiale was offered to Robert Haber, a New York art dealer. Haber acted as a middle man in an eventual sale to Michael Steinhardt for $1.2 million. In December 1991, Haber flew to Switzerland to retrieve the phiale. Upon his return to New York, the customs forms declared the work’s country of origin as Switzerland and its value a mere $250,000. Why did the customs forms lie? To hid and disguise the object’s history.

In 1995, Italy began asking for formal assistance, and the Federal government intervened with a civil forfeiture action. A federal magistrate in New York issued a warrant for the seizure of the phiale from Steinhardt. The U.S. government then instituted a civil forfeiture action against the phiale in federal district court in New York. The district court held that the phiale was subject to forfeiture under 18 U.S.C. § 545. The importation of goods “by means of false statements” is prohibited by 18 U.S.C. § 542 and renders them subject to forfeiture under 18 U.S.C. § 545. The court found that falsely listing the work’s country of origin as Switzerland tainted the importation process and violated § 542. Steinhardt defended on the grounds that he had no knowledge that the object was looted or stolen. The court disagreed, finding that 18 U.S.C. § 545 does not afford an innocent owner defense. Steinhardt appealed the district court’s decision. The Second Circuit affirmed on the grounds that the misstatement of the phiale’s country of origin was material and thus subjected it to forfeiture under 18 U.S.C. § 545.

There are some differences between Steinhardt and the pending case against Mousa Khouli (Windsor Antiquities, NY), Salem Alshdaifat (Holyland Numismatics, West Bloomfield MI), Joseph A. Lewis, II (collector of Egyptian antiquities), and Ayman Ramadan (Nafertiti Eastern Sculptures Trading, Dubai).

This recent case has the Federal prosecutors pursuing charges against the dealers and collector in this case. They are not pursuing the object by itself, but rather they have a case against the whole network. Irrespective of whether Steinhardt, and his intermediary should have known and asked more closely about what they were buying, there were false statements made on the importation documents, just as false statements were alleged to have been made in this recent sting. Both Steinhardt and Lewis held esteemed positions, with power and influence. In Lewis’ case however, the Federal Prosecutors feel they have a much stronger case, with information on the entire smuggling and looting network, not just an isolated false statement on an importation document. In any event, neither Lewis nor Steinhardt will likely consider their cases bad paperwork. Misrepresenting the value and nation of origin is a deliberate attempt to circumnavigate heritage law. And if the government can make its case, there may be some real custodial sentences imposed.

Questions or Comments? Email me at derek.fincham@gmail.com

U.S. Initiates Forfeiture

The Mask on Display in St. Louis

As expected the United States has initiated a civil forfeiture action over the Ka Nefer Nefer mask purchased by the St. Louis Art Museum in 1998. The government holds a number of important advantages in these forfeiture proceedings, which is why the Museum brought a suit last month to preclude a forfeiture, based on a lapsed five-year limitations period. As the government’s complaint explains, the mask was professionally excavated, so this is not a case of looting and destruction of context. Rather the mask was either stolen later or was given to one of the archaeologists working at the site.

The government’s filing outlines what it suspects happened next: that the mask was stolen sometime between 1966, when it was shipped off to Cairo for an exhibit, and 1973, when the Egyptian Museum in Cairo ran an inventory and discovered it missing. Box number 54, in which it had been packed, was empty. 

In 2006, Egyptian officials learned the St. Louis museum had bought the mask from Phoenix Ancient Art, in New York. 

The museum has said it thoroughly researched the mask’s ownership history before buying it, and was given no indication that there were questions about how it arrived in the U.S. 

The museum’s research showed the mask was part of the Kaloterna private collection during the 1960s, before it was purchased in Switzerland by a Croatian collector, Zuzi Jelinek, who then sold the mask to Phoenix Ancient Art in 1995. 

It also maintains in its lawsuit that the government’s statute of limitations for seizing the mask has expired.

  1. U.S. demands art museum hand over Egyptian artifact | Reuters, Reuters, March 16, 2011, http://www.reuters.com/article/2011/03/17/us-museum-mask-idUSTRE72G06E20110317?feedType=RSS&feedName=domesticNews (last visited Mar 17, 2011).
  2. Jennifer Mann, Government sues to seize St. Louis museum’s mummy mask, St. Louis Post-Dispatch, March 17, 2011, http://www.stltoday.com/news/local/metro/article_98d72244-9976-5b8a-a73d-5c211c6a771b.html (last visited Mar 17, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

St. Louis Art Museum Sues the United States to Preclude a Forfeiture

The Ka Nefer Nefer Mask, acquired in 1998 by SLAM

The St. Louis Art Museum (SLAM) has sued the federal government to preclude it from initiating a forfeiture claim against the Ka-Nefer-Nefer mask. The museum was approached in January by several U.S. attorneys in January, who indicated an intention to bring a forfeiture action against the mask. Civil forfeiture was the legal mechanism under which the Portrait of Wally litigation and subsequent settlement emerged. It is a powerful tool for claimants, which uses the resources of the federal government, and a favorable burden of proof, to pursue claims for objects which may have been looted or stolen.

