| here.]
Find the complete press release describing the seizure and issued by ICE here. Also, listen to Chucha Barber, the Brogan Museum’s chief executive officer, who provides a short audio sketch of the ownership claims to the painting on PRI's The World. Thanks go to Gary Nurkin for alerting me to this news.
Part II. Sumber http://thetrialwarrior.blogspot.com/
| Part I for a discussion of the US government's asserted legal claims in this case.
Sumber http://thetrialwarrior.blogspot.com/
US v. Khouli et al. asks for a change of venue. The defense argues that personal and financial hardships faced by Alshdaifat, a Michigan resident, urge a transfer of the case from the federal district court in New York to Detroit.
The motion provides a possible preview into some of the defenses that may be available in the case, including: - a characterization of the charged conduct as “regulatory-based criminal charges,”
- a claim that the objects that are the subject of the multi-count indictment are neither stolen nor contraband, and
- an argument that Alshdaifat was a middle man who did not possess criminal intent.
A federal grand jury charged Alshdaifat in May 2011 with conspiracy to smuggle, alleging that he directed Mousa Khouli to wire $20,000 to Ayman Ramadan’s UAE bank account and that Alshdaifat received an airway bill from bulan pahala showing that “wooden panels” were being shipped by Ramadan’s company in the United Arab Emirates to JFK airport in New York. Moreover, Alshdaifat is charged with money laundering conspiracy. He is also charged with smuggling goods into the country as well as fraudulent importation and transportation of goods. The indictment describes the goods as an Egyptian inner coffin, Egyptian funerary boats and limestone figures, and a portion of an outer lid of a nesting Egyptian coffin set. (A grand jury indictment is a mechanism that initiates a criminal case; it is not a finding of guilt.) Writing in support of the motion for change of venue, Alshdaifat’s attorney previews the possible defenses in the case. The following are excerpts from the Memorandum of Law dated November 21, 2011: - “The facts surrounding these charged criminal violations of the Customs laws arise out of the importation of rare Egyptian antiquities, including a three-piece set of sarcophagi and other funerary objects. These artifacts were allegedly shipped to the United States in several packages, variously by international air mail and by private air and sea carriers. The government does not claim that the Egyptian artifacts were stolen or were otherwise contraband when they entered the country. Instead, the government's charges rest on a theory that the alleged conspirators willfully falsely or vaguely declared these artifacts in entry documents into the United States because the importer purportedly had insufficient or incomplete documents of origin for the objects and this might have caused them to be detained at a United States port-of-entry if detected.” (emphasis in the original)
- “Mr. Alshdaifat was neither the U.S. importer nor the foreign exporter of the subject Egyptian artifacts. Based on the government's own claims, he is alleged to have been the “finder” or middleman that put the alleged foreign source of the artifacts (defendant [Ayman] Ramadan) in contact with the U.S. importer, or interested antiquities dealer (defendant [Mousa] Khouli). Despite being charged with a role that essentially ended prior to the importation process, Mr. Alshdaifat is charged with his co-defendants for knowingly participating in making false or intentionally incomplete statements on shipping labels on various shipments of these Egyptian antiquities. The government's claims against Mr. Alshdaifat, therefore, rely on findings that he knew and intentionally joined a conspiracy to falsely declare the Egyptian artifacts in their shipment to the United States after his role in being a broker to the transactions was already completed.” (emphasis in the original)
- “In the Egyptian sarcophagi transactions, however, Mr. Alshdaifat only had a broker's interest and did not deal in the artifacts himself. Somehow, however, he now finds himself charged together with the principals of those transactions for allegedly violating technical Customs laws in the mailing and shipping of the merchandise, a process in which he did not participate.”
