THE MARKETS IN STOLEN AND LOOTED ART AND ANTIQUITIES

TULANE LAW SCHOOL
The Tulane-Siena Institute for
International Law, Cultural Heritage &
the Arts
Siena, Italy
SUMMER, 2015
From Gray to Black: The Markets in Stolen &
Looted Art and Antiquities
Professor Herbert Larson
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FROM GRAY TO BLACK: THE MARKETS IN STOLEN AND
LOOTED ART AND ANTIQUITIES
Herbert Larson
Tulane-Siena Institute for International Law and the Arts
Siena, Italy - June, 2015
SYLLABUS AND READING ASSIGMENTS
1. Monday, June 15, 2015: First class: Introduction and overview of the course. The market
in stolen and looted art: facts, fiction, and fantasies. Reading assignments:
1.1. Editor’s Note: “The Illicit Trade – Fact or Fiction;” from Who Owns the Past, Kate Fitz
Gibbon, Editor, 3rd printing; 2005………………………………………………………..3
1.2. “The Antiquities Market – When, What, Where, Who, Why . . . and How Much?, Arielle
Kozloff, from Who Owns the Past, Kate Fitz Gibbon, Editor, 3rd printing; 2005………..7
1.3. Morag M. Kersel, “From the Ground to the Buyer: A Market Analysis of the Illegal
Trade in Antiquities”……………………………………………………..……………..14
2. Tuesday, June 16, 2015: Second class: Supplying the Market: Looting as an Illegal Source
of Art and Antiquities. Reading assignments:
2.1. Peter B. Campbell, “The Illicit Antiquities Trade as a Transnational Criminal Network:
Characterizing and Anticipating Trafficking of Cultural Heritage”………………….…27
2.2. Simon Mackenzie and Tess Davis, “Temple Looting in Cambodia: Anatomy of a Statue
Trafficking Network.”…………………………………………………………………..65
3. Wednesday, June 17, 2015: Third class: Supplying the Market: Armed Conflict as an
Illegal Source of Art and Antiquities. Reading assignments:
3.1. Interview with Lynn Nicholas, author of The Rape of Europa…………………………84
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3.2. “The Spoils of War,” by Shahan Mufti, Harper’s, April, 2011…………...…………….92
3.3. “Danti’s Inference: The Known Unknowns of ISIS and Antiquities Looting,” post on
CHASING APHRODITE…………………………………………...…………………..99
3.4. 12 February 2015 press release from the United Nations Security Council, adopting
Security Council Resolution 2199…………………………………....………………..104
4. Thursday, June 18, 2015: Fourth class: Enforcement efforts: international vs. national;
criminal vs. civil. Part I: The international efforts. Reading assignments:
4.1. Article 8 of the Rome Statute of the International Criminal Court………..…………..116
4.2. UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property (see Appendix)
4.3. Council Directive 93/7/EEC of 15 March 1993 on the Return of Cultural Objects
Unlawfully Removed From the Territory of a Member State (see Appendix)
4.4. Unidroit Convention on Stolen or Illegally Exported Cultural Objects (see Appendix)
5. Monday, June 22, 2015: Fifth class: Enforcement efforts: international vs. national;
criminal vs. civil. Part II: The national efforts in the U.S. Reading assignments:
5.1. Title 18, United States Code, Sections 2314 and 2315……………………….…..……123
5.2. Title 18 United States Code, Section 668………………………..…………….………127
5.3. Title 18 United States Code, Sections 1956 and 1957…………………………………128
6. Tuesday, June 23, 2015: Sixth class: National enforcement efforts, continued. Reading
assignments:
6.1. “Evaluating the Application of the National Stolen Property Act to Art Trafficking
Cases,” Graham Green, 44 Harvard Journal on Legislation 251 (2007)……..………..142
6.2. United States v. Schultz, 178 F.Supp. 2d 445 (S.D.N.Y., 2002)……………………….150
6.3. United States v. Schultz, 333 F.3d 393 (2nd Cir. 2003)………………………………..155
6.4. United States v. McClain, 545 F.2d 988 (5th Cir. 1977)……………………………....170
6.5. Peru v. Johnson, 720 F. Supp. 811 (C.D. Cal. 1989)..…………………………….…..192
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From the Ground to the Buyer:
A Market Analysis of the Illegal Trade in Antiquities
Morag M. Kersel3
Every day in shops, on the Internet, and in auction houses, people purchase archaeological
artifacts. On Web sites such as eBay an individual can buy anything from a Folsom point to a
Roman silver figure of Hermes to an Aztec water goddess wall plaque, paying from U.S. $2.99 to
3
From: N. Brodie, M.M. Kersel, C. Luke and K. Walker Tubb (eds). Archaeology, Cultural Heritage and the
Antiquities Trade. University Press of Florida, pp. 188-205 (2006).
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$29,000.4 Archaeological material is readily available in the marketplace, but how does it get
there? What kinds of conduits do these artifacts pass through on their way to the auction block? In
an attempt to answer these questions, I set out a model of the trade in antiquities, highlighting its
defining or unique features; provide concrete data illustrating the pathway of an artifact; and in
light of this model, suggest some appropriate countermeasures for combating illegal trade.
The illegal excavation of archaeological sites is a global problem, and the attendant loss of
cultural heritage is devastating. The assorted countermeasures imposed by various nations against
illegal trade do not appear to be working, to some extent because the trade and the pathways that
artifacts travel are poorly understood, and consequently the controls are inadequately targeted
(Mackenzie 2002). Recent reports (Brodie et al. 2001; Brodie and Tubb 2002) have indicated that
archaeological sites are being looted at an alarming rate, and the looted material can be found in
antiquities shops, at auction houses, and on eBay (Elia 2001). The amount of available
archaeological resources is finite, and yet with myriad claims of provenance proffered by
antiquities dealers—that the artifacts are from “old family collections” or “recent museum
deaccessions”— there seems to be a never-ending legal supply.5 Today’s antiquities trade
functions within the context of legal and illegal markets, high returns on investment, decreasing
supply, and continued demand for cultural artifacts.
The illegal antiquities market is frequently compared to other major international criminal
enterprises, especially drug trafficking and arms smuggling (Adler and Polk 2002; Bernick
1998; Borodkin 1995; Polk 1999, 2000). Although it shares many characteristics with other illegal
markets, there is at least one fundamental difference: by passing through a series of markets or
portals, as they are referred to by Polk (2000), the objects are transformed from illegal to legal;
that is, in market parlance, they are laundered. Trafficking in antiquities blurs the lines between
illegal and legal markets and between criminal and legitimate participants. Whereas the traffic in
drugs is always illegal—meaning that the buyer is as culpable as the seller—in sharp contrast, the
ultimate buyer of illegally excavated antiquities can often purchase them openly and legally,
seemingly without engaging in illegal activity (Polk 2000: 83).
