Forfeiture – Page 2 – Illicit Cultural Property

U.S. Initiates Forfeiture

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.

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).
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:

“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.”

“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.”

“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.

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).
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.

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).
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

Can the West do More to Protect Iraqi Antiquities?

Dr. Bahaa Mayah, a special adviser to Iraq’a Minister of Tourism and Antiquities, has strongly criticized the response of the West to the trade in looted or stolen antiquities originating from Iraq. Dr. Mayah held a press conference yesterday at the British Museum, and argued it was the occupying forces’ responsibility to retrieve the valuable objects taken since 2003. He also urged a global ban on Iraqi antiquities via a UN Security Council resolution. He said “Our antiquities are scattered everywhere from America to Europe. This problem is not new but it has intensified since 2oo3 and is now becoming a bigger problem.”

Speaking of America specifically, he argued “America is co-operating and not co-operating at the same time. We were grateful when they returned the Statue of Entemena (from 2,430BC) but at the same time, you see auctioneers all over the country trading in our antiquities. No action is being taken”. This statement, curiously, comes on the same day the Department of State published a notice of an import Restriction to Protect the Cultural Heritage of Iraq.

You can also hear his comments on BBC Radio 4’s Front Row program here, his interview starts at about 18 minutes in, which David Gill has noted this morning as well.

There at three separate issues here, first is what can be done to prevent looting in Iraq and how to regulate the illicit trade in Iraqi antiquities. Second, is the damage done by occupying forces to important sites at Babylon and elsewhere. Finally, there is the claim for restitution for objects which have long in the British Museum collection. The first two, it seems to me are related. The final question, which speaks to the notion of Universal Museums, must be separated. Every time this kind of discussion spins off into a discussion of the Parthenon Marbles and other restitutions, I think we lose site of the present ongoing issue: the looting of sites, and the illicit trade.

I am sympathetic to Dr. Mayar, as he must find it difficult dealing with a myriad of different agencies in Europe, and he feels the burden is on the source nation to give evidence of of an object’s illicit nature. Unfortunately this is the regime which the 1970 UNESCO Convention has produced, and efforts to create an effective multilateral agreement in this arena have been notoriously difficult. I think that must surely be tied to the disagreement and acrimonious nature the debates often engender.

Prof. Patty Gerstenblith has noted before that a lot of the reporting and discussion of the law as it pertains to the antiquities trade is wrong, and misses the point completely. I have to agree. Dr. Mayar talks about the incomplete response of the West to the trade in Iraqi antiquities, but I think the US and the UK have taken the necessary steps to attach criminal penalties to this trade. International law already bans the trade in Iraqi antiquities, under UN Security Council Resolution 1483:

Decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph;

In the United Kingdom, the Theft Act 1968, the Proceeds of Crime Act 2002, and the Iraq (UN Sanctions) Order 2003 creates a criminal offence for merely being in possession of Iraqi Antiquities.

The United States has banned the import of Iraqi antiquities, and the National Stolen Property Act, as well as the powerful Civil Forfeiture mechanisms available to Federal Prosecutors strongly regulate the criminal aspects of the trade.

The difficulty of course, and its one that Dr. Mayar speaks to, is the difficulty in establishing evidence of the fact that an object originated in Iraq, when it could have originated from any one of a number of countries. Are there Iraqi antiquities currently being sold in the United States and United Kingdom? I’ll confess I don’t know. His comments strongly indicate they are, but I’m unaware of such sales, or any reports indicating this is the case.

Ultimately, I think the US and the UK in particular have taken nearly all the steps they can to regulate the criminal aspects of the trade. To shift burdens any further would, without being overly dramatic here, require Constitutional-level reworking, to allow fewer rights for criminal defendants. That is a step no thinking person can responsibly advocate. That’s at the core of my arguments about the utility of the criminal response to the illicit trade. The solution, as I see it, is to introduce a way for cultural property transactions to require title history, provenance and findspot information for antiquities. This would give real effect to the law. Without such information, the antiquities trade will continue to evade effective regulation. Think about the California searches from earlier this year, despite a dramatic raid, we have yet to see any charges filed. Though this is heresy to even suggest for many in the archaeological community, this will in my view require compromise and will almost certainly require a liberalization of the trade in some respects.

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

Greek Charges Dropped

Some of the criminal charges against Marion True have been dropped in Greece. Marion True was accused of illegally acquiring this 4th c. BC gold funerary wreath. The wreath had been returned to Greece back in March.

True still faces charges for illegally possessing a dozen antiquities found at her holiday home in Paros last year.

The Hellenic Society for Law and Archaeology has a good overview of the decision. The criminal act allegedly took place in the US, but according to US law was a misdemeanor. As the prosecution took place over five years ago the charges were dismissed. I’m a bit unclear what the US law in question may have been, perhaps future news reports will update that, and I’ll post an update when i learn more. In the end the result isn’t surprising. Surely if serious wrongdoing was implied then the federal prosecutors would have been eager to pursue a prosecution under the NSPA, or at the least initiate forfeiture proceedings.

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