ACCG Contests Forfeiture Action

The ACCG has filed a claim of interest to a group of coins minted in China and Cyprus that were seized by US Customs back in 2009.  By filing this pleading, the ACCG has placed the the government on notice that it intends to contest the forfeiture proceeding in Court.   The ACCG now has twenty-one (21) days to respond to the government's forfeiture complaint. 

Government Waste and Abuse

Jason Felch for the LA Times has reported on the goverment's now floundering case concerning Ban Chiang pottery that started some five years ago with so much fanfare.

The real problem with this investigation is that it targeted artifacts that were openly available for sale in Thailand.  What was hyped as mainly a stolen property case became a far less "sexy" tax and smuggling case.  The old bait and switch.

It's high time for the US government to stop being the muscle for US academics with an axe to grind against collectors and foreign cultural bureaucrats.  If Thailand is so interested in repatriation of these ceramics, our courts are open to it.

Let Thai officials bring their own case instead of shifting that cost to the US Taxpayer.

Supreme Court Denies Cert.

Disappointingly, but perhaps not surprisingly given the some 150 petitions before the Court at its last conference, the Supreme Court has denied the ACCG's petition for certiorari.  (The Court granted certiorari in four cases, two of which were summarily sent back to the Second Circuit for consideration of a decision just issued this year.)

The Supreme Court's order has no precedential value, leaving the Fourth Circuit�s decision that the State Department's and U.S. Customs' decision-making is generally only subject to "political" rather than "judicial" review only applicable in that Circuit.  

ACCG now plans to contest the forfeiture action the Fourth Circuit anticipates the Government will file against the coins the ACCG imported for purposes of its test case. 

The test case is part of the ACCG's continuing effort to educate the public and government decision-makers about the damage overbroad restrictions have done to the ability of American collectors to legally import coins of the sort that remain widely available abroad, including in places like Bulgaria, Cyprus, Greece, Italy and China.  

In that regard,  the latest post on the Chasing Aphrodite blog provides further discussion about the thinking behind the test case. 

Rewriting the Convention on Cultural Property Implementation Act

It's no surprise that Dr. Nathan Elkins-- one of the AIA's chief proponents of import restrictions on common historical coins of the sort collected worldwide-- claims that any coin type that circulated "predominantly" in a given country should be placed on the "designated list" for restrictions when it's easy for him to generalize that coins circulate "predominantly" where they are made.

But the governing statute, the Convention on Cultural Property Implementation Act, calls for much more.  Assuming other statutory criteria are also met, it only authorizes seizure and forfeiture of artifacts "first discovered within and...subject to export control by" a given country. 19 U.S.C. Section 2601(2)(c).

The ACCG has indicated that the Government could comply with the plain meaning of the CPIA in either one or two ways:  (1) establishing by undisputed scholarly evidence that the coins placed on the designated lists could only have been discovered in a given country for which import restrictions are granted and, hence, must be subject to their export controls; or (2) demonstrating by documentary evidence that any coins Customs seizes were in fact discovered in that country and, hence must be subject to that country's export controls.


The ACCG and others have offered scholarly evidence to suggest that ancient coins as a general rule circulated far from where they were minted.  The fact that some (local bronze coins) typically circulated closer to home than others (precious metal coins and Imperial bronze issues) does not excuse the State Department's and U.S. Customs' efforts to ban coin imports based on place of production rather than s find spot.

The overbroad import bans Elkins and the AIA support threaten to cut off collector access to the vast majority of ancient coins openly available on the international market.  In contrast, restrictions squarely linked to find spots are more narrowly tailored to deterring pillage of archaeological sites.  That, of course, is the primary goal of the CPIA; not the furthering of nationalistic impulses that lay claim to any unprovenanced coin as the presumptive state property of the AIA's allies in foreign cultural bureaucracies.

Law 360: Justices Asked To Hear Imported Coin Seizure Case

Law360, a well-known legal news service published this report on the ACCG case by Helen Christophi :

Law360, Los Angeles (February 15, 2013, 4:40 PM ET) -- The Ancient Coin Collectors Guild urged the U.S. Supreme Court on Tuesday to reinstate its suit against U.S. Customs and Border Protection and other agencies over the seizure of ancient Cypriot and Chinese coins after the Fourth Circuit tossed it over foreign policy concerns.

The guild filed a petition arguing for a reversal of the Fourth Circuit's October decision dismissing its suit claiming ancient Cypriot and Chinese coins couldn't be traced to illicit excavations in either country, saying foreign policy concerns shouldn't undermine the law as it had in the lower court's ruling.

