The Weiss Ancient Coin Prosecution and What to Watch For

Federal prosecutions involving international theft or trafficking of cultural objects are rare.  State prosecutions are novel.  That is why the current case against Arnold-Peter Weiss, involving New York state law, is worth watching.

Authorities arrested Dr. Arnold-Peter C. Weiss in January for allegedly attempting to sell an ancient coin claimed to belong to Italy.  A New York County District Attorney's investigator alleges that he saw Weiss possess a Tetradrachm and observed Weiss offer the ancient silver coin for sale at the Waldorf-Astoria Hotel for $300,000.  The attempted sale took place at the 40th annual New York International Numismatic Convention.

A past New York prosecution involving cultural artifacts is the famous case of U.S. v. Frederick Schultz.  That federal case resulted in the conviction of a widely know Manhattan art dealer for conspiracy to violate the National Stolen Property Act (NSPA).  The evidence showed that Schultz was part of a scheme that trafficked antiquities from Egypt, to England, and then to the United States.  The case applied federal law, argued by federal prosecutors, who litigated in federal courts.  The current case against Weiss involves state law prosecuted by a state district attorney in a state court.

Weiss is reportedly charged with violating Criminal Posession of Stolen Property (CPSP) statue, New York Penal Law 165.52.  The charge is a class “C” felony punishable by up to a maximum of 15 years in prison. The statute reads: "A person is guilty of criminal possession of stolen property in the second degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds fifty thousand dollars.” A person charged with a crime is innocent unless proven guilty by proof beyond a reasonable doubt in a court of law.

Matthew Bogdanos

Chasing Aphrodite reports that Attorney Matthew Bogdanos is the prosecutor assigned to the case. Holding a masters in classical studies from Columbia University  and serving as the Marine Corps colonel who investigated the looting of the Iraq National Museum in Baghdad, Bogdanos is a person familiar with cultural heritage matters.

States are the traditional venues where property issues are handled.  State courts regularly handle claims of title to property as well as stolen property prosecutions.  Moreover, the states have well developed laws on the books covering property crimes, which articulate generally accepted common law property principles.

Two issues to look out for as the Weiss case moves forward in the New York State criminal justice system include the following:

Criminal knowledge
The New York law, like many state receiving stolen property statutes, requires the prosecution to prove that a defendant have two mental states: knowingly and intentionally.  The prosecution must prove that a person knowingly was in possession of stolen property and that the defendant intended to benefit himself or another from that possession or intended to impede the recovery by the owner of the property.  "Knowingly" in this context means that the person was aware that the property was stolen.  "Intent" means that it was the person's conscious object to benefit himself or another or to impede recovery of the property by the true owner.

About 1/4 of the states, including New York, have laws that presume criminal knowledge in certain circumstances. New York Penal Law 165.55 states: "A person who knowingly possesses stolen property is presumed to possess it with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof."  The statute also presumes criminal knowledge for certain property dealers: "[A] person in the business of buying, selling, or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it."

The federal NSPA does not articulate the presumptions contained in New York's CPSP.  However, the appeals court in Schultz supported the application of a widely adopted principle of law known as conscious avoidance, willful ignorance, or the ostrich rule.  "[A] defendant may not purposefully remain ignorant of either the facts or the law in order to avoid the consequences of the law," is the rule as explained in the instruction given to the jury in the Schultz case.  This ostrich instruction has been used in other cases too, including the Enron fraud prosecutions in 2006 against Jeffrey Skilling and Kenneth Lay.  The CPSP statute takes the ostrich rule further by articulating the presumptions described above, and a jury may--not must--infer guilty knowledge based on the applicable presumptions.   Of particular interest in the Weiss case will be whether the dealer presumption is invoked by the prosecution.

Stolen property
The Schultz case spent much time resolving whether Egypt's patrimony law declaring ownership over cultural objects was sufficient to give valid legal title to another such that Frederick Schultz was in knowing receipt of stolen property under U.S. law.  Both the jury and the appeals court answered affirmatively.  The Schultz Doctrine essentially holds that a person may be convicted for receipt of stolen property under the NSPA when a foreign patrimony law clearly declares ownership of the cultural object and the artifact stolen was after the date of the enactment of the patrimony law.  The Schultz Doctrine does not label as stolen a cultural object that simply was unlawfully exported from a foreign nation.  The foreign nation must declare clear title to the object, not just regulate its export.

