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

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

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

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

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

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

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

The federal complaint explained that an HSI agent spoke with the consignor of “Off to the Hunt,” whose name was supplied to the Polish government by Christie’s. The consignor had no purchase records and no import paperwork, according to the complaint. Additionally, HSI’s own search of customs records could not find any information related to the import.

HSI was also in contact with the attorney for the consignor of “The Hunt.” The federal complaint described how HSI “spoke with employees of Doyle . . . who informed them that the consignor . . . had brought the painting in for appraisal unframed and wrapped in an old sheet. Additionally . . . employees advised that [the consignor] had provided conflicting stories about how she came in possession of the painting.” HSI itself could find no importation records relating to the painting, according to court papers.

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

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

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

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

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

In letters addressed to NY Senator Charles Schumer dated June 23 and Secretary of State Hillary Clinton dated June 27 (both contained in the public court file) the possessor made a variety of statements, including the following:

• she was the daughter of a Holocaust survivor,

• she inherited “Off to the Hunt” from her father who bought it in Paris before transporting it to the USA in 1948,

• the “lost painting and mine are two originals by the same painter,” and

• it was improper for the government to imply that she and/or her father may have been “bad faith” possessors of the work.

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

Photo courtesy of ICE.

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