Introduction
In the United States, the year 2012 was notable for the intersection of criminal cases and the art and cultural property world, rather than the more routine cases of stolen art, fraudulent paintings, or the theft of proceeds from gallery sales. The criminal art and cultural object disputes included a constellation of fascinating cases covering a wide breadth of subjects and issues. The cases were investigated and prosecuted by a number of different agencies, illustrating the variety of law-enforcement entities interested in and committed to protecting art and cultural items and their respective markets.
Stolen Historical Documents
In June 2012, Barry H. Landau, a famous collector of presidential memorabilia, was sentenced to seven years' imprisonment for stealing valuable historical documents from museums and historical societies in Maryland, Pennsylvania, New York, and Connecticut, and then selling selected documents for profit. Mr. Landau and a young colleague, Jason Savedoff, were prosecuted by the U.S. Attorney's Office for the District of Maryland. Both men pleaded guilty. The scheme may have included more than 10,000 stolen items.
Mr. Landau was arrested in July 2011 when an employee at the Maryland Historical Society called the police after observing Mr. Savedoff place a document in a laptop case and then leave the building. When confronted by the police, Mr. Savedoff complained of stomach pains, but law-enforcement officers eventually found keys in his pocket that led to a locker in a nearby building that contained approximately 60 documents. The materials included documents signed by President Abraham Lincoln, numerous inaugural ball invitations and programs worth about $500,000, and signed commemorations of the Statue of Liberty and Washington Monument. Mr. Landau had signed out the documents for viewing in the Maryland Historical Society building.
Mr. Landau and Mr. Savedoff were indicted on charges of conspiracy to steal historical documents, theft of historical documents, and selling selected documents for profit over the period December 2010 through July 2011. According to the indictment, the stolen materials included a letter dated April 1, 1780 from Benjamin Franklin to John Paul Jones stolen from the New York Historical Society; a land grant dated June 1, 1861, signed by President Abraham Lincoln, to a soldier from the Maryland Militia, War of 1812, stolen from the Maryland Historical Society; and seven "reading copies" of speeches given by President Franklin D. Roosevelt, stolen from the Franklin D. Roosevelt Presidential Library, a component of the National Archives. Mr. Landau subsequently sold four of the Roosevelt speeches for $35,000. According to Mr. Landau's plea agreement, Mr. Landau and Mr. Savedoff stole valuable documents and manuscripts from additional museums, including the Historical Society of Pennsylvania, the Connecticut Historical Society, and the University of Vermont.
The scheme was notable for its extensive takings and modus operandi. Mr. Landau had deep pockets sewn into the insides of his overcoat and sports jackets so that he could hide and remove documents from the museums. He regularly brought baked goods or other treats for the museum staff when he came to conduct his "research," thereby ingratiating himself with the employees. Once a document had been stolen, steps were taken to remove any markings or inventory control notations made on the document. A checklist was prepared for each stolen document that identified the author and date of the document; the collection from which it was stolen; whether the museum card catalogue had been collected; whether there existed any microfilm or other "finding aid" for the document at the museum; the nature of any markings on the document; and whether any museum markings had been removed from the document. As seen in other cultural object theft cases, Mr. Landau and Mr. Savedoff often took the card catalogue entries and other "finding aids," making it difficult for a museum to discover that an item was missing.
Ultimately, when a search warrant was executed at Mr. Landau's residence, law-enforcement agents recovered more than 10,000 historical items. More than 6,000 of those items have been identified as stolen property, including documents signed by President George Washington, President John Adams, President Franklin Roosevelt, Marie Antoinette, Karl Marx, and Sir Isaac Newton. Those 6,000 items were stolen from libraries and repositories throughout the United States. At Mr. Landau's sentencing, prosecutors introduced new evidence that Mr. Landau stole at least one item from the William McKinley Presidential Library and Museum in Ohio in 2005; from 17 to 100 items from the Culinary Arts Museum in Rhode Island in 2008; and more than 250 items from Ms. Betty Currie, former White House Secretary to President Bill Clinton, in 2010.