Model for the Trade in Antiquities
The majority of markets consist of groups of intermediaries between the first seller and
the final buyer of the commodity. Polk (2000: 84) asserts that what distinguishes the traffic in
antiquities from other criminal markets is that most of the material must at some point enter the
market as legitimate commodities in order for the goods to realize their full economic value. Savvy
antiquities collectors understand the importance of provenance. This need for the assurance of
good title (at least in appearance) has created specialized market nations, the main purpose of
which is to act as a transit point from the archaeologically rich country to the buying country. In
Argentina, Hong Kong, and Switzerland, for example, antiquities can pass through a market that
imparts legitimacy to the goods being purchased (see Alder and Polk 2002; Kunitz 2001;
Schávelzon 2002). The path of an illegal antiquity from its illegal excavation in the
4
eBay website <http://listings.ebay.com/Antiquities-Classical-Amer_W0QQca- tref
ZC4QQfromZR10QQsacategoryZ37903QQsapricehiZQQsapriceloZQQsocmdZListingItemListQQsoloctogZ9QQsosortorderZ2QQsosortpropertyZ2>, accessed May 1, 2004
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The “provenance” (a term most often used by art historians) of an object includes the original location and
context of the object as well as the history of ownership, a key part in the evaluation of its value. “Provenience”
(the term most often used by anthropologists and archaeologists) means the original location and context of an
object
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archaeologically rich country through the various transit points to its eventual exportation
to and sale in the destination country can have many variations.6 A simplified sequence is
presented in figure 9.1. An important aspect of the
Figure 9.1. Market
flow of the illegal
trade in antiquities.
figure to be considered is that a sale of an archaeological artifact can occur at any time in the
sequence if there is a willing buyer. An examination of the conduits through which illegally
excavated antiquities are routed on their way to a “legitimate” home is critical to understanding
the trade in antiquities and how countermeasures to looting may be developed.
Archaeologically Rich Market
The archaeologically rich market is based primarily on individuals, families, and organized
bands of looters who supply antiquities for the more controlled components of the trade. Local
people, in many cases subsistence diggers (Hollowell-Zimmer 2003; Matsuda 1998; Staley 1993),
are responsible for the looting of archaeological sites, churches, and museums. This type of
activity does not lead to great financial payoffs for the looters. They sell to middlemen, who take
the goods to resell to the antiquities dealers at a hefty markup (Brodie 1998b). Typically, it is the
middlemen who retain the majority of the profits, while the finders of the artifacts often receive
less than 1 percent of the eventual retail value of their looted goods (Borodkin 1995: 377).
Once the items have been obtained from the looters, complex networks develop in order
to handle the traffic in material. It is here that we see the emergence of organized criminal
activity, given the need for movement on a regular and systematic basis (Freiberg 1997: 237). At
this juncture the antiquity is still a stolen item, with no provenance, illegally acquired and
illegally exported. It is usually smuggled out of the country of origin to a transit point via the
6
For an interesting discussion of the chain of supply of an illicit antiquities market, see Mackenzie 2002.
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airport in tourist luggage, on container ships, or in diplomatic pouches.7
In some cases, thefts are preordered by dealers and collectors. In China, for example,
instances of “selling-to-order” have involved a looter showing photographs of art available in a
poorly guarded museum to a prospective buyer, stealing the selected items, and arranging for their
transport out of China (Adler and Polk 2002). Changes in supply can create new forms of
demand—the market is intentionally flooded with a new genre in response to a newly created
aesthetic fad. A current example is the demand for Spanish colonial art, which has caused a
significant increase in the looting of churches in Central and South America for items to adorn
homes in Spain and the United States (Luke 2003).
It is important to recognize that the various types of markets are not necessarily
geographically separate and can in fact all occur within the same country or state.
Archaeologically rich market countries can also serve as centers of demand, as in the trade in
Native American artifacts in the United States. A good example is the case of the controversial
ossuary that has recently been the focus of much attention (Gugliotta 2002; Legon 2002;
Silberman and Goren 2003; Wilford 2002).8 According to the purchaser, the ossuary was looted
from a tomb near Jerusalem by local villagers (the archaeologically rich market) and then offered
for sale in an antiquities shop in Jerusalem’s Old City (the transit market). It was purchased by an
Israeli collector (the destination market), who kept it in his home without realizing the
significance of the inscription until it was pointed out by an expert epigrapher. Thus the entire
process of the artifact’s movement from the ground to the ultimate consumer took place in a
single region. Further examples of geographically united markets include the case of the
Salisbury Hoard in England (Stead 1998) and numerous instances in the American Southwest
(Axtman 2002).
Transit Markets
A common feature of successful transit markets is the lack of concern regarding how the
material reached the given jurisdiction (no questions asked), thus opening up a market that is
focused on successfully exporting the objects. A key criterion for an effective transit point is the
status of free port, where the laundering of the artifacts can occur and proper papers of
exportation can be prepared (Polk 2000: 85).9 Crucial to this stage is that when goods are
imported into the destination market, they can be openly displayed in the most respectable
establishments (like Sotheby’s and Christie’s). The situation is facilitated by the purchasers and
the merchants, both of whom are either unaware of or choose not to question the origin of the
goods being procured.
Prott and O’Keefe (1989: 532) state that there are two principal types of transit market
countries: geographically advantaged states and art market states. The geographically
advantaged states are those through which traders and smugglers must almost inevitably pass, if
only briefly, because of their physical proximity to the archaeologically rich country(s) or their
role as a regional hub. As a prime regional commercial area, Hong Kong is often cited as a major
7
A recent seizure of a shipping container at the port of Haifa in Israel revealed a large quantity of archaeological
material destined for the United States (Archaeologist, Israel Antiquities Authority, interview by the author, May
4, 2004).
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An ossuary is depository for bones, in this case a simple limestone box with a potentially history-making
inscription if proven to be authentic, referring to James as the brother of Jesus (see Samuels 2004).
9
A free port is an international port at which cargo may be disembarked or unloaded, may remain, and may be
transshipped without being subject to any customs charge or duties. Definition available from <http://
www.eyefortransport.com/glossary/ef.shtml>, accessed September 12, 2004.
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market and center of trade in antiquities (Lundén 2004). Evidence exists that antiquities
looted from Angkor Wat in Cambodia are brought to Hong Kong (International Council of
Museums 1997), “where the artifacts disappear into a semi-legitimate antiquities market that
counts unwary international museums among its main customers” (Boyd 1994: 48). Israel is an
excellent example of a geographically advantaged state due to its proximity to the Palestinian
Authority (PA), where most of the looting in this region occurs.
Many of the geographically advantaged states, while conveniently located near
archaeologically rich areas—such as the Gulf States, often a conduit for material leaving the
Middle East—are not well positioned as shopping venues for dealers and collectors interested in
purchasing archaeological artifacts. Art market states like Belgium, Germany, and Switzerland
provide both a setting for artifact laundering and a desirable location for art fairs and auction
houses.
The second type of transit market identified by Prott and O’Keefe (1989: 533) is the art
market state, in which services such as auctions, valuation, and restoration are concentrated:
“Traditionally, they [transit markets] have played a very important role in the movement of
cultural property, even though the volume originating in different areas may have fluctuated
widely.” They cite the United Kingdom as an important transit state.
