Mask of Ka Nefer Nefer settlement talks fail, appeal back on the docket – Lexology

Mask of Ka Nefer Nefer settlement talks fail, appeal back on the docket

April 29, 2013

Nicholas M. O’Donnell

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After a report from the United States that settlement talks in the civil forfeiture case against the Mask of Ka Nefer Nefer at the St. Louis Art Museum were sufficiently promise to suspend the briefing schedule in the Court of Appeals, the government has advised the court that those talks have failed.  The government’s appellate brief is now due June 3, 2013.

As quick recap, the Mask of Ka-Nefer-Nefer is a funerary mask of an ancient Egyptian noblewoman.  After the museum purchased it from a dealer in 1998, the United States later began to seek its seizure, arguing that it was stolen property.  The United States brought a civil forfeiture action under U.S. customs laws.  The government argued that because the Mask had gone missing in Egypt by 1973 and then surfaced in a sale in the United States decades later, it could not have been imported legally.  In such cases, the government need only establish probable cause, whereas the claimant assumes a burden to prove the object was not stolen.  They are typically, in metaphorical terms, a layup.

The District Court, however, came to a scathing conclusion of the government’s allegations.  The court stated “the claimant cannot even be sure of the who, what, when or where of the alleged events surrounding the alleged ‘stealing,’ nor can the Museum ascertain if the Government is pursuing of the Mask based on alleged theft or a unlawful import/export, or both.”  Harsher still, the court held that “the Government has been completely remiss in addressing the law under which the Mask would be considered stolen.”

The government’s efforts to amend the claim fared no better (and, we noted, arguably missed the deadline it requested to do so).  Echoing that very timeliness point, the court noted that the government had previously requested more time to move for permission to amend the complaint (in various filings the government had essentially asked for leniency to plead more specific facts to support the allegations of customs violations).

At that point the case went up on appeal.  In January, the government advised that a three-way meeting was in the works between the U.S., Egypt, and the museum in late February.  That has apparently run its course.  Briefing will consume the next few months, with an oral argument possibly in the late fall.

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