PART II OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Case Reveals Italy’s Refusal to Turn Painting Over to Gentili di Giuseppe Family



Portrait of Girolamo Romano,
painter of the disputed artwork known as
Cristo Portacroce Trascinato Da Un Mangoldo.

In support of the warrant seizing Christ Carrying the Cross Dragged by a Rogue (Cristo Portacroce Trascinato Da Un Manigoldo) from The Mary Brogan Museum of Art and Science and in support of the civil complaint seeking forfeiture, the US Attorney for the Northern District of Florida supplies important details about the artwork’s asserted history.  Homeland Security Investigations (HSI) agent Phillip Reynolds describes facts in an affidavit submitted to the federal district court that permits the construction of the following timeline and details:

June 1914 - Art collector Federico Gentili di Giuseppe, Italian and of Jewish descent and living in Paris, purchased the Cristo Portacroce from the Crespi family collection. The 16th century painting by artist Girolamo Romano, was lawfully exported from Italy.

April 20, 1940 - Just before the Nazi invasion of France, Federico Gentili di Giuseppe died and left his estate to his son and daughter. They fled Paris without their possessions.

March 17, 1941 - The French Vichy government ordered the liquidation of the entire Gentili di Giuseppe estate.

April 23, 1941 - The Cristo Portacroce, and dozens of other paintings once in the Gentili di Giuseppe family’s possession, were auctioned. “Lemar” of Paris reportedly bought the Cristo Portacroce.

1994 - A Girolamo Romani catalog raisonné published by Alessandro Nova listed the Cristo Portacroce as having been owned by Federico Gentili di Giuseppe.

1997 – Descendants of Federico Gentili di Giuseppe sued the Louvre for the return of five paintings sold during the same auction as the Cristo Portacroce.

1998 - The Brera Art Gallery (Pinacoteca di Brera) took possession of the painting, although no details are provided regarding this transfer.

June 2, 1999 – a French court ordered custody of the five paintings at the Louvre to Federico Gentili di Giuseppe’s descendants, acknowledging that the 1941 auction was a “nullity” in that several painting were purchased by Nazis, including Luftwaffe chief Hermann Göring. The court also ordered the Louvre to pay 40,000 francs (approximately $8300).

After June 2, 1999 – The Art Institute of Chicago, the Boston Museum of Fine Arts, and the Art Museum of Princeton University all returned works of art to the Gentili di Giuseppe family heirs. Institutions in Berlin, Cologne, and Lyons did the same.

January 10, 2000 and March 14, 2000 – Lawyer Jean Pierre Sulzer twice contacted the the Brera Art Gallery by mail on behalf of Gentili di Giuseppe’s descendants, receiving no reply.

2001 – The Brera Art Gallery referred the restitution claims of the Gentili di Giuseppe heirs to the Italian Ministry of Culture, and attorneys for the family wrote a letter to the ministry on October 3, 2001 asking for the painting.

June 6, 2002 – The Commission for Art Recovery of the World Jewish Congress, a New York based group that seeks to restitute cultural property taken from Holocaust victims, wrote a letter to Italian President Silvio Berlusconi after the Ministry of Culture reportedly rejected the claims of the Gentili di Giuseppe family. The letter urged the president to reconsider Italy’s position.  (The contents of the letter suggest that the Brera made an earlier reply stating that it acquired the painting--and a second painting--in good faith.  The Brera's letter is not contained in court documents).

March 14, 2003 – The Italian Ministry of Culture responded to the Commission for Art Recovery’s intervention by saying that it carefully reviewed the matter in light of the Washington Principles and could not find that it could accommodate the request for repatriation. (See the Washington Principles here).

2006 – The Commission on Looted Art in Europe reportedly contacted the Italian government in an effort to have the Christo Portacroce returned.

March 18, 2011 – The Brogan placed the painting on display at its museum in Tallahassee, Florida.

November 4, 2011 – The loan contract between the Brera and the Brogan was due to terminate on November 6, and the painting was to be delivered to Italy.  Immigration and Customs Enforcement (ICE seized the painting on November 4, 2011 to prevent its return to Milan, and the US Attorney filed its in rem action against the artwork seeking its forfeiture.

The prosecution will seek to prove these alleged facts as it attempts to convince the federal district court that it has the evidence to forfeit the Cristo Portacroce.  Time will tell if any party steps forward to contest the claim.