But in this case, rather than waiting for the forfeiture action, the museum has decided to try to preclude a suit by the U.S. attorneys, arguing that from December-January of 2005-06, the U.S. was a party to several communications regarding questions with respect to the history of the mask. They use as examples, posts and emails sent by Ton Cremers, of the Museum Security Network. He sent at least two emails to Bonnie Magness-Gardiner of the FBI, INTERPOL, as well as James McAndrew at Immigrations and Customs Enforcement (ICE). The Museum’s complaint quotes emails from Cremers, which were published on the Museum Security Network:

  1. “So I should think that if the Egyptian Government lodged a complaint or request with the USA Government and the FBI Crime Team (to which I am copying this), then the Museum would be obliged to answer the questions.”  
  2. “The FBI is just waiting for Egypt to file a complaint.  A [sic] soon as Egypt files a complaint [sic] the FBI is expected to act.” 
  3. “Maarten Raven, a Dutch archaeologist, saw the mask in the Saqqara and is VERY positive that the mask in the SLAM [Museum] is the same as . . .the one stolen in Saqqara . . . .

The SLAM argues in the complaint that the relevant U.S. government officials had knowledge of the potential claim over five years ago, and the five-year statute of limitations period has expired under 19 U.S.C. § 1621. A court will decide whether these emails, and queries the Museum sent to INTERPOL in the 1990’s about the mask are sufficient to have given the U.S. government actual or constructive knowledge of the potential claim. The Museum seeks a declaratory judgment under the Tariff Act that the action is barred by the statute of limitations.

Even if successful, this suit would only preclude a suit by the U.S. government. It would not bless the circumstances surrounding the acquisition of the mask. The mask was acquired in 1998 by SLAM from Phoenix Ancient Art for a reported $500,000. The Museum has attempted to demonstrate its diligence in a number of ways when it acquired the mask.

  • It sent a letter to Mohammed Saleh, the retired director of the Cairo Museum asking about the mask or the existence of similar objects. 
  • The Museum contacted the Art Loss Register, INTERPOL, and the International Federation of Art Research.
  • In 1998″counsel for the Museum requested a Swiss attorney to conduct a background investigation of Phoenix, its owners, and Jelinek.  Museum counsel received responses from the Swiss attorney on February 18 and March 31, 1998, confirming a Suzana Jelinek resided at the address provided by Phoenix, and confirming Phoenix’s company existence, Dun & Bradstreet rating, and that there were no liens or encumbrances on business property belonging to Phoenix.”
  • The Museum also sent a letter to the Missouri Highway Patrol requesting a search of the Interpol database.
So these are efforts to look at the history of the object, but certainly are not the best efforts. The Museum did not contact the Supreme Council of Antiquities or the Culture Ministry. The SLAM has told the public and Egypt that they would return the mask to Egypt if they were presented evidence that the mask was looted or stolen, yet Egypt has not presented this evidence. We know that the mask was acquired by the Museum in 1998, and was excavated in 1952. Both Egypt and the Museum have very different versions of the subsequent history of the mask. We are not certain what happened in the intervening years. But given what we know about the antiquities trade we have strong suspicions. The Museum argues the U.S. government has waited too long to pursue its claims that the object was stolen. 
  1. Joe Harris, Museum Sues USA Over Mummy Mask, Courthouse News Service, February 16, 2011, http://www.courthousenews.com/2011/02/16/34223.htm (last visited Feb 16, 2011).
  2. Jennifer Mann, Art museum sues to keep Egyptian mummy mask, St. Louis Today, February 16, 2011, http://www.stltoday.com/news/local/crime-and-courts/article_6a5937bc-0ea6-50ca-94ab-aa45697af009.html (last visited Feb 16, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Two Forfeited Works Returned to Brazil

“Modern Painting with Yellow Interweave”, Roy Lichtenstein

Art crime does not just include the theft of works of art or the looting of antiquities.  The value and portability of works of art make them a very convenient way to launder money as well.
I am quoted in a piece for NPR affiliate WNYC discussing the return of two objects to Brazil. 

This work by Roy Lichtenstein and another work by Joaquin Torres-Garcia were returned to the government of Brazil today during a ceremony in New York (press release).  The works were once owned by the disgraced Brazilian banker Edemar Cid Ferreira who was convicted and sentenced to 21 years in prison in 2006 for financial fraud. 

A judge in Brazil ordered Ferreira to surrender his unlawfully-gained assets.  In an attempt to conceal some of these assets, these works were shipped to the Netherlands and then to New York where they were sold to unsuspecting buyers. The paperwork accompanying these works valued them at only $200, while they may be worth as much as $12 million. 

This is an example of the use of civil forfeiture in policing the art and antiquities trade.  The “Portrait of Wally” settlement reached earlier this summer was also reached via forfeiture. Forfeiture allows prosecutors to bring a suit against an object which was part of a crime, and all claimants to the object come forward to challenge the forfeiture.  It is a powerful tool for prosecutors, as the burden of proof is far lower than the typical “beyond a reasonable doubt” standard typically involved in prosecutions.  Historically, federal prosecutors have intervened on behalf of origin nations or claimants when they have potential claims. Yet it has also been a useful tool in policing organized and white collar crimes. 

