From Open-Air Bazaar to Buyer Beware:
Evolution of the Antiquities Trade
by Evan Barr
This article was published in Museum News
November/December 2006.
In a recent New York Times article, Robert Hecht, the well-known octogenarian art dealer, reminisced about how he used to wander the streets of Rome back in the 1950s and 1960s shopping for antiquities. Then he would return to the United States, where he would approach museum after museum, peddling his wares. “I’d show a photograph and say, ‘Would you like this object?’” Mr. Hecht recalled.
No one knows better that those freewheeling days are long gone: Hecht is currently on trial in Italy, along with former Getty Museum curator Marion True, for trafficking in antiquities. Meanwhile, in February 2006 the Metropolitan Museum of Art, in a landmark settlement, agreed to return 20 disputed pieces from its antiquities collection to the Italian government, and the Getty is likely to enter into a similar arrangement in the near future. The government of Peru has recently indicated that it may bring a lawsuit to recover artifacts removed from Machu Picchu by a Yale professor in 1911. Museums around the United States are conducting internal investigations regarding the provenance of items alleged to have been illicitly removed from various foreign countries.
There has been a dramatic transformation of the antiquities market from open-air bazaar to buyer beware. In the United States over the past several decades, the law with respect to trafficking in antiquities has been steadily evolving. American courts and law enforcement authorities have been responding to pressure brought by foreign nations to honor claims for the repatriation of objects deemed to be part of their cultural heritage. Essentially, the development of the law regarding the status of imported antiquities in the United States involves a dynamic interplay between the increasing demands of our international obligations on the one hand and traditional American notions about the sanctity of private property ownership on the other. Museum professionals and others in this field would be well served to understand and be aware of the direction the law has taken, in order to improve compliance and avoid legal pitfalls.
Cultural Property Laws
In the late 19th and early 20th centuries such countries as Italy , Egypt , Turkey and Mexico enacted sweeping laws to prevent items of cultural patrimony from being exported without explicit governmental permission. These statutes typically vested title to all newly discovered or unearthed artifacts in the state, effectively eliminating the notion of private ownership of antiquities not already housed in established collections.
In 1970 the international community negotiated the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (UNESCO Treaty). The convention defined cultural heritage broadly to include “[c] ultural property found within the national territory and property acquired by archaeological, ethnological or natural science missions.” The convention called upon signatories to cooperate to prevent trafficking in works of art or other items that could be considered part of a country’s cultural heritage; participating countries were required to pass national laws to combat such trafficking and to respond favorably to any request for assistance from a country desiring to recover a lost cultural artifact. The United States was among the many signatories of the treaty.
Initial U.S. Response
To comply with its obligations under the UNESCO treaty, the U.S. Congress ultimately passed the Cultural Property Implementation Act (CPIA), which provided a statutory mechanism for customs officials to seize and return certain types of cultural property if they had been stolen from a museum or similar cultural institution in a foreign signatory nation. Although the CPIA was a significant step, it did not address the legal status in the United States of items subject to a claim by a foreign nation under its patrimony laws that did not meet the very narrow definition of items deemed to be “stolen” under the treaty.
The sweeping notion of state ownership claims exemplified by the foreign cultural patrimony laws was alien to traditional American jurisprudence regarding the protection of private property holders’ rights. 1 While the United States has a handful of federal and state laws designed to protect its own cultural heritage , 2 for the most part the law in this country has declined to recognize foreign export controls as placing any restrictions on the rights of private owners. Furthermore, it is of course enshrined in the Fifth Amendment to the Constitution that an individual may not be deprived of property rights without due process. Nevertheless, the United States has also recognized that it has played a unique role in the illicit trafficking of antiquities because American collectors, dealers and museums have created an enormous demand for these items.
Accordingly, in 1972 the United States enacted a statute, called the Law on Importation of Pre-Columbian Monumental or Architectural Sculpture or Murals, that prohibited the importation of certain kinds of Pre-Columbian artifacts such as stone carvings and wall art from Mexico , South America , Central America and the Caribbean without express permission from the source country. This law provided only a civil penalty of forfeiture of the imported items; it did not include any criminal provisions.
