District Court Dismisses Government’s Case to Forfeit SLAM Mummy Mask

The U.S. District Court, Eastern District of Missouri, today published an order dismissing the government's’ forfeiture complaint against the Ka Nefer Nefer mummy mask.  The Egyptian artifact is located at the St. Louis Art Museum (SLAM).

The government filed a claim in March 2011 to forfeit the 19th Dynasty Egyptian mummy mask of a noblewoman from SLAM, alleging that it was stolen from Egypt.

Judge Henry Autrey brought the government’s case to a halt after concluding this past Saturday that the federal attorneys failed to specifically articulate how the mask was stolen and smuggled, or how it was brought into the United States "contrary to law."

Excerpts from the court’s nine page opinion are quoted below with citations omitted:

The Government bases its claim for forfeiture on Section 1595a of Title 19. Section 1595a(c) provides in relevant part:

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

In order to exercise the seizure and forfeiture of the Mask, the statute requires pleading the following: (1) facts relevant to whether the Mask was “stolen, smuggled or clandestinely imported or introduced” and (2) facts related to some predicate unlawful offense, presumably a law with some “nexus” to international commerce from which the Title 19 customs regulation arises. The Government’s verified complaint lacks both of these pleading prerequisites. Indeed, the verified complaint fails to state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial.

The verified complaint does not provide a factual statement of theft, smuggling, or clandestine importation. Rather, the complaint merely states that the Mask was found to be “missing” from Egypt in 1973. Although the Government alleges, in a conclusory fashion, that “the register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973,” the complaint is completely devoid of any facts showing that the Mask was “missing” because it was stolen and then smuggled out of the country. The closest the Government comes to any type of allegation of theft or smuggling is in paragraphs 19 and 20 of the complaint, which note that in 2006 “the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum . . . and [t]o date, the Saint Louis Art Museum has refused to return the Mask.” The Government’s legal conclusion, in paragraph 22 of the verified complaint, that “[b]ecause the Mask was stolen, it could not have been lawfully exported from Egypt or lawfully imported into the United States,” misses a number of factual and logical steps, namely: (1) an assertion that the Mask was actually stolen; (2) factual circumstances relating to when the Government believes the Mask was stolen and why; (3) facts relating to the location from which the Mask was stolen; (4) facts regarding who the Government believes stole the Mask; and (5) a statement or identification of the law which the Government believes applies under which the Mask would be considered stolen and/or illegally exported.

The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally. The Government is required under the pleading standards set forth in the Federal Rules of Civil Procedure to provide specific facts, or plead “with such particularity,” that the claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading. As it now stands, claimant cannot even be sure of the who, what, when or where of the alleged events surrounding the alleged “stealing,” nor can the Museum ascertain if the Government is pursuing seizure of the Mask based on an alleged theft or a unlawful import/export, or both. (The Court presumes that the Government is not accusing any unnamed parties of clandestinely smuggling the Mask out of Egypt and into the United States; however, given the lack of specificity in the verified complaint, perhaps the Court should not make any assumptions on the Government’s behalf.)

Additionally, as noted previously, the Government has been completely remiss in addressing the law under which the Mask would be considered stolen. The phrase “contrary to law” under § 1595a refers to how merchandise, such as the Mask, is introduced in the United States illegally, unlawfully, or in a manner conflicting with established law. The Government has completely failed to identify, in its verified complaint, the established law that was violated when the Mask was purportedly brought illegally into the United States or purportedly stolen from Egypt or some other undisclosed party, and it has failed to provide any facts relating to the time period surrounding these supposed events. Thus, the Government's verified complaint fails to assert specific facts supporting an inference that the Mask is subject to forfeiture.

CONTACT: www.culturalheritagelawyer.com

Egyptian Red List Now Available From ICOM

Th Emergency Red List of Egyptian Cultural Objects at Risk is now available.  You may view it here.  Published by the International Council of Museums (ICOM), the Red List illustrates various types of cultural objects that are vulnerable to archaeological site looting and theft.

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

Red List Announced Covering At-Risk Egyptian Cultural Objects

The International Council of Museums (ICOM) today announced that it would soon release a Red List for Egypt.  [UPDATE 2/6/12: The Red List is now available].   Red Lists describe various types of cultural objects that are considered to be at-risk. Such lists have been created for cultural objects from Afghanistan, Cambodia, Africa, and seven other places.

Regarding Egypt, ICOM's December-January e-newsletter states:

"Following several months of preparation, ICOM is delighted to announce the official launch of a new Red List in the coming weeks. The Emergency Red List of Egyptian Cultural Objects at Risk, the 11^th publication in ICOM’s Red List series and its third Emergency Red List, is one of the tangible outcomes of ICOM’s involvement in the protection of Egyptian cultural heritage, following the events that shook the country in the past year. The List was drafted in close collaboration with members of ICOM’s International Committee for Egyptology (CIPEG), national and international experts in Egyptian art and antiquities, and the Ministry of Antiquities of Egypt."

"The Emergency Red List was made possible thanks to the generous support of the Bureau of Educational and Cultural Affairs of the US Department of State."

"The official launch of the Emergency Red List of Egyptian Cultural Objects at Risk will take place at the National Museum of Egyptian Civilisation (NMEC) in Cairo, Egypt, in the presence of ICOM Director General Julien Anfruns, members of the Egyptian government and local heritage institutions, national and international experts, police and customs officials, partners of the project and the media. The event will be followed by an awareness-raising and capacity-building workshop on the Red List series and its worldwide usage in fighting illicit traffic in cultural goods."

CONTACT: www.culturalheritagelawyer.com

Change of Venue Motion Filed in US v. Khouli et al. Previews Possible Defenses in Alleged Antiquities Trafficking Case

Federal courthouse in Brooklyn, NY.
Photo by Jim Henderson.  CC

The latest pleading filed by Salem Alshdaifat’s attorney in the case of US v. Khouli et al. asks for a change of venue. The defense argues that personal and financial hardships faced by Alshdaifat, a Michigan resident, urge a transfer of the case from the federal district court in New York to Detroit.

