ACCG's Petition for Certiorari to be Considered at Supreme Court's 2/15/19 Conference

The ACCG's petition for certiorari will be considered at the Supreme Court's 2/15/19 conference. The Guild has asked the Supreme Court to keep the burden of proof as to CPIA forfeitures of cultural goods on the government, where it belongs. For more, see https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/18-767.html

ACCG Requests Supreme Court to Hear Forfeiture Case

On December 12, 2018, the ACCG asked the U.S. Supreme Court to hear its forfeiture case.  Specifically, the Guild has requested the Supreme Court to consider the following questions for review:

QUESTIONS PRESENTED

            This case arises from the civil forfeiture of ancient Cypriot and Chinese coins under the Cultural Property Implementation Act (“CPIA”), 19 U.S.C. §§ 2601 et seq. The coins are of types that appear on “designated lists” subject to import restrictions.  Congress limited the reach of such import restrictions to archaeological objects “first discovered within” and “subject to export control by” a specific State Party to the 1970 UNESCO Convention, and further placed the burden of proof on the Government to establish that such designated material was listed in accordance with these criteria.  19 U.S.C. §§ 2601, 2604, 2610. Congress also ensured such import restrictions are entirely prospective.  They only apply to designated archaeological material illicitly exported from the State Party after the effective date of the implementing regulations.  Id. § 2606.  The questions presented are:

1.         Did the courts below violate the Guild’s 5th Amendment Due Process Rights when they authorized the forfeiture of the Guild’s private property without any showing that the Guild’s coins were illicitly exported from Cyprus or China after the effective date of import restrictions?

2.         In a civil forfeiture action implicating the Guild’s 5th Amendment Due Process Rights, did a prior decision upholding import restrictions under a highly deferential ultra vires standard of review “foreclose” consideration of legislative history, judicial admissions, and other  information relevant to the Government’s burden of proof?

The Guild's Petition for Certiorari in its entirety can be found here. 

Building Bridges: A Symposium on Global Cultural Heritage Preservation

This week I attended an interesting seminar put on by the State Department's new Cultural Heritage Coordinating Committee (CHCC) that took place at the Smithsonian Institution.   There were some really enjoyable programs about preservation work, and it was nice to have the opportunity to meet others with different perspectives.  However,  CPO still came away concerned that legitimate collecting is more at risk than ever by grossly over-broad application of cultural heritage laws which Congress originally intended to focus prospectively on specific looting problems in specific countries abroad.

I don't have time to summarize the entire symposium, but here are some of my takeaways:

1.  ISIS may have been defeated on the battlefield, but the terror group still looms large as the justification for all sorts of efforts that impinge on the due process and private property rights of collectors.  The latest claim is that while ISIS may have lost most, if not all, of its territory, it has been warehousing large numbers of valuable artifacts with which to fund its ongoing jihad.

2.  The State Department and law enforcement coordinate heavily with academics and related advocacy groups which are largely hostile to private collecting of antiquities.  Even though the statute that set up the CHCC calls for the committee to coordinate with the trade in addition to cultural heritage groups, there appears to be little evidence of consultations with the trade.  (CPO was happy to get invited, but he was not there for a dealer group.)  This should be particularly troubling because it has certainly contributed to  overboard application of cultural heritage laws in a matter hostile to even legitimate collecting.

3.  Enforcement will be ramped up in the next 18 months, which should be a major concern given the increasing number of cultural property agreements, how broad they have become and how broadly they are enforced.   Apparently, the State Department (with the help of the archaeological lobby)  is working on five new agreements with Middle Eastern countries (most, if not all, of which have authoritarian governments which claim title to anything and everything "old.")  Moreover, there still is no up-to-date guidance for the public in this area, though U.S. Customs at least realizes this is a problem. 

4.  FBI and Homeland Security Investigations are on board with archaeological advocacy groups' and certain compliance vendors' efforts to impose new anti-money laundering (AML) regulations specifically on the art trade because AML violations may be used to pile on charges and encourage guilty pleas.  Still, the evidence presented that money laundering is a real problem in the art trade remains very slim and largely depends on conflating money laundering with other financial crimes.

5.  The Smithsonian has done lots of good work on cultural heritage preservation and restoration projects, but has also joined the cultural property wars on the side of archaeological advocacy groups and has lobbied with them in their legislative efforts that have harmed the legitimate trade in cultural artifacts.  

Jay Kislak dies at Age 96

Jay Kislak, philanthropist and former Chair of the U.S. Cultural Property Advisory Committee, has passed away at the ripe old age of 96.  All coin collectors should be grateful for Mr. Kislak's truth telling about import restrictions on Cypriot coins in the face of State Department claims that the decision was made with CPAC's assent. Jay knew better, and wasn't afraid to say so. 

ACCG Seeks Rehearing

The Ancient Coin Collectors Guild has sought rehearing of the 4th Circuit's affirmance of the District Court's decision to forfeit the Guild's ancient Cypriot and Chinese coins originally imported for purposes of its test case.  In making its request, the Guild has stated,

"The Panel’s decision collapses any meaningful distinctions among detentions, seizures and forfeitures and between ultra vires and constitutional review.  Furthermore, it has effectively rewritten prospective, targeted CPIA import restrictions into embargoes on all archaeological objects of types found on designated lists.  Amicus support attests to the public importance of these issues.  Rehearing is warranted.... This Court should not sanction assuming away important elements of the Government’s prima facie case.  Nor should the Court close its eyes to relevant information, including Government admissions, or further a demonstrably false narrative about how import restrictions on coins were promulgated to justify its decision."

Update (10/26/18)-  The 4th Circuit has denied the Guild's request for rehearing so the Guild will now seek certiorari from the Supreme Court.  Cultural Property News has written a good story about this case.  See https://culturalpropertynews.org/an-epic-battle-u-s-v-3-knife-shaped-coins/ 

Chinese Art and Antiques Saved from Tariffs

The Trump Administration has abandoned plans to place up to 25% tariffs on Chinese art, antiques and historical coins.  The office of US Trade Representative was evidently swayed by arguments that collateral damage to US small businesses and cultural exchange with our allies in the United Kingdom, the EU and Asia, particularly Japan from tariffs outweighed any benefits.  If anything, such tariffs would play into Chinese Government efforts to redirect Chinese art back to China for the benefit of wealthy collectors and auction houses associated with the Chinese government.  Now, if only the State Department would rethink the proposed renewal of the cultural property MOU with China, which raises many of the same issues.

4th Circuit Affirms District Court Ruling in Long Running ACCG Forfeiture Case

The Fourth Circuit Court of Appeals has affirmed the district court opinion in long running litigation which began when the Ancient Coin Collectors Guild originally sought judicial review of controversial import restrictions on ancient Cypriot and Chinese coins.  This latest case was an action where the government sought to forfeit the Guild’s coins which were originally imported for purposes of that test case.

The initial round of litigation approved the State Department’s decision to impose the import restrictions under a very limited “ultra vires” review standard.   Here, the Court ruled that the it could also assume major elements of the government’s case for forfeiture were established in that earlier decision.  What is disconcerting is that in so doing, the Fourth Circuit panel completely glossed over the Guild’s primary argument— that the Court could not assume away major elements of the government’s case in the context of a forfeiture action which implicated the Guild’s 5th Amendment constitutional due process rights.   This should be particularly troubling because how a court reviews executive action when constitutional rights are at stake was also at the heart of the same Court’s recent en banc (full court) rulings in the Trump travel ban cases.   That raises the obvious question, are private property and due process rights somehow less important than other consititutional rights?

The Guild intends to seek rehearing to ask the Court to address this fundamental issue.