United States District Judge Catherine C. Blake sentenced Mr. Landau to seven years in prison, followed by three years of supervised release. Judge Blake also ordered Mr. Landau to pay restitution totaling $46,525 to three dealers who unwittingly purchased stolen documents from him, and to forfeit all of the documents recovered during the search of his New York apartment.
Fake Looted Greek Coins
In July 2012, Dr. Arnold-Peter Weiss–a prominent Rhode Island hand surgeon, professor of orthopedics at Brown University School of Medicine, and demaler in ancient coins–pleaded guilty in New York State court to three misdemeanor counts of attempted criminal possession of stolen property, specifically three ancient coins he believed had been recently looted from Italy. Dr. Weiss was prosecuted by the Manhattan District Attorney's Office. Pursuant to a plea agreement, Dr. Weiss was sentenced to 70 hours of community service (providing medical care to disadvantaged patients in Rhode Island), and was ordered to pay a $1,000 fine for each of the three coins in the case and to forfeit an additional 23 ancient coins that were seized from him at the time of his arrest. The court also ordered Dr. Weiss to write an article for publication in a coin collecting magazine or journal warning of the risks of dealing in coins of unknown or looted provenance.
Dr. Weiss was arrested in January 2012 at the Waldorf-Astoria hotel in New York City, and charged with criminal possession of stolen property valued at more than $50,000 for his possession of a purported ancient coin recently looted from Sicily. At the time of his arrest, Dr. Weiss was selling ancient Greek coins at the 40th annual New York International Numismatic Convention. In particular, he possessed a silver coin that purported to be an early 4th century B.C. Greek type known as a Katane Tetradrachm, which he valued at $300,000 - $350,000, and was also trying to sell two other coins, Akragas Dekadrachms, purportedly dating from 409-406 B.C., which Dr. Weiss valued at upward of $2.5 million each. According to the criminal complaint charging Dr. Weiss, he believed at least one of the coins had been recently looted and smuggled out of Italy. The complaint alleged that Dr. Weiss told a confidential informant that "[t]here's no paperwork, I know this is a fresh coin, this was dug up a few years ago." Dr. Weiss also allegedly stated, "This was dug up two years ago. I know where this came from." The complaint further alleged that Dr. Weiss told an undercover investigator that he knew the coins belonged to the government of Italy, which claims state ownership of all antiquities found there since 1909.
Dr. Weiss was saved from a much more onerous outcome in his case by the fact that he was also duped. At Dr. Weiss's court appearance, Assistant District Attorney Matthew Bogdanos, the prosecutor responsible for Dr. Weiss's case, revealed that all three of the seized coins were in fact modern forgeries. Instead of being charged with the felony of possessing stolen property and attempting to sell stolen property, Dr. Weiss pleaded guilty to misdemeanor "attempted" possession because the coins in the case were not ancient and therefore were not actually looted from Italy. According to the prosecutors, the coins were excellent forgeries, and the true nature of the coins was only revealed after experts spent five months studying the coins, comparing them with museum specimens with known provenances, and examining them under a scanning electron microscope.
As part of his sentence, the court required Dr. Weiss, the former treasurer of the American Numismatic Society, to write an article for publication in a coin collecting magazine or journal warning of the risks of dealing in coins of unknown or looted provenance. Dr. Weiss's article entitled "Caveat Emptor: A Guide to Responsible Coin Collecting" was published in the fall of 2012 in the American Numismatic Society's magazine.