The motion provides a possible preview into some of the defenses that may be available in the case, including:

• a characterization of the charged conduct as “regulatory-based criminal charges,”
• a claim that the objects that are the subject of the multi-count indictment are neither stolen nor contraband, and
•  an argument that Alshdaifat was a middle man who did not possess criminal intent.

A federal grand jury charged Alshdaifat in May 2011 with conspiracy to smuggle, alleging that he directed Mousa Khouli to wire $20,000 to Ayman Ramadan’s UAE bank account and that Alshdaifat received an airway bill from Ramadan showing that “wooden panels” were being shipped by Ramadan’s company in the United Arab Emirates to JFK airport in New York.  Moreover, Alshdaifat is charged with money laundering conspiracy.  He is also charged with smuggling goods into the country as well as fraudulent importation and transportation of goods.  The indictment describes the goods as an Egyptian inner coffin, Egyptian funerary boats and limestone figures, and a portion of an outer lid of a nesting Egyptian coffin set.  (A grand jury indictment is a mechanism that initiates a criminal case; it is not a finding of guilt.)

Writing in support of the motion for change of venue, Alshdaifat’s attorney previews the possible defenses in the case.  The following are excerpts from the Memorandum of Law dated November 21, 2011:

• “The facts surrounding these charged criminal violations of the Customs laws arise out of the importation of rare Egyptian antiquities, including a three-piece set of sarcophagi and other funerary objects. These artifacts were allegedly shipped to the United States in several packages, variously by international air mail and by private air and sea carriers. The government does not claim that the Egyptian artifacts were stolen or were otherwise contraband when they entered the country. Instead, the government's charges rest on a theory that the alleged conspirators willfully falsely or vaguely declared these artifacts in entry documents into the United States because the importer purportedly had insufficient or incomplete documents of origin for the objects and this might have caused them to be detained at a United States port-of-entry if detected.” (emphasis in the original)

•  “Mr. Alshdaifat was neither the U.S. importer nor the foreign exporter of the subject Egyptian artifacts. Based on the government's own claims, he is alleged to have been the “finder” or middleman that put the alleged foreign source of the artifacts (defendant [Ayman] Ramadan) in contact with the U.S. importer, or interested antiquities dealer (defendant [Mousa] Khouli). Despite being charged with a role that essentially ended prior to the importation process, Mr. Alshdaifat is charged with his co-defendants for knowingly participating in making false or intentionally incomplete statements on shipping labels on various shipments of these Egyptian antiquities.  The government's claims against Mr. Alshdaifat, therefore, rely on findings that he knew and intentionally joined a conspiracy to falsely declare the Egyptian artifacts in their shipment to the United States after his role in being a broker to the transactions was already completed.” (emphasis in the original)

•  “In the Egyptian sarcophagi transactions, however, Mr. Alshdaifat only had a broker's interest and did not deal in the artifacts himself. Somehow, however, he now finds himself charged together with the principals of those transactions for allegedly violating technical Customs laws in the mailing and shipping of the merchandise, a process in which he did not participate.”

• “The government’s position in support of criminal liability on the charged air mail shipments is based largely on the claim that Mr. Alshdaifat's co-defendants put these pieces in international mail or on an airplane as air cargo without completing more formal U.S. Customs paperwork with the specific intent to avoid Customs’ detection of these shipments and break U.S. Customs' law.  No lay witnesses exist to testify as to whether a defendant's act of putting these parcels in the mail or on an airplane constituted an intentional and clandestine conspiratorial effort to get the charged, legal merchandise into the United States.” (emphasis in the original and footnote omitted)

•  “In any event, Mr. Alshdaifat is not even implicated in the government's discovery with doing anything – in New York or elsewhere – to assist in the importation of the merchandise. He is charged with putting the alleged source of the Egyptian coffins and artifacts (defendant [Ayman] Ramadan) in contact with the New York antiquities dealer who purchased them (defendant [Mousa] Khouli). The government must concede that Mr. Alshdaifat was neither the importer nor exporter of the charged shipments, and therefore had no role in the actual shipment of the merchandise, i.e., the packaging, labeling and placing of the merchandise in international mail.  As such, he never had any contacts with New York.”

•  “The government does not charge that the Egyptian coffins and funerary objects were stolen property. The objects imported, therefore, are not contraband or unlawful to possess in the United States. The government's claims in this Indictment rest instead on the precarious theory that the method in which the artifacts were shipped into the United States was intentionally fraudulent even though the goods themselves were not banned or prohibited from entry. Indeed, the government does not even claim that the method of importation was intentionally fraudulent to avoid import duties, since antiquities are excluded from any import tax.” (emphasis in the original)

The defense contends that the government’s conduct materially affected Alshdaifat’s business.  Alshdaifat writes in a Declaration to the court dated November 21, 2011 that he started dealing in ancient coins in Canada, selling them primarily over the internet and at international trade shows.  He describes himself as a specialist in ancient Judean coins who gained admission to many coin auction houses and membership associations.  Alshdaifat adds that he was the moderator of the “Judean ancient coin section for the largest numismatic worldwide web community.”  Defense counsel’s Memorandum of Law explains:

“Mr. Alshdaifat's circumstances are particularly extraordinary. These include the fact that from his initial arrest, the government stacked the deck against him, making it untenable for him to get his fair day in court. On July 13, 2011, the government arrested Mr. Alshdaifat in his Michigan home and confiscated his entire business inventory of ancient coins, thereby effectively shutting his business down.  It did so despite the fact that the criminal charges in the Indictment had nothing to do with Mr. Alshdaifat's coin business. Subsequently, the government returned his coins but not until his business suffered a crushing, and possibly, fatal blow. Mr. Alshdaifat's reputation as an honest coin dealer has been battered; more importantly, he has been removed or suspended from all of the auction houses where he sold his coins. His business is in dire shape.” (emphasis in the original)

Information supplied to the court describes the relationship between Alshdaifat and co-defendant Ayman Ramadan.  Court papers remark that “Mr. Alshdaifat has purchased ancient coins before from defendant Ramadan in the United Arab Emirates ("U.A.E.") and has sold coins to defendant Khouli in New York.  That is how he knew two of the other parties charged in this Indictment.”

