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Friday, March 30, 2012

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/

Thursday, March 29, 2012

Rubin v. Iran Cases Move Forward in First Circuit and U.S. Supreme Court

Photo credit: Alborzagros.  CC.

Jenny Rubin and others hurt by a 1997 terrorist attack in Israel filed a 92 page brief yesterday in the First Circuit Court of Appeals.  Rubin et al. v. Islamic Republic of Iran v. Museum of Fine Arts and Harvard University et al. is a case where the appellants seek to enforce a judgment awarded to them under the Terrorism Risk Insurance Act of 2002 (TRIA) by acquiring cultural artifacts claimed to be owned by Iran.  The objects sought are located in Boston and Cambridge, Massachusetts.  Meanwhile, Rubin et al. have also filed an appeal of their Seventh Circuit court case with the U.S. Supreme Court.  That case involves an attempt to attach objects located at museums in Chicago.

Hamas carried out multiple suicide bombings on September 4, 1997.  The Rubin plaintiffs sued under the Foreign Sovereign Immunities Act (FSIA) in the United States District Court for the District of Columbia against Iran, and the court found that Iran supported Hamas’ terrorist efforts.  It ruled in the plaintiffs’ favor and awarded money damages.

To collect the judgment against Iran, Rubin et al. sought to attach Iranian assets located in the United States.  They attempted to attach artifacts held at the Boston Museum of Fine Arts (MFA), Harvard’s several museums, the Oriental Institute at the University of Chicago, and the Chicago Field Museum.  The museums in the Boston and Cambridge objected, fighting the case in federal district court in Massachusetts.  The Chicago based institutions battled the case in the federal court in the northern district of Illinois, and later the Seventh Circuit Court of Appeals.

The Seventh Circuit on March 29, 2011 sent the case back to the district court in Illinois for review.  But the Rubin appellants petitioned the U.S. Supreme Court for a writ of certiorari (i.e. a review by the higher court).  Briefs were filed in the Supreme Court (docket 11-431) by both the University of Chicago and Iran on January 6.  Jenny Rubin et al. filed a reply brief on January 18.  There was a waiver of the Field Museum’s response filed on January 4.  The Supreme Court on February 21 invited the Solicitor General to file the U.S. government’s position in the case.  It has not been submitted to the court thus far.

In Massachusetts, meanwhile, the district court ruled on September 25, 2011 to grant the MFA’s and Harvard’s motions to dismiss the case.  Jenny Rubin et al. then brought the matter before the First Circuit Court of Appeals.  They filed an appellate brief on March 28, 2012, arguing three primary issues.

First, the appellants argue that TRIA preempts all other federal and state laws because the case involves the enforcement of judgments by victims of a terrorist attack.  Their brief states:

“Pursuant to TRIA, and Treasury Regulations set forth at 31 CFR §535.201, governing collection actions on behalf of victims of state sponsored terrorism, any interest that Iran retains in the Iranian objects in Harvard and the MFA’s collection is subject to levy by the Appellants. Due to federal preemption by TRIA and 31 CFR §535.201 of any inconsistent state laws, neither Harvard nor the MFA can rely on any conflicting state laws such as those imposing statutes of limitation or governing adverse possession claims to bar or otherwise defeat the Appellants’ right to attach and levy on objects of Iranian origin in each of their possession in which Iran retains any interest.”

Second, the appellants say that Iran maintains an interest in the artifacts at the museums in Massachusetts.  The appellants claim that “[t]he Iranian government has always retained a private ownership interest in artifacts from Persepolis, the former capital of the Persian Empire. For the thousands of years beginning in the reign of Darius, this historic site has never been privately owned and always has been the sole property of the government of Persia and subsequently Iran. In addition, pursuant to the Persian Law Concerning the Preservation of National Antiquities (the “1930 Law”) enacted and in effect since November 3, 1930, all antiquities in Iran, whether movable or immovable, created up through 1794, the end of the Zand Dynasty, fall under the protection, control and ownership of the Iranian government.”