New York's jury instruction regarding "stolen property " advises juries that it "is property that has been wrongfully taken, obtained, or withheld from an owner by a person who did so with the intent to deprive another of such property or to appropriate such property to himself or herself or a third person."  Latching on to the federal legal holding of Schultz, New York state prosecutors may cite the case as persuasive authority to assert that Weiss possessed "stolen property," arguing that Italy's patrimony law declares ownership of the ancient silver coin(s) allegedly possessed by Weiss.  Furthermore, the state prosecutors will likely also rely on  New York Penal Law 165.60, which says that it is no defense to a criminal possession of stolen property case that "the larceny [or theft, which is the term used in jury instructions] of the property did not occur in this state."

Italy's patrimony law, adopted in 1909 and renewed in 2004, is known as the Code of the Cultural and Landscape Heritage.  Articles 10, 91, and other provisions arguably define and declare ownership of cultural artifacts.  Article 91 states:

"The things indicated in article 10, found underground or in sea beds by whomsoever and howsoever, shall belong to the State and, depending on whether they be immovable or movable, shall become part of government property or of its inalienable assets, pursuant to articles 822 and 826 of the civil code."

Weiss' next court date is July 3, 2012.

Reference:
http://www.nycourts.gov/cji/2-PenalLaw/165/165-45(3).pdf

CONTACT: www.culturalheritagelawyer.com

Weiss Ancient Coins Prosecution Scheduled for July

Manhattan criminal courthouse.
Source: nyc.gov

Arnold-Peter Weiss's case was scheduled today in Manhattan. New York Criminal Court records show that Dr. Weiss's $200,000 cash bail was continued, and the next court date was set for July 3, 2012.  [JULY 2012 UPDATE: Click here for a description of what happened at the July 3 hearing].

Law enforcement officials charged the Rhode Island hand surgeon in January with Criminal Possession of Stolen Property over $50,000.  They arrested Weiss and seized two ancient Greek coins originating from Italy before the coins were sold at the International Numismatic Convention.  Weiss faces up to a maximum of 15 years in prison if convicted of the offense.

Because authorities charged Weiss with a felony crime, his case was to be reviewed by a grand jury.  Weiss, meanwhile, is presumed innocent.

Some possible legal issues to watch for in the case are discussed here.

CONTACT: www.culturalheritagelawyer.com

Federal Attorneys File Appellate Brief in Baltimore Coin Case

Attorneys for the United States have filed their brief in the matter of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs. The United States’ brief rejects the Ancient Coin Collectors Guild’s (ACCG) interpretation and application of the Cultural Property Act (CPIA), writing that the ACCG “fundamentally misunderstands the CPIA’s statutory scheme.”

Last September the ACCG appealed to the Fourth Circuit Court after a federal district court judge dismissed its test case. The group initially filed the lawsuit hoping to challenge cultural heritage import protections enacted under the Cultural Property Implementation Act (CPIA). According to the government’s brief, “[o]n April 15, 2009, [the ACCG] transported [Chinese and Cypriot] coins from London to Baltimore with the intention of testing the validity of existing import restrictions. The invoice accompanying the coins identified each by type and indicated that each was minted in China or Cyprus, but provided no indication of when the coins first arrived in London (or any other information regarding the history of the coins).” Customs seized the ancient coins. The district court then struck down the ACCG’s challenge to the seizure after concluding that the group failed to make out a sufficient case to show that the government acted outside its legal authority.

The ACCG filed an appellate brief with the federal circuit court on October 31, 2011, arguing that the enactment and application of the import controls by the State Department and/or Customs and Border Protection (CPB) was unlawful and should be reviewed under the standards of the Administrative Procedures Act (APA).  (The APA is the law that instructs federal agencies about how they must establish administrative regulations.  The Act also outlines the procedures by which administrative decisions are reviewed by the courts.) The ACCG also argued in its brief that the United States government could not issue cultural property import protections on certain ancient coins since China allegedly did not request the import restrictions.  The group further explained that the CPIA’s import controls require federal officials to prove an ancient coin’s find spot before it can be seized. The United States’appellate brief, filed on January 13, 2012, counters these claims.