CONTACT: www.culturalheritagelawyer.com

Egyptian Museum No Longer Accepting Cultural Object Inquiries (For Now)

The Egyptian Museum, Cairo
Source: Bs0u10e01, Creative Commons

According to an email by the General Director of The Egyptian Museum in Cairo, the museum will not be in a position to respond to inquiries regarding any artifacts until June 2012. This information is important to anyone conducting provenance research relating to Egyptian cultural objects. The email appears below:

To whom it may concern,

Due to the current situation in Egypt, I regret to say that the

Registration, Collections Management and Documentation

Department (RCMDD) and the curatorial staff of the Egyptian

Museum, Cairo will not be accepting any new requests for

object information and images starting from 1 December, 2011

until 30 May, 2012. This is due to the huge backlog that was

created following the events of January 28th, as well as the

renovations that are currently happening in the Museum.

Information on objects from our collection can still be obtained by

accessing the intranet version of the Museum Database on the

computers dedicated to scholars in the RCMDD office, located in

the museum basement.  The department is open to scholars from

9:30 am until 2:00 pm, Sunday-Thursday.

Sincerely,

Dr. Tarek El Awady

General Director,

The Egyptian Museum, Cairo

Source: Egyptologists' Electronic Forum, forwarded by Dr. Yasmin El Shazly.

CONTACT: www.culturalheritagelawyer.com

Status Conference Held in Case of US v. Khouli, Alshdaifat, Lewis

Egyptian coffin seized by ICE
in the case of US v. Khouli et al.
Photo: ICE

The US District Court for the Eastern District of New York held a status conference in the criminal matter of United States v. Khouli et al. on November 17, 2011.  The court waived all three of the defendants’ presence at the hearing.  The defendants include Mousa “Morris” Khouli, Salem Alshdaifat, and Joseph A. Lewis II.  Ayman Ramadan remains a fugitive.

By way of letter dated November 4, 2011 and written by his attorney, Khouli sought leave to attend a coin show in Baltimore, Maryland, reportedly scheduled for November 16 and 20.  The short letter explained: “As an antiquities dealer, Mr. Khouli’s livelihood depends on his ability to attend coin shows and other similar events.”  The court granted Khouli’s request and extended the ruling, waiving the appearance of the other co-defendants.

Internet records reveal that the Whitman Coin & Collectibles Baltimore Expo was held during this time.  Palmyra Heritage, the name of the business owned and operated by Khouli, was listed as occupying booth #1107 while Holyland Numismatics, the name of the business owned and operated by Alshdaifat, was listed as occupying booth #1154 at the event that took place at the Baltimore Convention Center.

Salem Alshdaifat’s attorney filed documents soon after the November 17 status hearing requesting a change of venue in an effort to curtail any hardship to Alshdaifat, who lives in Michigan.  Submitted on November 21, the pleadings reveal more information about Alshdaifat’s background and his association with co-defendant Ayman Ramadan.  The pleadings also supply a preview of Alshdaifat’s possible legal defenses.  These topics are discussed here.

The next court status conference is scheduled for January 27, 2012.

CONTACT: www.culturalheritagelawyer.com.

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.

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.

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.

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.

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


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.

Khouli +3 Case Update: Search Warrant Affidavit Describes HSI Investigation

Homeland Security Investigations (HSI) petitioned for a warrant on July 12, 2011 to search Salem Alshdaifat’s home-based business and seize “antique coins and[/]or other antiquities or any other works of art or cultural antiquities of Greek, Roman, Mesopotamian, Islamic, European, Egyptian origin . . .” HSI also requested business records, correspondence, photos of merchandise, bank records, import records, and the like located at the home.

An HSI special agent applied to the United States District Court for the Eastern District of Michigan for the warrant to search the home. That is the location where it is reported that Alshdaifat runs the ancient coins business called Holyland Numismatics. The affidavit, now unsealed, reveals further details about the antiquities smuggling investigation into Alshdaifat and three other co-defendants--Mousa Khouli, Ayman Ramadan, and Joseph A. Lewis, II.

It should be noted that a search warrant affidavit is a narrative that a law enforcement official or prosecutor supplies to a judge. It is meant to demonstrate the probable cause to believe that an object or thing is at a specified location and that it is probable evidence of a crime. Information contained in a search warrant affidavit may or may not be admitted as evidence at a trial. That is why an affidavit should not be read to form a conclusion of criminal guilt. Only a jury can decide whether there has been a violation of law, basing its decision only on legally admissible evidence.

In the present case, the federal agent’s affidavit called attention to several observations and actions of interest. For instance, the search warrant petition was filed following a review of Alshdaifat’s Yahoo! email account. Also reported were Alshdaifat’s alleged sale of ancient Egyptian artifacts in 2009 and his alleged importation of ancient coins in Detroit in 2010.

Writing in the July 2011 affidavit, the HSI special agent explained that a March 29, 2010 search warrant probe of “Alshdaifat’s e-mail records . . . confirm[] that he uses e-mail to communicate with sellers, purchasers, dealers and transporters of cultural property including stolen and/or smuggled cultural property.” A January 2009 email exchange was described where Alshdaifat allegedly offered a hoard of coins “[u]ncleaned at $4.5 each.” The email continued: “[T]he hoard came from Egypt and [is] now in Dubai[.] I asked my partner to ship directly from Dubai to you. [T]his hoard came from Banha, I think we bought coins that we sold you befor[e] from Banha, it is very big Roman city. [Y]ou can wire the funds to my bank account.”