�The ACCG has raised serious questions concerning whether foreign policy concerns trump judicial review where Congress has imposed significant procedural and substantive constraints on executive authority to restrict the ability of American citizens to import common cultural goods widely sold worldwide,� Peter Tompa of Bailey & Ehrenberg PLLC, an attorney for the ACCG, said.

The case, originally lodged in Maryland federal court in February 2010, followed the seizure of more than 20 ancient Cypriot and Chinese coins the ACCG imported from London in 2009. The guild argued that it should not be assumed that a coin was stolen or illegally shipped because the owner was unable to show a chain of custody beyond a receipt from a reputable source.

But the government countered that no judicial review of the plaintiff's claims was available and that even if it was, the ACCG had not stated a claim for relief.

U.S. District Judge Catherine Blake granted the government's dismissal bid, and said that actions taken pursuant to delegated presidential authority under the Convention on Cultural Property Implementation Act weren't subject to review under the Administrative Procedures Act.

The Fourth Circuit in October threw out the ACCG's suit on appeal, saying that anything but the most basic review of the Federal Register and the district court opinion for procedural compliance �would draw the judicial system too heavily and intimately into negotiations between the Department of State and foreign countries,� according to the guild's Tuesday petition.

Congress enacted the CPIA in 1983, authorizing the president to enter agreements with other countries to limit the importation of objects of archaeological interest and cultural significance.

The U.S. signed off on such deals with Cyprus and China in July 2007 and January 2009, respectively, limiting the importation of ancient coins minted in the countries.

In its petition, the ACCG argued that the high court should verify that lower courts must apply a �political question� test when a party attempts to dismiss a case over foreign policy considerations.

�The court should grant the petition because the lower court's ruling ignores this court's test for 'political questions' and is directly at odds with case law in sister circuits,� the petition said.

The ACCG also contended that the court must clarify its own decisions on judicial review regarding the delegation of presidential authority to government agencies, saying that the imposition by Customs, rather than the Bureau of Educational and Cultural Affairs, of import restrictions on some coins put into question what the proper standard of review is.

Finally, the group asserted that the various courts' refusal to review import restrictions harms American museums, collectors and small businesses that trade ancient coins.

"The importance of these issues to the continued access of American citizens and institutions to ancient coins and other artifacts as 'hands-on' mediums of cultural exchange and understanding also argue for this court to take this matter up,� the petition said.

Representatives for Customs could not immediately be reached for comment Friday.

The ACCG is represented by Peter K. Tompa of Bailey & Ehrenberg PLLC.

The case is Ancient Coin Collectors Guild v. U.S. Customs and Border Protection et al., case number 12-996, in the U.S. Supreme Court.

1,000th Post: ACCG Files Petition for Cert.

Somehow it seems fitting.  For CPO's 1,000th post, I am linking to the ACCG's press release about its petition for certiorari.  The petition asks the Supreme Court to overturn the lower courts' refusal to engage in judicial review of controversial decisions to impose import restrictions on ancient coins from Cyprus and China.   

Why did the ACCG ask to file such a petition?   The first and last paragraphs of the body of the petition say it all: 

The Ancient Coin Collectors Guild (�the Guild� or �ACCG�), a nonprofit advocacy group for collectors and the small businesses of the numismatic trade, seeks judicial review of administrative decisions which  have drastically limited the ability of coin collectors to lawfully import historical coins of the sort widely available abroad.  In particular, the Department of State (�State�) and U.S. Customs and Border Protection (�CBP�) have restricted the entry of historical coins based on the country of manufacture, whereas Congress explicitly limited restrictions to coins �first discovered� in a particular country, which is completely different.   Such overbroad, unfocused restrictions have greatly inhibited ancient coin collecting in the United States.

...

The lower courts have effectively excused State and CBP from any scrutiny despite well-founded allegations import restrictions on historical coins were imposed without regard for the significant procedural and substantive constraints found in the CPIA.  Accordingly, the Guild respectfully requests that the Court grant certiorari, not only to decide important questions of federal law regarding the form and scope of judicial review, but also to ensure that federal regulators themselves are bound by the rule of law.   

The entire petition may be read here.

The Supreme Court apparently only accepts 4% of such petitions for further review, but should the Court decide to take the matter up, the Court then reverses the lower court some 76% of the time.

As those lottery commercials say, you "gotta play it to win it!"

Should Transparency Be a Two Way Street?

