Monday, October 31, 2011

ACCG Files Appellate Brief in Baltimore Coin Case

Ancient Chinese Coins
Author mc559, Creative Commons
The Ancient Coin Collectors Guild (ACCG) today filed an appellate brief in the Fourth Circuit Court of Appeals. After setting up and losing a test case in the Maryland federal district court, the ACCG is now asking the appeals court to reverse that decision. The ACCG’s case began when it imported 23 Chinese and Cypriot ancient coins from a London dealer in 2009. The coins were brought to Baltimore in contravention of import protections enacted pursuant to the Cultural Property Implementation Act (CPIA).

The ACCG argues in its brief that the district court should have reviewed the decisions of the State Department and/or Customs and Border Protection to implement import protections under the Administrative Procedures Act. The APA is a seminal statute that describes how federal agencies shall establish administrative regulations and that outlines the procedures by which administrative decisions are reviewed by the courts. The ACCG argues that the decision of the Assistant Secretary [of State for Educational and Cultural Affairs] and/or US Customs and Border Protection approving import rules may be reviewed by a court under the Administrative Procedures Act. The lower court essentially argued that the President of the United States conducts foreign policy and that “primary responsibility for imposing cultural property import restrictions [rests] with the President, rather than with an agency.” It follows then that the APA cannot therefore be used to review an executive branch decision that is part of the President’s power to negotiate international agreements rather than part of an administrative decision of an agency. The lower court explained in its decision that “the State Department and Assistant Secretary were acting on behalf of the President, and therefore their actions are not reviewable under the APA. That conclusion is particularly justified here, because the Department and Assistant Secretary were acting in the realm of foreign affairs.”

The ACCG further argues that the district court erred when ruling that the government could issue cultural property import protections on coins without China purportedly requesting the import regulations. The appellate brief states that “[t]he District Court’s conclusion that ‘the CPIA does not require that a state party’s initial request include a detailed accounting of each item eventually covered by an [1970 UNESCO Convention] Article 9 agreement’ ignores the requirement that any request ‘must be accompanied by a written statement of the facts known to the State Party that relates to those matters with respect to which determinations must be made. . . .’” The lower court, in contrast, ruled that China’s request complied with the law, observing that “the CPIA [does not] require that the State Department publish verbatim the list of items requested to be restricted. Rather, it simply requires that a State Party make a ‘request . . . to the United States under article 9 of the [1970 UNESCO] Convention,’ . . . and ‘publish notification of the request . . . in the Federal Register.’ The notice published in the September 3, 2004, Federal Register demonstrates that such a request was made.”

Finally, the ACCG argues that the import regulations require federal authorities to prove that a particular coin was discovered in the modern nations of China or Cyprus before officials may seize the coins as contraband. The ACCG states in its appellate brief that “the CPIA itself only authorizes seizure and forfeiture of artifacts ‘first discovered within, and . . . subject to export control by’ the State Party seeking restrictions.” The brief adds that “[t]he Guild argued below that the Government could comply with this critical statutory requirement in either one of two ways: (1) establishing by undisputed scholarly evidence that the coins placed on the designated lists could only have been discovered in Cyprus or China and, hence must be subject to their export controls; or (2) demonstrating by documentary evidence that the coins that CBP seized were in fact first discovered in Cyprus or China and are subject to export control by those countries.”

This argument was originally rejected by the federal district court. The lower court opinion remarked that “the dispute is limited to whether the State Department has authority under the CPIA to prohibit the importation of coins with unknown ‘find spots’ . . . .” The district court judge found that “ACCG’s argument misses the mark, for three principal reasons. First, the subsection imposing the “first discovered” requirement . . . is silent on how the government must establish, in the absence of a documented find spot, whether a particular object ‘was first discovered within, and is subject to export control by, the State Party.’ Moreover, the CPIA anticipates that there may be some archaeological objects without precisely documented provenance and export records and prohibits the importation of those objects. . . . Thus for objects without documentation of where and when they were discovered, the CPIA expressly places the burden on importers to prove that they are importable, and prohibits the importation of those objects if they cannot meet that burden. Second, the CPIA anticipates that some categories of materials will be designated ‘by type or other appropriate classification.’ Congress apparently recognized that sometimes neither the requesting country nor the U.S. government will have enough information to list particular items with greater specificity than its “type.” . . . Third, interpreting the “first discovered in” requirement to preclude the State Department from barring the importation of archaeological objects with unknown find spots would undermine the core purpose of the CPIA, namely to deter looting of cultural property. . . . Looted objects are, presumably, extremely unlikely to carry documentation, or at least accurate documentation, of when and where they were discovered and when they were exported from the country in which they were discovered. Congress is therefore unlikely to have intended to limit import restrictions to objects with a documented find spot.” (Citations omitted).

A link to the brief appears courtesy of Peter Tompa, legal counsel for the ACCG: http://www.accg.us/News/Item/ACCG_Appellant_Brief_filed_in_Cyprus_China_coin_seizure.aspx.

[UPDATE 1/18/12:  Federal attorneys have filed their appellate brief.]
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DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Saturday, October 29, 2011

VOA Report: Afghan Archeologists Race Against Time to Find Treasures



Voice of America has an interesting report titled "Afghan Archeologists Race Against Time to Find Treasures."  Thanks go to the Archaeology News Network for bringing attention to this video.


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DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Friday, October 28, 2011

Savedoff Pleads Guilty to Stealing Historical Documents from Museums and Archives

Jason Savedoff entered a guilty plea this week to charges of conspiracy to commit theft of major artwork and theft of major artwork for his role in the theft of historical documents from museums and archives along the east coast. Savedoff’s co-defendant, Barry Landau, is scheduled for trial. Landau is expected be sentenced to a prison term of 4-12 years in February 2012.


The Washington Post reports: “The pair compiled lists of historical and famous figures, often noting the market value of documents signed by those figures, and Savedoff identified collections with valuable documents that they could target, according to the plea. They used different routines to distract librarians and would stash documents inside sport jackets and overcoats that had been altered to add large hidden pockets.
Searches of Landau’s apartment in July turned up thousands of documents. According to Savedoff’s plea, these included documents signed by historical figures from both sides of the Atlantic. They range from American presidents such as George Washington, Franklin D. Roosevelt, Abraham Lincoln and John Adams to French leaders such as Marie Antoinette and Napoleon Bonaparte, and German philosopher Karl Marx.”


Photo: President Lincoln taken on the balcony at the White House, March 6, 1865.  Library of Congress, public domain.

CONTACT INFORMATION: http://www.culturalheritagelawyer.com/.

Detectives Working to Save Art and Cultural Heritage

Tricia Bishop of the Baltimore Sun has a worthwhile piece titled Art investigators: Saving the country's cultural heritage, one recovered work at a time. Passion drives the overworked and underappreciated.  You can read it at  http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-history-thieves-20111007,0,443863,full.story.