The partner referred to is Ayman Ramadan of Nafertiti Eastern Sculptures Trading in Dubai (NEST). Alshdaifat referred to NEST as his Dubai office, and that “Ramadan ships antiquities from the UAE to Alshdaifat’s customers on Alshdaifsat’s behalf,” declared the affidavit.

A second email dated February 22, 2010 from Alshdaifat reportedly said:
“[F]or a hoard from Egypt this is real[l]y a[]lot :) , you got a small group[], we usually don[‘]t see them at all in Egypt, I was told today that they found in the same spot while they are making the hole bigger another group[] around 800 coins, they are still working in the area, I hope it will[] be bigger than what I think. [N]ext week I will get those 800 tog[e]ther with the 2000 coins. [I]t is much easy to sell uncleaned, I notice[e] that they already tried to clean some, but I told them to stop[.]”

The HSI investigating agent, without supplying specific details, added that Alshdaifat’s email account allegedly showed that he “has offered customers hoards of coins taken directly from Petra, Jordan and from Kyrene, Libya.”

Perhaps most directly related to the current federal indictment, the affidavit described allegations that Alshdaifat in May 2009 “offered a New York dealer a set of ancient Egyptian funerary boats and limestone figures for $40,000.” The New York dealer found a customer interested in purchasing these antiquities . . . and resold them to the customer for a higher price. Ramadan shipped the ancient boats and limestone figures to the New York dealer via mail from the UAE.” The shipping label said “antiques.”

On December 20, 2010, Alshdaifat carried coins through the Detroit Metropolitan Airport on his way back from Amman, Jordan, according to the affidavit. Customs reportedly seized the coins because Alshdaifat presented inconsistent sets of invoices during two separate airport inspections. The first invoice presented was from NEST to Holyland Numismatics for Byzantine gold coins and Byzantine gold tremissis coins totaling $234,875. The invoice stated that they originated from Syria, according to the affidavit. Alshdaifat then reportedly offered a second set of invoices listing Byzantine gold coins and Roman-Egyptian billion tetradrachms. When Alshdaifat returned later with two mail packages of similar coins in an attempt to convince federal authorities to release the detained coins, customs officials seized these packages too because they were without entry paperwork, declared the affidavit.

Federal agents staked out Alshdaifat’s home in June 2011. After seeing a “for sale” sign posted, two HSI agents posed as potential buyers of the house and entered the home with a real estate agent. Alshdaifat was at the residence at the time. The agents reportedly observed pictures of coins on Alshdaifat’s computer and as well as books about ancient coins and artifacts.

Based on this information, federal authorities applied for a search warrant of Alshdaifat’s Michigan home. That search warrant preceded the eventual multiple count indictment against Alshdaifat and the three named co-defendants on charges related to antiquities trafficking.

Photo courtesy of ICE.

Contact information may be found at www.culturalheritagelawyer.com.

Commentary on SLAM Mummy Mask Case - Proceeds Contraband and Statute of Limitations

The current civil litigation surrounding whether the Ka-Nefer-Nefer mummy mask is contraband is worth following given the current legal arguments in play.

The mask, located at the St. Louis Art Museum (SLAM), is claimed by the federal government to be contraband, which is always unlawful to possess. SLAM, meanwhile, argues that the mask, if it is contraband, must be considered derivative contraband, compelling the government to prove that the mask was utilized in the commission of a crime.

It is open to discussion whether the mummy mask fits into the same category as contraband like illegal narcotics. It is also remarkable to think of the mummy mask as derivative contraband like a car used in illegal gun running. It may be that both legal theories are inexact.

The mummy mask might be categorized as proceeds or fruits instead.

Broadly speaking, criminal search and seizure law categorizes property as fruits, instrumentalities, or contraband. Fruits of a crime are the proceeds of a criminal transaction. These items are ones connected with a criminal act and may be seized. Instrumentalities are objects used to facilitate a crime, and these too may be seized. Contraband items are ones that are plainly unlawful to possess like counterfeit money, and these too may be seized.

In the realm of civil forfeiture of property, particularly dealing with items alleged to be connected to a crime, these criminal law concepts of fruits, instrumentalities, and contraband may be translated into three legal theories: proceeds forfeiture, instrumentalities forfeiture, and contraband forfeiture. If contraband forfeiture is the argument of the government, and instrumentalities forfeiture is the argument of the museum, will proceeds forfeiture be considered by the court? We shall see.

Meanwhile, SLAM’s assertion that the statute of limitations has expired in this case, preventing the government from pursuing its court action, is an argument worth watching closely. Statute of limitations is always an issue of importance when applied to cases of fine art and cultural heritage. In the Ka-Nefer-Nefer mummy mask case, it should be noted that the statute of limitations would not likely apply if the mummy mask is categorized as contraband per se. That is because it would be unlawful to possess the mask under any circumstance at any time. And that is perhaps one reason why the government hopes to characterize the mask as contraband, because it could potentially steer the case away from litigation over the statute of limitations altogether.

We look forward to further developments.

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SLAM Disputes Government's "Contraband" Claim in Ka-Nefer-Nefer Mummy Mask Case

In the latest round of legal papers filed in the case of United States v. Mask of Ka-Nefer-Nefer, the St. Louis Art Museum (SLAM) says that its possession of the ancient Egyptian mummy mask cannot be likened to possession of cocaine as the US government's lawyers claim. (See July 31, 2011 blog post for background.)

SLAM's attorneys describe two kinds of contraband. They explain that there is contraband per se, which include items illegal to possess under any circumstance (author's note: think of counterfeit money) and which can be automatically confiscated by the government without a hearing. They also say that there is derivative contraband, which include lawful items that are forfeitable because they are connected with a crime (author's note: think of a car used in drug trafficking). SLAM argues that if the mask is in fact contraband, then it must be characterized as derivative contraband that is not automatically forfeitable. Because the mask is not automatically forfeitable contraband per se, SLAM argues that the government must present evidence that the object is forfeitable as an item that derives from a criminal act.