Third, the appellants argue that Iranian law gives Iran an interest in its antiquities unless that country gave a specific license.  They allege that the museums cannot demonstrate that any licenses were given.  The appellants’ brief argues:

“With the exception of objects removed from Persepolis . . .which have always been owned by the Persian government, other antiquities removed from Persia prior to November 3, 1930, were not recognized as owned by Iran. Accordingly, the Appellants always have indicated that the order of garnishment against the MFA and Harvard does not encompass any artifacts of Persian origin, other than those from Persepolis, that provably were exported from Iran prior to November 3, 1930. Nor do the Appellants assert any claim to any artifact from Iran acquired either by Harvard or by the MFA or on loan to either obtained from excavations by scientific expeditions to Iran occurring on or after November 3, 1930, if the holder Museum’s documentation as to the artifact establishes that the Museum acquired each such antiquity as part of the share of a “division” of finds assigned to a scientific archeological expedition as approved by the Persian/Iranian government and as required by the 1930 Law. Similarly, with respect to antiquities exported from Iran as a seller’s purported private property, the 1930 Law vests the government of Iran with an automatic 50 percent interest in all objects found in Iran on or after November 3, 1930. As to antiquities provably in private hands as of the enactment of the 1930 Law, the government is vested with a right of first refusal to acquire the object and a right to seize and confiscate the object if the seller attempts to circumvent his obligation to secure an export permit from the government, which if obtained, requires payment of an export duty equal to five percent of the value of the object as calculated by government appraisers.”

“Without documentary proof that an artifact was assigned to the scientific expedition or that the Iranian government approved the export of purportedly privately held property, Iran retains an interest in all objects under the 1930 Law that is subject to levy by the Appellants pursuant to TRIA.”

The appellees in the case are expected to file their reply shortly.

Wednesday, March 28, 2012

Mediation Extended in Getty and Armenian Church Zeyt'un Gospel Case

Gospel page located at the Matenadaran.
 The J. Paul Getty Museum and the Western Prelacy of the Armenian Apostolic Church have agreed to extend the mediation deadline in their dispute over possession of the Zeyt’un Gospel pages. The church sued the Getty in Los Angeles County Superior Court in 2010, charging that the museum obtained stolen property. The church seeks the return of seven pages, parts of an illuminated Bible created in 1256 and currently located in Armenia.

On November 3, 2011 the court ordered the parties to mediate, scheduling a review hearing for March 2012.  The Getty and the church later filed a stipulation with the court to extend the mediation deadline to April 27 and to schedule the review hearing for May 4.  The stipulation states: "The parties were unable to agree upon a mediator.  Accordingly, on December 16, 2011 the Court ordered the parties to agree upon a different timeline for the completion of mediation."

CONTACT: www.culturalheritagelawyer.com

Friday, March 23, 2012

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 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 onto 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.


CONTACT: www.culturalheritagelawyer.com

Thursday, March 22, 2012

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.

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

Tuesday, March 20, 2012

U.S. House Passes Foreign Cultural Exchange Jurisdictional Immunity Clarification Act

Congressman Steve Chabot
The U.S. House of Representatives by voice vote yesterday passed the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA).  The legislation seeks to protect foreign artwork on loan to American museums by clarifying a part of the Foreign Sovereign Immunities Act (FSIA).

The legislation was introduced by Judiciary Committee member Rep. Steve Chabot (R-OH) on February 24 and co-sponsored by Rep. John Conyers (D-MI), Rep. Lamar Smith (R-TX), and Rep. Steve Cohen (D-TX).  Their intent is to have a law that encourages more foreign lending of art to America without the fear of lawsuits.

Under the current federal statute known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (the Immunity from Seizure Act (IFSA), 22 U.S.C. § 2459), foreign lenders are encouraged to lend cultural objects to museums in the United States without risk that those objects will become targets of litigation while on American soil.  The statute protects imported objects determined by the State Department to be (1) of cultural significance, (2) intended for temporary, nonprofit exhibition, and (3) in the national interest.  Museums importing objects into the U.S. for temporary display must apply for this legal protection.  The notice of immunity is then published in the Federal Register.

The FSIA, meanwhile, is a law that generally protects foreign states from lawsuits.  The FSIA embodies a long held principle of American jurisprudence.  But the law has been interpreted to sometimes grant jurisdiction to the courts over foreign governments when their artwork is displayed in the U.S. because such loans are deemed “commercial activity.”  Specifically, 28 U.S.C. 1605(a)(3) of the FSIA states:

 “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.”