CONTACT INFORMATION: http://www.culturalheritagelawyer.com/.
DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Thursday, October 27, 2011

Public Comments Submitted to the Cultural Property Advisory Committee (CPAC) in Support of US-Bulgaria MoU Protecting Cultural Property

Should the Committee agree that cultural patrimony located within Bulgaria is in jeopardy from pillage and that the CPIA’s other determinations have been meet, the Committee’s support for the MoU with Bulgaria would permit US authorities to more vigorously curb illegal international artifacts trafficking.

Enactment of the MoU would strengthen America's commitment to protect evidence of the past threatened by archaeological site looting and to protect cultural identity undermined by the theft of ethnological materials. The theft of artifacts from the ground permanently erases the archaeological record. Knowledge of history, culture, or identity is often eliminated when on-site scientific study of historical, pre-historical, or ethnographic evidence is marred by looters, smugglers, and unlawful receivers of trafficked antiquities.

Archaeologists, law enforcement officers, and others possessing first-hand experience with cultural objects originating from Bulgaria are in the best position to describe the situation; their observations should be afforded considerable weight. The Committee should be mindful too of the experiences of our international friends. Canada’s recent interdiction of a large volume of smuggled cultural material from Bulgaria is noteworthy.

Americans’ support for the protection of history, heritage, and cultural identity builds on a legacy exemplified by President Reagan’s adoption of the CPIA. More than three in five Americans believe that artifacts should not be removed from another nation without that country's assent. These were the findings of a 2000 Harris Interactive poll, and there is little reason to believe that sentiments have changed.

President Nixon remarked that the 1970 UNESCO Convention “is a significant effort … to help preserve the cultural resources of mankind.” These words resonate today, urging support for the MoU.



CONTACT INFORMATION: http://www.culturalheritagelawyer.com/. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Wednesday, October 26, 2011

Keeping the Lid on Davy Jones' Locker: The Protection of Underwater Cultural Heritage from Titanic to Today

A conference on the protection of underwater cultural heritage will take place on November 3, 2011 at the National Trust for Historic Preservation in Washington, DC.  It is titled Keeping the Lid on Davy Jones' Locker.  It is sponsored by the Institute of Nautical Archaeology, the Penn Cultural Heritage Center, and the Lawyers' Committee for Cultural Heritage Preservation.  Details and registration information can be found at: http://www.culturalheritagelaw.org/events?eventId=318316&EventViewMode=EventDetails.

[UPDATE Nov. 15, 2011: The conference was very successful.]

CONTACT INFORMATION: http://www.culturalheritagelawyer.com/.

Tuesday, October 25, 2011

State Department Clarifies US-Egypt MoU

The US State Department released this statement today, quoted in its entirety:

"Potential Memorandum of Understanding between U.S. Immigration and Customs Enforcement and Egypt's Ministry of State for Antiquities

The Department of State's Cultural Heritage Center has become aware that confusion exists concerning a potential MOU between U.S. Immigration and Customs Enforcement and Egypt's Ministry of State for Antiquities. Such an agreement would differ from the type of MOU made under Article 9 of the 1970 UNESCO Convention for import restrictions on certain categories of cultural materials. The Department understands that the MOU presently under discussion by U.S. Immigration and Customs Enforcement concerns information exchange and not import restrictions. If the Government of the Arab Republic of Egypt requests an agreement pursuant to Article 9 of the 1970 UNESCO Convention, the Department of State would announce receipt of such a request in the Federal Register. This procedure is the only means currently available to a country wishing U.S. import restrictions on its cultural property."

Source: http://exchanges.state.gov/heritage/whatsnew.html




CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Monday, October 24, 2011

Cultural Heritage Looting in Bulgaria

The Bulgarian governments’ request to secure cultural heritage import protections under the Cultural Property Implementation Act spotlights the ancient history present in that country as well as modern day artifact looting.

A short 2009 documentary, produced by SBS and distributed by Journeyman Pictures, films antiquities looters in action in Bulgaria, follows archaeologists to ancient sites, and interviews some of those involved in collecting and in prosecuting crimes.  It is worth watching in anticipation of the upcoming meeting of the Cultural Property Adivsory Committee (CPAC) on November 16.  See the documentary in two parts below.





Additional information can be found in Organized Crime in Bulgaria: Markets and Trends (2007) by the Center for the Study of Democracy.  The publication describes some of the challenges to cultural heritage protection in Bulgaria. Pertinent information begins at page 177 and can be found at http://www.csd.bg/artShow.php?id=9120.



CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Winter is the perfect time to focus on professional development! - Cultural Property Law - Rural Cultural Environment

Plymouth State University’s winter term graduate-level courses, which can lead to a Certificate in Historic Preservation, are…

CULTURAL PROPERTY LAW – Compact Schedule
Archaeological site looting, transnational antiquities trafficking and armed conflicts threaten global cultural heritage. This course examines the international, national and state legal frameworks for the protection and movement of cultural property. Topics for discussion include the 1954 Hague Convention, the 1970 UNESCO Convention, the ICOM Code of Ethics, the National Stolen Property Act and the Cultural Property Implementation Act. The course also introduces students to important national heritage laws such as the Archaeological Resources Protection Act and the rules governing shipwrecks. State statutes and the common law regulating cultural property are also reviewed.
Taught in Concord by Ricardo A. St. Hilaire, Esq. 3 credits.
Friday, December 2: 4 – 10 p.m.
Saturday, December 3: 10 a.m. – 4 p.m.
Friday, December 9: 6 – 9 p.m.
Saturday, December 10: 10 a.m. – 4 p.m.
Friday, December 16: 4 – 10 p.m.
Saturday, December 17: all day (field trip to the Museum of Fine Arts, Boston)
Friday, December 23: 6 – 9 p.m.

THE RURAL CULTURAL ENVIRONMENT: ARCHITECTURE AND LANDSCAPE – Online Course
This course uses the rural countryside as a laboratory to examine the cultural landscape. It will trace the impact of natural, cultural, economic, and technological forces on the “built” environment. The course studies the evolution of buildings and their settings, with emphasis on settlement and rural industrialization. Subjects to be discussed include the evolution of architectural styles and construction techniques, town planning and land division, the evolution of transportation and the harnessing of water power. Although the course will use specific locales as examples, it is intended to instill general principles by which any human landscape can be examined and interpreted in relationship to natural resources and human culture.
Taught entirely online by Benoni Amsden, PhD, Center for Rural Partnerships, PSU. 3 credits.
Sessions being January 6 and end February 16, 2012. Two self-directed field trips are required.