SLAM writes in its August 3, 2011 pleading (some citations omitted):
"The Government’s evolving positions with respect to the ownership issue seem to be at war with themselves. First, it admitted in its own pleadings that there are several bases under [Egypt’s patrimony] Law No. 215 which would provide for private ownership of artifacts such as the Mask. Now it argues that Egyptian Law No. 215 forecloses property rights in artifacts such as the Mask and renders them contraband per se, akin to cocaine or an illegal whiskey still. In fact, Egyptian Law No. 117, which was enacted in 1983, after Law No. 215, specifically acknowledges that artifacts such as the Mask could be privately owned. United States v. Schultz, 333 F.3d 393, 401-02 (2d Cir. 2003). In that seminal case, the Second Circuit went on to recognize that Law No. 117 was the first Egyptian law declaring illegal any private ownership of all antiquities found in Egypt after 1983. The Mask, therefore, clearly cannot be considered contraband per se in the way that such items as narcotics are intrinsically unlawful to possess."

By making the claim that the mummy mask arguably can be characterized contraband derived from a crime, SLAM tries to reinforce its assertion that the burden of proving the forfeiture is on the government.

Meanwhile, it should be noted that the issue of whether the statute of limitations forecloses the government's seizure action is an argument that SLAM continues to raise. SLAM's lawyers write:
"The Museum has consistently taken the position that the Government’s claim is barred from the outset by the statute of limitations and that its forfeiture claim must fail because the Government is unable to prove the Mask was stolen. In raising the arguments it does, the Government is attempting to delay or avoid the consideration of those questions by confusing the standard for constitutional standing and making the bizarre suggestion that the Court pretend that the Museum claims an interest 'not of a centuries old Egyptian mask, but rather a kilogram of cocaine.'"

The United States Attorney's Office counters SLAM's latest assertions in a pleading filed August 4, saying that SLAM failed to make arguments about the contraband issue when it was supposed to. The government’s lawyers contend that SLAM never before raised the distinction of contraband per se and derivative contraband, writing that the museum only now “disputes whether private ownership of the Mask is authorized under Egyptian law.”

US Claims SLAM Lacks Legal Standing—Asserts That Mummy Mask is Illegal Contraband —Discovery Reveals More Information

In the latest round of papers filed in court last week, lawyers for the US Attorney’s Office in St. Louis sought to strike the St. Louis Art Museum’s legal claim in the federal lawsuit involving the mummy mask of Ka-Nefer-Nefer. Federal authorities sought forfeiture of the mask in March after the museum filed for a declaratory judgment in February seeking quiet title to the artifact. Both cases were filed in federal district court in St. Louis.

Federal attorneys, in their July 27 pleading, contend that SLAM’s “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum.” The government argues that Egypt’s patrimony law, which gives ownership rights of cultural property to the Egyptians, makes it impossible for the SLAM to own the mummy mask. Therefore, SLAM has no legal standing to assert that it can own the mask.

The government’s brief analogizes SLAM’s claim to the mask as similar to asserting ownership over cocaine—one cannot legally claim ownership. Since the mask cannot be owned by the museum, the museum lacks standing to claim ownership, the government argues.

SLAM says that it has standing to be a legal party in the case because it bought the mask and it possesses it.

The government first disputed SLAM’s legal standing in a July 7 motion. Government attorneys filed the pleading following the receipt of interrogatory answers by SLAM. While the museum wrote that it objected to having to answer questions about how it acquired title to the mask or having to identify documents that would support its claim to lawful ownership, SLAM, nevertheless, answered the interrogatories without waving these objections.

The museum supplied the following information:

• It purchased the mummy mask for $499,000 from Phoenix Ancient Art of Geneva, Switzerland around April 3, 1998.

• Phoenix Ancient Art warranted in a purchase and sale agreement that it had title to the mask and could properly transfer title.

• Phoenix provided provenance information to SLAM before the purchase. “According to Phoenix, in or about 1995, it had purchased the Mask from Ms. Zuzi Jelinek, who in or about the early 1960’s, had purchased the Mask from the Kaloterna (or Kaliterna) private collection,” the interrogatory answer relates.

• The museum conducted a provenance investigation to determine if the mask was stolen by contacting INTERPOL, the Missouri Highway Patrol, the Art Loss Register, and the former director of the Museum of Egyptian Antiquities in Cairo, Dr. Mohammed Saleh.

• The museum conducted an investigation through Swiss legal counsel to determine if there were any liens or encumbrances on the mask. No encumbrances were found.

• Swiss legal counsel confirmed Jelinek’s address.

• The museum contacted Dr. Saleh, who advised SLAM to contact another US museum and who did not say that the mask was stolen or “advise the museum against purchasing the Mask.”

SLAM also provided a spreadsheet of 19 documents, which it claims supports the museum’s legal interest in the mummy mask. The documents can be categorized as a purchase agreement, a bill of sale, letters, and emails.

Missing from the documents list is a purchase or sales agreement between Jenilek and Pheonix Ancient Art. SLAM claimed in past court filings that such a transaction would have occurred in 1995. SLAM, nevertheless, includes on the list of documents a 1997 fax from Phoenix that purportedly attaches a letter of provenance from Jenilek.

Also missing from the documents list are shipping papers or import papers describing the mask’s entry into the United States. Import papers generally describe a package’s date of entry, location of entry, country of origin, value, and contents. The court papers suggest that the mummy mask traveled from Switzerland to the United States in 1998, but this information remains unclear. The mask must have been imported into the United States at some time and at a specific point of entry. But the question of whether papers exist documenting the importation of the Egyptian mummy mask, valued at several thousands of dollars, remains unanswered thus far.

SLAM's Federal Court Action: Summary and Comment on the Saga of the Mummy Mask

The St. Louis Art Museum (SLAM) on February 15, 2011 filed a lawsuit against the United States seeking a declaratory judgment in the case of the Ka-Nefer-Nefer mummy mask. It is helpful to explain both what this lawsuit is about and what missing information and discrepancies are starting to appear at this early stage of the court process.

