Wednesday, 26 April 2017

Two Texts on the ACCG Baltimore Illegal Coin Import Stunt

It is instructive to compare two recent blog texts on the finale (?) of the ACCG Baltimore illegal Coin Import Stunt which they hoped would overthrow US heritage protection legislation. The ACCG  not only utterly failed but the verdict seems instrumental in coming one step closer to the situation the dealers and collectors feared. It serves them right for eschewing the opportunity to show that responsible collecting is possible.

The first text is by one of the characters involved in the debacle (and since he was a paid lobbyist of certain 'professional numismatist' associations, financially benefited from participation and causing to to drag on for as long as possible): Peter K. Tompa, 'US District Court Ruling Favors Government in Long Running Forfeiture Case' ACCG blog, April 06, 2017. This is maintained in the whiney playing-the-victim tone we have come to expect of this crowd. They are all in denial about the existence of any problems with no-questions-asked collecting, so when they are required to actually document that they have checked the legality of the exports of the objects they are buying, it is the Federal government who 'does not understand' (federal laws) and only the dealers have the monopoly on the way the law should be interpreted. I have argued on this blog long and hard with the ACCG views, and found their interpretation lacking - as did the judges in this case for the most part. So Tompa mostly moans about that. He still refuses to understand the point about the Designated List - the judge however does. But the ACCG got seven Chinese coins back because it was impossible to judge that they were of a type listed on the Designated List. So look out for them being sold by an ACCG dealer near you.

The other text is far meatier and satisfying. It is by a cultural property lawyer, Rick St Hillaire, 'Federal Court Leaves CPIA Coin Import Regs Untouched' CHL blog Thursday, April 20, 2017. This presents the legal arguments in more detail than Tompa, and repays a close read. He shows what pathetic claims the ACCG were making. St Hillaire illustrates some of the coins reportedly involved, a sorry lot if that is what ACCG dealers sell their clients. Rubbish most of it and at least one has what looks to my archaeological eye as a fake chemical 'patina'. Perhaps that's one of the ones they got back as not demonstrably ancient (so therefore not on the designated list). Anyway, what is important here are two points that St Hillaire draws attention to:
The Guild’s argument appears to conflate two terms defined in the CPIA: “archaeological . . . material of the State Party” ... and “designated archaeological . . . material” .... “Archaeological material of the State Party” is “any object of archaeological interest . . . which was first discovered within, and is subject to export control by, the State Party.” 19 U.S.C. § 2601(2). “Designated archaeological material” is “any archaeological . . . material of the State Party” which is “covered by an agreement under this chapter” and “listed by regulation under section 2604.” Id. § 2601(7). Only “designated” material is subject to import restrictions under § 2606 [of the CPIA] and potentially “subject to seizure and forfeiture” under § 2609 [of the CPIA]. Id. §§ 2606(a), 2609(a).
So that is basically a confirmation of the veracity of my own discussion of the ACCG's 'first discovered principle'. Good. Perhaps now we can move on.  The second consists of the ACCG scoring a massive home goal...
It was the government's burden to show "that the [detained] property has been 'listed in accordance with section 2604'" of the CPIA. "If so, 'the burden of proof . . . shifts to [the Guild] to establish, by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.'" Applying this analysis, Judge Blake assigned title of all the Cypriot coins and some of the Chinese coins to the United States, and gave the Guild seven Chinese coins. Judge Blake explained the law of the case this way. Once the government establishes its burden to prove that detained coins are among the types listed on the CPIA's § 2604 designated list, then the claimant bears the burden to show that the coins are importable. The burden "'shifts to [the claimant] to establish, by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.' (Quoting U.S. v. Eighteenth Century Peruvian Oil, 597 F. Supp. 2d 618, 623 (E.D. Va. 2009))," meaning that the ACCG had to produce documentation that the coins were, as the earlier Fourth Circuit opinion declared, "(1) lawfully exported from its respective state while CPIA restrictions were in effect; (2) exported from its respective state more than ten years before it arrived in the United States; or (3) exported from its respective state before CPIA restrictions went into effect." The Guild failed to produce any documentation.
Oh ho ho... making buyers/sellers liable to prove they are innocent rather than the government to prove they are guilty is a significant legal step and precisely what antiquities dealers and their clients wished to prevent. Well done ACCG for clarifying this issue.

The reasons for rejecting the attempt by the ACCG to introduce 'expert testimony' into the proceedings are worth reading too. We remember that it is the dealers and collectors (ACCG) who are adamant on sticking to 'the letter of the law', but when the court does it, they claim they are being unfairly treated.

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