- “The government’s position in support of criminal liability on the charged air mail shipments is based largely on the claim that Mr. Alshdaifat's co-defendants put these pieces in international mail or on an airplane as air cargo without completing more formal U.S. Customs paperwork with the specific intent to avoid Customs’ detection of these shipments and break U.S. Customs' law. No lay witnesses exist to testify as to whether a defendant's act of putting these parcels in the mail or on an airplane constituted an intentional and clandestine conspiratorial effort to get the charged, legal merchandise into the United States.” (emphasis in the original and footnote omitted)
- “In any event, Mr. Alshdaifat is not even implicated in the government's discovery with doing anything – in New York or elsewhere – to assist in the importation of the merchandise. He is charged with putting the alleged source of the Egyptian coffins and artifacts (defendant [Ayman] Ramadan) in contact with the New York antiquities dealer who purchased them (defendant [Mousa] Khouli). The government must concede that Mr. Alshdaifat was neither the importer nor exporter of the charged shipments, and therefore had no role in the actual shipment of the merchandise, i.e., the packaging, labeling and placing of the merchandise in international mail. As such, he never had any contacts with New York.”
- “The government does not charge that the Egyptian coffins and funerary objects were stolen property. The objects imported, therefore, are not contraband or unlawful to possess in the United States. The government's claims in this Indictment rest instead on the precarious theory that the method in which the artifacts were shipped into the United States was intentionally fraudulent even though the goods themselves were not banned or prohibited from entry. Indeed, the government does not even claim that the method of importation was intentionally fraudulent to avoid import duties, since antiquities are excluded from any import tax.” (emphasis in the original)
The defense contends that the government’s conduct materially affected Alshdaifat’s business. Alshdaifat writes in a Declaration to the court dated November 21, 2011 that he started dealing in ancient coins in Canada, selling them primarily over the internet and at international trade shows. He describes himself as a specialist in ancient Judean coins who gained admission to many coin auction houses and membership associations. Alshdaifat adds that he was the moderator of the “Judean ancient coin section for the largest numismatic worldwide web community.” Defense counsel’s Memorandum of Law explains: “Mr. Alshdaifat's circumstances are particularly extraordinary. These include the fact that from his initial arrest, the government stacked the deck against him, making it untenable for him to get his fair day in court. On July 13, 2011, the government arrested Mr. Alshdaifat in his Michigan home and confiscated his entire business inventory of ancient coins, thereby effectively shutting his business down. It did so despite the fact that the criminal charges in the Indictment had nothing to do with Mr. Alshdaifat's coin business. Subsequently, the government returned his coins but not until his business suffered a crushing, and possibly, fatal blow. Mr. Alshdaifat's reputation as an honest coin dealer has been battered; more importantly, he has been removed or suspended from all of the auction houses where he sold his coins. His business is in dire shape.” (emphasis in the original)
Information supplied to the court describes the relationship between Alshdaifat and co-defendant Ayman Ramadan. Court papers remark that “Mr. Alshdaifat has purchased ancient coins before from defendant bulan pahala in the United Arab Emirates ("U.A.E.") and has sold coins to defendant Khouli in New York. That is how he knew two of the other parties charged in this Indictment.”
United States Customs and Border Protection today issued the tamat administrative rule covering import restrictions covering archaeological and ethnological material from Greece. The rule follows the July 17, 2011 adoption of a memorandum of understanding (MoU) between the United States and Greece under the Cultural Property Implementation Act in accord with the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. The MoU entered into force on November 21, 2011 and can be found here.
 | Greek mosaic.
Source: Bijan. CC. |
Import protections are now in place on Greek archaeological and ethnological cultural items dating from around 20,000 B.C. through the 15th century A.D. These restrictions last for five years and were instituted in order to "control illegal trafficking of such articles in international commerce" and to protect "endangered cultural property," according to the rule.
Ancient objects subject to seizure at the American border include those made of stone, metal, ceramic, bone, ivory, glass, faience, textile, papyrus, paint, mosaic, wood, glass, and parchment. The import restrictions cover sculptures, sarcophagi, reliefs, furniture, vessels, tools, weapons and armor, coins, beads, pottery, musical instruments, documents, paintings, floor mosaics, and more.
Lawful entries of these specified cultural objects are permitted in certain cases. For example, a valid export permit from Greek authorities would allow an archaeological or ethnological cultural object to enter the US border.
The Federal Register has published the rule at 19 CFR Part 12. Click here for the full text.
