SLAM Mummy Mask Appeal: “You now have to beg for a do-over”

“All we want here is an opportunity to get in the gate,” argued U.S. Department of Justice Attorney Sharon Swingle before the Eight Circuit Court of Appeals yesterday. But Patrick McInerney, attorney for the St. Louis Art Museum (SLAM), told the court that he wanted finality in the government’s failed attempt to take the Ka Nefer Nefer mummy mask from his client.
Archaeologist Mohamed Zakaria Goneim discovered the more than 3,000 year old mask in Egypt in the 1950’s. Despite SLAM’s purchase of the mummy mask from a gallery in 1998 for approximately a half million dollars, authorities in the U.S. and Egypt say the mask remains a stolen object that was illegally removed from Egypt.
Government lawyers still want a chance to present this argument to the Missouri federal district court by filing a newly amended complaint that would restart the process to forfeit the Ka Nefer Nefer mask from SLAM. But they first need the approval of the court of appeals.The forfeiture case known as U.S. v. Ka Nefer Nefer was first begun in 2011 by the U.S. Attorney in St. LouisHowever, the lower courtdismissed the government’s claim in 2012, saying the the complaint was deficient. The district court turned the government down againafter attorneys tried to rejuvenate the case with a newly minted complaint alleging more facts surrounding the mask’s theft. Justice Department lawyers then appealed the district court’s technical decision dismissing the proceedings, setting the stage for Monday’s oral argument before a three judge appellate panel.

Circuit Court Judge James Loken bluntly observed during yesterday’s oral argument that the government made mistakes in the eyes of the district court and now, “You now have to beg for a do-over.” But Swingle protested that the grounds for the district court’s dismissal was not based on some “fundamental legal defect.” She stressed that the law favors deciding legal cases on their merits, not simply dismissing them before they are substantively argued. In fact, the law favors granting at least one opportunity to amend a complaint before dismissing it with prejudice, she argued.

McInerney contested Swingle’s assertions. “It’s really whether the government is entitled to an advisory opinion from the district court, with the help of defense counsel here, as to what the proper pleading elements are for their claim under the Tariff Act. Because that’s really what they want.”

If the government were successful in its appeal to restart the forfeiture case, McInerney suggested that it would be the first time that happened in the Eight Circuit under the federal rules. He argued that no special exception should be made for the government in this case.

Judge Loken may have given the impression that the government was out of luck, but he also hinted that government’s case might have life left if the appeal were denied. He asked more than once whether the declaratory judgment action might still go forward if the forfeiture case were dismissed. The “DJ” case is the original and still active companion case to the forfeiture action where SLAM petitioned to quiet the title of the Ka Nefer Nefer mask, seeking a judicial determination that it is the rightful owner of the mask. The appellate court suggested that the government could still argue its forfeiture claim as a defense in the DJ case. Swingle was not so sure, however.

Judge Diana Murphy inquired about allegations surrounding the sellers of the mask, remarking to Swingle, “When did facts come out about this company in Switzerland? …which has a cloudy past I gather ….” Swingle replied by describing specific criminal complaints made against the gallery’s owners. McInerney later addressed this issue of “some illegality” by saying,  “It ought to noted … that had absolutely no connection with this case; none whatsoever.” “The facts don’t show it.” Any criminal conduct claimed by the government “post-dated by four years the acquisition of the mask” by SLAM. “This left-handed suggestion that there was some … sort of misconduct in connection with the mask doesn’t stand,” McInerney iterated.

Judge Lavenski Smith attempted to clarify the timetable of the government’s requests to the district court to reconsider the dismissal of the case. He raised a question about the many months that went by between the filing of SLAM’s petition to dismiss the government’s forfeiture complaint, the district court’s dismissal, and the “equity to the government” concerning the opportunity to amend. In other words, why didn’t the government move for leave to amend its complaint during an apparently available ten month time period? Judge Smith, meanwhile, wanted to know what specific prejudice the museum would suffer if the case were allowed to continue and not dismissed. Swingle argued that the government’s actions were timely and, even if not, there was no disadvantage to SLAM.

Swingle endeavored to demonstrate that the government had been taking the high road in this litigation by expressing, “Our preference was to reach a mediated solution to this dispute …”  “It was the museum that precipitated a judicial intervention by filing the declaratory judgment.”