Licensing requirements under the Waverley system (Committee on the Export of Works of
Art, Waverley Report 1952) make the United Kingdom an ideal transit market. Based on a system
dating back to World War II, the Import, Export and Customs Powers (Defense) Act was enacted
in 1939 to prevent the outflow of capital and to protect foreign exchange reserves. All export
applications are reviewed by the Board of Trade pursuant to criteria recommended by the
Waverley Committee (Brodie 2002). In their discussion of export licensing and the Waverley
criteria, Maurice and Turnor (1992: 273) suggest that the review process could actually be used to
create a provenance.
As a member of the European Union (EU), the United Kingdom is also bound by
European Union Council Regulation No. 3911/92 and European Union Council Directive 93/7
(Brodie 1998a; O’Keefe 1997: 24–25). The former requires that export licenses be issued for
taking EU cultural material outside the EU countries, while removing internal barriers, thus
enabling the free movement of goods within the EU (Brodie 1998a). The latter provides for the
recovery of “national treasures” illegally exported to other countries within the European Union.
Scholars have commented on the ineffectiveness of the regulations in both instances due to their
cumbersome paperwork requirements; and neither bars the issuing of U.K. or EU export
licenses for artifacts from countries outside the EU (Brodie 1998a; O’Keefe 1997: 30; Palmer
1995).
While the United Kingdom has strict rules governing its own national treasures over fifty
years old, export licenses are much more freely granted for foreign material that has been in
England less than fifty years, allowing the British economy to benefit from the sale of the
cultural heritage of other countries (Brodie 2002: 190). The U.K. restrictions on the export of
antiquities are aimed at protecting its own cultural heritage rather than at curtailing the illegal
trade in art (Prott and O’Keefe 1989: 502). On a more positive note, significant progress toward
closing the loopholes in protecting the cultural heritage of other nations was made in 2002 when the
United Kingdom ratified the 1970 UNESCO Convention. The British Parliament undertook
further measures by enacting the Dealing in Cultural Objects (Offences) Act 2003 (for a detailed
discussion, see Gerstenblith, this volume).
Switzerland’s laws favoring the good faith purchaser, its proximity to archaeologically
rich countries (Italy and the Balkans), and until recently, its general unwillingness to participate
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fully in or enforce international regulation of cultural property have created another ideal art
transit state (see Watson, this volume, for further discussion). Historically, the Swiss have been
successful in promoting themselves as a conduit nation; the art trade industry in Switzerland was
valued at over U.S. $2 billion nearly a decade ago (Greenfield 1996: 247). Launderers seek out
those Swiss dealers who routinely look the other way and take great steps to conceal the illegal
past of looted objects. Possessors of stolen items can store the works in private banks or at taxfree warehouses at Swiss airports and border crossings. After a statutory period and evidence of
a good faith purchase, the stolen piece belongs to the purchaser (Prott and O’Keefe 1989: 384;
Watson, this volume). In 2003 Switzerland also ratified the 1970 UNESCO Convention and
enacted new legislation—the Federal Act on the International Transfer of Cultural Property—
that may change Switzerland’s historic role as a transit country.10 While the enactment of this
legislation is certainly a welcome step in the effort to prevent illegal dealing in stolen and illicitly
excavated cultural objects, it remains to be seen whether the law will have a discernible
impact on Switzerland’s role as a transit market in the laundering of illegal antiquities.
It is in the transit market that the conversion from illegal to legal takes place. Once an
export license is procured in those venues, the material can be successfully negotiated through
customs, and retail functions can all be conducted openly and legally. By this time, the artifact
has changed hands at least three times, making it much more difficult to prove exactly where
the item came from, what borders it crossed, and how long it has been in circulation. Often
there is an attempt to provide provenance in these locations by the use of well-known and
thoroughly suspect euphemisms, such as “from the collection of a Swiss gentleman” or “a
collection in Hong Kong” (Adler and Polk 2002).
Destination Market
Once the artifact has passed through the transit point and receives a “clean bill of sale,” it
can enter the marketplace as a legitimate antiquity. Despite evidence that a large proportion of
material is illicitly traded and is directly connected with other illegal activities (clandestine
excavation, theft, illegal drugs, terrorism, and possibly on occasion even murder), some
participants in the sales and destination markets are indifferent to the origin of the goods being
sold (Prott and O’Keefe 1989: 539).11 These dealers, experts, collectors, and museums prefer to
look the other way and not ask questions about provenance and authenticity. Furthermore, by not
asking uncomfortable questions about where a piece originated and how it ended up on the
market, legitimate dealers are acting in collusion with the illegitimate aspects of the market.
It is a fact that wealthy individuals, auction houses, and museums collect and buy stolen
and illegally exported (or excavated) art and antiquities, whether knowingly or unknowingly. A
remarkable characteristic of this market is pointed out by Bator (1988: 360):
The most striking thing to a lawyer who comes upon the art work is how deep
and uncritical is the assumption that transactions within it should normally be—
are certainly entitled to be—secret. . . . No dealer or auction house will normally
reveal the provenance of an object offered for sale; it is assumed that buyers and
10
A free port is an international port at which cargo may be disembarked or unloaded, may remain, and may be
transshipped without being subject to any customs charge or duties. Definition available from <http://
www.eyefortransport.com/glossary/ef.shtml>, accessed September 12, 2004.
11
In his account of the intrigue surrounding the Sevso Treasure, journalist Peter Landesman suggests that Jozef
Sumegh and two associates were murdered as a result of their involvement with the unearthing of the silver hoard
(Landesman 2001: 68).
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the public have no business knowing where and when and for how much the
object was acquired. . . . Indeed the tradition is that such information is rarely
even sought. . . . It is the propriety of secrecy which is assumed; and it is secrecy
which enables persons, otherwise aspiring to the highest standards of personal
probity, to become accomplices in the acquisition of looted masterpieces.
The trade’s own unspoken etiquette upholds a façade of respectability that makes the
provenance of a piece for sale a taboo subject (Renfrew 2000: 37). Client confidentiality is
often cited as the chief reason why dealers and auction houses refuse to provide provenance.
Auction houses on the whole are subject to little direct legal control of their activities. In the
United Kingdom and in some U.S. states they are not required to guarantee title or to examine
provenance and usually include in their conditions of sale an exclusion of responsibility for
genuineness, authorship, provenance, etc. (Prott and O’Keefe 1989: 557).
Recently the prevailing sentiment at auction houses concerning the usefulness of
provenance has begun to change. However, although collectors are increasingly requesting the
pedigree of the objects they are buying, and although the pedigree is now included in most sale
catalogues, the tacit agreement regarding secrecy remains. For some museums and collectors the
familiar phrase “from the collection of a Swiss gentleman . . .” attached to the antiquity in
question still suffices.