By way of example, in the 2005 case of Malewicz v. City of Amsterdam the heirs of Kazimir Malevich sued Amsterdam in federal court in Washington, DC to either recover artworks that the city’s Stedelijk Museum loaned to American museums or to acquire $150 million in damages.  The heirs claimed that the foreign museum unlawfully obtained the paintings.  Amsterdam argued that the Immunity from Seizure Act protected it from a lawsuit, but the federal district court ruled that Amsterdam had engaged in “commercial activity” under the FSIA by loaning the art to American institutions.  While IFSA may protect artwork from seizure, the FSIA did not protect Amsterdam from related damages said the court.  So the lawsuit moved forward.

The FCEJICA was introduced in order to remedy potential conflicts between IFSA and the FSIA.  The bill adds a new section to the FSIA that protects foreign nations from lawsuits in American courts related to loaned artwork.  The bill that passed the Judiciary Committee on February 28 and the full House on March 19 states:

“If a work is imported into the United States from any foreign country pursuant to an agreement that provides for the temporary exhibition or display of such work entered into between a foreign state that it is the owner or custodian of such work and the United States or one or more cultural or educational institutions within the United States, [and] the President, or the President’s designee, has determined . . . that such work is of cultural significance and the temporary exhibition or display of such work is in the national interest; and the notice thereof has been published . . . any activity in the United States of such foreign state, or of any carrier, that is associated with the temporary exhibition or display of such work shall not be considered to be commercial activity by such foreign state . . . .”

The bill adds that art stolen by the Nazis shall not be protected from legal claims filed in federal court.

A House report attached to the bill notes that "the intent of IFSA is being frustrated by the Foreign Sovereign Immunities Act (FSIA). Recent court decisions have interpreted a provision of FSIA in a manner that opens foreign governments up to the jurisdiction of U.S. courts if foreign government-owned artwork is present in the United States in connection with a commercial activity and there is a claim that the artwork was taken in violation of international law." The report adds: "This has led, in many instances, to foreign governments declining to export artwork and cultural objects to the United States for temporary exhibition or display. Future cultural exchanges may be seriously curtailed by foreign lenders' unwillingness to permit their artwork and other cultural objects to travel to the United States. In order to keep the exchange of foreign government-owned cultural objects flowing, this legislation clarifies the relationship between the immunity provided by IFSA and the exceptions to sovereign immunity provided for in FSIA."

The Congressional Budget Office reported that enactment of the legislation "would have no significant impact on the federal budget."

The bill now goes to the Senate for its consideration.

This link contains a video of Judiciary Committee Chairman Rep. Lamar Smith's remarks on the floor of the House.

Saturday, March 17, 2012

Donnie Darko (2001) Directed by Richard Kelly

So here I was, watching Donnie Darko for the second time, and something that had been imprinted on my memory failed to materialize. This in turn made me feel a sense of disappointment watching the movie. You know why? My favorite bit never happened! I felt cheated, I flet like my imagination was better than Richard Kelly's. He'd fucked up his own movie (this being the directors cut after all), when all he had to do was ask, I'd have put him straight. Echo & The Bunnymen's Killing Moon, is greater than most things, certainly Kelly's movie.

I'd always remembered Killing Moon playing over the opening scene of Jake Gyllenhaal (playing Donnie) cycling to school in that most intense manner. Instead, watching the movie now, I got some wishy washy INXS nonsense (that admittedly sounds better than it did back in the day). My viewing of the movie never recovered. Killing Moon ended up in some queasy party scene (just the ending of the 12inch version). It didn't save Donnie Darko. I'm being harsh of course. Donnie Darko really is a fine film about mental illness, even if it's a little adolescent and enthrall of David Lynch.

Gyllenhaal is superb here, drawing us into his world of paranoia, impending doom, dark thoughts and giant rabbits called Frank. This horror, teen movie, sc-fi mash up is often great. It's like the bastard, twisted offspring of Back To The Future, as if Back To The Future had been filmed on magic mushrooms. If I was 16 Donnie Darko would be my favorite movie ever. The sad fact remains, nothing here is as fuckable as Mac's lips.