Attorneys for the United States contend in their brief that its agencies followed the rules while the ACCG did not follow the process.  The government's lawyers write that the ACCG should have followed the forfeiture process established by Congress.  Instead, the ACCG filed a lawsuit. “The CPIA’s provisions regarding seizure and forfeiture, in concert with the pre-existing statutory scheme addressing forfeiture proceedings, set forth a process by which claimants may contest a threatened forfeiture,” the government argues. Federal lawyers state that the “APA authorizes judicial review of agency action only ‘for which there is no other adequate remedy in a court.’ The circumstances in which extra-statutory review is available are similarly limited.  Here, however, Congress has expressly provided for challenges to the seizure and forfeiture of materials under the CPIA through the established mechanism of administrative or judicial forfeiture proceedings.”

At the time of the attempted import of the coins in Baltimore, lawyers for the United States say that “Customs provided [the ACCG] with the opportunity to present a certification of lawful export or other evidence establishing a right to entry . . . . [but the ACCG] disclaimed any ability to present such evidence.  On July 20, 2009, Customs seized the coins, and explained that – in light of [the ACCG’s] representations – the items would be subject to summary forfeiture absent a request by plaintiff for judicial proceedings.”  Government lawyers say that even though the ACCG requested a judicial forfeiture proceeding in September 2009, “Plaintiff [ACCG] did not await the commencement of judicial forfeiture proceedings by the U.S. Attorney’s Office.  Rather, on February 11, 2010 – five months after requesting such proceedings – plaintiff commenced this suit to challenge the seizure of its ancient Chinese and Cypriot coins.”  The government observes that “Plaintiff [ACCG] has invoked those procedures, but they have not occurred as this litigation has been ongoing. Plaintiff does not explain why its arguments should not be considered in the forum designated by Congress.”

Had the ACCG challenged the seizure of the coins through the congressionally prescribed forfeiture proceeding, it would have confronted a defined standard of proof requiring the ACCG to show that the coins were legal to import. The government’s brief describes the standard of proof that applies in a forfeiture proceeding: “the government must establish that the seized property is material that has been designated as restricted under [the CPIA].  After this initial showing, the burden shifts to the claimant [ACCG] to show that the property is not subject to forfeiture, or to establish an applicable affirmative defense.”

The United States rebukes the ACCG for short-circuiting the judicial forfeiture proceeding, avoiding its burden of proof, and claiming that the government acted beyond its authority (i.e. ultra vires).  The government contends that the “Plaintiff [ACCG] cannot properly circumvent the statutory scheme established by Congress by asking a district court to review this seizure under the APA and under the rubric of ultra vires review and . . . to further confound Congress’s intent by asking the court to disregard the burden of proof established by the CPIA.”

Attorneys for the United States further maintain that the ACCG has confused the meaning and requirements of the CPIA. They point out that “[t]o import the coins into the United States, plaintiff [ACCG] needed only to show that the coins had left Cyprus or China before the effective dates of the relevant Designated Lists.  Plaintiff declined to offer any declaration to that effect, claiming that it could not offer the evidence required by the statute because it did not know whether the coins had been ‘first found in the ground’ of either China or Cyprus. But the CPIA quite plainly does not require plaintiff to know where the coins were ‘first found in the ground’; all that was required was information as to the whereabouts of the Cypriot coins as of July 16, 2007 and of the Chinese coins as of January 16, 2009.”

The government's lawyers pointedly draw attention to the fact that the President exercises his foreign affairs powers when acting pursuant to the CPIA. The attorneys highlight that “[t]he provisions of the CPIA confirm that Congress recognized that these judgments are imbued with foreign policy concerns.” They describe how “[t]he CPIA provides the President with broad power to apply import restrictions pursuant to MOUs he enters into with foreign States in furtherance of the United States’s obligations under the Convention on Cultural Property and with the goal of ‘promoting U.S. leadership[] in the preservation of cultural treasures.’” The attorneys point out that “Congress recognized that allowing illicitly excavated and trafficked artifacts to enter into the United States, thereby permitting a market in such goods, threatened our relationships with other nations, and that this legislation was thus “‘important to our foreign relations.’” They also explain that “the issues raised by the import of cultural goods are ‘distinct from the normal concerns of the reciprocal trade agreements program or U.S. trade law.’”