Dinosaur Fossils
On December 27, 2012, Eric Prokopi, a self-described "commercial paleontologist," pled guilty to engaging in a scheme to illegally import the fossilized remains of numerous dinosaurs that had been taken out of their native countries illegally and smuggled into the United States. Specifically, Mr. Prokopi pled guilty to a three-count criminal information: Count One charged conspiracy to smuggle illegal goods and make false statements with respect to a Chinese Microraptor flying dinosaur; Count Two charged entry of goods by means of false statements with respect to two Mongolian dinosaur fossils; and Count Three charged interstate and foreign transportation of goods converted and taken by fraud. As part of his plea agreement, Mr. Prokopi agreed to forfeit a nearly complete Tyrannosaurus bataar skeleton, which was taken from Mongolia and sold at auction in Manhattan for more than $1 million. Mr. Prokopi also agreed to forfeit a second nearly complete Tyrannosaurus bataar skeleton, a Saurolophus skeleton, and an Oviraptor skeleton, all of which had been in his possession and were seized by the Government. In addition, Mr. Prokopi agreed to forfeit his interest in a third Tyrannosaurus bataar skeleton believed to be located in Great Britain.
Mr. Prokopi is scheduled to be sentenced in late April 2013, and faces a maximum sentence of 17 years' imprisonment: a maximum of five years in prison on the conspiracy count; a maximum of two years on the entry of goods by means of false statements count; and a maximum of 10 years' imprisonment on the interstate transportation of goods converted and taken by fraud charge. Mr. Prokopi's conduct was investigated and prosecuted by the U.S. Attorney's Office for the Southern District of New York and the U.S. Department of Immigration and Customs Enforcement.
Mr. Prokopi owned and ran a business called "Everything Earth" out of his Florida home and described himself as a "commercial paleontologist." He bought and sold whole and partial fossilized dinosaur skeletons. Mr. Prokopi's activities first drew the Government's scrutiny in May 2012, when the fossilized skeleton of a Tyrannosaurus bataar, a dinosaur that lived during the late Cretaceous period approximately 70 million years ago, was put up for auction and sold for more than $1 million. The President of Mongolia obtained a court order blocking the transfer of the fossil to the buyer.
Prior to instituting the criminal case against Mr. Prokopi, in June 2012 the U.S. Attorney's Office initiated its efforts by instituting a civil forfeiture action seeking to forfeit the Tyrannosaurus bataar skeleton, i.e., to have it forcibly transferred to the ownership of the U.S. Government (which would in turn transfer it to the government of Mongolia). The forfeiture case relied on allegedly false information provided to U.S. Custom's officials in the customs forms, including the claim that the "country of origin" of the skeleton was Great Britain, rather than Mongolia, and that the value of the fossil was understated on the customs forms as $15,000 instead of the auction catalogue price of $950,000 - $1,500,000. Claims based on misstatements on customs forms are traditional grounds employed by the U.S. Attorney's Office to seek the forfeiture of allegedly stolen artwork. In response to the Government's civil forfeiture action, Mr. Prokopi intervened and filed a motion to dismiss the Government's forfeiture complaint.
In his motion to dismiss the forfeiture action, Mr. Prokopi argued that the skeleton was imported into the U.S. in multiple shipments, and that the value used on the customs form for one particular shipment identified by the Government was the value for the partial single shipment, not the value of the complete dinosaur skeleton. He also claimed that the Government's case was flawed because the Government never published country of origin and valuation rules for fossils. In addition, Mr. Prokopi argued that the Government's claims failed because Mongolian law has not been translated and made available to Americans, and Mongolia does not enforce its own laws within its own country to confirm the claim that the Mongolian Government is the sole owner of all fossils found there. The Government opposed Mr. Prokopi's motion to dismiss, arguing that his motion misstated the facts and the applicable law.
In a decision dated November 14, 2012, Judge P. Kevin Castel rejected all of Mr. Prokopi's arguments and denied the motion to dismiss the amended complaint. The Court ruled that there was no "fair notice" problem because the law simply prohibits importation by way of knowingly false statements, and the law gives fair warning that knowingly false statements are prohibited. The Court explained that if Mr. Prokopi did not know that his statements were false, then he may have a defense to the forfeiture action, but that issue was not before the Court on the motion to dismiss. Regarding issues with Mongolian law identified by Mr. Prokopi, the Court ruled that while he might ultimately prevail by demonstrating that Mongolian law is improperly vague or that Mr. Prokopi lacked the requisite knowledge of illegality, neither defense could be properly considered on a motion to dismiss. Finally, because the amended complaint alleged that Mr. Prokopi was a commercial paleontologist who excavated skeletons in Mongolia in the past, and then allegedly attempted to obscure the dinosaur skeleton's country of origin on importation paperwork, it raised a reasonable inference that Mr. Prokopi knew the Tyrannosaurus bataar skeleton was stolen from the Mongolian state. Accordingly, the Court denied the motion to dismiss the amended complaint.