Starting in the mid-1970s, however, federal prosecutors applied a well-established criminal law, the National Stolen Property Act, to two cases involving illicit trafficking in cultural property. The NSPA, enacted in the 1930s, makes it a crime to transport any “goods, wares, merchandise, securities or money” valued in excess of $5,000 across state lines knowing such property was “stolen, converted or taken by fraud.” At the time it was passed, Congress was undoubtedly thinking about stolen cars, not antiquities from foreign lands. But the statute’s broad language lent itself to cases involving imported cultural patrimony, on the theory that such items had been “stolen” from their true owner, namely, another country.
Applying the National Stolen Property Act to Antiquities
The key issue that arose in these early criminal cases was whether it was fair to hold Americans accountable for the consequences of violating a foreign nation’s patrimony law.
In United States v. Hollinshead (1974), the defendants were charged with conspiring to transport stolen property in violation of the NSPA in connection with a scheme to procure valuable artifacts in Central America . The conspirators removed a pre-Columbian stele from a Mayan ruin in the jungle of Guatemala , cut it into pieces, and exported the pieces surreptitiously from a fish-packing plant in Belize to California . The defendants then attempted, without success, to sell the stele to various collectors and museums in the United States .
At trial, the government presented expert testimony that under the law of Guatemala , artifacts such as the stele were the property of the Republic of Guatemala and could not be removed from the country without the permission of the government. The judge instructed the jury that there was a presumption that every person knows what the law forbids—essentially, that “ignorance is no defense.” Predictably, the defendants were convicted. On appeal, they argued that the jury should have been instructed that there was no such presumption as to knowledge of foreign law.
The Ninth Circuit Court of Appeals in San Francisco rejected that argument. In upholding the convictions, the court noted that while the government was required to prove that the conspirators knew the stele was stolen, it was not required to prove that they knew where it was stolen. As the court concluded, the defendants’ “knowledge of Guatemalan law is relevant only to the extent that it bears upon the issue of their knowledge that the stele was stolen.”
While Hollinshead was the first case of its kind, it did not address the more fundamental question of whether the NSPA should be applied to trafficking in items protected under a foreign cultural patrimony law in the first place. That issue was confronted by the U.S. Court of Appeals in New Orleans in the seminal case of United States v. McClain (1979).
One of the defendants in McClain , Joseph Rodriguez, hired squads to raid archaeological sites in Mexico . He arranged to smuggle pre-Columbian artifacts into California and then traveled around the country selling the items out of a suitcase. One potential client, suspecting that he was being swindled, contacted the FBI, which initiated a covert investigation. An informant met with one of Rodriguez’s partners, Mrs. Ada Simpson, claiming he was interested in acquiring stolen merchandise, which would be resold by the Mafia. In the course of negotiating the deal, Mrs. Simpson explained how the artifacts were dug up, how papers were forged and how they were smuggled into the United States . Eventually the defendants agreed to meet the informant and his “appraiser,” an official from the Mexican Department of Archaeology, at a San Antonio hotel to negotiate a deal. After agreeing to sell their entire lot of artifacts, the defendants were arrested and charged with conspiring to violate the NSPA. The government’s legal theory was that the artifacts in question had been “stolen” within the meaning of the NSPA because Mexican cultural property laws had vested title to such pre-Columbian artifacts in the Mexican government. The defendants were convicted after trial.
On appeal, the defendants raised several issues. First, they argued that applying the NSPA to cases of “mere illegal exportation” constituted unwarranted federal enforcement of foreign law. Second, they claimed that the artifacts could not be considered “stolen” under the NSPA because there was no evidence that there had been a deprivation of private ownership rights under common law. Third, they argued that the NSPA was superseded (or pre-empted) by the more narrowly tailored 1972 law prohibiting importation of Pre-Columbian artifacts (which, for technical reasons, did not cover the items at issue in the case). Finally, they asserted that their convictions should be overturned on grounds of “vagueness” because the Mexican laws at issue were known only to “a handful of experts who work for the Mexican government” and therefore ran afoul of the U.S. Constitution’s requirement of fair notice.