***

To learn more about PSU’s Certificate in Historic Preservation, visit http://www.plymouth.edu/graduate/siteindex/#h and click on “Historic Preservation Certificate”
or contact Dr. Stacey Yap, program coordinator, at staceyy@plymouth.edu, (603) 535-2333.

**Please feel free to forward this information to your networks**




CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Sunday, October 23, 2011

Antiquities Trafficking: A US-Egyptian Agreement in the Works?

Egypt is to sign an agreement with the United States to combat antiquities trafficking, according to a report in Ahram Online today. See the story at http://english.ahram.org.eg/NewsContent/9/40/24873/Heritage/Ancient-Egypt/New-strategy-to-prevent-illegal-trade-in-Egyptian-.aspx.

CONTACT INFORMATION: www.culturalheritagelawyer.com.

Friday, October 21, 2011

CPAC Public Comments Start to Pour In on Bulgaria's Request for Cultural Heritage Import Protections under the CPIA

The public comment period has begun regarding the Bulgarian government's request for cultural property protections by the United States. The Cultural Property Advisory Committee (CPAC) meets on November 16, 2011 to consider the matter—as well as a similar request by the government of Belize—for import protections pursuant to the Cultural Property Implementation Act (CPIA).

Ancient coin collectors this week actively have been submitting comments to CPAC, appearing to have responded to listserv calls to contact the committee in opposition to the Bulgarian request. Few electronic comments in support have been filed. Most comments thus far are from individuals as opposed to institutions.

As of this writing, 44 total public submissions have been made (UPDATE: 216 submissions as of October 26, 2011; 421 submissions as of midday November 2, 2011; 504 as of November 3, 2011 after the November 2 deadline), largely voicing opposition to protections covering ancient coins. Three sample comments in opposition and one sample comment in support appear below:

“Although assistance should be given to Bulgaria to restrict the import of specific types of antiquities that can only have originated in that country, coins should not be included. . . . There is no way to tell if a coin was found in Bulgaria or some other Mediterranean country, and the claim that all such coins are property of Bulgaria is not supported by law or common sense. . . . Yours sincerely, Jeffrey Spier Fellow, American Numismatic Society.”

“I am very passionate about: collecting Roman Imperial and Greek coins. I am very troubled by restrictions on collecting that would kill my hobby. This is much more than hobby. Yes I collect coins. I am also preserving history and sharing it with school children during classmate presentations. There are billions of pre - 1600 coins. These are not rare pieces. They are found in lots of 1000 . . . .”-David Hunt

“Bulgaria wants to restrict exporting antiquities (such as the coins?) that are already spread around the world and are not very valuable to begin with? Really?! Come on; don't go there! It's just silly...” –Col Dupont, C L Dupont Ancient Coin Jewelry

“I write in full support of Bulgaria's recent request that the US accepts the petition, to help the country protecting its great heritage. It is a mystery to me how one should officially legitimate cases like the one very recent, were (sic) 21,000 objects have left Bulgaria illegally, were shipped half across the world to end up in North America. Thousands of objects would have ended up on the market, sold by those who make private profit with the heritage of another country while not respecting Bulgarian laws as well as not respecting American laws relating to stolen property. In 1992, some 5,000 icons were disappearing in one single year from Bulgaria. Bulgaria's request should get full support. . . .” –Nagel Alexander, Smithsonian Institution

Mr. Alexander’s comment appears to reference the June 2011 return by Canada of 21,000 illegally imported ancient coins, jewelry, and cultural artifacts and seized by the Royal Canadian Mounted Police in November 2008. The Canadian government observed in a June 10, 2011 press release marking the repatriation of the cultural objects: “These objects, many of which were illegally excavated, cover more than 2600 years of the history of Bulgaria. This collection includes more than 18,000 coins, as well as a number of artifacts including bronze eagles, rings, pendants, belt buckles, arrows and spearheads, and bone sewing needles. They represent a mix of Hellenistic, Roman, Macedonian, Byzantine, Bulgarian, and Ottoman cultural heritage.” Access the full press release at http://www.pch.gc.ca/pc-ch/infoCntr/cdm-mc/index-eng.cfm?action=doc&DocIDCd=CR110217.

Recently, the Archaeological Institute of America issued a call to action on its web site, posting "Support the preservation of Belizean and Bulgarian archaeological heritage by writing a letter to the Cultural Property Advisory Committee urging them to create bilateral agreements with Belize and Bulgaria!" http://archaeological.org/CPAC

Those wishing to submit public comment can go to http://www.regulations.gov/#!submitComment;D=DOS-2011-0115-0001. Comments should address the so-called “four determinations” under the CPIA. Quoting the statute, the four determinations are:

(A) [whether] the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;

(B) [whether] the State Party has taken measures consistent with the Convention to protect its cultural patrimony;

(C) [whether] --
(i) the application of the import restrictions . . . with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties [to the 1970 UNESCO Convention]) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and
(ii) remedies less drastic than the application of the restrictions set forth in such section are not available; and

(D) [whether] the application of the import restrictions . . . in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

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Photo of Thracian rhtyon used pursuant to Creative Commons permission: The Panagyurishte Treasure, October 2009, author http://www.flickr.com/photos/sitomon/.

CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Wednesday, October 19, 2011

Custer Battlefield Museum Lawsuit Against Federal Agents Dismissed in District Court

While a September 30, 2011 decision by the Ninth Circuit Court of Appeals may have breathed life into Christopher Kortlander’s challenges to the government (see October 19, 2011 blog entry), the US District Court for the District of Montana closed a door on the Custer Battlefield Museum owner and operator by dismissing his lawsuit against multiple federal agents. Kortlander argued that his rights were violated as a result of law enforcement raids that resulted in no criminal charges against him.

In a September 12, 2011 opinion, Judge Richard Cebull dismissed Kortlander’s claims saying they either violated the statute of limitations, were “implausible,” or “frivolous.” The court entered the dismissal with prejudice, meaning the matter could not be brought forward again. The reason given was “futility alone.”

The federal investigation began into Kortlander and the museum after “the Bureau of Land Management Office of Law Enforcement and Security began receiving complaints that Kortlander was selling artifacts on Ebay that he claimed were recovered from the Little Big Horn battlefield,” according to the district court opinion. The investigation broadened to include potential illegal activity involving eagle parts. Bureau of Land Management and US Fish and Wildlife took the lead in the investigation, and the agencies gathered information that led to the issuance of two court authorized search warrants in 2005 and 2008. The prosecution decided in 2009 not to pursue indictments.

See the district court’s full opinion at http://docs.justia.com/cases/federal/district-courts/montana/mtdce/1:2010cv00155/38767/34/.


CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Ninth Circuit Sends Custer Battlefield Museum Case Back to Lower Court - Lawsuit Seeks Unfettered Public Access to Search Warrant Affidavits


With no charges filed in a case targeting the Custer Battlefield Museum in Montana, the Ninth Circuit Court of Appeals has ruled that sealed search warrants and affidavits may be accessible to the public. Law enforcement officers from the Bureau of Land Management and other agencies searched the museum in 2005 and 2008. Court records reveal that the investigation focused on attempts to sell migratory bird parts as well as misrepresentation of provenance surrounding the sale of cultural artifacts.

Christopher Kortlander, owner and operator of the museum, has complained in lawsuits and public statements that the law enforcement raids were excessive and that he was unfairly targeted. As a result, he made seven Freedom of Information Act requests for investigative information regarding himself, Historical Rarities, Inc., Elizabeth Custer Museum and Library, Inc., Custer Battlefield Museum, and local stores. In 2010, Kortlander requested copies of search warrant affidavits. These affidavits normally contain the details of a police investigation.

The US Attorney’s Office in Montana eventually assented to the release of the material, but prosecutors urged the court, as reported in the Ninth Circuit opinion, to “’limit dissemination of the material to Kortlander’s personal review and/or for inclusion in any future court filings,” citing privacy interests of third parties.’ The government said: [C]oncerns have been raised that information collected by Kortlander may be posted on web sites. The Ninth Circuit has explained that ‘the privacy interests of the individuals identified in the warrants and supporting affidavits’ supports the conclusion that warrant-related material not be made available for public dissemination. Times Mirror Co. v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989).’” (quoting the government’s legal brief).

The lower court originally sided with the government. The federal district court authorized the release of the documents to Kortlander in particular, but restricted them from further public view. The court of appeals, however, overruled the district court and sent the case back to the district court, ruling: “We hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated. . . . [T]he matter is remanded to the district court to reapply the common law standard to Kortlander’s request. We decline to decide whether the public has a qualified First Amendment right of access to warrant materials after an investigation has been terminated. In the event that the court denies Kortlander unrestricted access to the warrant materials under the common law, the court should decide in the first instance whether the First Amendment right applies to post-investigation warrant materials and, if so, whether Kortlander is entitled to unrestricted access under the First Amendment . . .”

The full opinion can be found here: http://www.ca9.uscourts.gov/datastore/opinions/2011/09/30/10-30222.pdf.


CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Voluntary Deportation as a Condition of Probation?

On May 12, 2004, when Maricela Rodriguez Gutierrez was placed on community supervision, she agreed her community supervision status would subject her to twenty-nine supervisory conditions.  Fifteen of those conditions were general conditions, seven were financial, two were drug-related, two were education-related, and three were immigration-related.
One of the immigration-related requirements of her community supervision (i.e. probation) was that she obtain legal immigration status by the end of twelve months, and if she did not obtain legal status, to leave the country and reside in a location where she does have a legally authorized status.  As you can imagine, she failed to do this (if she had satisfied the condition, then I probably wouldn't be writing about it).  Accordingly, the trial court revoked the community supervision. 

Appellant now argues that the term requiring that she leave the United States was void and, thus, cannot support her revocation.  The 6th District Court of Appeals (Texarkana) agreed.  The Court held that upon revocation of community supervision, the violated term—that the defendant leave the U.S.—was void and the revocation could not stand.  The Court explained that immigration matters are within the exclusive jurisdiction of the federal government therefore a condition of state community supervision requiring a defendant to leave the country violates the Supremacy Clause of the U.S. Constitution.

See the Court's full opinion in Gutierrez v. State HERE.

Tuesday, October 18, 2011

Congressional Recognition of National Archaeology Day

In anticipation of National Archaeology Day to be held on October 22, 2011, Rep. Michael Capuano entered remarks into the Congressional Record that were received by CEO Peter Herdrich of the Archaeological Institute of America. AIA events celebrating National Archaeology Day can be found at http://www.archaeological.org/NAD/events.







CONTACT INFORMATION: www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Monday, October 17, 2011

Prosecutor Prefers Punctuality

Below is a submission from one of our regular contributors, a veteran Texas prosecutor, on one of his pet peeves - the tardy attorney.

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"Better never than late." -George Bernard Shaw

It's funny that when you look back on your childhood, things make sense in retrospect.  Remember school bells?  Remember the kids that walked into class after the bell rang?  No, not the student who came in with a note in her hand.  Maybe she'd been in the nurse's office?  And not the one who flew through the door with total desperation plastered on his face. "Mom got a ticket this morning!" No, I'm talking about the ones who, at least enough times to make you remember, waltzed in a couple of minutes after the bell and lazily took their seat.  It's almost like their ears were immune to the sounds of the bell.  Or more likely that they just didn't care about the rules.  They were the tardy ones.  Oooooh.  That's right - ooooooh, because they usually got in trouble for their tardiness.  Detention, principal's office, or whatever, there was always a consequence for being tardy.  Were they the honor roll students?  Of course not.  They were the slackers.  I wonder what ever happened to those kids?

Courthouses should have bells.  Seriously.  I've practiced law in numerous courts now, and it never fails.  I see tardy lawyers just like the tardy students I remember from school.  Not the lawyer who has four case settings in four different courts, who rushes in late, approaches the bench and notifies the court of his hectic morning schedule.  Not the one who rushes past the bar with a ticket in his hand. "Your Honor, I apologize for being late." Nope, I'm still talking about the ones that walk in late, act like they own the place and pay no mind to the clock.  The tardy ones.

Sometimes there are consequences for their tardiness, but very seldomly.  My experience is that most of the time judges just turn a blind eye toward it.  Sure, every now and then, a lawyer will walk in late and catch the judge on a bad day and reap a good butt-chewing, but it's usually just ignored - and that's unfortunate.

As a lawyer, regardless of who your client is, you owe a professional courtesy to the court, other attorneys, and most importantly, your client.  I know a lot of the tardy attorneys I see think they're exuding confidence.  "I'm my own person.  I'll show up when I want to.  I'll make make my entrance." Truth is, your entrance reminds everybody of the tardy kids in school.  The slackers.  And we know the reputation they garnered.  You also help me realize the lesson I learned from having bells in school.  That's right, I try to never be late for court.

Thanks for the soapbox.

Sunday, October 16, 2011

Recovery of Looted Egyptian Tomb Reliefs Leaves Unanswered Questions

The ancient Egyptian tomb of Hetepka featured prominently in the widely publicized court cases against Frederick Schultz in the United States and Jonathan Toleley-Parry in Britain as well as in a related criminal case in Egypt. Schultz, Tokeley-Parry, Ali Farag, Toutori Farag, Andrew May, and Mark Parry were all convicted during the late 1990's and early 2000's for their roles in an international antiquities trafficking scheme. That is why Ahram Online’s October 15, 2011 report that two looted limestone reliefs from Hetepka's tomb were “newly recovered” by the Egyptian Tourism and Antiquities Police is noteworthy.