Summary of SLAM’s Complaint and Legal Arguments

A declaratory judgment is a binding ruling by a court that decides a party’s rights in a dispute. It is a preventive action taken when a party believes that it will face impending legal action. In this case, SLAM filed a complaint in federal district court to prevent authorities from seizing the mummy mask in its possession. SLAM’s complaint suggests that federal authorities were preparing to seize the controversial mummy mask of Ka-Nefer-Nefer, excavated in 1952 in Egypt and purchased by the museum in 1998 from Phoenix Ancient Art, Geneva. The complaint alleges that “counsel for the Museum was contacted by the United States Attorney's Office for the Eastern District of Missouri in St. Louis, to request a meeting regarding the Mask. On January 13, 2011, the U.S. Attorney's Office in St. Louis hosted a meeting regarding the Mask. In attendance were Assistant U.S. Attorneys from the St. Louis U.S. Attorney's Office and, telephonically, the Southern District of New York, and agents from DHS in St. Louis and, also telephonically, a DHS agent stationed in Cairo, Egypt. During this meeting, the Assistant U.S. Attorneys communicated their intention to seize and forfeit the Mask pursuant to 19 U.S.C. 1595a.” The museum responded by filing the current petition for declaratory judgment.

SLAM wants the federal district court in St. Louis to declare that the mummy mask cannot be seized by federal officials. The museum essentially argues that the US government cannot legally take the mask because the statute of limitations has run out and because there is no reason to believe that the mask is Egyptian property or that it was illegally stolen or smuggled into the United States.

The museum presumes that federal authorities wish to seize the mummy mask under a specific section of the US customs law, specifically 19 U.S.C. §1595a. There are other means to seize the mask under federal or state law, but SLAM assumes (not unreasonably) that this particular law would be used.

The museum first argues that the time has run out for the federal government to seize the mummy mask. SLAM’s lawyers point to the fact that the US government had, at most, five years to seize the mask from the time it had information that the mask was allegedly stolen. The museum cites several examples of how it believes federal officials possessed this knowledge as early as 1998, including that
- the US Department of Justice in February 1998, actually or constructively, received from INTERPOL the museum’s letter inquiring about whether the mask was stolen or illicit and

- the FBI in December 2005 and January 2006 knew or should have know about allegations that the mask was stolen because the founder of the Museum Security Network sent emails to the FBI Art Crimes Program asserting that the mask was probably stolen.

SLAM therefore argues that the United States cannot seize the mummy mask because the statute of limitations clock set by 19 U.S.C. §1621 now forbids it.

Second, the museum claims in its complaint that even if the statute of limitations clock has not run out, federal authorities still cannot seize the mummy mask because “[t]he Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

SLAM argues that federal agents cannot take the mask because the government cannot produce sufficient information to show that the mask was stolen or smuggled into the United States pursuant to 19 U.S.C. §1595a. The museum further points out that “Egyptian Law No. 215 on the Protection of Antiquities, the [cultural patrimony] law applicable at the time the Mask was discovered and excavated, allowed for personal and private ownership of Egyptian antiquities, provided that antiquities could be sold or gifted and, as such, did not establish ownership of the Mask by Egypt.” The museum’s lawyers conclude that “the United States lacks an evidentiary basis for asserting the Mask was stolen pursuant to Egyptian Law No. 215, or seizing and/or causing the forfeiture of the Mask pursuant to 19 U.S.C. § 1595a.”

Now that the complaint has been filed by SLAM, federal attorneys will file a response.


Emerging Missing Information and Discrepancies

SLAM’s complaint says that it purchased the mummy mask sometime in April 1998 from Phoenix Ancient Art in Geneva, Switzerland. The museum acknowledges that Mohammed Zakaria Goneim excavated the mask near King Sekhemkhet’s unfinished pyramid in Saqqara sometime around 1952. SLAM’s reported history of the mask (the provenance) picks up in the early 1960s when the museum reports that “the Mask was a part of the Kaloterna (or Kaliterna) private collection, during which time it was purchased by Ms. Zuzi Jelinek ('Jelinek'), a Croatian collector in Switzerland. In or around 1995, Jelinek sold the Mask to Phoenix Ancient Art, S.A. of Geneva ('Phoenix'). On or about April 3, 1998, the Museum purchased the Mask from Phoenix.”

Absent from the legal complaint are significant pieces of information that one hopes will be filled-in during the ensuing litigation. The court process can oftentimes shed light on murky or unknown facts, and supplemental information in this case can fill in important gaps and clear up lingering discrepancies. A few are described here.

For example, SLAM’s description of the mummy mask’s provenance in its legal complaint differs from the mummy mask’s chain of custody as reported by the Riverfront Times in 2006. That newspaper reviewed the provenance of the mask based on paperwork supplied by SLAM. The Riverfront Times reported that the mask went from excavation/Egypt - to an unknown Brussels dealer sometime around 1952 – to Kaloterna - to Jelinek – to Phoenix Ancient Art/Aboutaam brothers. SLAM’s legal complaint states that the mask went from excavation/Egypt - to the Kaloterna private collection – to Zuzi Jelinek – to Phoenix Ancient Art/Aboutaam brothers.

SLAM’s legal complaint omits a description of who exactly took possession of the mask after it was excavated by the Egyptians. Most importantly the complaint is silent about how an excavated and documented mummy mask legally exited Egypt in the first place. The court papers filed also ignore the fact that Goneim was an antiquities inspector in Egypt and was the archaeologist who discovered Sekhemket’s pyramid site. Goneim’s status as both a scientist and an Egyptian government official/employee are important facts since issues about what laws and regulations he and his Egyptian superiors followed during the 1950s and 1960s are likely to be significant to the question of whether the mask was stolen.