A Case Study: Coins
I walked by Mohammed and his shoe-shine operation in Jerusalem every day for months, never
suspecting that he also dealt in ancient coins until, in an interview with an archaeologist/coin
collector, I was told that he purchased most of his coins from Mohammed. I then began to track
Mohammed’s interactions with his various customers, with the local Palestinian women, and with
a particular Israeli dealer who routinely visited him. The popular notion (rightly or wrongly) is
that coins will increase in value, and one only needs to buy a few to profit financially. The
possibility that ancient coins in Israel and the PA may come from the temple from which Jesus
drove out the moneychangers (John 2:13–25) adds an extra dimension to their value. Coins are
an integral part of daily life and are handled on a daily basis, which allows for easy
concealment and transportation. The following relates how a coin travels from Hebron, a city in
the PA, to New York City with few obstacles along the way (see fig. 9.2).
Figure 9.2. Pathway of a coin from Hebron to New York City.
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Introduction12
Israel has a national patrimony law whereby the ownership of archaeological material
is vested in the state. In Israel, it is legal to buy and sell artifacts from pre-1978 collections and
inventories (that is, those predating the year of the national patrimony law). Currently there is a
system of legally sanctioned dealers in antiquities who are allowed to request and provide export
permits, issued by the Israel Antiquities Authority (IAA). The PA is drafting new national
patrimony legislation that will tackle the issue of legal sale of antiquities. Cultural heritage
protection in the West Bank is presently governed by the Law of Antiquities Jordan, 1966, and
in the Gaza Strip by the Antiquities Ordinance No. 51 of 1929, both laws being holdovers from
the British Mandate period, when the sale of antiquities was permissible.
Recent research has shown that some of the material for sale in the legally sanctioned
shops in Israel comes from looted sites in the PA (Blum 2001; Ilan et. al 1989; Kersel 2005;
Keyser 2002), and licensed dealers are able to sell looted material by exchanging the registry
numbers of items already sold with those of a similar description that have newly appeared on the
market. For example, when a tourist purchases a Herodian oil lamp, registry number 147, from an
officially sanctioned dealer, he or she receives a certificate of authenticity (supplied by the
dealer) and an export license (but only if the tourist remembers to ask for one) issued by the
IAA. Both a description of the item and the official registry number appear on the export license.
If the tourist does not acquire an export license, the dealer can then reuse the registry number as
there is no formal record of the sale. The dealer has another Herodian oil lamp in his stores very
similar in size, color, and design to lamp number 147. He then assigns the second oil lamp the
registry number 147 and places it among his inventory to be sold. This is common practice
verified through a series of interviews with dealers, archaeologists, and representatives of the
IAA.
While often proffered as a remedy for reducing the destruction and theft of archaeological
artifacts, the licensing of dealers and the use of registry systems are often suspect. O’Keefe
(1997: 31–32) states that “theoretically a register would allow acquisitions of artifacts to be
traced and should dissuade dealers from acquiring those with dubious provenance. In practice
their effectiveness is questionable.”
Artifact Pathway
Archaeologically rich market. The village women in the Hebron area cultivate mint and
herbs in their backyards for sale on the streets of East Jerusalem. Often while gathering produce
for market, the women unearth ancient coins, and at times when economic circumstances are
particularly tight, the local villagers dig for coins.13 Once the village women arrive in
Jerusalem, they sell the coins to Mohammed, one of the many shoe-shine operators who dot the
streets of East Jerusalem and the Old City.14 Mohammed’s spoken English is fairly good, and he
positions himself in an area of high tourist traffic. Many of his shoe- shine clientele are
12
This case study is based on a series of interviews with Mohammed, a Palestinian shoe-shine operator; an
Israeli dealer from West Jerusalem; an archaeologist/amateur collector; and a tourist. All participants agreed to be
interviewed on condition of anonymity, and I have therefore changed their names. The interviews were
conducted as part of my Ph.D. dissertation research on the legal trade in antiquities in Israel and the Palestinian
Authority. [This footnote has been moved from the original publication, Ed.’s note]
13
For further information on the phenomenon of subsistence digging, see Hollowell-Zimmer 2003; Matsuda 1998;
Staley 1993.
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Under the current political conditions it is far easier for women than for men to travel between Hebron and
Jerusalem.
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foreigners and he always offers to show them the coins in his pocket just in case they might
like to buy a coin along with the shoe-shine. On a good day, Mohammed can make between U.S.
$200 and $300 selling two or three coins to a foreigner. At this point, Mohammed, the
middleman, is acting as a dealer of the coins; it is here in direct sales that his profit margin is at
its highest.
Mohammed has been in the shoe-shine/coin business for a long time (some forty years)
and has become quite knowledgeable about the coins sold to him. He can differentiate between
the valuable, rarer pieces and the everyday run-of-the-mill coins. He sells the rarer coins to a
licensed Israeli dealer from West Jerusalem who visits him regularly. He sells the more prosaic
coins to less savvy foreigners, who may pay more than the value of the coin because they are
unfamiliar with the market prices and the coin’s true worth.
Transit market. Given the current disputed borders in Jerusalem, it is an ideal,
geographically advantaged transit market. Licensed antiquities dealers from the Old City or West
Jerusalem can easily meet with Mohammed and examine the coins coming in from the PA.
Mohammed buys the coins from the village women for a set price and then sells them to
licensed dealers for at least ten times what he paid for them.15 The licensed dealer cleans the
coins, provides each with a registry number as required by law (Antiquities Law 1978), and
adds them to his shop inventory. It is in this transit market that the coins go from illegal to
“legal” through the acquisition of a registry number, a pre-1978 provenance, and a certificate of
authenticity, all made available by the licensed antiquities dealer.16 An export license can also
be issued by the IAA based on the falsified registry number.
Even if the IAA inspector pays an unannounced visit to the shop to check the inventory,
nothing appears untoward since the coin now possesses a registry number that corresponds with
the inventory description. The IAA would be able to confiscate the coin under the 1978
antiquities law only if it is unique or was a very rare example or if the IAA can prove the coin
came from public land (which it generally cannot do). At this point, the coin has passed into the
legitimate sales market for the unsuspecting tourist or collector to buy.
Destination market. The tourist from New York City ventures into the licensed
antiquities shop in West Jerusalem looking for the perfect coin to complement his collection. The
dealer offers Mohammed’s coin to the innocent tourist for five times what he paid Mohammed.17
Forewarned by the concierge at the hotel and in the guidebooks (Prag 2002: 26), the tourist is
knowledgeable enough to ask for an export license, which he receives in due course. When he
asks where the coin comes from, he is told that it was part of an old family collection from the
Hebron area. Thus, satisfied that the coin is genuine and that he will not have a problem getting
it out of the country, the tourist buys the coin.
At airport security the tourist is surprised that the security agents do not question him at
all regarding the coin he is taking out of the country. They do not even ask him to produce the
export certificate.
The PA Department of Antiquities and the IAA are both chronically underfunded and
understaffed. Neither has the resources to monitor site looting, dealer inventories, or shop
15
No one interviewed would divulge the price paid for the coins.
