Friday, March 29, 2013

Cambodian Statue Forfeiture Case Moves Forward - Sotheby's Motion to Dismiss is Denied

The federal district court for the southern district of New York today allowed federal prosecutors to amend their forfeiture complaint in the case of United States of America v. A 10th Century Cambodian Sandstone Sculpture Currently Located at Sotheby's.  The court also refused Sotheby's request to dismiss the case.

Prosecutors have accused the New York auction giant with issuing misinformation to prospective sellers; skirting claims that the statue was stolen from Cambodia in 1972 and trafficked to Thailand; and making unsubstantiated assertions. Sotheby's has countered that federal prosecutors failed to allege that the statue was stolen, that it remained stolen, or that the claimants even knew that the statue was or remained stolen.  They have also accused prosecutors of having wasted the court's time to the detriment of the claimants.

In today's 18 page decision, Judge George Daniels sided with the government at this pre-trial stage of the case, writing:

“Each of the federal statutes under which the Government has brought this forfeiture action requires an underlying violation of the NSPA [National Stolen Property Act].  Thus, to establish that the property is subject to forfeiture, the Government must allege that (1) the Statue was stolen, (2) the Statue remained stolen at the time of import into the United States, and (3) Claimants knew the Statue was stolen.

“The Government's allegations in the PAC [Proposed Amended Complaint] support a reasonable belief that the Government will be able to demonstrate by a preponderance of the evidence that the Statue was stolen.

“Claimants' argument that the PAC is deficient because it does not contain factual allegations that Cambodia ever enforced the Colonial Decrees also fails. 

“The Government's allegations in the PAC support a reasonable belief that the Government will be able to demonstrate by a preponderance of the evidence that the Statue remained stolen at the time of import into the United States. 

“The Government has sufficiently pled facts regarding Sotheby’s knowledge that the Statue was stolen at the time of import into the United States.  According to the PAC, Sotheby's was aware of the origin of the Statue, that it had been broken off at the ankles, and it first appeared on the international art market during a period of rampant looting of antiquities from Koh Ker. Sotheby's has a particular expertise in works from India and Southeast Asia, including extensive experience in the sale of Khmer artifacts. Sotheby's consulted regularly with the Collector and knew him to be the original seller of the Statue in 1975. The Collector knew that the Statue had been looted from Koh Ker, and had trouble selling it in 1975 because many prospective buyers were unwilling to purchase it due to its lack of legitimate provenance and missing feet. Subsequent to import, Sotheby's was expressly advised that the Cambodians had clear evidence that the Statue was definitely stolen. Sotheby's is alleged to have provided inaccurate provenance information and omitted information about the Collector who acquired the Statue in Sotheby's communications with potential buyers, the Kingdom of Cambodia, and United States law enforcement. Accepting all of these fact as true for the purposes of the parties' motions gives rise to a reasonable inference that Sotheby's knew that the Statue was stolen at the time of import and thereafter. The Government need not provide unassailable proof to demonstrate Sotheby’s knowledge at this stage in the case. Claimants have also not offered any legal support for their argument that the Government need plead facts demonstrating Claimant's actual knowledge of foreign patrimony law for the complaint to survive a motion to dismiss.”

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com