Relying on the NSPA’s expansive scope and purpose, the court held that the statute clearly applied to the illegal exportation of items declared by Mexican law to be the property of the nation. The court rejected the notion that other, more specific legislation would limit or preclude the use of the NSPA in this context. On the vagueness issue, however, the court threw out the defendants’ convictions because the Mexican statutes at issue, the court held, did not announce the proscribed conduct sufficiently to put the defendants on notice that their activities violated criminal law. 3
McClain therefore established that American citizens could be convicted under the National Stolen Property Act for violating another country’s laws regarding removal of cultural heritage, but only where that foreign law was unambiguous. 4
The Gold Phiale
Despite the fears of many in the art world, McClain did not lead to widespread prosecutions, perhaps for the simple reason that establishing proof beyond a reasonable doubt is not easy in these kinds of cases, particularly where much of the evidence is located abroad. In fact, another criminal case under the McClain theory would not be brought until 2001. Federal prosecutors instead turned to civil forfeiture as a means to seize and return objects to foreign countries. In a forfeiture case, the guilt or innocence of the possessor of a stolen object of art is immaterial. Civil forfeiture cases are in rem proceedings, meaning “against the thing.” The taint of theft attaches to the object, not the parties involved.
The first major use of the forfeiture laws in the antiquity context came in a 1995 New York case involving a 4th-century B.C.E. gold phiale. 5 By the time the phiale arrived in America, it had acquired a fascinating provenance that would rival the Maltese Falcon’s.
In 1980, Vincenzo Cammarata, a Sicilian coin dealer, acquired the phiale from another collector in a trade for art works valued at approximately $20,000. In 1991, Cammarata showed the phiale to a local expert, explaining that it had been found in Sicily during excavations for electrical work being performed by an Italian utility company. Later that year, Cammarata sold the piece to William Veres, a Zurich art dealer, for $90,000.
Veres brought the phiale to the attention of Robert Haber, a well-known New York dealer. In November 1991, Haber traveled to Sicily to meet Veres and see the phiale in person. Haber believed that one of his clients, financier Michael Steinhardt, would be interested in the piece. Thereafter, Steinhardt, with Haber acting as an intermediary, agreed to purchase the phiale from Veres for approximately $1 million, plus a 15 percent commission fee for Haber. A one-page document entitled “Terms of Sale” provided that if the object were confiscated by any country, there would be a full refund of the purchase price. On Dec. 6, 1991 , Steinhardt wired the funds to Veres’s account in Zurich .
Haber then went to great lengths to smuggle the phiale from Italy , transship it through Switzerland and ultimately import it into the United States . The process began on Dec. 10, 1991 , when Haber flew from New York to Zurich . From there, he traveled by car across the Alps to Lugano , Switzerland , a town near the Swiss-Italian border that is about a three-hour drive from Zurich . On Dec. 12, Haber took possession of the phiale from Veres. The deal was confirmed in a commercial invoice issued by Veres’s Swiss gallery, which described the item as “ONE GOLD BOWL-CLASSICAL… DATE-C. 450 B.C….VALUE U.S. $250,000.”
In order to clear the item through U.S. customs, Haber sent the commercial invoice to his customs broker at New York ’s JFK International Airport . The customs broker prepared forms inaccurately listing the phiale’s country of origin as Switzerland , which unlike Italy did not have restrictive laws controlling the export of cultural property.