For further discussion on the exchange of registry numbers as a common practice among licensed antiquities
dealers, see Ilan et al. 1989; Kersel 2005.
17
If the price paid by Mohammed for the coins is U.S. $5, then the tourist is paying
$250 for the same coin, fifty times the original price paid to the village women from Hebron. For further
discussion of prices realized versus the original finder’s price, see O’Keefe 1997: 19, n. 35.
16
22
22
registries on a regular basis, nor does either have the financial resources to train customs
agents and security personnel in archaeological resource protection. Political and economic
instability in the region, a lack of effective law enforcement in the PA, and a unique legal market
in Israel all create the perfect setting for looting and illegal excavation to occur and provide the
market for the artifacts to be sold. Unfortunately, given the dire situation in the area, the illegal
trade in antiquities is a low priority for both sides.
Countermeasures
The illegal trade in antiquities can be diminished only through appropriate
countermeasures, such as the implementation of stricter national legislation enforcing the 1970
UNESCO Convention. In order to stem the flow of antiquities out of their countries, many
archaeologically rich nations have instituted strict national patrimony laws that vest ownership of
undiscovered antiquities in the nation and prohibit the export of archaeological and ethnological
material (see the laws of Cambodia, Egypt, Honduras, Jordan, Mali, and Peru, to name but a
few). The establishment of state ownership and the accompanying export regulations often rely
on the willingness of market nations (mainly in the West) to recognize and enforce the claims
of archaeologically rich nations requesting the return of their cultural patrimony, which is not
always a realistic assumption.18 Countries without national patrimony laws should be
encouraged to implement such legislation. Nations should also be encouraged to acknowledge
the import/export restrictions of other countries in order to seize and return illegally exported
archaeological material. Increased inter-country memoranda of understanding with countries
that focus on the protection of cultural property should be instituted as part of a global effort to
prevent the illegal movement of goods.
At each stage along the pathway of an artifact, there needs to be greater enforcement
of the existing laws to protect the cultural landscape. A starting point would be more financial
resources for the on-the-ground protection of archaeological sites. Placing guards at sites that
are routinely looted may act as a deterrent. Enhanced training of police, park rangers, and
customs and border officials in the archaeologically rich transit and destination markets would
aid in the monitoring of the international transport of illegal goods. These groups of officials
should be able to recognize the types of antiquities they are protecting and should know how the
laws in their regions work (O’Keefe 1997: 89).
Often foreign archaeological teams do not realize the ramifications of their projects on
the local communities. In one sense the locals who are hired as laborers on archaeological
excavations receive training in excavation techniques that they may then employ as looters
(Kersel and Luke 2005). Greater effort to engage the local population with the project research
objectives, the importance of their cultural heritage, and the long-term impact of looting should
be an integral part of archaeological investigations (O’Keefe 1997: 90–91).
Providing alternative economic opportunities and financial incentives for those who
engage in subsistence looting is another suggested countermeasure for combating illegal
excavation in the archaeologically rich market (Mackenzie 2002). Unfortunately, demand is
high, and local populations have become increasingly dedicated to the looting of archaeological
sites, as Politis (2002) demonstrates in his research on the Ghor-es-Safi in Jordan. These villagers
have honed their excavating skills and can distinguish between Byzantine period and Bronze Age
18
For a detailed discussion of the issue of lack of enforcement of the import/export laws of foreign governments,
see Gerstenblith, this volume, on the Schultz case.
23
23
materials (Politis 2002: 259). Local populations have now come to depend on the antiquities
marketplace to such an extent that not only have they geared their excavations accordingly, but
they have devoted time and effort to learning about the specific periods and artifacts in order to
ensure the highest possible monetary payback. Changing this entrenched behavior would require
viable economic alternatives for the local stakeholders. What is most relevant in the context of
this chapter is that the market drove these individuals not only to loot but to learn how to loot in
order to reap the greatest financial rewards.
Education, both formal and informal through the mass media, is a powerful tool that
should be used in the fight against the plunder of antiquities. According to O’Keefe (1997: 89)
“education and publicity must cover all States affected and all levels of society.” Each of the
stakeholder groups in this debate (dealers, museum professionals, collectors, archaeologists, and
government representatives) has a code of ethics to which members should be held accountable.
No single group should be omitted from the education process. Asking for provenance and
assurance of good title should be second nature and an essential characteristic of the ethical
standards of each of these parties. According to Herscher (1987: 213), “real progress in
diminishing the illegal traffic in antiquities and the looting of archaeological sites will ultimately
be accomplished not through law enforcement but through the ethical codes of the pertinent
groups and the influence they exert on societal norms as a whole.” There are no codes of ethics for
individual private collectors—except the Swiss Association of Collectors (O’Keefe 1997: 44)—or
tourists or local buyers, nor are there public education programs that depict the connection
between the illegal excavation of archaeological sites and consumer demand. These should be
highlighted in the public sphere. The market model implies that the illegal trade depends upon the
willingness of consumers to purchase unprovenanced artifacts and upon a lack of awareness in
the trade in general (Adler and Polk 2002: 48). “From the collection of a Swiss gentleman” or
“from a collection in Hong Kong” should not be acknowledged and accepted forms of
provenance. If collectors and museums refused to buy unprovenanced antiquities, and if the
general populace could be made to understand the concomitant irretrievable loss of knowledge,
the trade in antiquities would surely be diminished (Adler and Polk 2002; Gilgan 2001; Kersel
and Luke 2003).
Conclusion
To address effectively the issues of how artifacts travel from the ground to the buyer, a
concerted effort to integrate all aspects of the trade in antiquities must be made. The mechanisms
currently in place to combat the illegal excavation of archaeological sites do not appear to be
acting as deterrents. In order for the countermeasures to succeed, all of the various factions should
be united. Education can only work if the laws underpinning the protection of cultural heritage
provide policies, financial incentives, and oversight. There must be cooperation between the
various stakeholders and greater disclosure of information. Emphasis on tighter legal measures,
law enforcement, education, and a concerted effort by both archaeologically rich and market
nations to lessen the demand for archaeological material in the marketplace are key to finding
solutions to the loss of cultural heritage.
The essential goal is a situation in which consumers will not purchase objects that have
been illegally removed from their original context. In terms of Israel and the PA, would
Mohammed’s coin have reached New York City without a registry number? Perhaps the coin
would still be in New York, but certainly not with a legally provided export license and certificate
of authenticity stating that the coin came from an old family collection from the Hebron area.
24
24
Acknowledgments
I thank my many informants in the Middle East, without whom much of this research
would be impossible. I would also like to thank Neil Brodie, Patty Gerstenblith, Christina Luke,
Yorke Rowan, and Edna Sachar for insightful comments and editorial suggestions on earlier
drafts of this chapter. This research was supported by the W. F. Albright Institute, Educational
and Cultural Affairs Fellowship, the Palestinian American Research Center, Ridgeway-Venn
Student Travel Scholarship, Tweedie Exploration Fund, and the University of Cambridge,
Department of Archaeology. All errors and omissions are entirely my responsibility.