See Part I for a discussion of the US government's asserted legal claims in this case.

CONTACT: www.culturalheritagelawyer.com

PART I OF II: US Attorney Reveals Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce – Argues That Painting Loaned to The Brogan by The Brera Was Stolen, Smuggled, and War Material



"The Brera,"
which once possessed the Romano painting
seized by ICE in Florida on November 4, 2011.
Author: Masi27185. Creative Commons License

Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) seized the painting known as Christ Carrying the Cross Dragged by a Rogue pursuant to a court authorized warrant on Friday, November 4, 2011. Judicial records reveal that federal officials chose to seize the painting at that time because the artwork, which was on loan to and openly displayed at The Mary Brogan Museum of Art and Science, was about to be returned to the Brera Art Gallery (Pinacoteca di Brera) in Milan, Italy. The Brera originally possessed and loaned the artwork, painted by Girolamo Romano around 1543.

The US Attorney’s Office for the Northern District of Florida filed a civil forfeiture action in federal district court in Tallahassee the same day as the seizure. Seizure permits the government to take possession of the painting, but a forfeiture order issued by the court would allow the government to gain title of the painting. That is why the US Attorney’s Office filed an in rem (against the thing) lawsuit, naming the artwork as the defendant. The case is captioned and docketed as United States of America v. Painting Known as Cristo Portacroce Trascinato Da Un Mangoldo, 4:11-cv-00571-RH-WCS.

Federal prosecutors argue in their civil complaint that forfeiture of the painting is proper under multiple legal theories. They cite the typical ones under the criminal statutes (Title 18 of the United States Code) and the customs statutes (Title 19 of the United States Code). But the government also makes a claim under Title 22, the foreign relations section.

First, prosecutors allege that the painting was smuggled pursuant to 18 USC § 545 and therefore must be forfeited under the terms of this criminal statute.

They also say that the artwork must be forfeited because it was illegally imported in contravention of the customs law at 19 USC § 1595a(c)(1)(A) since the painting was “stolen, smuggled, or clandestinely imported or introduced” into the United States.

Next, federal attorneys claim that the painting was about to be exported in violation of 19 USC § 1595a(d), a customs law requiring that the painting “shall be seized and forfeited to the United States” because its export would be “contrary to law.”

Federal lawyers also make a claim under the Illegal Exportation of War Materials statute at 22 USC § 401(a), saying that it mandates forfeiture of the painting: “Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war or other articles in violation of law, or whenever it is known or there shall be probable cause to believe that any arms or munitions of war or other articles are intended to be or are being or have been exported or removed from the United States in violation of law” then the article may be seized and shall be forfeited.” (Emphasis added by the author).

Finally, the government makes the claim that the painting was stolen under 18 USC § 2314, the National Stolen Property Act, which criminalizes conduct whereby a person “transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.”

The court will decide if prosecutors possess the evidence to prove their case.  To date, the information prosecutors possess appears considerable. That material is discussed in Part II.

CONTACT: www.culturalheritagelawyer.com

ICE Seizes Stolen Art From Florida's Brogan Museum - Said To Be Taken During WWII

ICE seizes Romano painting said to be stolen by the Nazis.  Photo courtesy of ICE

Immigration and Customs Enforcement (ICE) officials in Tallahassee, Florida yesterday served a seizure warrant on "Christ Carrying the Cross Dragged by a Rascal."  The painting had been held at the Mary Brogan Museum of Art and Science at the request of the US Attorney's office, northern district of Florida, while prosecutors determined whether the painting by Girolamo Romano’s was unlawfully taken from a Jewish family during World War II.  Now the artwork is now in federal custody.

Who will have final title and possession of the artwork ultimately will be determined by a federal district court judge.

[UPDATE: November 9, 2011 - Read more details here.]

Find the complete press release describing the seizure and issued by ICE here.  Also, listen to Chucha Barber, the Brogan Museum’s chief executive officer, who provides a short audio sketch of the ownership claims to the painting on PRI's The World.

Thanks go to Gary Nurkin for alerting me to this news.

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

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

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

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

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

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

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

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

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

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


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The Lender Collector

NPR has an insightful story on a recent trend: lending an art collection.
http://www.npr.org/templates/story/story.php?storyId=122619567