Haber next had to find a way to remove the phiale from Italy without being detected. That meant avoiding Italian airports. On December 14, 1991 , Haber drove from Lugano all the way back to Zurich , even though the closest major airport was in Milan , approximately 50 miles away. The next day, he flew from Geneva to JFK International Airport , carrying the phiale with him on board. The phiale arrived safely in the United States , where Steinhardt displayed it in his New York home until 1995, when the Italian government requested that the United States help locate the piece and return it to Italy , contending that it was covered by Italy ’s 1939 cultural property law.
In November 1995, customs agents seized the phiale from Steinhardt’s Fifth Avenue apartment, leading to protracted litigation in which Steinhardt unsuccessfully sought its return.
In December 1995, the government filed an in rem forfeiture complaint against the phiale. The complaint alleged that the phiale was subject to forfeiture because it had been imported into the United States by means of a fraudulent invoice and false statements on customs forms regarding the phiale’s true country of origin. In addition, the complaint alleged that the phiale was subject to forfeiture under the NSPA because it belonged to the Republic of Italy . Steinhardt claimed he was an innocent owner and that the false statements in question had not been “material” (i.e. important) to the decision to allow the phiale into the United States . The district court ruled in the government’s favor on all grounds ( United States v. An Antique Platter of Gold , 1997).
Steinhardt appealed to the Second Circuit Court of Appeals, the federal appellate court with jurisdiction over New York . Once again, he lost ( United States v. An Antique Platter of Gold , 1999). The appeals court held that a false statement on a customs form indeed could be material so long as it had “the potential significantly to affect the integrity or operation of the importation process as a whole,” a standard that clearly included statements regarding country of origin. The court also found that under the laws at issue there was no “innocent owner” defense available to a purchaser such as Steinhardt, even though he was never accused of any wrongdoing in connection with the phiale transaction. 6
The appellate judges declined to address the more interesting question raised by the phiale case, namely whether under McClain the government could rely on the NSPA to justify forfeiture of the phiale. But the phiale case had laid the groundwork for another important criminal prosecution in New York .
The Schultz Case
In 1991, Frederick Schultz, a successful New York art dealer specializing in ancient art, paid Jonathan Tokeley-Parry, a British national, to smuggle a sculpture of Pharoah Amenhotep III out of Egypt for subsequent sale in the United States . Their method for getting the sculpture out of Egypt was ingeniously simple: Tokeley-Parry covered the item in plaster and painted it to look like a cheap souvenir. Schultz and Tokeley-Parry then invented the fictitious “Thomas Alcock Collection” and told potential buyers that the sculpture came from this collection. With Schultz’s knowledge, Parry prepared fake labels for the piece, designed to look as if they had been printed in the 1920s, and also used restoration techniques popular in that era. In 1992 Schultz was able to sell the piece to Robin Symes, a private collector, for $1.2 million. However, three years later, in response to inquiries from the Egyptian government Symes requested more information about the sculpture’s origins. Even as the scheme was unraveling, Schultz and Tokeley-Parry continued to use the “Thomas Alcock Collection” to funnel more Egyptian antiquities into the United States .
In June 1994, Tokeley-Parry was arrested in Great Britain . He continued to correspond with Schultz from jail and ultimately cooperated with the authorities. Their letters reflected an awareness of the legal risks involved in their antiquities trafficking. Schultz was later indicted by federal prosecutors in New York on charges of conspiracy to receive stolen property in violation of the NSPA, relying on the McClain theory that had last been used in a criminal case back in the 1970s. Schultz was convicted by the jury at trial and sentenced to 33 months in prison.
Schultz appealed his conviction to the Second Circuit Court of Appeals in New York . His primary argument was that the artifacts could not be “stolen” because no one had owned them before they were exported ( United States v. Schultz , 2003). Following the reasoning of McClain , the court rejected that argument: The Egyptian government had asserted ownership over all antiquities within its borders when the legislature passed a patrimony law that forbade private possession of antiquities found after 1983. By removing antiquities from Egypt , the court found, Schultz had conspired to “steal” property from “someone,” namely the Egyptian government.