Archaeo-Blogger and Cultural Heritage Lawyer Rick St. Hilaire wants to mandate additional record-keeping for dealers in cultural goods in the name of "transparency."  Leaving aside whether creating more red tape will accomplish anything other than to place additional administrative burdens on the small businesses of the antiquities and coin trade, one wonders whether he would also acknowledge that transparency should be a two way street. 

So, how about some transparency for the State Department and CBP concerning their process for imposing import restrictions on cultural goods?  Or how about imposing new record keeping requirements on archaeologists, such as requiring them to publish their findings within in a reasonable time on the Internet so they will be easily accessible to interested members of the general public?

After all, State, CBP and the archaeological community all purport to act in the public's interest, so is some transparency from them too much to ask?

ACCG Files Petition for Rehearing

The ACCG has requested the entire Fourth Circuit Court of Appeals to rehear the dismissal of its case testing regulations imposing import restrictions on historical coins of the sort widely traded worldwide.  The ACCG has argued that the panel�s decision ignores Supreme Court precedent, case law in sister circuits, and the �plain meaning� rule.  Specifically, the ACCG states that the panel: (1) failed to consider the U.S. Supreme Court�s test for determining if �foreign policy� concerns trump the judiciary�s obligation �to say what the law is;� (2) adopted a version of judicial review far narrower than that afforded in sister federal appellate courts; and (3) wrongly assumed that CPAC approved of the Government�s decision imposing restrictions on coins based on their place of production rather than their find spot despite the sworn statement of Jay Kislak, CPAC former Chairman, that was previously brought to the trial court�s attention. 

Fourth Circuit Affirms Dismissal of Test Case

The Court of Appeals for the Fourth Circuit has affirmed Judge Blake�s decision dismissing ACCG�s test case on Cypriot and Chinese import restrictions on coins. Although the Court conceded that the Guild�s arguments, �are not without a point,� the Court concluded any changes to how the State Department and US Customs administers the Convention on Cultural Property Implementation Act must emanate from Congress and the Executive Branch and not the Courts. Nonetheless, the Court of Appeals indicated that ACCG could still pursue various forfeiture defenses related to the seizure of the specific coins it imported. The ACCG is considering further appellate options afforded under the Court�s rules.

Renewed Motion to Dismiss in Dinosaur Forfeiture Case

In response to the Government's Amended Complaint, my firm, Bailey & Ehrenberg PLLC along with Michael McCullough LLC, have filed a renewed motion to dismiss.  The legal basis for the motion is addressed in this supporting memorandum.    Pursuant to the Court's September 7, 2012 order, the Government's response is due on or before October 19, 2012 and any reply is due on or before October 30, 2012.

Update (10/17/12):  Here is a balanced article on the Government's unfortunate effort to convert this civil action into a criminal one.

Update (10/23/12):  Here is our reply brief in support of Claimant's Motion to Dismiss.

The Candidates Agree Small Business Needs Help-- When Will State and CBP Get the Message?

Like many Americans, I watched the Presidential debate last night.   The candidates disagreed on many things, but agreed that small business needs help and that "one size fits all" regulations can harm small business without really benefiting the public at large.

When will the State Department and US Customs and Border Protection get the message?  Their "one size fits all" import restrictions on cultural goods require the same showing for licit import of a $1 million dollar vase as a $2 coin widely traded abroad.   (And let's not forget CBP has gone well beyond what is allowed under law to only allow import of artifacts pictured in auction catalogues.)  As I observed during oral argument before the Fourth Circuit Court of Appeals in the ACCG test case, that simply makes no sense. 

Despite nods of agreement from two of the judges on the panel, the Court may indeed decide to affirm Judge Blake's decision to give State and CBP the green light to crush the small businesses of the numismatic trade with such over regulation, but the question remains does this make sense?

Has State and CBP Exceeded Their Authority in Imposing Import Restrictions on Ecclesiastical Artifacts?

The CPIA only allows for restrictions on archaeological or ethnological artifacts.   The latter are defined as the products of tribal or nonindustrial societies.  19 U.S.C. Section 2601 (2) (C) (ii).  The Senate Report further makes clear that ethnological artifacts are only supposed to encompass "tribal" or "primitive art," such as masks, idols or totem poles.  (Senate Report at 5.)

The recently announced expansion of Guatamalen import restrictions thus once again raises the question whether State and CBP have exceeded their authority, this time by adding restrictions on ecclesiastical artifacts that date as late as 1821.  Here is a list of the newly restricted artifacts.  Can State and CBP fairly claim they encompass "tribal" or "primitive" art?