David Lynch quoted Upanishads once to say: "We are like the spider. We weave our life and then move along in it. We are like the dreamer who dreams and then lives in the dream. This is true for the entire universe." Lynch brought this up in connection to Inland Empire in 2006, although if I think of his films, the quote opens up any movie of his. The same quote helps to sum up what Donnie Darko is all about.

Still, after watching two hours of Donnie's incredible story, I cannot help but feel utterly disappointed when the movie ends and reveals that none of it ever happened. Everything we felt and invested in as viewers n e v e r  h a p p e n e d. Yes, I know, a film's a fictional narrative, unrelated to life by nature. Yet, my disappointment is real, it matters that the movie turns around and tells me: he died. This all was a dream. An alternative narrative, a what if, a poem on parallel universes and the time-space continuum...and therefore I feel cheated: should we have been dealing with the emptiness and sadness of death instead? But we do not like to think of death, watch it or even dream of it.

What is Donnie Darko about then? Is it an annoying practical trick to our sensitive minds? A science fiction? Is it a satire and a comment on mental illness, and on the isolation of the youth who do not fit in?
What ever it is, maybe it is not just one thing, or the opposite of another. The Lynchean way of thinking allows us to leave behind simple dualities. There is more to life than good and bad, there is more to life than avoiding death. Maybe in our webs of dreams Darko's death is not as final as it seems at the end of the movie. Maybe, maybe... there is hope.

Tuesday, March 13, 2012

Mali Cultural Heritage

The upcoming Cultural Property Advisory Committee (CPAC) meeting in April focuses on the culture of Mali.  A brief Deutsche Welle documentary (in English) describing Mali's past and present heritage may be viewed below.

CONTACT: www.culturalheritagelawyer.com

Monday, March 12, 2012

Pleadings Filed by Prosecution and Defense Attorneys Argue Lewis Dismissal Motion in US v. Khouli et al.

Lawyers for Joseph Lewis, II this past Friday filed a reply memorandum in support of their earlier motion to dismiss.  They claim that the prosecution does not have the evidence to prove Lewis guilty.  Federal prosecutors, meanwhile, demand that trial is the place where they will prove their case.

A federal grand jury in New York last year indicted Lewis and three others for their alleged roles in an Egyptian antiquities smuggling ring that involved sarcophagi and other artifacts.  All defendants are considered innocent unless proven guilty beyond a reasonable doubt in a court of law.

Lewis' pleading  lays out three separate arguments.  But the thrust of the defense counsels' memorandum is that Lewis was not deceitful about importing Egyptian cultural artifacts into the United States because he was neither involved with the importation process nor agreed to import the pieces unlawfully. "[T]here is no witness, no document, and no email that even alludes to Joseph Lewis participating in the importation process or agreeing with others that it would be handled deceitfully," the memorandum states.  The lawyers point out that Lewis "is not charged with importing contraband or of participating in a conspiracy to import contraband."

In support of the memorandum of law, defense lawyers for Lewis produced an email reportedly between Lewis and co-defendant Moussa Khouli dated April 12, 2009.  That email, in part, says the following:

"Hey Morris,

I am ready to wire the funds in the morning but because its a lot of $$$$, just to make sure that there are no misunderstandings; I want to doublecheck that you do guarantee the following:

1 - Provenance from your late father's collection, Israel 1960s; you have therefore established to the best of your knowledge, these items have not been illegally obtained from an excavation, architectural monument, public institution or private property.
2 - Clearance by US Customs (if the items are seized or detained more than 30 days upon arrival into the US you will issue a full refund)...."

The defendant's memorandum came in response to prosecutors' February 10, 2012 objection to Lewis' original motion to dismiss.  In that pleading, government lawyers reiterate that Lewis is charged with purchasing smuggled Egyptian antiquities transported into the United States, smuggling three Egyptian nesting coffins, conspiring to smuggle, and money laundering in support of smuggling.