Schulz then argued that even if the Egyptian government did own the artifacts, his actions did not fall under the purview of the NSPA because the statute was not intended to protect that kind of abstract property interest. This argument, too, fell on deaf ears. The court read the NSPA to apply regardless of whether the owner of the stolen property was foreign or the work of art was taken overseas. Furthermore, it adopted the rule in McClain , reconfirming that if foreign law unambiguously vests ownership of a work of art in a foreign government, a person who brings that piece into the United States violates the NPSA.
Schultz also failed to persuade the court that he did not know that exporting the artwork violated Egyptian law. Recalling the Hollinshead decision three decades earlier, the court pointed out that all the government had to prove was that Schultz knew in a general way that his actions were illegal. He was an experienced art dealer who specialized in antiquities, so that was an easy standard to meet, especially since his customers, colleagues and an employee testified as to his expertise in such matters. The Second Circuit was unapologetic about the implications of its decision, which “assuredly” created a barrier to importing artwork owned by foreign governments. The court maintained that its decision struck the proper balance: the NSPA only covers people who act deliberately, “protect[ing] innocent art deal[er]s who unwittingly receive stolen goods,” but it also provides recourse for other countries seeking to recover their cultural heritage.
Schultz is a watershed case because the law in the Second Circuit, located in one of the capitals of the art world, is now crystal clear: Americans can and will be subjected to criminal prosecution for failure to comply with the cultural patrimony laws of foreign countries.
Conclusion
The law in this country has steadily evolved in the direction of enforcing foreign claims regarding antiquities and other objects protected by cultural patrimony laws. It is unlikely to reverse course anytime soon. Given the legal environment, it is imperative that museum professionals, under the guidance of in-house or outside counsel, familiarize themselves with the cultural patrimony laws of art-rich source nations and also gain an appreciation for the ways federal investigators view the circumstances surrounding the importation or sale of antiquities. A healthy respect for the breadth of foreign law, coupled with an eye for spotting gaps in the provenance of an antiquity under consideration for acquisition, can generally provide important protection against future legal claims.
Evan Barr is a partner with Steptoe & Johnson LLP in New York. He was previously an assistant United States attorney in the southern district of New York. Since entering private practice, Barr has provided regulatory and enforcement advice to a wide variety of individuals and companies with respect to art law. Catherine Sevcenko, an associate with the firm, assisted with the preparation of this article.
References
1. Under the common law doctrine of laches, for example, a current possessor of an indisputably stolen object may be able to prevent its return if the rightful owner neglected to assert its rights in a timely and vigilant manner. See, e.g., Greek Orthodox Patriarchate of Jerusalem v. Christie’s, 1999.
2. Three such laws are the Archeological Resources Protection Act (resources excavated or removed from federal lands remain the property of the United States), the Native American Graves Protection and Repatriation Act and the Abandoned Shipwrecks Act (United States asserts title to abandoned wrecks submerged in state waters). But unlike the cultural patrimony laws in most foreign countries, these statutes are narrowly tailored to protect very specific categories of items under limited circumstances.
3. Although Mexico first enacted a cultural patrimony law in 1897, it did not unequivocally claim ownership of all Pre-Columbian artifacts until 1972. A limited right of private possession existed in the interim period. Given the state of flux in the Mexican laws, the court found that the defendants lacked sufficient notice that their conduct would be deemed unlawful.
4. There were other setbacks. In Peru v. Johnson (1989), for example, Peru contented it was the legal owner of artifacts that had been seized by U.S. Customs. Although the court sympathized with Peru ’s efforts to protect its patrimony, it ruled in favor of the possessor principally because Peru could not establish when the artifacts were found and when they left the country. Also, Peruvian law had not clearly established state ownership at the time the items were taken.
5. The author handled the case as an assistant U.S. attorney in the southern district of New York. The facts described herein are taken from court rulings and from the briefs filed in the case.
6. Steinhardt appealed this decision all the way to the U.S. Supreme Court, which declined to hear the case. The phiale was formally returned to Italy in 2000, more than five years after its seizure.
