Thursday, 5 January 2012

The Potential Legal Significance of the Mary Brogan Museum Seizure for US Collectors

The legal situation concerning the Mary Brogan Museum Loan seizure of Italian cultural property in Florida is interesting. The US Attorney’s Office filed an in rem ("against the thing") lawsuit, in order to obtain a forfeiture order issued by the court which would allow the government to gain title of the painting owned by an Italian public institution. Rick St Hilaire ( '[...] Legal and Factual Claims in Forfeiture Lawsuit Against Cristo Portacroce [...]' describes the legal arguments behind this action:
Federal prosecutors argue in their civil complaint that forfeiture of the painting is proper under multiple legal theories. They cite the typical ones under the criminal statutes (Title 18 of the United States Code) and the customs statutes (Title 19 of the United States Code). But the government also makes a claim under Title 22, the foreign relations section. First, prosecutors allege that the painting was smuggled pursuant to 18 USC § 545 and therefore must be forfeited under the terms of this criminal statute. They also say that the artwork must be forfeited because it was illegally imported in contravention of the customs law at 19 USC § 1595a(c)(1)(A) since the painting was “stolen, smuggled, or clandestinely imported or introduced” into the United States. Next, federal attorneys claim that the painting was about to be exported in violation of 19 USC § 1595a(d), a customs law requiring that the painting “shall be seized and forfeited to the United States” because its export would be “contrary to law.”

Federal lawyers also make a claim under the Illegal Exportation of War Materials statute at 22 USC § 401(a), saying that it mandates forfeiture of the painting: “Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war or other articles in violation of law, or whenever it is known or there shall be probable cause to believe that any arms or munitions of war or other articles are intended to be or are being or have been exported or removed from the United States in violation of law” then the article may be seized and shall be forfeited” [...].

Finally, the government makes the claim that the painting was stolen under 18 USC § 2314, the National Stolen Property Act, which criminalizes conduct whereby a person “transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud.”
In the Mary Brogan Museum Loan case the "Illegal Exportation of War Materials" is invoked, though in all honesty I really do not see how this applies to Vichy France (and neither has the USA shown noticeable alacrity in the past in signing existing international documents on cultural property in times of war), so I do not intend dwelling on it - sounds a bit dodgy to me.

The other bits however parallel the recent case the implications of which I discussed last year. If I were a collector busily accumulating stuff brought out of foreign countries by undocumented means and into the USA, I'd be beginning to get a little worried the way things are going here.

I was having a discussion with a commentator (Scott Barman, Coin Collectors Blog: here on the CCPIA allegedly meaning "They are Coming for your coins" which I put down to irrational paranoia. The CCPIA is not "coming for yer coinz", but it seems that if "They" (US Gubn'mint nasties) wanted to "come for yer coinz", they have some regulations which have been (at least) twice used here without dissent to do precisely that.

In relation to that discussion, it is worth noting that the CCPIA is NOT one of the pieces of legislation being used here. The painting in question does not fit the bill for employing the CCPIA, 19 USC Section 2607 - "Stolen Cultural Property" (nor the relevant bits of 2609 - "Seizure and Forfeiture") as this is related to Art. 7 of the 1970 UNESCO Convention.

I have previously drawn attention to the fact that the US lawyers who - though they are being paid to lobby by the dealers - claim they are working in the interests of "collectors" are not being too good at "observing" what is going on here. It seems to me that there is something here to which collectors should have their attention drawn. It is like the text by Stephen Urice: "Between Rocks and hard Places: Unprovenanced Antiquities and the national Stolen Property Act" which I noted a while back was simply not being discussed where one would expect to see it discussed, in the ACCG if that really was a "collectors" guild. Derek Fincham noted it a whole year ago (Urice on "Unprovenanced Antiquities and the National Stolen Property Act"), the Chasing Aphrodite Blog has a Dec. 5th article ("Looted Antiquities at American Museums: An On-Going Crime, law professor argues") about it. But the ACCG people are keeping tight lipped about this text. Could that be because any discussion of it might make collectors doubt the wisdom of the current ACCG stance on undocumented transactions?

In what way are collectors' interests served by keeping quiet about these things?
Or put another way, whose interests are served by keeping quiet about these things?

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