Ecclesiastical Ethnological Material (Dating From Approximately A.D. 1524 to 1821)


VI. Sculpture�Sculptural images of scenes or figures, carved in wood andusually painted, relating to ecclesiastical themes, such as the Virgin Mary, saints,angels, Christ, and others.

A. Relief Sculptures�circular-shaped, low-relief plaques, often polychrome wood, relating to ecclesiastical themes.

B. Sculpted Figures�wood carvings of figures relating to ecclesiastical themes, often with moveable limbs, usually with polychrome painting of skin and features; clothing might be sculpted and painted, or actual fabric clothing might be added.

C. Life-Sized Sculptures�full figure wood carvings of figures relating to ecclesiastical themes, often with polychrome painting using the estofado technique, and occasionally embellished with metal objects such as halos, aureoles, and staves.

VII. Painting�paintings illustrating figures, narratives, and events relating to ecclesiastical themes, usually done in oil on wood, metal, walls, or canvas (linen, jute, or cotton).

A. Easel Paintings�pictorial works relating to ecclesiastical themes on wood, metal, or cloth (framed or applied directly to structural walls).

B. Mural Paintings�pictorial works, executed directly on structural walls, relating to ecclesiastical themes.

VIII. Metal�ritual objects for ceremonial ecclesiastical use made of gold, silver, or other metal, including monstrances, lecterns, chalices, censers, candlesticks, crucifixes, crosses, and tabernacles; and objects used to dress sculptures, such as crowns, halos, and aureoles, among others.

Archaeologists, Foreign Policy and the National Security State

Christina Luke, previously best known in collecting circles for her association with Nathan Elkins' notorious academic diatribe against a not-for-profit group that uses ancient coins to teach children about Roman history, has authored an article entitled, "U.S. Policy, Cultural Heritage, and U.S. Borders," 19 International Journal of Cultural Property 175 (2012) .

Luke, like many of her peers, appears to subscribe to the view that any artifact without a demonstrated provenance before 1970 should be deemed stolen.  She describes a system where this view has permeated into the State Department bureaucracy that makes the applicable regulations, and which is taught by archaeologists holding similar views to the enforcement arm of US Customs and Border Protection (CBP).

She maintains that the resultant crack down on collectors, museums and dealers is good for U.S. Foreign Policy and National Security, but cites little evidence other than self-serving statements of  several diplomats and off the record comments of unnamed CBP officials.

So does this system really benefit our foreign policy and national security?  Or is it just another special interest program to help archaeologists get access to excavations and which provides the US Cultural Bureaucrats with increased funding?

And even if there is some benefit to our foreign policy or national security, is it worth the costs and the burden associated regulations place on American businesses, collectors and museums?  Doesn't overregulation adversely impact the people to people contacts and cultural exchange collecting brings (at no cost to the US taxpayer)?

Our nation is in financial difficulty. Foreign aid for important projects like defeating Aids in Africa is under threat.  Under the circumstances, the programs Luke describes should be closely scrutinized for their real value.  In short, our courts are already open to foreign states that seek to repatriate objects.  So why should the U.S. taxpayer underwrite these efforts instead?

Motion to Dismiss in T-Rex Bataar Forfeiture Action

Here is a link to a motion to dismiss my firm, Bailey & Ehrenberg PLLC, filed in conjunction with Michael McCullough LLC.  The motion seeks to gain the return of a fossilized T-Rex Bataar skeleton to its rightful owner, a Florida small businessman who spent considerable time, effort, money and expertise in preparing and mounting the composite specimen for sale: https://docs.google.com/file/d/0B9sH3ETMwSWiNWVNTkxCakp0bnM/edit

One needs a Google account to review it.

As we observe,

It may or may not be time to regulate fossil collecting like antiquities collecting, but surely any such regulatory effort should only be accomplished prospectively through the legislative or administrative process rather than retroactively through a forfeiture action prompted by a media frenzy and foreign politics. The Government should not be allowed to seize property based upon obscure foreign laws or unwritten interpretations of �country of origin� or valuation rules for fossils. Moreover, the Government has not alleged sufficient facts to establish a reasonable basis to believe that it could meet its burden to prove that the Display Piece was �stolen.� For all these reasons, the Complaint should be dismissed.

Romney Picks Ancient Coin Collector Supporter as VP Choice

Mitt Romney has picked Congressman Paul Ryan as his VP Choice.   Congressman Ryan's office took the lead on a letter to the State Department that expressed concerns about the Italian MOU.  However, it's also worth noting that the letter was a bipartisan one, and the concerns expressed by coin collectors on how State and Customs have abused their statutory authority are non-partisan as well.

Revised MOU Confirms Restrictions Wrongly Placed on Coins?

