Homeland Security's Seize and Send Policy on Display at Repatriation Ceremony

Artifact returned to Italy by ICE.
Courtesy ICE

Immigration and Customs Enforcement (ICE) this week announced successful efforts to combat crime in the United States.  In the last few days, ICE's Homeland Security Investigations (HSI) directorate headlined these results:

• "9 suspects arrested in HSI probe targeting Fresno-area phony document mills"

• "637 gang members and associates arrested during Project Nefarious" 

• "5 indicted for allegedly selling counterfeit goods" 

Yesterday, however, the federal agency announced something other than arrests or indictments.  An April 26, 2012 press release proclaimed, "ICE returns stolen and looted art and antiquities to Italy."

While many of ICE's powerful investigative arms probe violations of federal law and pursue justice through the criminal court system, the Cultural Property, Art and Antiquities Program at HSI continues to repossess artifacts, hold repatriation ceremonies, and ship potential court evidence overseas. Arrests are infrequently announced, and indictments for violating federal smuggling, theft, false statement, or wire transfer laws are rare.

The contrast between ICE's typical approach to cultural property crimes and its customary handling of forfeited documents, human trafficking, counterfeit goods, and other illegal activities is striking.  A few of this week's press releases illustrate:

• After arresting the nine men for trafficking in forfeiting documents, special agent Clark Settles said that the  "goal in these investigations is to identify and ultimately dismantle the criminal organizations behind these highly lucrative schemes."

• After 637 gang members and associates were arrested, HSI Executive Associate Director James Dinkins announced that "[t]he goal of Project Nefarious was to identify, locate, arrest, prosecute and remove gang members and associates affiliated with human smuggling and trafficking organizations."

• After a grand jury indicted five people for selling counterfeit goods, ICE announced that it "plays a leading role in targeting criminal organizations responsible for producing, smuggling and distributing counterfeit products. HSI focuses not only on keeping counterfeit products off our streets, but also on dismantling the criminal organizations behind such illicit activity."

Marble sculpture returned to Italy.
Courtesy ICE

But yesterday's press announcement proclaiming the repatriation of looted and stolen antiquities to Italy simply describes a "ceremony" to return "[t]wo 2,000-year-old ceramic vessels, one Roman marble sculpture, one Renaissance painting and three music sheets from choir books dating back to the 13th century ...."  Authorities did not announce any arrests or indictments despite descriptions of criminal activity by the use of terms such as "looted," "illegally imported," "smuggled," " illicit trafficking," "organized crime," and "stolen."

In other criminal investigations, HSI agents investigate cases, work with prosecutors to develop and sift through evidence, present the results to grand jurors, and hold lawbreakers accountable.  In illegal antiquities trafficking cases, however, Homeland Security Secretary Janet Napolitano said it best during Thursday's ceremony, "We will continue to work to ensure cultural artifacts and treasures that were stolen and entered this country illegally are recovered and returned to their rightful home nations."

This "seize and send" strategy requires rethinking to coincide with the "investigate and indict" mission that other HSI investigations pursue to dismantle and deter criminal activity.

ICE Director John Morton said yesterday that "ICE is serious about reining in art and antiquity thieves, smugglers, and traffickers."  Yet antiquities thieves, smugglers, and traffickers must be brought to trial.  And while ICE poignantly warned in Thursday's press release that anyone "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," criminals must first be indicted before they can face such consequences in a U.S. district court.  Only then can the "antiquity thieves, smugglers, and traffickers" who are targeted by ICE be held to account for violating federal criminal laws.

CONTACT: www.culturalheritagelawyer.com

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.

Sources:
Homeland Security press releases
http://www.ice.gov/news/releases/1202/120224washingtondc.htm
http://www.dhs.gov/ynews/releases/20120224-statement-on-napolitano-trip-to-central-america.shtm

WJV TV
http://baltimore.cbslocal.com/2012/02/24/stolen-ancient-mayan-artifacts-being-returned-to-guatemala/

CONTACT: www.culturalheritagelawyer.com

Court Forfeits Cristo Portacroce After Italy Does Not File A Claim

The forfeited Cristo Portacroce.
Courtesy ICE

The United States District Court for the Northern District of Florida has ordered the forfeiture of the painting, the Cristo Portacroce Trascinato Da Un Manigoldo.  The court issued the default judgment once the previous possessors, Italy and its Brera Art Gallery, failed to make a claim for the return of the artwork.