The prosecution argues that "[i]t is 'axiomatic' that a criminal defendant 'may not challenge a facially valid indictment prior to trial for insufficient evidence,'" quoting federal case law.  Prosecutors add that "[t]he proper venue for testing the sufficiency of evidence is a trial, not a pre-trial motion based on 'defense counsel’s forecast of the ultimate trial evidence.'"  "Moreover, Lewis's characterization of the government's proof is based on a complaint against co-defendant Khouli and a series of search warrant applications, each of which explicitly states that it does not set forth all facts learned during the course of the government's investigation."

Federal prosecutors make efforts to resist presenting their case prior to going to trial.  They write:  "Accordingly, the government declines to respond to the particulars of Lewis's factual arguments, to correct misstatements of the government's legal theories, or to highlight relevant facts produced in discovery or know to Lewis that Lewis omitted from his factual recitation."

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

Mali, Guatemala, and Bulgaria Up for Discussion by CPAC - Public Session Slated for April 24

Lowland Maya mask from Guatemala.
Source: U.S. State Department
The Cultural Property Advisory Committee (CPAC) will meet to consider renewal requests by Mali and Guatemala for Memoranda of Understanding (MoU).  A public session will be held on April 24 to consider extending the bilateral agreements that would continue America's import controls over cultural property originating from these nations.

CPAC also intends to continue its discussion about Bulgaria's earlier request for a bilateral agreement.  That session, according to the Federal Register, will be a confidential meeting authorized by 19 U.S.C. 2605(h), which permits private discussions when "the President or his designee [determines] that the disclosure of matters involved in the Committee’s proceedings would compromise the government’s negotiation objectives or bargaining positions on the negotiations of any agreement authorized by [the CPIA]."

An MoU or bilateral agreement protecting jeopardized archaeological and ethnological objects may be enacted between nations pursuant to Article 9 of the 1970 UNESCO Convention (the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property). Congress implemented the treaty by adopting the Cultural Property Implementation Act (CPIA), signed into law by President Ronald Reagan in 1983.  Import protections granted under the CPIA last for five years and may be renewed thereafter.

Head of a Mali figure.
Source: US Department of State.
The United States enacted emergency import controls in 1993 over archaeological material from Mali's Niger River Valley and its Tellem burial caves at Bandiagara. This action led to the 1997 adoption of an MoU between the two nations.  The bilateral agreement was then extended in 2002 and 2007.  The last MoU was broadened to include archaeological objects from the Stone Age to the 1700s.

The United States also took emergency action in 1991 to cover Maya archaeological artifacts from Guatemala's Petén region, extending the protections in 1994.  In 1997, the U.S. and Guatemala entered into a bilateral agreement covering pre-Columbian archaeological material.  The countries extended the MoU in 2002 and 2007.  The 2007 MoU broadened Article 2's provision to include, among among other items, that "the Government of the Republic of Guatemala shall undertake an assessment with regard to improvements in broad areas such as law enforcement, cultural resource management, education, conservation, research, and the national museum system" before the agreement expired in 2012.

To attend or speak at the public session on April 24, you may reserve your place by calling  the Cultural Heritage Center of the Department of State at (202) 632–6301 by 5 p.m. EDT on April 3.  The meeting will be held at 2200 C St., NW. in Washington, DC.

Public comments may be submitted electronically to CPAC at www.regulations.gov and are due April 3 by the end of the day.  Enter docket number DOS-2012-0012 for Mali or docket number DOS-2012-0011 for Guatemala and follow the instructions on the web site.

The committee now only accepts electronic comments unless they are confidential under 19 U.S.C. 2605(i)(1).  Written submissions reasonably determined to qualify for confidentiality may be delivered or mailed to:

Cultural Heritage Center (ECA/P/C)
SA-5, Fifth Floor
Department of State
Washington, DC 20522-0505

Comments submitted to CPAC must address one, some, or all of the four determinations outlined by the CPIA.  Quoting 19 USC 2602, the four determinations are:

(A) [whether] the cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party;

(B) [whether] the State Party has taken measures consistent with the Convention to protect its cultural patrimony;

(C) [whether] --

(i) the application of the import restrictions . . . with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties [to the 1970 UNESCO Convention]) individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage, and

(ii) remedies less drastic than the application of the restrictions set forth in such section are not available; and

(D) [whether] the application of the import restrictions . . . in the particular circumstances is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.

Tomorrow's Federal Register announcement of the CPAC meeting may be found here.