Curiously, the legal complaint also avoids any mention at all of the mask having been seen with a Brussels antiquities dealer. The Riverfront Times reported that SLAM received documents from Phoenix Ancient Art that included a 1997 note from Charly Mathez, an elusive Swiss man, which explained how he spotted the mask in 1952 in the hands of an unidentified antiquities dealer located in Brussels, Belgium. The absence of this information from the legal complaint raises questions.

In any case, the SLAM’s complaint also omits a description of how the mask made its way from the point of excavation to the Kaloterna private collection, or a description of who owned this collection. There is also no information about the date or the nature of the transfer from the Kaloterna private collection to Zuzi Jelinek in Switzerland. The hazy information currently supplied in the legal complaint should be described more fully as the case continues through the federal process.

Meanwhile, SLAM’s assertion that Jelinek sold the mask to Phoenix Ancient Art will likely be challenged by the federal government. The Riverfront Times described an unusual transaction between Zuzi Jelinek and Phoenix Ancient Art, or perhaps the lack of a transaction at all. The newspaper explained:

“According to Swiss telephone listings, a Suzana Jelinek-Ronkuline lives at 84 Quai de Cologny in Geneva. Her telephone number is identical to the one on the letter Phoenix Ancient Art provided to the St. Louis museum. Reached by phone in Geneva, a man identifying himself as Jelinek's son, Ivo Jelinek, says his mother never owned the Ka-Nefer-Nefer mask. ‘This is completely false information. . . .’ Jelinek says his mother's name may be linked to the Ka-Nefer-Nefer mask for another reason: the Aboutaam brothers, owners of Phoenix Ancient Art, rented another house she owns on Quai de Cologny. . . . Presented with this information, Hicham Aboutaam directed the Riverfront Timesto a woman identifying herself as Suzana Jelinek, of Zagreb, Croatia. ‘I bought the mask many many years ago, and I sold it many many years ago,’ says Suzana Jelinek when reached at her Zagreb home. ‘I have so many things in my collection that my children don't know what all I have.’”

Phoenix Ancient Art allegedly bought the mask in 1997 from Jelinek. The purchase price paid by Phoenix was not known, according to the Riverfront Times. But this price hopefully will be reported during the current federal litigation since an object’s fair market value or its undervalue is a piece of evidence used to determine whether property was legally or illegally transferred. It also goes without saying that evidence of a purchase and sale can certainly establish whether Jelinek engaged in a transaction involving the mask. That evidence can take many forms, including evidence of the parties’ bank statements for example, documenting the release of purchase money or the deposit of sale money.

Also of interest is the museum’s reported due diligence. One must always ask “What diligence is due?” The museum’s complaint certainly details a variety of concrete and laudible steps taken to verify the mummy mask’s provenance. However, several questions remain regarding the actual information learned through that diligence and how that information was accepted or rejected when deciding to purchase the mask.

Hopefully we will learn more as the case progresses.


Sources:
THE ART MUSEUM SUBDISTRICT OF THE METROPOLITAN ZOOLOGICAL PARK AND MUSEUM DISTRICT OF THE CITY OF SAINT LOUIS AND THE COUNTY OF SAINT LOUIS v. THE UNITED STATES OF AMERICA, SLAM’s complaint for Declaratory Judgment (February 15, 2011) (http://www.courthousenews.com/2011/02/16/MummyMask.pdf) (last visited February 19, 2011).

Malcolm Gay, “Out of Egypt: From a long-buried pyramid to the Saint Louis Art Museum: The mysterious voyage of the Ka-Nefer-Nefer mask,” Riverfront Times, Feb. 15, 2006 (http://www.riverfronttimes.com/2006-02-15/news/out-of-egypt/full) (last visited February 19, 2011).

The Need for Reliable Information From Egypt

The Egyptian people are to be lauded for their desire for liberty, which has borne significant fruit thus far. George Washington noted that "[l]iberty, when it begins to take root, is a plant of rapid growth." We must always be mindful, nevertheless, of Alexis de Tocqueville's observation that "[i]n a revolution, as in a novel, the most difficult part to invent is the end."

The welfare of the Egyptian people are to be considered first while we continue to monitor cultural property issues. One issue that requires attention is obtaining reliable information. The lack of credible information regarding the theft or looting of cultural objects in Egypt requires resolution, especially since many cultural organizations have called on law enforcement to remain alert. Authorities at the US border cannot be expected to be on heightened alert when there is conflicting information about the extent of looting at archaeological sites or thefts from museums.

Egytians involved with cultural heritage, aided by journalists on the ground, should investigate the extent of damage to cultural heritage in Egypt. Only then can American authorities provide appropriate assistance.

Reclaiming Trafficked Egyptian Cultural Objects: US Seizure Laws and How to Make a Report to Customs and Border Protection

The Egyptian people have displayed admirable concern for cultural heritage by protecting museums and archaeological sites while courageously expressing their hope for self-determination. It is a credit to the people that the intact Egyptian Museum remains a centerpiece of news images coming from Tahrir Square.

There are naturally reports of theft, vandalism, and looting during this time of upheaval, prompting calls to international law enforcement to remain on the lookout for Egyptian antiquities illegally trafficked from the country.

Some have asked how United States authorities can seize Egyptian antiquities spotted crossing the American border. Others have asked how to report suspected illegal activity. Some answers are briefly provided here.

CBP Officer Herbert Kercado stands near
an illegally imported Egyptian sarcophagus
he discovered in Miami, Florida.
Photo courtesy CBP, March 2010.

US Customs and Border Protection (CPB) of the Department of Homeland Security is the front-line agency primarily responsible for the initial detention of contraband that arrives on American soil. Its officers, and other agents of Homeland Security--such as Immigration and Customs Enforcement (ICE) officers and ICE Homeland Security Investigations (HSI) officers--rely on federal rules that authorize the seizure of illegally imported cultural property. Some of these rules are described here.  Meanwhile, reports regarding import/export violations can be made to CPB as described below.