Sumber http://thetrialwarrior.blogspot.com/
 | Tamucumira Mask.
One of the Bolivian objects subject to
CPIA import regulations.
Photo courtesy US State Dept. |
The US government has extended import protections over archaeological and ethnological objects from Bolivia. The two governments entered into a bilateral agreement in 2001 pursuant to the Cultural Property Implementation Act (CPIA), which gives force to the 1970 UNESCO Convention (the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and transfer of Ownership of Cultural Property). Import restrictions under the agreement last five years and may be renewed each period. Bolivia received emergency protection under the CPIA in 1989. A bilateral agreement, or Memorandum of Understanding (MoU), was finalized in 2001, and the US government renewed that MoU in 2006. The latest renewal occurred earlier this year. The Federal Register reports:
"On August 26, 2011, after reviewing the findings and recommendations of the Cultural Property Advisory Committee, the Acting Assistant Secretary for Educational and Cultural Affairs, United States Department of State, concluding that the cultural heritage of Bolivia continues to be in jeopardy from pillage of certain archaeological and ethnological materials, made the necessary determination to extend the import restrictions for an additional five years. On November 10, 2011, diplomatic notes were exchanged reflecting the extension of those restrictions for an additional five-year period."
On December 1, 2011, US Customs and Border Protection published its selesai rule describing the specific import regulations. The rule may be found here. Thanks go to Gary Nurkin for news of the rule's publication. Sumber http://thetrialwarrior.blogspot.com/
| here for details.
Sumber http://thetrialwarrior.blogspot.com/
| dismissed its test case. The group initially filed the lawsuit hoping to challenge cultural heritage import protections enacted under the Cultural Property Implementation Act (CPIA). According to the government’s brief, “[o]n April 15, 2009, [the ACCG] transported [Chinese and Cypriot] coins from London to Baltimore with the intention of testing the validity of existing import restrictions. The invoice accompanying the coins identified each by type and indicated that each was minted in China or Cyprus, but provided no indication of when the coins first arrived in London (or any other information regarding the history of the coins).” Customs seized the ancient coins. The district court then struck down the ACCG’s challenge to the seizure after concluding that the group failed to make out a sufficient case to show that the government acted outside its legal authority.
The ACCG filed an appellate brief with the federal circuit court on October 31, 2011, arguing that the enactment and application of the import controls by the State Department and/or Customs and Border Protection (CPB) was unlawful and should be reviewed under the standards of the Administrative Procedures Act (APA). (The APA is the law that instructs federal agencies about how they must establish administrative regulations. The Act also outlines the procedures by which administrative decisions are reviewed by the courts.) The ACCG also argued in its brief that the United States government could not issue cultural property import protections on certain ancient coins since China allegedly did not request the import restrictions. The group further explained that the CPIA’s import controls require federal officials to prove an ancient coin’s find spot before it can be seized. The United States’appellate brief, filed on January 13, 2012, counters these claims.
Attorneys for the United States contend in their brief that its agencies followed the rules while the ACCG did not follow the process. The government's lawyers write that the ACCG should have followed the forfeiture process established by Congress. Instead, the ACCG filed a lawsuit. “The CPIA’s provisions regarding seizure and forfeiture, in concert with the pre-existing statutory scheme addressing forfeiture proceedings, set forth a process by which claimants may contest a threatened forfeiture,” the government argues. Federal lawyers state that the “APA authorizes judicial review of agency action only ‘for which there is no other adequate remedy in a court.’ The circumstances in which extra-statutory review is available are similarly limited. Here, however, Congress has expressly provided for challenges to the seizure and forfeiture of materials under the CPIA through the established mechanism of administrative or judicial forfeiture proceedings.”