Sunday, March 11, 2012

A Tale of Two Cities (1958) directed by Ralph Thomas

What an achievement! We have finally sat through an entire movie and can thus continue with our reviews here. It was a good choice to begin again with something very plot heavy, since with this continual level of exhaustion, more abstract storytelling might have gone out of my head by now.
A Tale of Two Cities is a Dickens adaptation. The writing has been so great and the plot twists so juicy that to make it cinema in 1958 very little needed to be altered. Therefore, there is a sense of watching a filmed play. Nothing so cinematic about this movie. But as I mentioned, the plot is good enough for entertainment.

A Tale of Two Cities has an impressive line of old English actors, as  Nick will no doubt tell you later. Dirk Bogarde is in the central role here. And with his character, what we know about the movie star mixes with his role. Dirk is as gay as they come in his role as the noble drunk, who falls madly in love with a woman he cannot have. In a combination of over-interpretation and just taking the film as it is presented it appears that Dirk's character is in love with a woman, but his sexual preference stops him from acting upon his feelings. To not have to deal with his sexual frustration he then drinks himself silly everyday –– and in the end sacrifices his life, which is the ultimate penalty for being so 'badly' adjusted to the sexual politics of the time...Yes, quite a bit of interpretation required to see the film as I just described. But the whole love story seems a bit boring and naive otherwise. I have always found Dirk Bogarde an uncomfortable actor to watch, greatly due to the roles he plays. Here his drunk dandy did seem endearing.

As A Tale of Two Cities was about the aristocrats losing their cruel grip in France, it also presented us with a load of 1950s perspectives on the French peasants. Oh, they were savages, thoughtless, mindless blood sucking vampires who turned out to be even more cruel than their oppressors. It was the good old English gentle ladies and men who warmed our hearts – the upper classes of course.

Dirk Wears White Sox! So sang Adam Ant and why not.  Dirk Bogarde was someone I found fascinating whilst growing up. I didn't know too much about his earlier matinee career, but around the age of 18 I watched blacklisted American Director Joseph Losey's The Servant (a key Bogarde picture) which had a profound influence. It opened me up to Losey's cinema, but also made me delve back and forward through Bogarde's career. I then watched all the Losey/Bogarde movies (Accident, King & Country, Modesty Blaise). The later frankly overrated art house period (the ponderous Death In Venice and pretentious Providence). The matinee years prior to his work with Losey included the high camp of The Singer Not the Song (the gayest cowboy ever), The Spanish Gardner, and the family friendly Doctor series. Throw in British cinema's first openly homosexual character in Victim, helping Julie Christie win her oscar in Darling, Visconti's The Damned and the truly dreadful The Nightporter and one of the most interesting cinema acting careers imerges. On top of this, there are his secretive,  pompous novels (many I've read).

So, A Tale Of Two Cities, this is prime Dickens and thus in many ways a great yarn verging on Soap-opera. The French Revolution from the view of the overthrown Aristocrats (hilarious in itself). Bogarde effortlessly raises the movie to something approaching great with a knowingly camp raised eyebrow as alcoholic barrister Sydney Carlton.  He almost looks bemused at the commonness of all that goes on, yet we feel enough empathy with his smug dandy to feel genuinely shattered at the end. A roll call of excellent British acting talent appears here : Dorothy Tutin, Cecil Parker, Ian Bannen, Alfie Bass, Christopher Lee, Leo McKern and Donald Pleasance. This means Director Thomas is able to keep us engaged even when Bogarde is not on screen.

But really, there is almost disdain from Bogarde at times here. The suggestion that he would ever fall so messily for a woman almost derails the picture's credibility. You sense he'd much rather be doing naughty things with Paul Guers as Bogarde lookalike Charles Darney. As so often happens in Bogarde vehicles of this time, this heightened sexual confusion only adds to the charm of the picture. A Tale Of Two Cities resonates still because of this. Bogarde's white socks are kept under rapt by thigh length black leather boots. Need I say anymore? Quality entertainment.

Saturday, March 10, 2012

Court Denies Alshdaifat Motion to Change Venue in United States v. Khouli et al.

