The U.S. District Court for the Eastern District of New York has sentenced Mousa ("Morris") Khouli to six months of home detention and one year probation for smuggling Egyptian antiquities by way of false declarations on customs forms. The prosecutor had asked for 46-57 months of incarceration, but the Court evidently was swayed by a sentencing memorandum prepared by Khouli's lawyer that outlined the relatively modest sentences given for other "cultural property" crimes.
The blood-thirsty archaeological blogosphere will likely be aghast at the length of the sentence. But then again, as set forth in the declaration of Jay Kislak appended to ACCG's recently filed petition for rehearing there is credible evidence to suggest that certain individual(s) at the US Department of State misled Congress and the public in official reports about import restrictions on Cypriot coins and have yet to be called into account in any fashion whatsoever.
Is it really more serious to mislead on a customs form than in an official government report sent to Congress? And let's not forget that the very same State Department bureaucrats involved in the Cypriot coin controversy are also intimately involved in coordinating repatriations like that at issue in the Khouli case through the State Department's "Cultural Antiquities Task Force." Why should they be above the law?
Showing posts with label criminal liability. Show all posts
Showing posts with label criminal liability. Show all posts
Big Brother Will Be Watching You
Or so ICOM hopes in its effort to gain funding from the cash poor EU to help promote its continuing propaganda effort against the antiquities trade and at the same time perhaps provide some additional gainful employment for academics with an axe to grind against collectors.
I'm afraid this proposal looks to be little more than a state sponsored version of Wikiloot. Any funding would be better spent on promoting more effective enforcement in source countries, and better yet more liberal laws in such countries that actually promote the public to get involved in preserving heritage.
I'm afraid this proposal looks to be little more than a state sponsored version of Wikiloot. Any funding would be better spent on promoting more effective enforcement in source countries, and better yet more liberal laws in such countries that actually promote the public to get involved in preserving heritage.
Should the Shultz Conviction Be Vacated?
In order to convict Fred Shultz of theft of Egyptian cultural property, the Government put on testimony that Egyptian Law 117 of 1983 unequivocally asserted state ownership of all antiquities and that private ownership, possession and disposal of such antiquities was prohibited. See United States v. Shultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002).
Now that the Mubarak regime has fallen, however, an Egyptian academic has asserted that Mubarak, along with his predecessors, gave antiquities from the Egyptian museum away as gifts. Arguably then, because Fred Shultz's conviction was based on incomplete-- if not false testimony-- from Egyptian officials, in the interests of justice it should be vacated.
Interestingly, while Egyptian cultural authorities deny artifacts were gifted by President Mubarak, they do admit that antiquities were gifted before that time.
If so, shouldn't this news also support the dismissal of the Government's case against SLAM because it indeed shows the possibility that artifacts owned by the Egyptian government were gifted in the past?
Now that the Mubarak regime has fallen, however, an Egyptian academic has asserted that Mubarak, along with his predecessors, gave antiquities from the Egyptian museum away as gifts. Arguably then, because Fred Shultz's conviction was based on incomplete-- if not false testimony-- from Egyptian officials, in the interests of justice it should be vacated.
Interestingly, while Egyptian cultural authorities deny artifacts were gifted by President Mubarak, they do admit that antiquities were gifted before that time.
If so, shouldn't this news also support the dismissal of the Government's case against SLAM because it indeed shows the possibility that artifacts owned by the Egyptian government were gifted in the past?
"Blood Antiquities" or Stale Claim Against Legally Obtained Cultural Goods?
I am struck by the contrast between Sotheby's well-reasoned legal analysis of why the government's forfeiture action against its consigner's Cambodian statue should be dismissed and this well-written CNN opinion piece prepared by advocates for Cambodia.
Unfortunately, Sotheby's brief is not available on-line unless one has a "Pacer" account with the U.S. Court System. However, "Cultural Heritage Lawyer" and former SAFE VP Rick St. Hilaire has provided us with his own analysis. Though St. Hilaire is also associated with the archaeological community, his summary does appear to convey most of Sotheby's arguments accurately.