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The Illicit Antiquities Trade as a Transnational Criminal Network:
Characterizing and Anticipating Trafficking of Cultural Heritage
Peter B. Campbell
Abstract: The illicit antiquities trade is composed of a diverse population of participants that gives the
appearance of complexity; however, using the network paradigm, a simple underlying structure is revealed
based on specific geographical, economic, political, and cultural rules. This article uses a wide range of
source material to chart interactions from source to market using a criminal network approach.
Interchangeable participants are connected through single interactions to form loosely based networks.
These flexible network structures explain the variability observed within the trade, as well as provide the
basis behind ongoing debates about the roles of organized crime, terrorism, and the Internet in antiquities
trafficking. Finally, a network understanding of trade’s organization allows for anticipation, though not
necessarily prediction, of antiquities trafficking and offers the opportunity to develop new strategies for
combating the trade.
ACKNOWLEDGEMENTS: The author would like to thank the editor and the two anonymous reviewers, whose
comments greatly improved this article. Sam Hardy was an invaluable sounding board and gave advice throughout the
writing process. Gretchen Peters kindly provided advice and contacts about Afghan trafficking. The author would like
to thank Jessica Dietzler and Blythe Bowman Proulx for help on an earlier article that discussed some of the ideas in
this article, though it ultimately was not published. Lucy Blue, Jesse Ransley, and William Campbell provided valuable
feedback on early drafts. Illicit antiquities research is a small but dedicated field and a synthesis such as this would not
be possible without the scholarship of individuals like Paul Barford, Neil Brodie, David Chippendale, Ricardo Elia,
David Gill, and Simon MacKenzie to name just a few.
Illicit antiquities are a major resource for traffickers, ranking among other highly
trafficked commodities such as narcotics.1 UNESCO estimates the antiquities trade to be
worth US$2.2 billion annually; however, the financial scope of the illicit trade is
ultimately unknowable as black market statistics are notoriously difficult to ascertain.2 A
precise characterization of the trade has arguably eluded researchers since the observable
aspects of antiquities trafficking have proved to be incredibly variable. This article argues
that the illicit antiquities trade is organized as a network similar to other trafficking,

International Journal of Cultural Property (2013) 20:113–153. Printed in the USA. Copyright © 2013
International Cultural Property Society doi:10.1017/S0940739113000015.
 Archaeology, University of Southampton, Avenue Campus, Highfield, Southampton SO17 1BJ, UK. Email:
[email protected]
27
27
where
loosely
connected
and interchangeable
participants
give
the
3
appearance of complexity; however, participants are guided by simple rules that provide
an identifiable underlying structure.4 This research focuses specifically on trafficking,
defined as transnational movement of illicit commodities, rather than local or indigenous
looting as a function of engagement with the past, which exhibits its own structure.5
The network paradigm links the trade’s observable variability to four reoccurring stages, which
provides a broad understanding of how antiquities trafficking functions. Most modern
criminal groups are characterized by “fluid network structures rather than more formal
hierarchies,” an organizational structure that is particularly well suited for trafficking.6
Criminal networks are typically composed of interchangeable participants collaborating
together when mutually beneficial with limited complexity and no central organization.7
Participants in criminal net- works are not typically career criminals, but are generally
rational thinking and otherwise ordinary individuals taking advantage of an opportunity
to supplement their income.8 With no central leadership, each participant is a replaceable
cog in a series of criminal relationships analogous to a “plate of spaghetti [where] every
piece seems to touch each other, but you are never sure where it all leads.” 9 The flexibility
of criminal networks creates a myriad of challenges for law enforcement.10
The network structure runs counter to popular views of organized crime, which
“treat centralised hierarchies as synonymous with organised crime and to treat networks
as disorganised crime,” when in reality “a network is . . . a highly sophisticated
organizational form.” 11 The United Nations Convention Against Transnational Organized
Crime categorizes criminal relationships with fluid membership as a “structured group,” which
is defined as “a group that is not randomly formed for the immediate commission of an
offence and that does not need to have formally defined roles for its members,
continuity of its membership or a developed structure.” 12 In fact, as an organizational
model, networks are a significant societal development currently being adopted by many
legitimate organizations because of their efficiency. Despite the chaotic outward
appearance of trafficking webs, criminologists have begun modeling the underlying
structure of fluid networks.13
Does the illicit antiquities trade operate as a network and, if so, what is its
underlying structure? The antiquities trade has many similarities with the other
commodities trafficked through networks. Demand in wealthy countries drives
individuals in economically depressed countries to export material abroad.14 This is
characterized in the antiquities trade by artifacts passing transnationally from
archaeological sites in “source” countries to collections in “market” countries, typically via transit
countries.15 Transporting illicit artifacts from source to market requires organization, though
not necessarily centralization, and sources on antiquities trafficking show a vast population of
participants, from farmers to university-trained antiquities experts, whose only connection is
a shared opportunity. Within trafficking networks each interaction is personal with no
obligation to others; rather than dividing profit following final sale, money is exchanged at
each interaction along the line. Since no further interaction between participants is
necessary, individual risk is reduced through the limited amount of time in direct contact.16
Antiquities trafficking connections might be brief and occur only once, like an
intermediary driving past a site to visit subsistence diggers,17 or interactions might be more
regular, like Italian tombaroli phoning smugglers with new finds.18 All these elements are
found in criminal networks, suggesting that the apparent complexity observed in the
28
28
antiquities trade is best explained through fluid networks.19
To test this hypothesis, this article first examines the observable roles within
antiquities trafficking and the factors that drive role creation, which forms the
underlying structure to the trade. Next, criminology’s network paradigm is applied to three
case studies—Afghanistan, Iraq, and Bulgaria—by tracing the sequence of events from
source to market. Finally, the discussion uses the network paradigm as an analytical tool,
applying what is known about other trafficking networks to infer the nature of the illicit
antiquities trade. This offers the opportunity to address several lingering questions about
cultural trafficking, such as whether antiquities are funding Afghanistan’s Taliban and Iraq’s
insurgency, as well as how Internet auction sites impact the trade. Finally, the role and
extent of organized crime within cultural trafficking is identified and the network
paradigm is used to suggest new strategies to combat trafficking through anticipating
network connections.
A discussion of antiquities trafficking would be remiss to only convey the financial
implications of the trade and not mention the cultural impact of illicit antiquities. The
exodus of cultural heritage from conflict areas and impoverished countries to wealthy
countries is as much a cultural consideration as a financial or criminal one. In contrast
to the quantitative side of trafficking, the social impact of stolen heritage is
qualitative; it is based on the absence of physical evidence of the historical narratives
that drive social cohesion and cultural legitimacy, especially in the postcolonial world.20
The result is “symbolic domination,” even as far as “symbolic annihilation,” 21 through
denying cultures their patrimony and whitewashing the historical narratives that are the
mechanism for group identity.22 It has been argued that desire for other cultures’ art is tied
to symbolic dominance of disadvantaged cultures, first developed in the colonial period.23
While this article focuses on the process rather than impact, the qualitative losses are
important to mention and the discussion will revisit this concept.
