Motion to Reconsider Urges Court to Resurrect Art Museum Mummy Mask Case

U.S. Attorney Richard Callahan
Source: USDOJ

Reopen the St. Louis Art Museum (SLAM) mummy mask case. That is what the U.S. Attorney for the Eastern District of Missouri is asking a federal district court judge to do.  In a Motion to Reconsider filed today, U.S. Attorney Richard Callahan's office seeks to resurrect the case of United States v. Mask of Ka-Nefer-Nefer.

A judge dismissed the suit last month, claiming that the government's legal complaint to forfeit a mummy mask from SLAM was insufficient.  The complaint failed to articulate how the mask was stolen and smuggled, or how it was brought into the United States "contrary to law," the court ruled.

But the prosecution says in today's motion that the complaint does not need to be more specific about how the mask was stolen or smuggled. And the government does not need to prove any more than probable cause to believe that the mummy mask was stolen.

Assistant United States Attorney (AUSA) Richard Finneran writes, "While it is true that the Verified Complaint does not disclose the identity of the thief, the exact date of the theft, or 'why' the Mask was stolen, it does allege circumstances that reasonably give rise to the inference that the Mask was unlawfully taken from Egypt’s possession without its permission, and is therefore 'stolen' property  ...."  The AUSA adds that "the United States . . .  must merely establish probable cause to believe that the property is subject to forfeiture" then "the burden then shifts to the Museum to prove the lawful importation of the Mask by a preponderance of the evidence."

The prosecution describes that "one may rightfully infer the stealing of property without direct evidence of all the circumstances underlying the theft."  An analogy is given:  "If a homeowner were to return from a trip abroad to find that all of the electronics in his house were missing, it would certainly be reasonable for him to conclude that they had been stolen, even if he could not identify the thief or the exact time of the theft."

In its motion to reconsider, the prosecution also attempts to correct the court's conclusion that the government "should have alleged the [specific] law under which the Mask should be considered 'stolen.'" AUSA Finneran argues that "Section 1595a itself prohibits the importation of stolen property into the United States, regardless of whether any other law has been violated in the process of importation."  That statute, 19 USC 1595a, states:

Merchandise which is introduced or attempted to be introduced into the United States 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 . . . .

The government says that its arguments are sufficient to renew the forfeiture case.  But if not, prosecutors are asking the court to allow the filing of an amended complaint.  AUSA Finneran writes that "the United States believes that an amended complaint could allege numerous alternative bases to believe that the Mask’s importation was 'contrary to law' . . . if such allegations are deemed necessary."

The prosecution says it can offer additional allegations in an amended, verified complaint:  "Among other things, an amended complaint could more explicitly allege the approximate date range and location from which the Mask was stolen. It could also allege additional and alternative bases to believe that the Mask was imported 'contrary to law,' including facts relating to the absence of records and licenses reflecting the lawful import or export of the Mask, the content of the applicable Egyptian cultural property laws, and circumstances relating to the Museum’s purchase of the Mask from its seller. Finally, it could identify particular statutes, regulations, and provisions of foreign and common law which establish that the illegality of the Mask’s importation." 

The prosecution draws the court's attention to the generally accepted principle that "[d]istrict courts routinely do not terminate a case at the same time that they grant a motion to dismiss; rather, they generally dismiss the plaintiff’s complaint without prejudice and give the plaintiff at least one opportunity to amend its complaint."

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