Hetepka served as a royal hairdresser during the pyramid age, and modern-day looters dismembered and destroyed his tomb located at Saqqara. Police eventually found some of the tomb artifacts in Tokeley-Perry’s possession in England, but did not recover all the items that were looted. Ahram Online’s report suggests that the newly recovered reliefs are part of the original cultural objects that went missing from the tomb.

News of the recovery raises many questions:

• On what date and under what circumstances were the reliefs found?

• What information, and from what source(s), led the Egyptian Tourism and Antiquities Police to the reliefs?

• Where exactly were the reliefs found and under what circumstances?

• Whose possession were they in?

• What other items, if any, were also found?

• How are these reliefs related to items that may have been stolen from the tomb recently. Recall that former point-man for Egyptian antiquities, Dr. Zahi Hawass, referenced the Hetepka tomb when discussing his resignation on his blog at http://www.drhawass.com/blog/why-dr-hawass-resigned, saying: “The group now in charge of the protection of these sites is the Tourist Police, but there are no Tourist Police to do this either. Therefore, what happens? Egyptian criminals, thieves (you know, in every revolution bad people always appear…), have begun to destroy tombs. They damaged the tomb of Hetep-ka at Saqqara . . . . They attacked a storage magazine at Saqqara and we do not yet know how many artifacts are missing . . . . People have begun to build houses and to excavate at night, everywhere, putting heritage sites all over the country at risk.”

• Ahram Online reports that the recovered Hetepka reliefs were stolen in 1986. How is this known by the news outlet, especially since prior investigative information revealed that Hetepka’s tomb had been plundered in 1991?

Ahram Online’s report is conspicuously vague. You can read the article at http://english.ahram.org.eg/~/NewsContent/9/40/24162/Heritage/Ancient-Egypt/Two-reliefs-stolen-from-Hetepka-tomb-found.aspx.



Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Friday, October 14, 2011

CPAC Will Meet to Review Cultural Property Protection Requests by Bulgaria and Belize

The Cultural Property Advisory Committee (CPAC) will next meet in Washintgon, DC at the US Department of State, Annex 5, 2200 C Street, NW on November 16, 2011 from 9:00 a.m. to noon. CPAC will consider requests by Bulgaria and Belize for American import restrictions on cultural objects pursuant to the Cultural Property Implementation Act. The meeting is open to the public, but a reservation must be made. Anyone wishing to provide public comment must submit a request and a written text by November 2. Contact the Cultural Heritage Center of the Department of State at (202) 632-6301.


Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Military Sex Crime Conviction May Be Used for Enhancement in Texas

Rushing v. State (Tex.Crim.App. - Oct 5, 2011) - Here's a case that interests me on a couple of levels.  When I was a prosecutor in the Marine Corps, one of the constant questions I received from defense counsel when negotiating a plea on a sex crime case was how, and to what extent, the conviction will affect the service member in his/her home state.  I rarely knew the answer because many of the accused were from different states.  Well, the Texas Court of Criminal Appeals has confirmed that a military conviction for a sex crime, does have collateral consequences in Texas - one of them being that the conviction is able to be used for enhancement purposes in a later prosecution for a separate offense.

In Rushing, the CCA held that a prior sex-offense conviction under the Uniform Code of Military Justice (UCMJ) qualifies as a "conviction under the laws of another state" for enhancement purposes.  Texas Government Code §311.005(7) defines "state" to include any area subject to the legislative authority of the United States.  A UCMJ conviction is deemed to have taken place on United States soil and the defendant's subsequent conviction is properly enhanced under Penal Code §12.42(c)(2)(b)(v) for that conviction.

Thursday, October 13, 2011

Time's Up! Your Terry Stop is Over. Please Return to Your Squad Car.

The Fifth Circuit Court of Appeals (Federal) issued an opinion on September 27, 2011 in United States v. Macias, addressing an unconstitutional search and seizure by a Trooper in Pecos County, Texas.  On November 22, 2009, Trooper Juan Barragan stopped Robert Macias, Jr. for failure to wear his seatbelt.  Upon stopping the defendant, Trooper Barragan started asking him questions.  His initial questions dealt with common issues such as the defendant’s purpose for traveling and the defendant’s lack of insurance.  As time went on Trooper Barragan began asking more and more questions unrelated to the reasons he stopped the defendant in the first place.  After his initial questions, the trooper asked the defendant about his employment and the specific reason he was traveling to see a doctor.  The trooper also repeated questions that the defendant had already been asked and had answered.  The initial exchange between the two took approximately two minutes.

After the initial exchange, the trooper asked the defendant to come back to his patrol car with him.  The trooper then began to ask the defendant another series of questions.  Trooper Barragan asked if the defendant had his “own little company” and if he had ever “been in trouble before.” This second series of questions lasted approximately one minute.  The trooper then went back to the defendant’s vehicle (it was actually he defendant’s sister’s vehicle) and asked the defendant’s passenger a series of questions regarding her relationship with the defendant and the purpose of their trip.  Two more minutes elapsed during this series of questions.  The trooper then went back to the defendant and asked him more questions at which point he elicited from the defendant that he had been previously imprisoned for an attempted murder conviction.  The trooper then told the defendant that he was going to go back to his patrol vehicle and write him a citation for failure to wear his seatbelt.  Eleven minutes elapsed from the time that the defendant had been pulled over to the time that he received the citation.

Ten minutes after returning to his patrol car, the trooper returned to the defendant and gave him the citation.  The defendant signed the citations.  Then, just as the trooper was about to leave, he asked the defendant for consent to search his vehicle.  The defendant protested that there was nothing in the vehicle, but he ultimately gave consent to search the truck after his protestations were met by the trooper noting that the defendant has a “shady” background.  Seventeen minutes after he began the search of the truck, and forty-seven minutes after initiating the stop, Trooper Barragan found an unloaded firearm and ammunition in a closed bag belonging to the defendant.

A grand jury indicted Macias for being a felon in possession of a firearm.  Macias moved to suppress the firearm as fruits of an unconstitutional detention.  The district court denied Macias’s motion to suppress and Macias entered a conditional plea of guilty with the option to appeal the district court’s denial.

The Fifth Circuit analyzed the legality of the stop based on the traditional Terry v. Ohio analysis.  392 U.S. 1 (1968).  The Court first looked to whether the stop of the vehicle was justified at its inception and then whether the officer’s subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place.  Macias conceded that the stop was valid, but that the Trooper exceeded the scope of the stop when he asked questions unrelated to the purpose and itinerary of the trip.  Macias argued that these questions impermissibly extended the duration of the stop without developing reasonable suspicion of additional criminal activity.