McInerney countered with several critiques. He cited federal attorneys’ failure to show that the mask was stolen. “In order to get to theft in the first place you have to get to ownership.” SLAM’s legal counsel argued that it is not enough for the government to allege that the mask was in one place at one moment and another place at another moment without alleging some type of theft. “They still can’t show that the item was ever owned by the Republic of Egypt,” he exhorted.

McInerney further contended that the government could have taken the case for appeal in a timely fashion but did not. They kept the case in district court, he charged, because “…they were banking on the district court writing a recipe for an appropriate complaint ….” It was 401 days after SLAM filed its motion to dismiss when the government finally presented what it believed was a factually compelling forfeiture complaint to the district court, presenting “satisfactory allegations” that “still don’t suffice,” pressed McInerney.

Swingle particularly objected that one of the grounds the district court relied on to dismiss the forfeiture case concerned an issue not even briefed by the litigants, but raised by the district court sua sponte (on its own), specifically that the government needed to allege facts showing that the mask was imported “contrary to law,” not simply that it needed to allege that the mask was stolen. McInerney urged that “contrary to law” was not a new element raised by the district court, it was just the district court recognizing what is required for a forfeiture claim filed under 19 U.S.C. §  1595a of the customs law.

On Justice Murphy’s mind was the district court’s failure to clarify why it denied the government’s request to amend the forfeiture complaint. She asked early in the oral argument if the district court abused its discretion. Later she questioned McInerney with, “You concede … that the district court did not say much?”Whether the district court abused its discretion is the issue that the judges will ultimately decide when they issue a ruling at a future date.

The appellate argument can be heard in its entirety by clicking here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Cultural Heritage Lawyer Rick St. Hilaire: SLAM Mummy Mask Appeal: “You now have to beg for a do-over”.

January 17th, 2014

Posted In: Cultural Heritage in Danger, looting and illegal art traffickers

SLAM Mummy Mask Appeal: “You now have to beg for a do-over”

“All we want here is an opportunity to get in the gate,” argued U.S. Department of Justice Attorney Sharon Swingle before the Eight Circuit Court of Appeals yesterday. But Patrick McInerney, attorney for the St. Louis Art Museum (SLAM), told the court that he wanted finality in the government’s failed attempt to take the Ka Nefer Nefer mummy mask from his client.
Archaeologist Mohamed Zakaria Goneim discovered the more than 3,000 year old mask in Egypt in the 1950’s. Despite SLAM’s purchase of the mummy mask from a gallery in 1998 for approximately a half million dollars, authorities in the U.S. and Egypt say the mask remains a stolen object that was illegally removed from Egypt.
Government lawyers still want a chance to present this argument to the Missouri federal district court by filing a newly amended complaint that would restart the process to forfeit the Ka Nefer Nefer mask from SLAM. But they first need the approval of the court of appeals.The forfeiture case known as U.S. v. Ka Nefer Nefer was first begun in 2011 by the U.S. Attorney in St. LouisHowever, the lower courtdismissed the government’s claim in 2012, saying the the complaint was deficient. The district court turned the government down againafter attorneys tried to rejuvenate the case with a newly minted complaint alleging more facts surrounding the mask’s theft. Justice Department lawyers then appealed the district court’s technical decision dismissing the proceedings, setting the stage for Monday’s oral argument before a three judge appellate panel.

Circuit Court Judge James Loken bluntly observed during yesterday’s oral argument that the government made mistakes in the eyes of the district court and now, “You now have to beg for a do-over.” But Swingle protested that the grounds for the district court’s dismissal was not based on some “fundamental legal defect.” She stressed that the law favors deciding legal cases on their merits, not simply dismissing them before they are substantively argued. In fact, the law favors granting at least one opportunity to amend a complaint before dismissing it with prejudice, she argued.

McInerney contested Swingle’s assertions. “It’s really whether the government is entitled to an advisory opinion from the district court, with the help of defense counsel here, as to what the proper pleading elements are for their claim under the Tariff Act. Because that’s really what they want.”

If the government were successful in its appeal to restart the forfeiture case, McInerney suggested that it would be the first time that happened in the Eight Circuit under the federal rules. He argued that no special exception should be made for the government in this case.

Judge Loken may have given the impression that the government was out of luck, but he also hinted that government’s case might have life left if the appeal were denied. He asked more than once whether the declaratory judgment action might still go forward if the forfeiture case were dismissed. The “DJ” case is the original and still active companion case to the forfeiture action where SLAM petitioned to quiet the title of the Ka Nefer Nefer mask, seeking a judicial determination that it is the rightful owner of the mask. The appellate court suggested that the government could still argue its forfeiture claim as a defense in the DJ case. Swingle was not so sure, however.