  1. Marlon Bishop, Lichtenstein and Torres García Paintings On the Way Back to Brazil, WNYC, September 21, 2010, http://culture.wnyc.org/articles/features/2010/sep/21/us-returns-brazilian-art/ (last visited Sep 21, 2010).
  2. Erica Orden, U.S. Returns Valuable Paintings Seized From Ex-Banker to Brazil, wsj.com, September 21, 2010, http://online.wsj.com/article/SB10001424052748704129204575506181973997368.html (last visited Sep 21, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Forfeitted Pissarro Returning to France

A federal jury has ruled that this Pissaro painting, “Le Marché,” was stolen from the Faure Museum in Aix-la-Bains in France.  The work was seized by ICE agents from Sotheby’s in 2006, after its theft in 1981.  The thief took the work from the museum under his jacket.  The work has a storied history as the Department of Justice Press Release describes

It seems that in 1985 the thief, Emile Guelton, sold the work to Sharyl Davis who was using space art gallery in San Antonio owned by Jay Adelman.  Mr. Adelman seems to operate an antiques shop on the Riverwalk, and operate a website.  In 2003 the work was consigned to Sotheby’s by Davis.  Davis paid $8,500 for the painting in 1985, and estimated an auction price of $60-80,000.  However Sotheby’s asked about the history of the work and was told it was purchased from someone named “Frenchie”. But then Davis asked for “Frenchie’s” real name from Adelman, who told her it was Guelton and that he was from Paris.  That information appeared in the auction catalog with an image of Le Marché.”

Just before the auction, French federal law enforcement officers learned that Le Marché was at Sotheby’s. Based on the information in the auction catalog, the French officers located, contacted, and interviewed Guelton. Guelton confirmed that he knew Adelman, was living in Texas in 1985, sent a container of artwork from France to the United States in 1984, and sold Adelman paintings. The French officers, using a prior arrest photo of Guelton, created a six-person photo array, which they showed to the Faure Museum guard in October 2003.

 The Pissarro was then forfeited under the National Stolen Property Act.  Forfeiture allows prosecutors to bring a suit against an object which was part of a crime, and all claimants to the object come forward to challenge the forfeiture.  It is a powerful tool for prosecutors, and thus should be used carefully, else we may risk losing works of art for many years.  It seems like the right result was achieved in this case.  Mark Durney rightly points out that this round-about story reveals a lot about how difficult recovering stolen art is and how easy it is to acquire in “good faith”.

Questions or Comments? Email me at derek.fincham@gmail.com

An End in Sight to Portrait of Wally Forfeiture?


Martha Lufkin of the art newspaper summarizes the nearly 10-year-long dispute between Federal prosecutors, the Bondi family and the Leopold Museum in Vienna. For past posts on the long-running dispute over this work see here.

Lufkin also reports Federal prosecutors have asked that a judgment to be postponed to allow the review of some new evidence:

Judgement on a long-running lawsuit in New York, which helped launch a world outcry over Nazi-looted art at museums and prompted many institutions to begin examining their collections for history of Nazi theft, has been postponed to let the US government review new evidence. On 3 June the schedule was suspended on a case brought by the US government in 1999 to seek confiscation of Egon Schiele’s Portrait of Wally from the Leopold Museum in Vienna, under the US National Stolen Property Act. The US says the Leopold knew that the art was stolen by a Nazi in 1939 from its Jewish owner, Lea Bondi. The case, which the parties had asked the court to resolve without a trial, is before the federal district court in Manhattan.

Questions or Comments? Email me at derek.fincham@gmail.com

Portrait of Wally Forfeiture Progressing

Martha Lufkin has news of some movement in the Portrait of Wally civil forfeiture proceeding currently underway in Federal District Court in Manhattan.

[Judgment] on a long-running lawsuit in New York which helped launch a world outcry over Nazi-looted art at museums and prompted many institutions to begin examining their collections for history of Nazi theft, has been postponed to let the US government review new evidence. On 3 June the schedule was suspended on a case brought by the US government in 1999 to seek confiscation of Egon Schiele’s Portrait of Wally from the Leopold Museum in Vienna, under the US National Stolen Property Act. The US says the Leopold knew that the art was stolen by a Nazi in 1939 from its Jewish owner, Lea Bondi. The case, which the parties had asked the court to resolve without a trial, is before the federal district court in Manhattan.

It’s true that the Portrait of Wally dispute has probably caused some museums to re-examine their collections, but its also been pointed to as a risk to art loans and traveling exhibitions. It also puts a lot of power in the hands of prosecutors when they can use a forfeiture proceeding like this, as the government essentially brings suit against the object itself, with the benefit of far lower burdens of proof. Historically, federal prosecutors have intervened on behalf of source nations or claimants when they have potential claims. It’s a very useful thing for claimants to get this kind of assistance in these cases. I’m very interested to know what new information may be coming to light.

My understanding of the facts in this case indicates its a difficult case for the prosecutors to prevail. Hopefully a resolution is pending, as the work has been in storage for nearly a decade now.

Questions or Comments? Email me at derek.fincham@gmail.com