The Court cited various cases including United States v. Pack, 612 F.3d 341 (5th Cir.), which held that an officer may ask questions on subjects unrelated to the circumstances that caused the stop, so long as these unrelated questions do not extend the duration of the stop.  Macias’s argument was that the Trooper’s actions after the stop unconstitutionally extended the duration of that stop.  Macias specifically noted that the trooper ran computer checks, engaged in detailed questioning about matters unrelated to Macias’s driver’s license, his proof of insurance, the vehicle registration, or the purpose of the itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. The Fifth Circuit agreed.

The Fifth Circuit noted that the only evidence that the trooper could point to that might lead to reasonable suspicion of additional criminal activity was Macias’s extreme nervousness.  It held that extreme nervousness in and of itself was not sufficient to support the extended detention.

The Fifth Circuit ultimately concluded that the search of the truck violated the Fourth Amendment and that all evidence resulting from that search should have been suppressed.  Macias’s judgment of conviction was reversed and vacated and the case was remanded for entry of judgment of acquittal.

The case contains a lot of applicable case law (a horn book in itself) for attorney’s practicing in the Fifth Circuit in regards to Fourth Amendment searches and seizures.

Wednesday, October 12, 2011

Art on Temporary Loan from Foreign Lenders - Immunity from Seizure and the Brogan Museum

According to a story published in The New York Times on October 11, 2011, the US Attorney for the Northern District of Florida requested that the Mary Brogan Museum of Art and Science in Florida retain a painting on loan from Italy while it is determined whether Girolamo Romano’s “Christ Carrying the Cross Dragged by a Rogue” was unlawfully taken from a Jewish family during World War II. The news article suggests that a federal immunity law might have been used by the museum to protect the artwork from any possible seizure.

Because the information presented by newspaper could be misconstrued—as noted by some members of the American Bar Association’s Art and Cultural Heritage Law Committee—it is worth discussing what the federal law is and how it works.

Congress passed a statute in 1965 entitled Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459). Lawmakers wished to promote the importation of fine art for the benefit of Americans by encouraging foreign art lenders to feel confident that their cultural works would not become entangled in litigation once on American soil. The statute protects from judicial seizure imported objects of cultural significance intended for temporary, nonprofit exhibition. The law prevents a civil litigant from seizing temporarily imported fine art to satisfy a judgment in a lawsuit, for example.

The immunity protecting an object of cultural significance is not automatic, which is why museums that accept foreign art on temporary loan should always consider applying for it. Any immunity that is granted is specific to the artwork; the immunity does not apply broadly to the museum as the Times article reports.

In order to acquire this immunity for an artwork, a museum should submit an application to the US Department of State at least six weeks prior to its importation. The application should contain ten pieces of information that include a description of the item covered, its provenance, its exhibition location, a description of the object’s cultural significance, and a description of why the temporary exhibition is in the national interest. By Executive Order 12047, the President of the United States has authorized the Director of the US Information Agency “(1) to determine that any work of art or other object to be imported into the United States within the meaning of the Act is of cultural significance, (2) to determine that the temporary exhibition or display of any such work of art or other object in the United States is in the national interest, and (3) to cause public notices of the determinations referred to above to be published in the Federal Register.” The USIA director must consult with the Secretary of State and may consult with others, including the Secretary of the Smithsonian Institution and the Director of the National Gallery of Art.

For the Brogan Museum to have taken advantage of seizure immunity for the Romano painting, it would have had to apply for it.

Reference: http://www.nytimes.com/2011/10/12/arts/design/for-florida-museum-dispute-over-romano-painting-is-a-boon.html?_r=1&src=recg

Photo of the Brogan Museum permitted to be used under Creative Commons license.
Description: Tallahassee FL Brogan MOAS01.jpg
Tallahassee, Florida: The Mary Brogan Museum of Art and Science
Date: 24 May 2011(2011-05-24), 14:10:25
Source: Own work
Author: Ebyabe


Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Ancient Egyptian Relief from Abusir Recovered

A February 1, 2011 post on this blog spoke about the conflicting reports out of Egypt regarding looting at Abusir. The government reported that the area was safe, while other information suggested otherwise. Now there is information from Ahram Online of the following:

"On Tuesday [October 11, 2011], the Egyptian Tourism and Antiquities Police succeeded in recovering an ancient Egyptian limestone relief which had been reported missing during the chaos that followed the January 25 Revolution.

The relief, which was discovered by the Czech archaeological mission in Abusir, was one metre tall and 60 centimetres wide. It depicted four walking geese with a hieroglyphic text.

Atef Abul Dahab, head of the ancient Egyptian department at the Supreme Council of Antiquities (SCA), told Ahram Online that the relief was one amongst those that were looted from the Abusir storage, following the lack of security after the events in January."



Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Tuesday, October 11, 2011

Third Annual National Cultural Heritage Law Moot Court Competition

The following announcement is passed along. Law students are encouraged to participate in this meaningful and challenging competition:

"The DePaul University Moot Court Team and the Lawyers’ Committee for Cultural Heritage Preservation invite you to participate in the Third Annual National Cultural Heritage Law Moot Court Competition in Chicago, Illinois. This year’s competition will be held 24-25 February 2012 at the Everett McKinley Dirksen Federal Courthouse, home of the Seventh Circuit Court of Appeals.

The Competition has been a great success in the past and judges have included distinguished academics, practitioners, and active judges. This year we are proud to welcome Judge Diane Wood of the Seventh Circuit to our final round judging panel.

Cultural heritage law deals with our most prized possessions and spans beyond national borders; it has become the subject of contentious legal debates and policies. This dynamic and growing legal field deals with the issues that arise as our society comes to appreciate the important symbolic, historical and emotional role that cultural heritage plays in our lives. It encompasses several areas of law: protection of archaeological sites; preservation of historic structures and the built environment; preservation of and respect for both the tangible and intangible indigenous cultural heritage; the international market in art works and antiquities; and recovery of stolen art works.

The 2012 problem will address two issues concerning the Theft of Major Artwork Act (18 U.S.C. § 668). The first focuses on Congress’ Article I, Section 8 authority to regulate interstate commerce and the second on statutory interpretation of the Act.

We would love to see your school participate in the competition this Spring. Registration is now open and applications will be accepted until November 11th.

Additional information about the registration process is available on our website at law.depaul.edu/chmoot, and if you have any questions, please do not hesitate to contact the Competition committee anytime at chmoot@gmail.com."

Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Thursday, October 6, 2011

Historical Documents Returned to UVM - Documents Linked to Indicted Pair - Library Loss Prevention Recommended

The University of Vermont (UVM) has recovered historical documents that disappeared from its library. The Burlington Free Press reports on October 4, 2011 that 67 documents were returned to UVM after officials at the National Archives in Washington, DC reported that they had the papers in their possession. “The papers were found after investigators recovered hundreds of items from Barry Landau, 63, who with Jason Savedoff, 24, is accused of conspiring to steal rare documents to sell at a profit, according to government allegations,” the Burlingotn Free Press writes. Source: http://www.blogger.com/www.burlingtonfreepress.com/article/20111004/NEWS0213/111004005/-1/NEWS/Federal-probe-finds-missing-UVM-documents

A federal grand jury in Maryland handed up a two count indictment on July 28, 2011 against the pair, charging them with Conspiracy to Commit Theft of Major Artwork and Theft of Major Artwork. The indictment alleges that the co-defendants stole from the H. Furlong Baldwin Library at the Maryland Historical Society, the New York Historical Society, and the Franklin D. Roosevelt Presidential Library and Museum in Hyde Park, New York. The indictment also asserts that they took dozens of items in order to sell, including historical documents of FDR, a letter from Benjamin Franklin to John Paul Jones, and a land grant signed by Abraham Lincoln. An indictment is not a finding of guilt.

In order to secure a conviction of Theft of Major Artwork under 18 USC 668, the prosecution must prove beyond a reasonable doubt that the defendants “did steal and obtain by fraud from the care, custody, and control of a museum objects of cultural heritage.” An object of “cultural heritage” is defined by law as one that is under 100 years old and valued at $100,000 or more or an object that is over 100 years old and valued at $5000 or more.

The latest development in the case is a petition filed by Landau to sell assets. The motion, filed on September 23, 2011, asks the court for permission to sell antiques, letters, jewelry, art (including two Andy Warhol prints) so that Landau can raise money to pay for day-to-day expenses. Landau is under court order to not to sell assets without judicial authorization. See a further update on this recent filing at http://articles.baltimoresun.com/2011-10-07/news/bs-md-landau-asset-sale-20111007_1_barry-h-landau-warhol-print-andy-warhol.

10/25/11 UPDATE: The court granted Landau's motion .

One inexpensive way to help prevent the loss of irreplaceable documents is to maintain historic documents in closed stacks. When a patron requests particular information, a librarian or staff member can obtain the materials in limited quantities (such as three items at a time) and place them at the patron’s table. Some institutions may feel comfortable asking for the patron’s ID, some may not. Regardless, a librarian or staff member should always be visible to the patron and should retrieve the items when the patron is finished, making an inventory of the items. A process like this one can be part of an effective loss-prevention program because it compels a patron to interact with a librarian or staff member directly so that the patron knows he or she has been identified, allows for the librarian or staff member to observe the patron for any signs of suspicion, permits the institution to control the quantity of materials provided to a patron at any one time, and allows for a librarian or staff member to ensure that the materials retrieved are the same ones returned. There are other methods that a certified insitutional risk management consultant can suggest.


Contact information may be found at www.culturalheritagelawyer.com. DISCLAIMER: The information provided on this web site/email/blog/feed/podcast is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this web site or email.

Abuse of Discretion to Exclude Defense Expert on Eyewitness ID Pitfalls

Usually, I write about CCA cases and Scott Henson over at Grits for Breakfast provides a link to my post (if it is worth reading).  Today the roles are reversed.  He has written an accurate and insightful post on a recent CCA case (State v. Tillman) wherein the trial judge refused to allow a defense expert to testify regarding the inherent problems in eyewitness identification.  The CCA held that the trial judge abused his discretion.

As Grits puts it,
the opinion, authored by Judge Barbara Hervey, cited the host of false convictions based on faulty eyewitness identifications discovered through DNA exonerations, as well as a well-developed body of scientific research critiquing over-reliance on eyewitness identification errors.

I encourage you to check out his post HERE.

Tuesday, October 4, 2011

Sentencing Range and Community Supervision Period Not Linked

The punishment range for a second-degree felony sexual assault is two-twenty years in prison. However, the minimum period of community supervision (i.e. probation) for the same offense is five years. So can a trial court award community supervision if the jury returns a punishment verdict of less than five years? Here’s how this situation played out down in Houston:

A jury found a defendant guilty of the second-degree felony of sexual assault. The jury sentenced the defendant to the minimum punishment (two years) and further recommended community supervision (a recommendation the trial judge is required to take). The trial judge, however, informed the jury that its verdict was illegal because the minimum period of community supervision is five years. The trial court essentially instructed the jury that if it wanted to recommend community supervision, it must sentence the defendant to at least five years (which would then be probated). Following instructions, the jury went back and returned a verdict of five years with a recommendation for community supervision.

Was the trial court correct in his instructions to the jury?

NO, says the Texas Court of Criminal Appeals in Mayes v. State.
There is nothing in Article 42.12 (Tex. Code Crim. Proc.) that states, or even suggests, that the jury must assess a sentence that equals the minimum period of community supervision, the maximum period, or any particular period in between. The jury does not determine the period of community supervision. It assesses the sentence and recommends that the trial judge place the defendant on community supervision. The judge must follow that recommendation, but he has the discretion to determine the appropriate period of supervision, as long as it within the minimum and maximum statutory period.
The CCA opinion makes clear that the statutory minimums for punishment and community supervision are not inextricably linked.
[A] rule that a jury cannot assess the minimum sentence in a case if it also wants the defendant to serve that sentence on community supervision would lead to an absurd result.
Accordingly, the CCA reversed the judgment of the court of appeals.

Stolen Art Repatriated to Poland Following Default Judgment in U.S. v. One Julian Falat Painting Entitled “Off to the Hunt” and One Julian Falat Painting Entitled “The Hunt”

U.S. Immigration Customs and Enforcement’s (ICE) Homeland Security Investigations (HSI) and the U.S. Attorney’s Office for the Southern District of New York repatriated two Julian Falat paintings on September 22, transferring them to President BronisÅ‚aw Komorowski of Poland in a ceremony held at the Polish Consulate in New York. American and Polish officials said that the Nazis stole “The Hunt” and “Off to the Hunt” from Warsaw’s Polish National Museum during the era of World War II.

In 2006, the Polish government found the paintings at two auction houses in New York, which removed them from sale when notified. Authorities acquired the paintings this past August after a federal district court in Manhattan entered a default judgment in the U.S. government’s favor. Federal officials then turned the paintings over to Poles.

"No one can ever provide just compensation to the victims of the Nazis' atrocities, but it is very gratifying for our office to play a role in returning the art that they looted during World War II to its rightful owners," said U.S. Attorney Preet Bharara in a statement. "After 60 years, these national treasures will finally be returned to the Polish Government—a repatriation that would not have been possible without their help."