Judge Diana Murphy inquired about allegations surrounding the sellers of the mask, remarking to Swingle, “When did facts come out about this company in Switzerland? …which has a cloudy past I gather ….” Swingle replied by describing specific criminal complaints made against the gallery’s owners. McInerney later addressed this issue of “some illegality” by saying,  “It ought to noted … that had absolutely no connection with this case; none whatsoever.” “The facts don’t show it.” Any criminal conduct claimed by the government “post-dated by four years the acquisition of the mask” by SLAM. “This left-handed suggestion that there was some … sort of misconduct in connection with the mask doesn’t stand,” McInerney iterated.

Judge Lavenski Smith attempted to clarify the timetable of the government’s requests to the district court to reconsider the dismissal of the case. He raised a question about the many months that went by between the filing of SLAM’s petition to dismiss the government’s forfeiture complaint, the district court’s dismissal, and the “equity to the government” concerning the opportunity to amend. In other words, why didn’t the government move for leave to amend its complaint during an apparently available ten month time period? Judge Smith, meanwhile, wanted to know what specific prejudice the museum would suffer if the case were allowed to continue and not dismissed. Swingle argued that the government’s actions were timely and, even if not, there was no disadvantage to SLAM.

Swingle endeavored to demonstrate that the government had been taking the high road in this litigation by expressing, “Our preference was to reach a mediated solution to this dispute …”  “It was the museum that precipitated a judicial intervention by filing the declaratory judgment.”

McInerney countered with several critiques. He cited federal attorneys’ failure to show that the mask was stolen. “In order to get to theft in the first place you have to get to ownership.” SLAM’s legal counsel argued that it is not enough for the government to allege that the mask was in one place at one moment and another place at another moment without alleging some type of theft. “They still can’t show that the item was ever owned by the Republic of Egypt,” he exhorted.

McInerney further contended that the government could have taken the case for appeal in a timely fashion but did not. They kept the case in district court, he charged, because “…they were banking on the district court writing a recipe for an appropriate complaint ….” It was 401 days after SLAM filed its motion to dismiss when the government finally presented what it believed was a factually compelling forfeiture complaint to the district court, presenting “satisfactory allegations” that “still don’t suffice,” pressed McInerney.

Swingle particularly objected that one of the grounds the district court relied on to dismiss the forfeiture case concerned an issue not even briefed by the litigants, but raised by the district court sua sponte (on its own), specifically that the government needed to allege facts showing that the mask was imported “contrary to law,” not simply that it needed to allege that the mask was stolen. McInerney urged that “contrary to law” was not a new element raised by the district court, it was just the district court recognizing what is required for a forfeiture claim filed under 19 U.S.C. §  1595a of the customs law.

On Justice Murphy’s mind was the district court’s failure to clarify why it denied the government’s request to amend the forfeiture complaint. She asked early in the oral argument if the district court abused its discretion. Later she questioned McInerney with, “You concede … that the district court did not say much?”Whether the district court abused its discretion is the issue that the judges will ultimately decide when they issue a ruling at a future date.

The appellate argument can be heard in its entirety by clicking here.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Cultural Heritage Lawyer Rick St. Hilaire: SLAM Mummy Mask Appeal: “You now have to beg for a do-over”.

January 17th, 2014

Posted In: Cultural Heritage in Danger, looting and illegal art traffickers

Oral Arguments Scheduled in Ka Nefer Nefer Mummy Mask Appeal

The Eight Circuit Court of Appeals has scheduled oral arguments for January 13, 2013 in the case of U.S. v. Mask of Ka Nefer Nefer. 

The case involves federal prosecutors’ efforts to forfeit the Ka Nefer Nefer mummy mask from the St. Louis Art Museum (SLAM). Government lawyers wrote in July 2011 that SLAM’s “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum.” 

Prosecutors allege that the ancient burial mask, which archaeologists discovered during an authorized excavation in 1952, was stolen from Egypt. SLAM purchased the cultural object in 1998 for approximately half a million dollars. 

A Missouri federal district court brought the government’s forfeiture case to an end in April 2012, concluding that the government’s complaint failed to specifically explain how the mask was allegedly stolen or smuggled, or how it was brought into the U.S. illegally. 

The U.S. Attorney’s Office filed a motion to reconsider the court’s decision, and in May 2012 the government revealed new information that it said would support a proposed amended complaint. Judge Henry Autrey denied the motion to reconsider, and federal prosecutors filed a proposed amended complaint anyway. The district court rejected the government’s case a second time. 