It will be interesting to read the Government's response. But why has the U.S. Government taken sides at all? Cambodia has plenty of friends in the archaeological community, including more than a few lawyers. They should be pursuing any claims Cambodia may have rather than making the U.S. taxpayer foot the bill for such a stale claim that dates back at least to the 1970's (if you believe the Government) or perhaps far earlier (if you believe Sotheby's).
Unfortunately, Sotheby's brief is not available on-line unless one has a "Pacer" account with the U.S. Court System. However, "Cultural Heritage Lawyer" and former SAFE VP Rick St. Hilaire has provided us with his own analysis. Though St. Hilaire is also associated with the archaeological community, his summary does appear to convey most of Sotheby's arguments accurately.
It will be interesting to read the Government's response. But why has the U.S. Government taken sides at all? Cambodia has plenty of friends in the archaeological community, including more than a few lawyers. They should be pursuing any claims Cambodia may have rather than making the U.S. taxpayer foot the bill for such a stale claim that dates back at least to the 1970's (if you believe the Government) or perhaps far earlier (if you believe Sotheby's).
Research or Advocacy on "Organized Crime" and the Antiquities Trade?
Chasing Aphrodite has interviewed Simon Mackenzie, an academic associated with the archaeological lobby, about his EU funded �research� into �organized crime� and the antiquities trade. See http://chasingaphrodite.com/2012/06/04/the-antiquities-trade-as-organized-crime-glasgow-team-digs-deep-into-the-market-for-ancient-art/
I�ve been dubious that academics with an axe to grind against collectors could really be expected to produce anything other than advocacy dressed up as "research" to help justify more clamp downs on collectors, museums and dealers, and greater funding for cultural bureaucracies and law enforcement. See http://ordinarymag.blogspot.com/2012/02/your-european-tax-euros-at-work.html If anything, this Chasing Aphrodite interview only seems to confirm those concerns.
In that regard, I would note that Mackenzie rejects the notion that overregulation creates a black market and defines �organized crime� quite broadly to include any three or more persons acting in concert to violate some some source country regulation, no matter how draconian. For instance, I presume under this definition an Italian farmer and his two sons who fail to turn over ancient coins they find on their own land to the State which will not compensate them are involved in �organized crime.� And what of a tourist who buys inexpensive antiquities for his children sold quite openly in a shop in Rome, but the shop owner refuses to go through the bother of securing export licenses for such insignificant artifacts? Would Mackenzie and friends treat such tansgressions as "serious" enough to constitute "organized crime" too? I bet they would.
I�ve been dubious that academics with an axe to grind against collectors could really be expected to produce anything other than advocacy dressed up as "research" to help justify more clamp downs on collectors, museums and dealers, and greater funding for cultural bureaucracies and law enforcement. See http://ordinarymag.blogspot.com/2012/02/your-european-tax-euros-at-work.html If anything, this Chasing Aphrodite interview only seems to confirm those concerns.
In that regard, I would note that Mackenzie rejects the notion that overregulation creates a black market and defines �organized crime� quite broadly to include any three or more persons acting in concert to violate some some source country regulation, no matter how draconian. For instance, I presume under this definition an Italian farmer and his two sons who fail to turn over ancient coins they find on their own land to the State which will not compensate them are involved in �organized crime.� And what of a tourist who buys inexpensive antiquities for his children sold quite openly in a shop in Rome, but the shop owner refuses to go through the bother of securing export licenses for such insignificant artifacts? Would Mackenzie and friends treat such tansgressions as "serious" enough to constitute "organized crime" too? I bet they would.
Overaggressive US Prosecutors Basing Sotheby's Seizure on Repealed Foreign Law?
It appears that the US Government is hinging its seizure of a valuable statue from Sotheby�s based upon French colonial era laws that were repealed when the Khmer Rouge took power. See http://www.nytimes.com/2012/02/29/arts/design/sothebys-caught-in-dispute-over-prized-cambodian-statue.html?ref=design
However, even assuming such colonial era laws vested absolute title over the statue in question in the Cambodian state, there is a real question whether they remain in force today. This is what a UN Report has to say on the subject.
