Tuesday, April 6, 2010

More on Repatriation of Egyptian Sarcophagus

I've now seen the forfeiture complaint that led to the recent repatriation of an Egyptian sarcophagus that had been imported into the U.S. from Spain. Here is the reaction of Bill Pearlstein, a well known practitioner in the area of cultural property law, on his own review of the document:

This forfeiture doesn't seem to be justified on either the law or the facts.

Under the applicable McClain and Schultz cases, property is considered stolen under US criminal law if an exporter knows (or consciously avoids knowing) that the property was exported from a foreign nation at a time when that nation had enacted a clear and unambiguous national ownership law embracing that property.

In this case, there was no showing of when the piece was exported from Egypt, what the law was at the time of export or what the exporter knew at the time of export. The Government's conclusions at Para 50-51 of the complaint (i.e., that the piece was exported in violation of Egyptian law and stolen from Egypt) are simply unsupported assertions. In the absence of any proof of the facts or circumstances surrounding export, how could the sarcophagus be considered stolen under McClain? Moreover, it is hornbook law that violation of a foreign export control (as opposed to an ownership law) is not enforceable in US courts. Reliance on a criminal doctrine stripped of need to show scienter is bad law. This case demonstrates the intellectual bankruptcy of civil forfeiture.

The last time I defeated a complaint for civil forfeiture of an antiquity, the US Attorney admitted to me that the US Government does not take the position that anything without a firm provenance is stolen. But that is apparently so only when the forfeiture is contested. If not, the Government will try to get away with seizing whatever it can, however improbable the cause. Unfortunately, it usually does, given that the legal fees in defending the seizure often outweigh the value of the property.

Two tips for importers fighting a forfeiture: First, convert the action into a civil litigation, so that the government is forced to articulate in a complaint the facts and legal theories upon which the forfeiture is based. These are often vulnerable or, as in this case, merely speculative. But you can't win if you don't fight. Second, if you win, consider suing the Government for damages for wrongful forfeiture. It takes guts and costs legal fees, but if your business is harmed you may have a claim for money damages. Nothing will ruin the day of your average prosecutor or customs agent more than fighting, losing and then getting sued for damages. But again, you can't win if you don't fight.

In the words of the Beastie Boys: "You gotta fight. For your right. To paaartay."

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