At the time of the attempted import of the coins in Baltimore, lawyers for the United States say that “Customs provided [the ACCG] with the opportunity to present a certification of lawful export or other evidence establishing a right to entry . . . . [but the ACCG] disclaimed any ability to present such evidence. On July 20, 2009, Customs seized the coins, and explained that – in light of [the ACCG’s] representations – the items would be subject to summary forfeiture absent a request by plaintiff for judicial proceedings.” Government lawyers say that even though the ACCG requested a judicial forfeiture proceeding in September 2009, “Plaintiff [ACCG] did not await the commencement of judicial forfeiture proceedings by the U.S. Attorney’s Office. Rather, on February 11, 2010 – five months after requesting such proceedings – plaintiff commenced this suit to challenge the seizure of its ancient Chinese and Cypriot coins.” The government observes that “Plaintiff [ACCG] has invoked those procedures, but they have not occurred as this litigation has been ongoing. Plaintiff does not explain why its arguments should not be considered in the forum designated by Congress.”
Had the ACCG challenged the seizure of the coins through the congressionally prescribed forfeiture proceeding, it would have confronted a defined standard of proof requiring the ACCG to show that the coins were legal to import. The government’s brief describes the standard of proof that applies in a forfeiture proceeding: “the government must establish that the seized property is material that has been designated as restricted under [the CPIA]. After this initial showing, the burden shifts to the claimant [ACCG] to show that the property is not subject to forfeiture, or to establish an applicable affirmative defense.”
The United States rebukes the ACCG for short-circuiting the judicial forfeiture proceeding, avoiding its burden of proof, and claiming that the government acted beyond its authority (i.e. ultra vires). The government contends that the “Plaintiff [ACCG] cannot properly circumvent the statutory scheme established by Congress by asking a district court to review this seizure under the APA and under the rubric of ultra vires review and . . . to further confound Congress’s intent by asking the court to disregard the burden of proof established by the CPIA.”
Attorneys for the United States further maintain that the ACCG has confused the meaning and requirements of the CPIA. They point out that “[t]o import the coins into the United States, plaintiff [ACCG] needed only to show that the coins had left Cyprus or China before the effective dates of the relevant Designated Lists. Plaintiff declined to offer any declaration to that effect, claiming that it could not offer the evidence required by the statute because it did not know whether the coins had been ‘first found in the ground’ of either China or Cyprus. But the CPIA quite plainly does not require plaintiff to know where the coins were ‘first found in the ground’; all that was required was information as to the whereabouts of the Cypriot coins as of July 16, 2007 and of the Chinese coins as of January 16, 2009.”
The government's lawyers pointedly draw attention to the fact that the President exercises his foreign affairs powers when acting pursuant to the CPIA. The attorneys highlight that “[t]he provisions of the CPIA confirm that Congress recognized that these judgments are imbued with foreign policy concerns.” They describe how “[t]he CPIA provides the President with broad power to apply import restrictions pursuant to MOUs he enters into with foreign States in furtherance of the United States’s obligations under the Convention on Cultural Property and with the goal of ‘promoting U.S. leadership[] in the preservation of cultural treasures.’” The attorneys point out that “Congress recognized that allowing illicitly excavated and trafficked artifacts to enter into the United States, thereby permitting a market in such goods, threatened our relationships with other nations, and that this legislation was thus “‘important to our foreign relations.’” They also explain that “the issues raised by the import of cultural goods are ‘distinct from the normal concerns of the reciprocal trade agreements jadwal or U.S. trade law.’”
The review of American foreign policy decisions by the courts essentially would be improper, suggests the brief, particularly where foreign policy considerations have other avenues of oversight. “Rather than involve the courts in an inquiry into the conduct of foreign affairs, Congress provided for political review by requiring the CPAC [Cultural Property Advisory Committee] to share its reports with Congress, and requiring the President to report actions taken to Congress,” says the government’s brief.
Federal lawyers contend that even if there is court review of the government’s implementation of import restrictions enacted under the CPIA, government agencies acted properly. Their brief asserts that “[i]f the Court concludes that some form of judicial review is nevertheless appropriate in these proceedings, it should affirm the district court’s conclusion that plaintiff has not stated a viable claim.”