According to Article 158 of the 1993 Constitution, laws and regulations which safeguard state property, as well as the rights and property of private individuals, and are consistent with the national interest, continue to be in force unless and until they are amended or repealed, except to the extent that they are contrary to the spirit of the Constitution. There have been sharp disagreements in the interpretation of this Article, between those who would prefer to limit its effect to those laws and regulations which were actually in force immediately before the entry into force of the 1993 Constitution, and those who seek to use its provisions to revive laws which had been in force prior to the Khmer Rouge regime, but have in effect been repealed by the Khmer Rouge. It is an issue which would need to be addressed and successfully resolved, through passage of fresh legislation, if need be, if the objectives of the publication of laws are to be fully achieved.
See http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN004695.pdf
This issue obviously requires additional research, but it again raises the legitimate question whether collectors, museums, dealers and auction houses should be subject to civil and/or criminal liability based on the vagaries of foreign law.
However, even assuming such colonial era laws vested absolute title over the statue in question in the Cambodian state, there is a real question whether they remain in force today. This is what a UN Report has to say on the subject.
According to Article 158 of the 1993 Constitution, laws and regulations which safeguard state property, as well as the rights and property of private individuals, and are consistent with the national interest, continue to be in force unless and until they are amended or repealed, except to the extent that they are contrary to the spirit of the Constitution. There have been sharp disagreements in the interpretation of this Article, between those who would prefer to limit its effect to those laws and regulations which were actually in force immediately before the entry into force of the 1993 Constitution, and those who seek to use its provisions to revive laws which had been in force prior to the Khmer Rouge regime, but have in effect been repealed by the Khmer Rouge. It is an issue which would need to be addressed and successfully resolved, through passage of fresh legislation, if need be, if the objectives of the publication of laws are to be fully achieved.
See http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN004695.pdf
This issue obviously requires additional research, but it again raises the legitimate question whether collectors, museums, dealers and auction houses should be subject to civil and/or criminal liability based on the vagaries of foreign law.
Half-Truths from a Self-Styled "Cultural Heritage Lawyer?"
Self-styled "Cultural Heritage Lawyer" and past SAFE VP/ New Hampshire Prosecutor Rick St. Hilaire thinks that more people should go to jail for "crimes against cultural property." As evidence, St. Hilaire notes that while CBP reports some 2,500 artifacts have been seized and returned to their supposed countries of origin, actual criminal prosecutions are few. See http://culturalheritagelawyer.blogspot.com/2012/03/seize-and-send-v-investigate-and-indict.html
Yet, St. Hilaire is wrong to assume that any artifact seized by Customs "must be looted." Instead, as I noted in a comment to his blog that he has so far refused to publish:
You might also note that much, if not most, of the material seized and returned is abandoned by the importer. You assume it is because it is looted; in actuality it may very well be because the litigation costs of fighting CBP greatly exceed the value of the artifact. As for the lack of prosecutions, that likely has to do with the fact that the Government cannot show criminal intent. Thankfully, that is still required despite efforts of archaeological fanatics to diminish this bedrock protection of American law.
And if anything, three knowledgeable practitioners confirmed at a DC Bar program I just attended, entitled "What Every Lawyer Needs to Know About Customs and Customs Law 2012," that CBP's modus operandi is all too often to seize all sorts of things for the slimmest of reasons (mostly for supposed "trade mark" or drug importation violations), confident in the knowledge that it is often not worth the trouble to fight to get them back.
This is a national disgrace that has much to do with CBP's change in focus from a "revenue collecting agency" under Treasury to a "national security agency" under Homeland Security. As such, statistics on repatriations are nothing CBP should be bragging about, let alone being used to support a claim that more criminal prosecutions are warranted.
Yet, St. Hilaire is wrong to assume that any artifact seized by Customs "must be looted." Instead, as I noted in a comment to his blog that he has so far refused to publish:
You might also note that much, if not most, of the material seized and returned is abandoned by the importer. You assume it is because it is looted; in actuality it may very well be because the litigation costs of fighting CBP greatly exceed the value of the artifact. As for the lack of prosecutions, that likely has to do with the fact that the Government cannot show criminal intent. Thankfully, that is still required despite efforts of archaeological fanatics to diminish this bedrock protection of American law.