The court's ruling was brief:  "Upon Application of the Plaintiff(s) in the above styled cause and having examined the records and there appearing to be no responsive pleadings filed by the defendant(s), default is hereby entered against the Italian Republic, Ministry of Culture, and the Pinacoteca di Brera, on January 3, 2012."

The painting will likely be handed over to the heirs of Federico Gentili di Giuseppe, who filed a claim on December 14, 2011 arguing that they were the lawful owners.  Prosecutors submitted information to the court that the painting was taken from the family by the Nazis during World War II.  Click here for details.

Federal officials seized the Cristo Portacroce in November 2011, which the Mary Brogan Museum of Art and Science in Florida had on loan.  See here for background.

Court papers filed by government lawyers show that the Italian's were aware that the painting's ownership was in dispute.  But the records do not explain why the Italy-Brogan loan agreement did not contemplate legal protection from seizure under the federal law known as Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display.

CONTACT: www.culturalheritagelawyer.com

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.

Contact: http://www.culturalheritagelawyer.com/.

Changing Course: Enhancing Homeland Security's Policy of Seizure and Repatriation with Investigation and Prosecution

Illegal antiquities trafficking is a global business, linked to major transnational crimes such as money laundering. Additionally, cultural property crimes target humanity’s heritage and spirit. In order to successfully tackle crimes against cultural heritage, federal officials must pursue a strategy of investigation and prosecution.

The current policy of seizure and return does not go far enough. To seize a stolen or smuggled artifact at the American border and return it to its country of origin only serves to repatriate the object. Its confiscation and return does little to deter antiquities trafficking since there is minimal consequence to the perpetrators or accomplices. Building legal cases that lead to arrests and prosecutions would provide both specific deterrence and general deterrence.

The seize and return policy maintained by Department of Homeland Security (DHS) recently came into public view when Customs and Border Protection (CPB) and DHS investigators seized two Chinese artifacts illegally crossing America's border at Newark Liberty International Airport around March 3. Eight days later DHS announced the return of fourteen cultural objects to China, many obtained as a result of an enforcement initiative titled Operation Great Wall. The objects repatriated apparently included one of the artifacts seized at Newark Airport, specifically a Tang Dynasty horse. At least four other Chinese cultural objects that were seized in the New York metropolitan area over the past year were returned to China as well.

Typically when law enforcement officials seize the fruits of a crime or contraband they secure the evidence in anticipation of a prosecution. The return of the Tang Dynasty horse sculpture only a few days after federal officials seized it illustrates how smuggled cultural objects are not treated as criminal case evidence. That is to be expected when the primary mission of DHS is to seize and return, not to investigate and prosecute.

US Customs Director Robert Perez articulated this seize and return policy, declaring that federal authorities are "dedicated to intercepting [cultural] items and ensuring their safe return to their rightful owners." DHS’s news release about the repatriation of Chinese artifacts supports this view, highlighting that “2,300 artifacts have been returned to 18 countries since 2007.” While DHS touts the number of seizures and returns of cultural property, its press statement does not boast of any prosecutions or convictions against looters, smugglers, fences, or receivers of illegally stolen or trafficked cultural heritage.

Combating crimes against cultural heritage requires authorities to investigate and prosecute trafficking rings. Effective law enforcement is characterized by thoughtful investigation, careful handling of physical evidence, and assembly of evidence for review and use by prosecutors. While seizing and repatriating illegally smuggled artifacts serves some purpose to curb antiquities trafficking, federal officials cannot be credited with performing a thorough job if this remains the sole accomplishment.

Immigrations and Customs Enforcement investigators and Customs and Border Protection agents are skilled law enforcement officers who are capable of combating antiquities trafficking effectively. We need to call on DHS policymakers to directly engage illegal antiquities networks by adopting a policy of investigation and prosecution that enhances the existing policy of seizure and repatriation.

Sources:
www.ice.gov/news/releases/1103/110311washingtondc.htm

http://articles.cnn.com/2011-03-03/justice/new.jersey.artifacts.seized_1_newark-airport-antiquities-chinese-government?_s=PM:CRIME