NSPA Seizure

Customs officers have authority to seize a stolen Egyptian antiquity under the National Stolen Property Act (NSPA) when:

• it is valued at $5000 or more,

• is known to have been stolen,

• is covered by Egypt’s patrimony Law No. 117 of 1983, amended by Law No. 3 of 2010, and

• is transported over the American border.

Under this scenario, authorities would rely on Titles 19 and 18 of the federal code in conjunction with the McClain/Schultz doctrine. Title 19 is the portion of federal law that contains the customs statutes, in particular the Tariff Act of 1930, 19 U.S.C. §1595a(c)(1)(A). Title 18 contains the criminal code, which includes the National Stolen Property Act (NSPA), 18 U.S.C. §2314. The McClain/Schultz doctrine, meanwhile, is a court defined rule that takes into account a foreign nation’s patrimony law. United States .v Schultz, 333 F.3d 393 (2nd Cir. 2003).

By way of explanation, the third element of the NSPA seizure rule depends on Egypt having a strong patrimony law. A federal court in the case of United States v. Schultz determined that Egyptian Law on the Protection of Antiquities (Law 117) is a patrimony law that asserts Egyptian public ownership of antiquities—as of 1983—and restricts private possession or ownership of cultural property. Law 117 was later strengthened by Law 3 in 2010, and this revision would not likely affect the Schultz court's conclusion.

There may also be a claim of forfeiture made under 18 U.S.C. § 981, applying to property “derived from proceeds traceable to a violation of” a statute such as the NSPA.

Stolen Egyptian artifacts may be seized by customs pursuant to an NSPA seizure, but artifacts can slip by. For example, an object that is extremely valuable to archaeologists as evidence of Egyptian’s history may be worth less than $5000, and determining whether an object is “stolen” can present a challenge.

CPIA Seizure

Other seizure authority may be found in Title 19’s Cultural Property Implementation Act (CPIA). The CPIA states that “[n]o article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution . . . which is stolen from such institution [after April 12, 1983] . . . may be imported into the United States.” 19 U.S.C. §2607. Items that were inventoried and then stolen from Egyptian museums, churches, monuments, etc. may therefore be seized and forfeited by customs officials under a CPIA seizure. 19 U.S. C. §2609. (Note that there may be a legal argument against this reasoning, however.)

A CPIA seizure of this kind is different from an NSPA seizure. The customs officer does not have to worry about whether an object is valued at $5000, for instance. The CPIA’s focus is on whether a cultural object is stolen from an institution or monument, whether it is part of a documented inventory, and whether it is considered to be cultural property. Cultural property is broadly defined as “property which, on religious or secular grounds, is specifically designated by each State [Party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970] as being of importance for archaeology, prehistory, history, literature, art or science . . . .” Cultural property can include anything described in Article 1 of the 1970 UNESCO Convention, including rare fauna, paleontological artifacts, archaeological objects, dismembered historical monuments, and more. 19 U.S.C. §2601.

There are problems with CPIA seizures. For instance, cultural property that is freshly looted from the ground is not part of a documented inventory. Objects secretly dug up from Saqqara, Abusir, or other historic site in Egypt could slip through these seizure rules. Additionally, Egyptian government leaders might be reluctant to declare that thieves stole artifacts from their institutions or sites for political or security reasons, and US customs officials would not be expected enforce federal law under these circumstances.

ARPA Seizure

There is an argument to be made that seizure of Egyptian antiquities could also be made under the Archaeological Resources Protection Act (ARPA). Under 16 U.S.C. §470ee(c) and criminal seizure rules, archaeological resources could be seized if they were trafficked in foreign commerce in violation of state or local law. But a seizure of Egyptian antiquities under this statute can be complicated and perhaps legally uncertain. Indeed, it should be noted that this type of seizure is not listed as an option in customs agents’ Seized Asset Management and Enforcement Procedures Handbook. But it has been used successfully in the past, and ARPA search warrant procedures are taught at the Federal Law Enforcement Training Center. §470ee(c) was once used to seize and forfeit Etruscan pottery in NY that violated NY’s receiving stolen property law, for example.

Complementary Legislation

Existing cultural property seizure rules may not be enough to secure all illicit Egyptian cultural artifacts potentially coming across the border. If there is critical concern that cultural objects from Egyptian museums or archaeological sites have been stolen or looted, and if there is further concern that these objects are being trafficked outside Egypt, then US lawmakers should seriously contemplate adopting additional measures of protection. The passage of an Emergency Protection of Egyptian Cultural Antiquities Act, enacted pursuant to 19 U.S.C. § 2603 of the CPIA, could prove useful to a determined effort designed to tackle the problem. Such a law could more clearly focus the attention of law enforcement and the public on Egyptian cultural heritage at risk. It could also provide due process requirements while permitting the seizure of Egyptian cultural objects regardless of whether they were known to have been stolen from a cultural institution, looted from the ground, or had any monetary value.

Reporting Illegal Egyptian Cultural Property Imports

If you suspect that a cultural object from Egypt has been looted, stolen, or trafficked you should report it to US Customs and Border Protection. It is easy over the internet. Just fill out the secure form at https://apps.cbp.gov/eallegations/. You can also make a report by telephone by calling 1-800-BE-ALERT.

Understanding Federal Law Enforcement's Heritage Protection Efforts

The Archaeoligical Institute of America in August 2010 posted a description of how federal law enforcement approaches heritage protection. It describes in greater detail the interaction between the various laws described here and the federal agencies that enforce them. Read it at http://www.archaeological.org/news/advocacy/2564.

ICOM Preliminary Report Regarding Cultural Property in Egypt

The International Council of Museums has released a working document that attempts to summarize the condition of the Egyptian Museum in Cairo as well as several other important museums and cultural sites throughout the country. ICOM's report can be located on the web at:

http://icom.museum/fileadmin/user_upload/pdf/working_groups/110204_ICOM_preliminary_report_Egypt.pdf