Meanwhile, in October 2012 the case changed from a civil dispute over a dinosaur skeleton to a criminal case, placing Mr. Prokopi's freedom in jeopardy when Mr. Prokopi was arrested at his home in Gainesville, Florida. In the parallel criminal proceeding, the Government alleged that between 2010 and 2012, Mr. Prokopi acquired several dinosaur fossils from foreign countries and unlawfully transported them to the United States, misrepresenting the contents of the shipments on customs forms. The complaint charged Mr. Prokopi with multiple crimes related to a scheme to illegally import dinosaur fossils into the United States, including the nearly complete Tyrannosaurus bataar skeleton from Mongolia. Criminal charges arising out of allegedly false statements on customs forms is a common method used by the Government to place criminal liability on individuals who bring allegedly stolen artworks or other cultural property into the U.S., and the Government turned to its standard playbook of charges in alleging customs form misrepresentation here.
The Government further alleged that Mr. Prokopi: (a) illegally imported from Mongolia the skeleton of a Saurolophus, another dinosaur from the late Cretaceous period, that he ultimately sold to the I.M. Chait gallery in California; (b) unlawfully sold the fossils of two other dinosaurs native to Mongolia, Gallimimus and Oviraptor mongoliensis; and (c) unlawfully imported the fossilized remains of a Microraptor, a small, flying dinosaur from China. The Government claimed that many of the fossils in Mr. Prokopi's possession were indigenous to Mongolia and could only be found in that country. It asserted that Mongolian officials had uncovered a witness who accompanied Mr. Prokopi to an excavation site in 2009 and observed him physically taking bones out of the ground. Since 1924, Mongolia has enacted laws declaring dinosaur fossils to be the property of the Government of Mongolia and criminalizing their export from the country.
At the December 27, 2012 plea hearing, Mr. Prokopi pled guilty to engaging in a scheme to illegally import the fossilized remains of numerous dinosaurs that had been taken out of their native countries illegally and smuggled into the United States. He also agreed to forfeit the Tyrannosaurus bataar skeleton and other fossils, thereby ending the companion civil forfeiture matter that kicked off this dispute. Mr. Prokopi is scheduled to be sentenced on April 25, 2013.
Mr. Prokopi's case illustrates a conundrum periodically faced by defense attorneys in civil forfeiture cases. Because the U.S. Attorney's Office has the ability to bring a criminal case in appropriate circumstances, it often has far more leverage in a negotiation than does the importer or purported owner of the piece at issue. While the client may wish to contest whether civil forfeiture is appropriate, if it can find a non-frivolous basis, the U.S. Attorney's Office can threaten to bring criminal charges against the client if he or she does not consent to forfeiture. Where a piece is forfeited, the client is only out the value of the object. But if a criminal case is instituted, the client is faced with a felony record and imprisonment. With such great leverage, the U.S. Attorney's Office often obtains the object it seeks to have forfeited and returned.
Conclusion
These three cases are just a sample of the intersection of the fields of criminal law and art and cultural property law in the year 2012. The cases demonstrate that in the U.S., both federal and state prosecutors are committing resources to these types of cases. While the U.S. Attorney's Office for the Southern District of New York has historically prosecuted cases in this realm, the 2012 cases show that various other state and federal prosecutors are also investigating and prosecuting these cases. Moreover, while a collector may think that only the ownership of a precious object is at stake when one of these cases commences, the true harm can be much greater, both to the collector's reputation and his or her liberty.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