Source: Eight Circuit Court of Appeals
Attorneys for the government appealed to the Eight Circuit, arguing that the lower court abused its discretion by not allowing them to file an amended complaint. Lawyers for SLAM rebuffed their argument by contending that there is “no basis on which to find [that] the District Court abused its discretion in denying the Government’s fatally late and insufficient submission of its Proposed Amended Complaint.” SLAM chided federal officials for “the liberties the Government takes ….” 

The appellate case is expected to be heard by Circuit Judges James Loken, Diana Murphy, and Lavenski Smith. Loken is former chief judge of the appellate court, nominated to the bench by President George H. W. Bush in 1990. Murphy is a 1994 Clinton appointee, and Smith is a 2002 appointee nominated by George W. Bush.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited.  CONTACT: www.culturalheritagelawyer.com

Cultural Heritage Lawyer Rick St. Hilaire: Oral Arguments Scheduled in Ka Nefer Nefer Mummy Mask Appeal.

December 17th, 2013

Posted In: Cultural Heritage in Danger, Cultural Heritage Lawyer Rick St. Hilaire

Prosecutors Seize and Petition to Forfeit Artwork Linked to Money Laundering

http://culturalheritagelawyer.blogspot.nl/2013/04/prosecutors-seize-and-petition-to.html

April 1, 2013
U.S. Attorney Paul Fishman

Federal prosecutors have seized and petitioned to forfeit 14 crates of art allegedly used to launder money. In the case of U.S. v. Various Pieces of Artwork, U.S. Attorney Paul Fishman filed an in rem action in New Jersey federal district court on February 22, 2013 targeting 2,251 items, mostly photographs.Between 2007 and 2012, the CEO of Green Diesel and Fuel Streamers and associates “fraudulently created and sold credits for renewable fuels that were never produced,” declares the U.S. Attorney’s forfeiture complaint. The parties “laundered the proceeds of their fraudulent activities by layering the proceeds through multiple bank accounts and by purchasing artwork, some of which was shipped to Newark, New Jersey, as part of an effort to hide the proceeds of the fraud and remove the proceeds from the United States ….”

The purchases totaled $18 million, say prosecutors, adding that “a substantial amount of artwork” was to be moved to Spain via the Netherlands after having been transported to Houston, Texas, and Newark, New Jersey.

Federal attorneys cite financial records showing purchases from seven dealers and galleries, including Sotheby’s, Heritage Auction Galleries, and Swann Galleries. No wrongdoing is alleged to have been committed by any sellers.

The pieces targeted for forfeiture include photographs by André Kertész, Edward Weston, Eugène Atget, and Alfred Stieglitz.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire atculturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT:www.culturalheritagelawyer.com

Cultural Heritage Lawyer Rick St. Hilaire: Prosecutors Seize and Petition to Forfeit Artwork Linked to Money Laundering.

April 1st, 2013

Posted In: Cultural Heritage in Danger

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March 4th, 2012

Posted In: Auction Houses and stolen objects, Cultural Heritage in Danger, Safe Corner

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March 4th, 2012

Posted In: Auction Houses and stolen objects, Cultural Heritage in Danger, Safe Corner

there is no substitute

http://safecorner.savingantiquities.org/2012/02/research-and-analysis-there-is-no.html

Februray 15, 2012

The announcement of Glasgow University’s new team to study the illegal trade in antiquities is welcome news to those who seek the truth about these issues—fact-based truths. The recent years have seen much discussion of these increasingly popular topics, encouraged by the ease of a few keystrokes on the computer. Opinion—whether based on knowledge or not—is too all often disguised as truth simply on the basis of being expressed.

Given our mission to raise public awareness, SAFE has the responsibility to deliver messages that are accurate, and fact based. We therefore applaud this commitment to research, study, analysis, and look forward to the work of Dr. Simon Mackenzie, who heads up the four-year Glasgow project.

We congratulate Neil Brodie, our 2008 Beacon Award Winner, who pioneered academic research in these topics with Professor Colin Renfrew (2009 SAFE Beacon Award Winner) at the Illicit Antiquities Research Centre for his continued efforts. The £1m grant from the European Research Council is a long-awaited gift to us all.

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Cultural Heritage in Danger: Research and analysis: there is no substitute.

February 15th, 2012

Posted In: BLOG World (from related blogs), Cultural Heritage in Danger, Safe Corner