I.
ORGANIZATION OF THE TRADE
Within the antiquity trade, several roles have been repeatedly observed. Paul Bator
first noted them, stating the trade begins with “local diggers, who sell their finds through a
black market to intermediaries, who in turn resell to local or foreign dealers” who then
resell artifacts to collectors.24 Later scholars have made similar role distinctions;25 however,
the reason behind these roles has not been satisfactorily explained. Since the roles are
found ubiquitously throughout the trade, what is the empirical basis behind them? Network
specialization may explain these roles. Role specialization has been observed in other
trafficking networks to fulfill specific tasks, as a higher success rate can be expected from
specialists.26 Specialization is the result of functional considerations, when one role must
interact with another to fully exploit an opportunity.27 That is to say, when participants are
unable to complete the task themselves, they agree to collaborate and accept a smaller
portion of profits in exchange for a higher success rate. This implies that specialization is a
function of collaboration and therefore to be expected within networks.28
Specialist knowledge within antiquities trafficking includes locating sites,
transportation, transnational smuggling, laundering, and art history.29 Four general stages are
observable within the trade—looter, early stage middleman or intermediary, late stage
29
29
intermediary, and collector—and more than one individual may occupy a stage. Profit
appears to favor the most specialized,30 since rural looters lack smugglers’ transportation
knowledge, who in turn lack the gallery owners’ appraisal skills. Therefore, specialization
correlates with profit in each stage, as shown in Figure 1. Assuming that the antiquities
trade resembles other trafficking, then specialized knowledge is likely the basis behind role
development, reflecting the trade’s network development over time.
The reoccurring nature of these stages suggests that they are manifestations of an
underlying internal structure. It appears that the stages are the result of role
specialization dictated by physical and cultural limitations placed on participants due to
geography, economics, local and international legislation, and cultural views
FIGURE 1. The four stages observed within antiquities trafficking illustrating how both specialization and
profit increase through the stages.
on antiquities. In particular, three limiting factors emerge that create an unintentional and
organically designed four-stage structure through which most trafficked antiquities pass.
The mechanism behind this internal structure warrants further examination.
There exists a complex geographical, political, and economic framework that enmeshes
antiquities and necessitates specialized roles. Antiquities can be distinguished from other
trafficking in three regards: Cultural heritage is a finite re- source that cannot be
cultivated or manufactured, profits increase progressively from source to market, and
artifacts must be laundered in order to appear legitimate.31 While narcotics can be
cultivated and arms can be manufactured, antiquities are a finite resource derived solely
from looting cultural sites. Looters can be highly skilled at locating sites and
knowledgeable about the local landscape, but they often lack the means to transport
artifacts out of their immediate region or across international borders.32 Antiquities are
therefore typically transferred to participants with the means and knowledge to transport
illicit commodities internationally. In turn, these early stage intermediaries lack the
knowledge to judge the value of antiquities, including whether artifacts are real or fake,33 or
the ability to appear legitimate to collectors. The first two stages, theft and transport,
there- fore, have specialized roles of looter and early stage intermediary with the local
knowledge required to extract antiquities from source countries.
Unlike narcotics and arms, antiquities often appear in legitimate sales in source
countries. The reasons are economic and cultural. First, a larger purchasing population can
be accessed through selling laundered artifacts in legitimate or gray market businesses.34
Second, collectors generally purchase artifacts as status symbols and therefore objects to
30
30
be displayed.35 Symbols require shared experience with peers in order to
communicate meaning, which in this case is the owner’s wealth, prestige, or
connoisseurship.36 However, illicit activity typically earns disapproval, the opposite of the
desired effect. Collectors therefore specifically purchase artifacts that have been laundered,
even when they know the antiquities are looted, as demonstrated by several prominent
museums.37 This legitimacy concern creates the third stage, where laundering specialists
interact with the black market while presenting themselves as legitimate to the public.
Legitimacy and art history specialization, both important for the late stage intermediaries,
is sometimes the result of university education. Notable examples include Robert Hecht,
who studied Latin at Haverford College, classics at University of Zurich, and was a Rome
Prize Fellow at the American Academy in Rome.38 Jonathan Tokeley-Parry has degrees
from Cambridge University and University College London.39 Christoph Leon received a
degree in archaeology before becoming known as the dealer who sold the J. Paul Getty
Museum a looted gold funerary wreath.40 Late stage intermediaries join collectors to form
the third and fourth stages, respectively, which operate primarily in market countries.
The elements that distinguish antiquities from other trafficking serve as limiting
factors for participants that typically precludes a single individual from acting alone due to
lack of capital, mobility, or art history knowledge. This is not to say that nonspecialists do
not attempt to traffic antiquities; however, probability suggests that specialists have a
higher success rate, which is precisely why specialization develops and is favored within
network structures. The emerging picture of the trade’s structure is a framework unique to
each series of transactions, rendered thus by conditions in source and market countries.
On one end is a geographical, political, and economic framework that is specific to each
source country, while on the other end exists a set of conditions for each market country.
For example, antiquities smuggling from Afghanistan faces different geographical and
cultural factors than Bulgaria, just as selling antiquities through eBay is quite a different
skill set from owning a gallery.
Several well-documented antiquities trafficking cases are excellent examples of the
four stages. Giacomo Medici’s trial and subsequent conviction provided a wealth of
information on the trade, which is presented in the seminal work “The Medici
Conspiracy.” 41 Local tombaroli looted archaeological sites and Medici acted as an early stage
middleman by purchasing artifacts from the tombaroli and their associates. Due to relaxed
customs laws in the Freeport, Medici could sell the antiquities internationally to dealers in
market countries from this transit country. Medici never sold directly to collectors, instead
selling the artifacts to dealers, primarily Robert Hecht, who then resold the antiquities. In
his role as late stage intermediary, Hecht laundered the antiquities onto the licit market to
facilitate sales to col- lectors like the J. Paul Getty Museum and the Metropolitan Museum of
Art. As the newly legitimized antiquities came to rest in museum cases, the final stage of
trafficking ended.