And if anything, three knowledgeable practitioners confirmed at a DC Bar program I just attended, entitled "What Every Lawyer Needs to Know About Customs and Customs Law 2012," that CBP's modus operandi is all too often to seize all sorts of things for the slimmest of reasons (mostly for supposed "trade mark" or drug importation violations), confident in the knowledge that it is often not worth the trouble to fight to get them back.
This is a national disgrace that has much to do with CBP's change in focus from a "revenue collecting agency" under Treasury to a "national security agency" under Homeland Security. As such, statistics on repatriations are nothing CBP should be bragging about, let alone being used to support a claim that more criminal prosecutions are warranted.
Addendum (3-9-12): Apparently Mr. St. Hilaire is so threatened by alternate views that he has now disabled comments to his blog. He has also deleted an automatic link to this blog, but has retained a link that of fellow archaeo-blogger Paul Barford's work. Talk about half-truths! This is a major problem with the approach of the archaeological community and their supporters to this discussion. All too often they consider their own "archaeology over all" world view as the only legitimate one and seek to suppress the views of others, particularly those representing so-called "commercial interests." But isn't this just archaeological snobbery?
Looking Foolish
Egypt's cultural bureaucracy and more than a few shoot first ask questions later archaeologists and media outlets are looking foolish after a bust for supposed antiquities smuggling unravelled in a big way.
For more, see http://luxortimesmagazine.blogspot.com/2012/02/we-demand-official-apology.html and http://www.independent.co.uk/news/world/africa/british-couple-released-as-priceless-artifacts-they-were-smuggling-out-of-egypt-turn-out-to-be-cheap-market-fakes-7447085.html
Egypt is desperate for foreign tourists. Stories like this will rightly scare even more away.
For more, see http://luxortimesmagazine.blogspot.com/2012/02/we-demand-official-apology.html and http://www.independent.co.uk/news/world/africa/british-couple-released-as-priceless-artifacts-they-were-smuggling-out-of-egypt-turn-out-to-be-cheap-market-fakes-7447085.html
Egypt is desperate for foreign tourists. Stories like this will rightly scare even more away.
Chasing Saddam's Butt
UK police have arrested a British veteran and have charged him with trying to sell a piece of a Saddam statute given to him by US Marines following the fall of Baghdad. See http://www.guardian.co.uk/uk/2012/jan/19/man-arrested-buttock-saddam-hussein-statue
The retired British special forces soldier had hoped to donate the proceeds to wounded veterans, but when the Iraqi Embassy got wind of the sale, they evidently demanded that British polices seize the item as their "cultural property."
The veteran has it right:
Describing the furore surrounding the buttock as farcical, Ely questioned how a piece of metal from a statue put up by a dictator could be classified as national cultural property.
The ex-soldier asked: "How can it be classed as cultural property when it was put up by the biggest tyrant since Attila the Hun?"
Ely believes that Iraqi officials decided to demand the return of the war relic after seeing media coverage of its value.
"American Marines gave it to me and at that time Baghdad was under American control," he added. "There wasn't even an Iraqi government and I have since turned it into a piece of war relic art.
"This is like having a chunk of the Berlin Wall � it's part of history but it's not cultural property."
The retired British special forces soldier had hoped to donate the proceeds to wounded veterans, but when the Iraqi Embassy got wind of the sale, they evidently demanded that British polices seize the item as their "cultural property."
The veteran has it right:
Describing the furore surrounding the buttock as farcical, Ely questioned how a piece of metal from a statue put up by a dictator could be classified as national cultural property.
The ex-soldier asked: "How can it be classed as cultural property when it was put up by the biggest tyrant since Attila the Hun?"
Ely believes that Iraqi officials decided to demand the return of the war relic after seeing media coverage of its value.
"American Marines gave it to me and at that time Baghdad was under American control," he added. "There wasn't even an Iraqi government and I have since turned it into a piece of war relic art.
"This is like having a chunk of the Berlin Wall � it's part of history but it's not cultural property."
More Thoughts on Stuart Campbell's Ruler
During CPAC's recent public meeting about the proposed Bulgarian MOU, I borrowed a page from Stuart Campbell, a Scottish archaeologist and government official, to suggest most people consider illicit excavations to be no worse than a traffic violation.
