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

Ka Nefer Nefer Case Resumes After Lengthy Hiatus

St. Louis Art Museum

Lawyers for the St. Louis Art Museum (SLAM) filed a sur-reply last week in the case of U.S. v. Mask of Ka Nefer Nefer after activity in the case--at least with regard to legal filings--abruptly ended in August 2011.  SLAM submitted its pleading to the eastern district federal court in Missouri.  The court submission comments on the running dispute about whether the museum has legal standing to remain in the case.

The government filed a claim in March 2011 to forfeit the mask of Ka Nefer Nefer located at SLAM.  The 19th Dynasty Egyptian mummy mask of a noblewoman is alleged by the government to have been stolen from Egypt.

The government's forfeiture action was a response to SLAM's legal effort in February 2011 to quiet the title of the mask so that the museum potentially could own the artifact without worry.  In July 2011, federal lawyers filed a motion to knock SLAM off the forfeiture case, arguing that the museum could make no colorable legal claim to ownership because the mask is a stolen object.  The motion to strike SLAM from the case set off a volley of legal pleadings related to whether the Ka Nefer Nefer mask is contraband.  The federal government argued that possession of the mask was akin to possessing cocaine, which is illegal.

After a long absence of legal submissions, SLAM's most recent sur-reply picks up the argument once again.  The museum charges that it "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.'  In doing so, the Government so muddles and confuses the term 'contraband,' and the significance that the term carries, that some clarification is necessary." (citations omitted).

SLAM adds that the mummy mask is not contraband per se (such as illegal drugs) "as [artifacts] may be lawfully owned and become contraband only based on a connection with a criminal act."  Relying on U.S. v. Jeffers, 342 U.S. 48, 52-54 (1951), the museum asserts that "[t]he Supreme Court has recognized that, in the absence of a law foreclosing property rights, artifacts can be privately owned."

SLAM criticizes the government, saying that "[t]he Government’s evolving positions with respect to the ownership issue seem to be at war with themselves."  The museum argues that Egypt's patrimony law, which claims ownership of cultural objects found on its soil, is argued by the government to be a law granting private ownership in one pleading and alternatively, in another pleading,  a law that restricts private ownership.

SLAM concludes by reasserting that it has made a colorable claim to ownership to the mummy mask.

The government filed papers on March 28, 2012 for leave to reply to the sur-reply.

CONTACT: http://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.

US Attorney Takes the Offensive in SLAM Litigation by Seeking Forfeiture of Egyptian Mask

Last month the St. Louis Art Museum (SLAM) sued the US government to claim ownnership of the ancient mask of Ka-Nefer-Nefer. The US government yesterday sued to forfeit the mask.

Fearing that federal authorities could seize the Egyptian mask of Ka-Nefer-Nefer, SLAM filed a preemptive complaint on February 15 to have a federal district court declare that the mask is the museum’s property. US Attorney Richard Callahan responded on March 16 by initiating a lawsuit against the mummy mask.

In a complaint titled United States v. Mask of Ka-Nefer-Nefer, Callahan petitions a Missouri federal court for forfeiture of the ancient object pursuant to 19 U.S.C. § 1595a. That statute permits officials to seize and forfeit items that have been illegally stolen, smuggled, or clandestinely imported into the United States. Callahan also asks that a restraining order be placed on the mask so that it remains available while the court case progresses.

In its petition for declaratory judgment, SLAM argues the following points:
• The museum conducted thorough due diligence before purchasing the mask on April 3, 1998.

• “The 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.”

• “The United States government cannot show probable cause the Mask was ‘stolen, smuggled, or clandestinely imported or introduced’ into the United States.’” Therefore, the mask cannot be seized or forfeited under 19 U.S.C. § 1595a.

• If the mask was stolen, the United States government is barred by the statute of limitations from seizing or forfeiting it because federal authorities had information more than five years ago “sufficient to discover the alleged theft of the Mask from Egypt.”

It should be noted that SLAM’s court complaint is hesitant to admit that the mask is stolen property. At best SLAM remarks that the mask may have been “allegedly stolen.”

The US Attorney’s complaint, by contrast, argues a more forceful claim, detailing why the mask is known to have been stolen. An excerpt from the government’s complaint is reproduced below:

“In 1952, Egyptian archaeologist Mohamed Zakaria Goneim, working for the Egyptian Antiquities Service, excavated the mat burial of a 19th Dynasty noblewoman named Ka-Nafer-Nafer inside the funerary enclosure of the 3rd Dynasty king Sekhemket at Saqqara. The Mask was placed in storage in the Sekhemkhet magazine, also located at Saqqara, where it was registered as the property of the Egyptian Antiquities Service and where it remained until 1959. In July of 1959, the Mask and four other items from Saqqara were packed for shipping to the Egyptian Museum in Cairo in preparation for an exhibit in Tokyo. The packing list identified the Mask as registration number 6119 and packed in box number six. The Mask was received by police guards at the Egyptian Museum in Cairo on July 28, 1959. Ultimately, the Mask did not travel to Tokyo for the exhibit. The Mask remained in Cairo, Egypt until 1962 at which time the Mask was transferred back to Saqqara. In 1966, the Mask and other objects from the same burial assemblage were removed from packaging in Saqqara and given to the Egyptian Antiquities Organization Restoration Lab located in Cairo in preparation for future display. The Mask traveled to Cairo from Saqqara in box number fifty-four. This was the last documented location of the Mask in Egypt. In 1973, the Egyptian Museum in Cairo took an inventory of all the objects that traveled in 1966 from Saqqara to Cairo in box number fifty-four. It was discovered at that time that the Mask was missing. The register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973. In or around 2006, the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum located in Saint Louis, Missouri for approximately $500,000.00 in 1998. Subsequently, the Secretary General for the Egyptian Supreme Council of Antiquities sent letters and documentation to the Saint Louis Art Museum detailing the history of the Mask and requesting its return to Egypt. To date, the Saint Louis Art Museum has refused to return the Mask.”


The US Attorney’s office describes the mask’s source of discovery and its subsequent provenance. Should these claims be proven by the government, SLAM may find it difficult to maintain its dual and nuanced positions that either the mask may not have been stolen, or that the 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.”

If evidence of the mask’s stolen character is proven by the government, SLAM might also have to revisit its February 14, 2006 position, reproduced in the museum’s legal complaint, “expressing its willingness to return the Mask to Egyptian authorities upon verifiable proof the Mask was stolen.” Any thought about returning the mask may have vanished, however, now that SLAM has argued that the statute of limitations forbids authorities from seizing or forfeiting the mask.

Knowing the statute of limitations claim asserted by SLAM, the US Attorney’s recent legal action does not address the issue at all. SLAM’s court petition points to episodes where federal officials directly or indirectly possessed knowledge to take action to investigate the possible illicit provenance of the mask. It remains to be seen how the federal government will take on this argument when SLAM inevitably raises the claim in its response to the government’s forfeiture action.

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).