The review of American foreign policy decisions by the courts essentially would be improper, suggests the brief, particularly where foreign policy considerations have other avenues of oversight.  “Rather than involve the courts in an inquiry into the conduct of foreign affairs, Congress provided for political review by requiring the CPAC [Cultural Property Advisory Committee] to share its reports with Congress, and requiring the President to report actions taken to Congress,” says the government’s brief.

Federal lawyers contend that even if there is court review of the government’s implementation of import restrictions enacted under the CPIA, government agencies acted properly. Their brief asserts that “[i]f the Court concludes that some form of judicial review is nevertheless appropriate in these proceedings, it should affirm the district court’s conclusion that plaintiff has not stated a viable claim.”

In support of this argument, attorneys for the United States point out that the ACCG’s “primary contention is that its 22 ancient Cypriot and Chinese coins were unlawfully seized based on their ‘type.’ Plaintiff urges that, although the coins appear on the Designated Lists of restricted materials published by Customs, the coins must be allowed entry to the United States unless the government can prove, on a coin by coin basis, that each was first unearthed in Cyprus or China. The district court correctly concluded that plaintiff’s proposed scheme lacks any basis in the statute.”  Therefore, the federal lawyers maintain that “[t]he Assistant Secretary [of State] exercised her judgment and discretion under the CPIA in determining that certain types of ancient Cypriot and Chinese coins qualify as the ‘archaeological material of the State Party’ and applying import restrictions to them. As the district court concluded, plaintiff’s approach can not (sic) be reconciled with the plain terms of the Act, is unworkable, and ‘would undermine the core purpose of the CPIA.’”

Attorneys for the United States also address in their brief the ACCG’s request for information.  “[The ACCG’s] amended complaint alleged that ‘China never formally requested import restrictions on coins,’ and urged that the government’s restrictions on Chinese coins should thus be deemed invalid. This is unsurprising, since – as the government has previously noted – China’s request did, in fact, address ancient Chinese coins, as noted in the public summary of the request that is posted on the State Department’s website.”  That said, federal lawyers declare that “the district court correctly rejected plaintiff’s request for discovery with regard to the precise contents of China’s diplomatic note requesting that the United States impose import restrictions under Article 9 of the Convention on Cultural Property. The United States has met all of its statutory obligations, and is not required to make such information public."

Finally, the government addresses the constitutional issues raised by the ACCG: “Plaintiff asserts that the import restrictions at issue 'impinge on collectors’ access to information materials' in a 'grossly overbroad' manner and are thus 'constitutionally suspect under both the First and Fifth Amendments.' Contrary to plaintiff’s characterization, the CPIA does not ban the sale of ancient coins or prevent individuals from accessing the information they offer. Rather, the [CPIA] allows the importation of the designated coins when particular requirements, which are designed to prevent the illicit trafficking of ancient artifacts that are under threat from pillage or looting, are satisfied. It is contrary to no recognized constitutional interest."

[Note: All quotes are from the government's appellate brief.  Citations in the original have been omitted.]

Contact: www.culturalheritagelawyer.com

Ancient Greek Coins From Italy Reportedly Seized in New York - Arrest Made

An article appearing in Coin World reports that law enforcement officials on January 3, 2012 seized two ancient Greek coins from Italy before they were sold at a New York International Numismatic Convention event held in Manhattan. The article states that the owner of the coins, Dr. Arnold-Peter Weiss, was detained.

New York Criminal Court records reveal that authorities on January 3, 2012 at 2:15 p.m. arrested and charged a man named Arnold Peter C. Weiss, born 1960, with Criminal Possession of Stolen Property (CPSP) valued at over $50,000.  The court set bond in the amount of $200,000 and scheduled the next court date for March 21, 2012.

As of this writing, the NY County District Attorney's Office has not released any official statement confirming that this arrest and charge are related to the coin seizures reported by Coin World.  However, Chasing Aphrodite is reporting a connection.

A violation of the CPSP statue, New York Penal Law 165.52, is a class “C” felony punishable by up to a maximum of 15 years in prison. The statute states: "A person is guilty of criminal possession of stolen property in the second degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds fifty thousand dollars.” A person charged with a crime is innocent unless proven guilty by proof beyond a reasonable doubt in a court of law.