The US District Court for the Eastern District of New York has denied Salem Alshdaifat's request to move the trial from the Empire State to his home state of Michigan.  Alshdaifat is charged in the case of United States v. Khouli et al. with participating in an antiquities smuggling ring along with three other co-defendants.  Like any defendant, Alshdaifat is presumed innocence unless the prosecution proves its case beyond a reasonable doubt.

Alshdaifat's attorney filed a motion in November to move the court case to Detroit's federal court, citing personal and financial hardships.  The prosecution objected.  In a February 12, 2012 pleading, Assistant United States Attorney Karin Orenstein argued, among other points, that venue in New York is presumed to be proper, that having multiple trials in two separate circuit jurisdictions is unreasonably cumbersome, and that handling and presenting delicate cultural artifact evidence favors presenting the case in New York.

Judge Edward Korman's February 29, 2012 order states simply: "Argument heard.  Motion denied w/o prejudice to renew."

CONTACT: www.culturalheritagelawyer.com

Author Josh Knelman Launches Hot Art in New York City on March 22

Joshua Knelman will debut his latest book titled Hot Art in New York on March 22, 2012.  The investigative book documents the story of an art and antiques thief as well as the stories of law enforcement officials and attorneys who work to combat art and cultural property crime.  The public is invited to the event, which will be held at the Flag Art Foundation located at 545 West 25th Street in Manhattan, between 10th and 11th Avenues at the he Chelsea Arts Tower.

CONTACT: www.culturalheritagelawyer.com

Tuesday, March 6, 2012

Forex companies are now subject to special licenses

The law which overhauls securities legislation has closed the loophole which allowed forex companies oto set up shop in Panama. Effective March 1, 2012, all forex companies - whether they operate inside or outside of Panama - are required to apply for a brokerage house ("casa de valores") license granted by the new Superintendent of Securities.

The abuse by several forex operators was brought to the attention of the authorities which reformed Law Decree 1 of 1999. While forex futures and options could only be traded by licensed companies, spot and cash operations were exempt from licenses. Fines for engaging in forex operations without a license are now of at least US$1,000,000.

Article 44 of the reform defines Forex activity as the operation of buying and selling coins and currency at a price or exchange rate (Foreign Exchange Market) on a recurring basis, and authorizes the Superintendent to develop procedures and special requirements and technology that the brokerage houses should maintain for the exercise of this activity. Some exceptions from the compulsory licensing are granted to government transactions.

Agreement 2 of 2004 has the requirements for the brokerage house and now the forex license. Applicants must have a paid-in capital of US$150,000, as well as:
1. Be exclusively dedicated to activities related to the broker-dealer house business.
2. Articles of Incorporation which have a corporate purpose adequate to the activities related to the broker-dealer house business and social capital of at least US$150,000 in registered shares.
3. A Board of Directors or its equivalent composed by at least three individuals (no corporate directors), all of them individuals of "proven business and professional integrity. At least one third of the members of the Board of Directors shall also possess knowledge and experience in subjects related to the stock markets or the financial sector in general.
It shall be understood that individuals with a record of respect for the commercial laws and other laws regulating the economic and business activities, as well as good business and financial practices, possess commercial and professional honorability. In any case, it shall be understood that individuals lack such honorability, when the individual is under one of the causes of incompetence to hold offices, pursuant this Agreement. Only individuals who have performed duties as principal executives or other similar responsibilities in other public and private entities for a period of at least 2 years, are deemed to have appropriate knowledge and experience.
4. Have the number of principal executives that the broker-dealer house business volume requires, who must have the corresponding licenses issued by the Commission. Every broker-dealer house must at least appoint one person as Principal executive.

The 2001 Supreme Court Schedule sets attorney fees for this type of license application of at least US$5,000. Registration fees for a brokerage house are of US$5,000. On a yearly basis a supervision fee must be paid to the Superintendent equivalent to 0.0025% of yearly trades (min $5,000.00 max. $100,000.00).

Monday, March 5, 2012

Seize and Send v. Investigate and Indict: Focusing on Cultural Heritage Criminal Investigations and Prosecutions

ICE and CBP return an illegally
imported artifact to Guatemala.
Courtesy ICE.
Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) held a press conference on February 24 to publicly display the return of pre-Columbian objects to the Guatemalan foreign minister. The objects were recovered both in Houston, Texas in 2009 and from an auction house in Massachusetts in 2011. WJZ television in Baltimore reported that “[n]o arrests in the smuggling cases have been made, although federal agents say investigations are ongoing.”