In support of this argument, attorneys for the United States point out that the ACCG’s “primary contention is that its 22 ancient Cypriot and Chinese coins were unlawfully seized based on their ‘type.’ Plaintiff urges that, although the coins appear on the Designated Lists of restricted materials published by Customs, the coins must be allowed entry to the United States unless the government can prove, on a coin by coin basis, that each was first unearthed in Cyprus or China. The district court correctly concluded that plaintiff’s proposed scheme lacks any basis in the statute.” Therefore, the federal lawyers maintain that “[t]he Assistant Secretary [of State] exercised her judgment and discretion under the CPIA in determining that certain types of ancient Cypriot and Chinese coins qualify as the ‘archaeological material of the State Party’ and applying import restrictions to them. As the district court concluded, plaintiff’s approach can not (sic) be reconciled with the plain terms of the Act, is unworkable, and ‘would undermine the core purpose of the CPIA.’”
Attorneys for the United States also address in their brief the ACCG’s request for information. “[The ACCG’s] amended complaint alleged that ‘China never formally requested import restrictions on coins,’ and urged that the government’s restrictions on Chinese coins should thus be deemed invalid. This is unsurprising, since – as the government has previously noted – China’s request did, in fact, address ancient Chinese coins, as noted in the public summary of the request that is posted on the State Department’s website.” That said, federal lawyers declare that “the district court correctly rejected plaintiff’s request for discovery with regard to the precise contents of China’s diplomatic note requesting that the United States impose import restrictions under Article 9 of the Convention on Cultural Property. The United States has met all of its statutory obligations, and is not required to make such information public."
Finally, the government addresses the constitutional issues raised by the ACCG: “Plaintiff asserts that the import restrictions at issue 'impinge on collectors’ access to information materials' in a 'grossly overbroad' manner and are thus 'constitutionally suspect under both the First and Fifth Amendments.' Contrary to plaintiff’s characterization, the CPIA does not ban the sale of ancient coins or prevent individuals from accessing the information they offer. Rather, the [CPIA] allows the importation of the designated coins when particular requirements, which are designed to prevent the illicit trafficking of ancient artifacts that are under threat from pillage or looting, are satisfied. It is contrary to no recognized constitutional interest."
[Note: All quotes are from the government's appellate brief. Citations in the original have been omitted.]
Contact: www.culturalheritagelawyer.com Sumber http://thetrialwarrior.blogspot.com/
Even before trial begins and testimony is heard, the case against Joseph Lewis, II must be dismissed because the government cannot prove its case. That is what defense lawyers argue in a motion filed today in the US District Court, Eastern District of New York in the case of US v. Khouli et al. The lengthy memorandum of law contends that the government lacks sufficient evidence to proceed to trial based on the information supplied in discovery materials.
| here for background.
Despite being accused of wrongdoing related to the import of ancient Egyptian antiquities, defense lawyers contend that Lewis was not involved with the importation process at all. In fact, the only co-defendant Lewis had contact with at any time was Moussa Khouli, and that contact was after any object was imported into the United States, according to attorneys. This argument is buoyed by defense lawyers' statements asserting that Lewis had neither sent nor received any emails discussing importation of cultural artifacts with Khouli. Therefore, Lewis' lawyers argue that Lewis had no participation in the import process.
Lewis had every reason and motive to want the import process to be legal, the defense attorneys claim. Email exchanges between Khouli and Lewis never hinted at any illegal activity, they say. Lewis, in fact, never had any idea that any pieces were stolen, particularly after having been informed by Khouli in writing at least seven times that the Egyptian pieces were part of Khouli’s father’s collection in Israel during the 1960’s.
Moreover, defense counsel contends that prosecutors cannot prove that the items in questions were stolen. They highlight that there has been no assertion by Egypt that the items are in fact stolen. And if the prosecution argues that the incomplete provenance of the artifacts should have informed Lewis that the objects may have been stolen, defense lawyers cite journal articles to show that lack of provenance is common in the antiquities market and does not demonstrate that a cultural object is in fact stolen.
Lewis’ lawyers conclude that the lack of evidence cannot sustain a conviction, warranting a dismissal of the government's criminal case.
Contact: www.culturalheritagelawyer.com
Sumber http://thetrialwarrior.blogspot.com/
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