Assuming that New York state law is being used to prosecute a theft of ancient coins from Italy, such a prosecution would be new. At a conference in 2005 and then in a paper in 2007, I argued that state law could be employed in the same way as the federal National Stolen Property Act (NSPA) to tackle international cultural property crime. An excerpt from the 2007 paper, entitled International Antiquities Trafficking: Theft By Another Name, illustrates:

"District and county attorneys can rely on receiving stolen property statutes to target culpable receivers and sellers of antiquities .... Every state has enacted a receiving stolen property statute in some form. These laws prohibit a person from receiving property of another when the person knew the property was stolen. Many of these same statutes also criminalize situations where the person should know, had reason to know, had reason to believe, or simply believed that the property was stolen or probably stolen .... While state receiving stolen property laws are fundamentally similar to the federal NSPA, many provide distinct advantages to prosecutors.

First, several state statutes establish lower mental states. The NSPA requires proof that a person knew the received property was stolen, but several states only require proof that the actor should know, had reason to know, had reason to believe, or simply believed that the property was stolen or probably had been stolen. Thirty six states and the District of Columbia have enacted laws with a lesser mens rea.

Second, almost one quarter of the states possess some form of dealer provision, making it easier to prosecute antiquities traders. Where a dealer takes possession of an item and either (a) does not reasonably gather information about whether the item was lawfully sold or delivered to the dealer, (b) acquires the item for payment far below reasonable value, or (c) purchases or sells the item outside of the regular course of business, these statutes generally declare that the dealer is presumed to have known that the item was stolen. The New York Penal Law serves as an illustration of scenario “a”: 'A … person in the business of buying, selling or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it (§ 165.55(2)).'

Third, state receiving stolen property statutes provide criminal penalties for defendants who possess property of most any value as compared with the NSPA’s $5,000 threshold.

The legal advantages of lower mental states, dealer presumptions, and decreased value thresholds make prosecuting antiquities trafficking under state law an appealing option, particularly when targeting receivers or sellers."

David Gill, Paul Barford, and the Chasing Aphrodite authors are acknowledged for bringing attention to this developing story.

CONTACT: www.culturalheritagelawyer.com

"Lava Treasure" Prompts INTERPOL Alert to Dealers and Collectors

INTERPOL (the International Criminal Police Organization) has issued an alert to specialist dealers and coin collectors.  The agency seeks to recover gold coins and plates discovered off the coast of Corsica more than 25 years ago.  The 1700 year objects are part of the "Lava Treasure."

Authorities have been attempting to reclaim the Roman-era items after identifying divers who made off with the find from French waters and then sold the haul for millions.  France prosecuted eight people implicated in the case, and the nation recovered coins and a plate from the treasure last year worth up to nearly three million dollars.  Many unrecovered items could still be on the market.  Click here for more background on the case.

Anyone with information about gold coins or plates from the Lava Treasure should contact INTERPOL here.

CONTACT: www.culturalheritagelawyer.com.

ACCG Files Appellate Brief in Baltimore Coin Case

Ancient Chinese Coins
Author mc559, Creative Commons

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

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

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

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

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

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

[UPDATE 1/18/12:  Federal attorneys have filed their appellate brief.]

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ACCG Files Notice of Appeal in Baltimore Coin Case

After having its case dismissed in August, the Ancient Coin Collectors Guild filed a notice of appeal on September 21, 2011 in the US Court of Appeals, Fourth Circuit. http://dockets.justia.com/docket/circuit-courts/ca4/11-2012/
A federal district court last month dismissed the ACCG's lawsuit, which challenged protective American import restrictions placed on Chinese and Cypriot ancient coins. The court ruled that the ACCG failed to make out a sufficient case. The ACCG started the test case when the organization brought 23 ancient coins to Baltimore on a transatlantic flight


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.

Judge Dismisses ACCG Challenge to Cultural Property Import Protections - Acknowledges President's Foreign Policy Role in MoU Process

Judge Catherine C. Blake of the United States District Court of Maryland yesterday dismissed the Ancient Coin Collectors Guild’s lawsuit against the federal government. The federal district court decision essentially declared that the ACCG failed to make out a sufficient case.