The U.S. Attorney’s Office filed an in rem forfeiture action against the paintings on December 13, 2010 in order to acquire the artworks. (In a court proceeding for civil forfeiture, the defendant is the property, not a person.) In its complaint, the prosecution alleged that there was probable cause for forfeiture. Assistant US Attorney Kan Nawaday specifically described how “Off to the Hunt” was removed from the National Museum without its frame during World War II. A frame for the artwork originally contained an inked inventory mark, the number 345, when the Society for the Encouragement of Fine Arts in Warsaw placed it there in 1904. The frame survives. “The Hunt,” meanwhile, was also transferred to the National Museum when the German SS confiscated the painting. A catalog record and photograph of the artwork still exists.

The Polish government published a catalog of looted art in 1951 following the Second World War. It described both paintings. Since 1989, the Polish government continued to post the loss of “Off to the Hunt” and “The Hunt” on the internet. The paintings surfaced when Christie’s and Doyle New York, respectively, offered them for auction.

The federal complaint explained that an HSI agent spoke with the consignor of “Off to the Hunt,” whose name was supplied to the Polish government by Christie’s. The consignor had no purchase records and no import paperwork, according to the complaint. Additionally, HSI’s own search of customs records could not find any information related to the import.
HSI was also in contact with the attorney for the consignor of “The Hunt.” The federal complaint described how HSI “spoke with employees of Doyle . . . who informed them that the consignor . . . had brought the painting in for appraisal unframed and wrapped in an old sheet. Additionally . . . employees advised that [the consignor] had provided conflicting stories about how she came in possession of the painting.” HSI itself could find no importation records relating to the painting, according to court papers.

The federal forfeiture complaint stated that each Falat painting was valued at $50,000.

The U.S. Attorney’s Office argued that the paintings could be lawfully forfeited under four alternative legal theories. First, the works of art could be forfeited under 18 USC 981(a)(1)(C) because they were proceeds arising from a violation(s) of the National Stolen Property Act. Second, they could be forfeited under 19 USC 1497(a)(1) because there was no declaration of entry made on any customs form when imported into the United States. Third, they could be forfeited pursuant to 19 USC 1595a(C)(1)(a) because there was probable cause to believe that they were imported in violation of the federal smuggling law or the National Stolen Property Act. Fourth, the paintings could be forfeited because there was “probable cause to believe that they were brought to the United States contrary to law, the possessors of the Defendant Paintings [were] aware that they were stolen and are attempting to offer the Defendant Paintings for sale . . . .”

The government won its case by default after the paintings’ possessors failed to contest the forfeiture complaint. The court granted judgment on August 3, 2011.

"Those paintings are two magnificent and very important pieces of art," said Bogdan Zdrojewski, minister of culture and national heritage of Poland. "If you think about all the Falat paintings, these two are definitely the most interesting and most valuable ones," the minister was quoted as saying in a September 22, 2011 ICE press release.

But at least one of the paintings is not one that the Nazis looted, according to assertions made in a July 1, 2011 letter and attachments sent to the federal court by the possessor of “Off to the Hunt.” She wrote that “a technical analysis of my painting put[s] into severe doubt that my painting and [the Polish government’s] lost painting were one and the same.” She objected to the “far-from-thorough ICE investigation and . . . U.S. Civil laws designed to trap criminals and not good-faith possessors of disputed objects . . .” She also wrote of her inability to enlist her insurer or an affordable attorney to help defend the court action.

In letters addressed to NY Senator Charles Schumer dated June 23 and Secretary of State Hillary Clinton dated June 27 (both contained in the public court file) the possessor made a variety of statements, including the following:
• she was the daughter of a Holocaust survivor,
• she inherited “Off to the Hunt” from her father who bought it in Paris before transporting it to the USA in 1948,
• the “lost painting and mine are two originals by the same painter,” and
• it was improper for the government to imply that she and/or her father may have been “bad faith” possessors of the work.

HSI Executive Associate Director James Dinkins, meanwhile, said in a September 2011 press statement that his agency was “deeply gratified to be able to return these cherished paintings that were taken from the people of Poland so long ago.”

Photo courtesy of ICE.

Sunday, October 2, 2011

New Head of Egypt's Supreme Council of Antiquities Appointed

Dr. Mustafa Amin has been appointed as Secretary General of the Supreme Council of Antiquities (SCA). Amin headed the Islamic archaeology department at the Supreme Council of Antiquities (SCA) before replacing Mohammed Abdel Fattah, who resigned last week.

Youm7 English Edition reported that “Abdel Fattah had said that a series of pickets by employees had led to the closure of several of the council's buildings in Cairo and left the institution ‘paralyzed.’” There have been many strikes in the last few months by workers seeking better pay and working conditions.

Ahram Online said that Amin “met with protestors camped in front of the SCA’s Abassiya building for four days,” reporting that “4065 temporary employees will be immediately appointed to be followed by more appointments until the almost 12,000 temporary employees are all made permanent. The protestors were convinced and promised to end their protest.”

"[H]e promises to complete the SCA’s mega projects such as the Grand Egyptian Museum (GEM) overlooking the Giza Plateau, the National Museum of Egyptian Civilisation (NMEC), as well as removing all encroachment at Al-Muizz Street and at Sphinxes Avenue in Luxor in order to reopen it soon.”

“Amine said that his first decisions as SCA secretary general were to appoint former secretary general Mohamed Abdel Fatah as the head of the NMEC Supreme Committee, and Adel Abdel Satar to head the Islamic and Coptic Antiquities Department. Amine was formerly head of that department.”

Earlier in the week, Al-Ahram Weekly reported the following:
“In Aswan the situation was worse. Protesters closed the doors of Nubia Museum and Abu Simbel temples and prevented members of World Tourism Day from paying a visit to both sites. Atef Abul-Dahab, head of the Ancient Egyptian Antiquities Department, told Al-Ahram Weekly that upon his arrival to the building, more than 4,000 archaeologists were blocking the entrance, waving placards calling for a bigger budget to meet their demands. Abul-Dahab said that in response to the protest, ‘we called the police and the military police to enable the staff to enter the building and proceed with their work.’ But, he continued, protesters refused to budge without their demands being met, including appointing 14,000 temporary employees whose period of work exceeds eight years.



‘They threw me in a bad spot,’ Abdel-Fattah told the Weekly. He said he cannot solve any problem concerning the SCA staff for the time being because it involves the SCA's lack of a budget and little financial resources. ‘How can I appoint the temporary staff and fresh graduates when I don't have enough money?’ Abdel-Fattah asked."

Sources:
http://english.youm7.com/News.asp?NewsID=345893&SecID=97&IssueID=149
http://weekly.ahram.org.eg/2011/1066/eg10.htm
http://english.ahram.org.eg/~/NewsContent/9/40/23109/Heritage/Ancient-Egypt/New-antiquities-head,-new-plan,-protestors-satisfi.aspx


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