Of course, not all illicit excavations are equal. Here is how I would rank them from the most troubling to the least:
Illicit excavations from world heritage sites;
Illicit excavations from active archaeological sites;
Illicit excavations from inactive archaeological sites;
Illicit excavations from archaeological sites that are obvious, but have not been excavated;
Illicit excavations from mounds of excavated dirt on inactive archaeological sites;
Illicit excavations from private land where there are no obvious archaeological features;
Illicit excavations from private land that already has been disturbed by ploughing.
Properly record what they find;
Properly publish what they find;
Properly preserve what they find;
Properly display what they find.
Where would archaeologists rank theses sins? Are they any worse than illicit excavations?
Of course, not all illicit excavations are equal. Here is how I would rank them from the most troubling to the least:
And speaking of "wrongs," where would most people rank any failure of archaeologists to:
Where would archaeologists rank theses sins? Are they any worse than illicit excavations?
Mubaraks Allegedly Pocketed Money From Ticket Sales for Travelling Exhibits: Are the Feds Going to Investigate Here?
An Egyptian newspaper has published allegations that the Mubarak family skimmed monies from ticket sales of travelling exhibits of Egyptian antiquities. See
http://www.almasryalyoum.com/en/node/480908
The report also indicates that Zahi Hawass (is he in or out?) has denied the allegations.
One suspects this is just the tip of the iceberg. The other question that should be investigated is whether US archaeologists or institutions that helped facilitate these exhibits also helped facilitate such corrupt practices.
US Government prosecutors have shown how aggressive they can be in breaking up alleged smuggling rings for Egyptian artifacts of limited cultural and artistic value. But, how aggressive are they when it comes to investigating corrupt practices that may have bilked US institutions and tax payers out of millions of dollars? Not very, apparently.
http://www.almasryalyoum.com/en/node/480908
The report also indicates that Zahi Hawass (is he in or out?) has denied the allegations.
One suspects this is just the tip of the iceberg. The other question that should be investigated is whether US archaeologists or institutions that helped facilitate these exhibits also helped facilitate such corrupt practices.
US Government prosecutors have shown how aggressive they can be in breaking up alleged smuggling rings for Egyptian artifacts of limited cultural and artistic value. But, how aggressive are they when it comes to investigating corrupt practices that may have bilked US institutions and tax payers out of millions of dollars? Not very, apparently.
Bad Paperwork
You might not know it from the Immigration and Customs Enforcement ("ICE") publicity machine or the musings of archaeobloggers Gill and Barford, but the indictment in United States v. Khouli, et al., really comes down to the issue of whether the Defendants submitted proper paperwork to the Government when they imported Egyptian artifacts from Dubai, United Arab Emirates.
The main issues relate to declarations of country of origin and value of the merchandise in question. But it remains to be seen whether the government is able to prove "scienter" or "guilty knowledge"as to either. There is confusion in the trade and even Customs itself as to what to put into the "country of origin" box when it comes to ancient art. In addition, values of ancient artifacts are based on the purchase price in an arms length transaction. Dealers buy low and sell high. And sometimes the government has been known to fib as to the value of the artifacts that are seized (in addition to claiming that they are priceless).
Troublingly though, this does appear to be a major expansion of the government's war on collecting. This is usually the stuff of civil forfeiture actions, not criminal claims. Moreover, I'm not aware of collectors being subject to criminal charges in the past.
For the ICE press release, see http://www.ice.gov/news/releases/1107/110714newyork.htm.
The main issues relate to declarations of country of origin and value of the merchandise in question. But it remains to be seen whether the government is able to prove "scienter" or "guilty knowledge"as to either. There is confusion in the trade and even Customs itself as to what to put into the "country of origin" box when it comes to ancient art. In addition, values of ancient artifacts are based on the purchase price in an arms length transaction. Dealers buy low and sell high. And sometimes the government has been known to fib as to the value of the artifacts that are seized (in addition to claiming that they are priceless).
Troublingly though, this does appear to be a major expansion of the government's war on collecting. This is usually the stuff of civil forfeiture actions, not criminal claims. Moreover, I'm not aware of collectors being subject to criminal charges in the past.
For the ICE press release, see http://www.ice.gov/news/releases/1107/110714newyork.htm.
Subscribe to:
Posts (Atom)