The ACCG set up a test case to challenge protective American import restrictions placed on Chinese and Cypriot ancient coins when the organization imported 23 from a London dealer in 2009, bringing them to Baltimore on a British Airways flight. The enactment of the import protections followed the president’s adoption of bilateral agreements with China and Cyprus under the Cultural Property Implementation Act (CPIA). The CPIA is the law that implements in the United States the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

The court supplied a comprehensive 52 page memorandum outlining its reasons for dismissal. While many observations are worth noting, three are discussed here.

First, the ACCG’s challenge to the protective import restrictions failed to establish a meritorious legal claim on all counts. The court discharged the ACCG’s case in its entirety, even while assuming that the facts asserted by the organization in its legal complaint were true and construing any inferences in favor of the ACCG. The ACCG, naturally, may appeal but for now Judge Blake’s order stands: “[T]his case is dismissed; and . . . the Clerk shall CLOSE this case.”

Second, the court recognized that the negotiations and implementation of a bilateral agreement adopted under the CPIA involve the president’s broader role in foreign policymaking. A passage from Judge Blake’s memorandum is instructive:

“[W]hen those agencies [such as the State Department] act on behalf of the President, the separation of powers concerns ordinarily apply with full force—especially in an area as sensitive and complex as foreign affairs. As with respect to almost any international agreement, the decision whether to enter an Article 9 agreement [under the 1970 UNESCO Convention] with a particular country does not occur in a foreign policy vacuum. The decision necessarily will involve a variety of considerations beyond those set out in the CPIA, including the broader relationship between the United States and the requesting country and the potential impact of such an agreement on the United States’s relationships with other countries. Those considerations exist regardless of who ultimately negotiates and enters the agreement, the President or the Assistant Secretary [of State for Educational and Cultural Affairs] on the President’s behalf. Furthermore, by lodging primary responsibility for imposing cultural property import restrictions with the President, rather than with an agency, Congress likely recognized these separation-of-powers concerns. While the parties have not pointed to a conclusive explanation in the CPIA’s legislative history, Congress likely concluded that deference to the President was appropriate given the foreign policy considerations inherent in deciding whether to impose import restrictions.”

Finally, the court acknowledged the federal government’s authority to ban the importation of undocumented ancient coins. Judge Blake noted that the thrust of the CPIA is to mitigate the theft of cultural heritage. She intelligently observed that “[l]ooted objects are, presumably, extremely unlikely to carry documentation, or at least accurate documentation, of when and where they were discovered and when they were exported from the country in which they were discovered. Congress is therefore unlikely to have intended to limit import restrictions to objects with a documented find spot.” Judge Blake therefore concluded that “the import restrictions on Chinese and Cypriot coins, which have the effect of barring the importation of coins with unknown find spots, do not exceed the State Department’s authority under the CPIA.”

Antiquities traffickers deal with ancient coins

There is much controversy today about the inclusion of ancient coins under the auspices of laws that protect archaeological objects. Some say the laws should not regulate ancient coins at all. Consider two items in the news, nevertheless, that show how ancient coins are part of the traffickers' loot.

Yahoo! News reported today via the Associate Press that Cypriot authorities rounded up antiquities traffickers in the largest case of its kind in terms of the amount. The traffickers apparently had an undisclosed buyer and planned to move the pieces for %15.5 million (US) dollars--which means the items together were likely worth even more. Among the urns, gold, and other cultural objects were ancient coins.
See news.yahoo.com/s/ap/20100125/ap_on_re_eu/eu_cyprus_antiquities_theft

In another unrelated story, ancient coins were discovered when a man was arrested in the United Kingdom. UKPA reported that a "large volume of items of 'considerable antiquity' were seized at a house by officers who executed a search warrant in Barnham, near Chichester, West Sussex. Police said some of the artefacts were suspected of being stolen by "nighthawking" from an undisclosed site in the Chichester area and elsewhere recently. The items found so far include medieval and Roman coins, ivory and silver, and one gold Iron Age coin, brooches, buttons and horse equipment of similar ages."
See www.google.com/hostednews/ukpress/article/ALeqM5hNTZxAlDE31CnLZq_488cVR_XO2w

In the same way that drug traffickers deal with quanities of of a variety of illegal drugs, antiquities traffickers deal with a variety of looted archaeological objects--including coins.