Authorities are to be lauded for detecting and seizing illegally imported archaeological objects. But the claim that federal officials are continuing their investigation remains to be seen. That is because the primary evidence of possible smuggling has now been returned to Guatemala. The artifacts are no longer preserved for criminal analysis, they are not kept in safekeeping for use in court proceedings, and they are not available for inspection by potential criminal defendants who have a constitutional right to view the government’s evidence in a criminal case.

There appears to be no US Attorney involvement in this case, which is a sign that the matter likely is not being reviewed for possible criminal charges. And Homeland Security does not mention in its official press release that it is pursuing a criminal investigation. At best the agency cautions that “[t]hose involved in the illicit trafficking of cultural property, art and antiquities can face prison terms of up to 20 years, fines and possible restitution to purchasers of the items.“

Those who follow cultural property cases closely are aware that Homeland Security generally implements a seize and send policy with regard to cultural artifacts. While the agency boasts in its latest press statement and elsewhere that “[s]ince 2007, HSI [Homeland Security Investigations] has returned more than 2,500 artifacts to 23 countries …”it is silent about successful cultural property prosecutions. Such prosecutions are rare.

The Cultural Property, Art and Antiquities Investigations Program is carried out by HSI. The program describes its mission on ICE’s web site: “Returning a nation’s looted cultural heritage or stolen artwork, promotes goodwill with foreign governments and citizens, while significantly protecting the world’s cultural heritage and knowledge of past civilizations.” The emphasis is on sending cultural objects to home countries, not on developing cases for criminal prosecution.

It could very well be that the lack of financial or human resources prevents the development of cultural property smuggling cases. It could be too that politics affects agency decision making. Indeed, it may be noteworthy that on the same day of the repatriation of artifacts to Guatemala, Homeland Security Secretary Janet Napolitano announced that she would be traveling to Guatemala City and other Latin American destinations between February 27 and 29. Perhaps prosecutors are rejecting these cases for review. Whatever issue prevents ICE from doing its job to investigate and prepare cases for presentation to a federal grand jury and subsequent criminal prosecution must be resolved.

ICE Director John Morton is right to note “the exceptional investigative work HSI is doing to stop the pilfering and illicit trading of precious art and antiquities from around the world.” ICE has talented investigators. But more must be done to bring the talents of these federal agents to the next level so that their cases serve to provide a meaningful deterrent to archaeological smuggling. Investigators must be permitted to conclude their cases by submitting them to receptive US Attorneys for review and possible indictment. Cases concluded through seizure, forfeiture, and repatriation alone do not have a similar impact on criminal activity.

Homeland Security press releases


CONTACT: www.culturalheritagelawyer.com


The Sewing Lawyer is a tad on the perfectionist side.  She has a seam ripper.  And she's not afraid to use it.



It's a good thing this wool is very thick and forgiving!

Sunday, March 4, 2012

Knitting work in progress

One can try on a WIP if it's being knitted from the top down.  All I had to do was transfer about 25% of the stitches to a separate circular needle so I could put it over my head.

This will fit looser than the Vogue version but I think it will be just fine.

Friday, March 2, 2012

Jacket progress

It has been so long since The Sewing Lawyer made a jacket, she thought she had forgotten. But she hadn't.

A forgiving, cushy wool fabric helps.

Remembering to cut it out single layer to (more or less) match the  plaid is also a good idea.  Although this guarantees that the seams practically disappear.

So far so good.

I adapted the pattern to add extra fabric around the edges of the upper collar and lapel facings, since the outer layer of this thick fabric has to travel farther than the under-layer. In this photo, I have pinned the upper collar/facing layer to the under collar/jacket layer, matching the neckline seams exactly.  When the upper collar is folded over, the raw edges are quite even at the back.

I'm going to have to fiddle with the under collar at the leading edge.  As you can see here, it seems longer than the upper collar.  I think I'll trim the curved edge to exactly match the upper collar before sewing the two layers together.  This will avoid any risk of the collar flipping up after it's constructed.