The CPIA, 19 U.S.C. Section 2602 (a) (1) (C) (ii) limits restrictions only to circumstances where less drastic remedies are unavailable.

Testimony during CPAC�s public session to discuss a renewal of the MOU with Cyprus established that the use of metal detectors was responsible for any looting of historical coins from the Island.

Yet, after 5 years of restrictions on �coins of Cypriot type� the renewed MOU available under "What's New"  on the Cultural Heritage Center webstite states,

"The Government of the Republic of Cyprus will use its best efforts to enforce applicable laws and regulations regarding the use of metal detectors."

Isn�t this an admission that self-help measures on metal detectors were never really tried FIRST before import restrictions were placed on coins?

And if so, doesn�t this just help confirm that the State Department�s and CBP�s controversial decision to impose import restrictions on coins was based not on an application of the law to the facts but rather on cronyism and some behind the scenes lobbying of then Undersecretary Nicholas Burns?

US Government Appeals SLAM Decision

The US Government has appealed the decision to dismiss its effort to seek the forfeiture of the Ka Nefer Nefer Mask.  It has been reported such decisions are made by the same US State Department and Customs and Border Protection cultural bureacracy responsible for imposing import restrictions.  If so, one wonders if the appeal is at least in part an effort to throw a lifeline to Zahi Hawass, who after all has sought to bolster his position with the Egyptian Government through being "indispensible" for the protection of Egyptian cultural property.

Government Seeks Third Bite at the Apple

The Government has filed a second motion for reconsideration of a US District Court's decision to dismiss its forfeiture complaint against the Ka Nefer Nefer mask owed by the St. Louis Museum of Art (SLAM).  The Government now claims that the Court should accept an amended complaint that questions the mask's provenance.  Even if one accepts the Government's claim that the mask's provenance was false, I'm not sure that establishes that the mask is "stolen" so that it may be forfeited.

In any event, the Court should deny this second motion for reconsideration as it did the first.  If the Government believes that it has a good faith basis to appeal the Court's dismissal of its forfeiture complaint, it should do so.  Filing multiple motions for reconsideration seems little more than an effort to drive up SLAM's legal costs and to buy more time for the multiple federal agencies involved to decide whether to file an appeal.  (Filing of such motions typically tolls the time in which an appeal may be filed.  As it is, the Government gets 60 days-- rather than the usual 30 days-- to appeal.)

The Government's motion is available on-line for those with a "Pacer" account with the federal court system.

Rutgers Publishes Urice and Adler Piece on Lawless State Department and CBP Actions in Cultural Property Field

The Urice and Adler article detailing the US State Department's and U.S. Customs' lawless approach to cultural property law has appeared on the Rutgers Law Review website here:  http://www.rutgerslawreview.com/current-issue/ and http://www.rutgerslawreview.com/wp-content/uploads/archive/vol64/Adler_&_Urice_Macro%20Version.pdf



The article touches on the ACCG test case, currently before the US Court of Appeals for the Fourth Circuit.  In it, the authors state,



Cultural property policy in the United States has become increasingly lawless, for lack of a better term. In recent years, the executive branch has aggressively restricted the movement of cultural property into the United States, but it has repeatedly done so without regard for constraining legal authority. The result is a troubling disjunction between the executive branch�s (the �Executive�) current cultural property policies and the existing legal framework established by Congress and the Judiciary.

No Shipment to the USA

One of the major Swiss coin auction houses has announced that it will no longer ship ancient coins to the USA, due to the growing list of import restrictions (and presumably recent problems importers have had with US Customs with regard to unrestricted ancient coins).

Here is the communication that has been sent by Sincona (formerly the numismatic arm of UBS) to US bidders:

Dear Mr. xxx

We would like to thank you very much for your bids.

Due to specific US customs regulations, Sincona is no longer shipping ancient coins into the USA!

Either you can personally pick up your auction lots at our office in Zurich (or having someone to do so on your behalf) or you have to provide us with a mailing address within the European Community, where we can send your purchase. If we do not receive your respective directives within 48 hours before the sale, we are sorry but cannot accept your bids for ancient coins!

Thank you for your understanding.

Elements within the AIA, the archaeological blogosphere, and cultural bureaucracies here and abroad will no doubt [at least secretly] applaud such developments.  On the other hand, others may now conclude that any speculative benefit import restrictions may have on the protection of archaeological sites is far outweighed by the direct,  negative consequences they undoubtedly also have on US small businesses, collectors, and ultimately the study, preservation and appreciation of ancient coins and the cultural exchange it fosters.