The Italian prosecutor described Medici as part of a hierarchical antiquities
organization, so it is important to understand why he made this claim and why it is false. It
was based on two pieces of evidence, a tombarolo referred to a “cordata,” or mafia structure,
when describing Medici and other participants and an organigram found in Pasquale
Cameras’ home.42 The organigram diagrammed a path of antiquities flows leading to
Hecht, creating a pyramid of relationships that looked similar to a hierarchy. However,
criminology has determined that a hierarchical structure functions based on three
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features: (1) participants lower in the hierarchy are subject to a monopoly, (2)
long-term agreements, and (3) sanctions.43 In contrast, the Medici case showed that the
transfer of looted artifacts from tombaroli to early stage intermediaries was optional and
on an opportunity-to-opportunity basis, which implies a network structure. In fact,
tombaroli freely sold artifacts to other early stage intermediaries than Medici like
Gianfranco Becchina, so the looters had no fear of sanctions, even going so far as
attempting to sell fraudulent artifacts to early stage intermediaries.44 Hecht established
himself as the top late stage intermediary through guaranteeing the best rate, as Medici
discovered at the start of his career, rather than through agreements or sanctions.45 The
most dramatic evidence that the Italian illicit antiquities trade was not hierarchical is that
it continues to thrive even with the conviction of key figures like Pietro Casasanta, Medici,
and Hecht, as well as the death of Nino Savoca and Cameras. In light of analysis, the
tombarolo who used the term “cordata” was apparently using a familiar word rather than an
accurate one. Furthermore, the prosecutor had to approach the case under the existing laws
and most Italian organized crime laws were written to combat hierarchical groups following
years of mafia crime, so the prosecutor tailored the approach to Medici’s case to the
legislation. Antiquities trafficking fits none of the criteria for a hierarchal structure and
scholars studying cultural trafficking have quite rightly rejected hierarchical structures for
the illicit antiquities trade.46
The Lydian Hoard is another well-documented case that clearly demonstrates the
four-stage structure. In 1965, a group of Turkish farmers looted a tomb and sold the
contents to smuggler Ali Bayirlar. Bayirlar sold them to two late stage intermediaries,
Swiss dealer George Zacos and New York dealer John Klejman, who sold the artifacts to
the Metropolitan Museum of Art from 1966 through 1970.47
Few cases are as clear-cut as the two previous examples. Roles are often filled by
multiple individuals, as Operation Ghelas illustrates. Eighty-five individuals were indicted in a
case of criminal networks smuggling Italian antiquities across several countries. Tombaroli
sold looted antiquities to smuggling cells that operated transnationally. Police located four
cells that smuggled artifacts from Italy to Switzer- land through a large population of
participants, including taxi drivers and policemen. From Switzerland a network transported
antiquities to Germany, Spain, the United Kingdom, and United States. Once in the market
countries, several late stage intermediaries laundered the artifact from seemingly legitimate
storefronts and auction houses including at least one notable dealer.48
The Achyris phiale demonstrates the variable routes that antiquities can take in
certain stages. Sicilian intermediary Vincenzo Pappalardo purchased the artifact from an
unnamed Sicilian looter. Pappalardo traded it to another well-known Sicilian intermediary,
Vincenzo Cammarata, who traded it to Hungarian intermediary William Veres. After three
early stage intermediaries, the artifact passed to New York dealer Robert Haber. Haber and
Veres falsified documents about the artifact’s history in order to launder it. Haber then
transported the gray-market phiale, selling it as an apparently licit item to collector Michael
Steinhardt. In this case, Veres and Haber falsified documents in Switzerland, laundering
the artifact before arriving in New York.49
These cases demonstrate the known observable roles. The previous examples show
the variety of participants, from Turkish farmers to New York gallery owners, found within
the trade. Following the traditional law enforcement approach, these court cases focused
on specific individuals or artifacts. In contrast, an effective model of trafficking networks
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synthesizes the behavior of all participants into a broadly applicable organizational
model. If the roles are network based, then they can explain how participants interact.
Similarly, the network’s internal structure defines how participants behave. Understanding
interaction and behavior is crucial for characterizing and anticipating trafficking. The
following section focuses on three major source countries and charts the sequence of
events from source to market demonstrating network organization with an underlying
four stage structure.
II. CASE STUDIES
As major supply countries, the path that Afghan, Iraqi, and Bulgarian antiquities
take from the ground to collections is largely representative of the trade as a whole.
Significantly, these three countries are also the focus of several lingering questions about the
trade. Each case is organized by stage and the interactions within each. The first two case
studies follow transactions through each stage, as suggested by network criminologists.50
However, it should be noted that published trafficking sources, including antiquities, are
limited and problematic.51 The sources cited below are a collection of media and law
enforcement reports, military records, online auction records, and research articles. While
each of these source types has potential shortcomings, together they give a broad overview
of the trade through their sequence of events. Readers would do well to consult the
endnotes, which often contain several examples, since the overviews presented in the case
studies are digests of many sources. Since media, military, and law enforcement records
can create a potentially biased model based on failed criminals,52 this is balanced by the
third case study that examines a specific individual that was a successful dealer for many
years and how his antiquities were transferred through each stage.
A. Afghanistan
Afghanistan is a major victim of the illicit antiquities trade.53 Subsistence diggers,
local citizens that turn to looting due to economic hardship, are the primary looters.54 This
type of looting often occurs during the political turmoil following military action, when law
enforcement is unable to protect sites.55 Subsistence diggers sell artifacts to intermediaries
who visit villages or archaeological sites.56
The primary exit for Afghan antiquities appears to be Pakistan.57 Though dangerous,
this route is popular among smugglers.58 Narcotics smugglers are known to cross easily
into Pakistan at the unmanned border crossing at Baramcha.59 Several established
smuggling organizations operate on the border, the two largest being Hezb-i-Islami and
the Haqqani network;60 however, smaller groups also con- duct narcotics, timber, and gem
smuggling.61 Jack-of-all-trades smuggling groups are likely the primary transportation for
antiquities headed to Pakistan.62
In her analysis of the opium trade, Gretchen Peters details how these organized
smuggling groups operate along the Afghan-Pakistani border, engaging in any profitable
enterprise including trafficking of narcotics, arms, humans, antiquities, an other
commodities, as well as crimes including kidnapping and theft.63 In Peters’ report for the
West Point Combating Terrorism Center, one Afghan source explained how the Taliban
profits from illicit antiquities, stating “businessmen who smuggle precious stone, sculptures
and other historic artifacts. . .pay dues to the Taliban to avoid trouble on road.” 64 According
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to the same source, this smuggling is tied to the Haqqani network and is major financial
consideration for both the Taliban and the smugglers.65
Once in Pakistan, antiquities are sold in border towns and transported to major
cities.66 Commercial airlines and ships transport the artifacts to cities like Sharjah or Dubai,
United Arab Emirates, which has grown into the region’s primary transit country due to few
regulations.67 The Afghan Transit Trade Agreement, which rescinds import taxes between
Afghanistan and the Pakistani port of Karachi, ensures a large flow of Afghan goods through
the port, including a large quantity of smuggled goods. There is also a large amount of air
cargo between Kandahar and Dubai.68 Illicit shipments have been found in Karachi destined
for Sharjah as well as in Sharjah having arrived from Pakistan.69 Antiquities are smuggled
hidden in commonplace items like furniture, in falsified cargo manifests, or in false
compartments.70 United Arab Emirates is an arterial route for antiquities leaving the region
for market countries. Illicit antiquities from the entire region, including Afghanistan, Iraq,
Iran, Yemen, Azerbaijan, and Pakistan, as well as countries outside the immediate area
like Turkey, are sent to Sharjah before being sent internationally.71 The fact that a Turkish
shipment worth an estimated at US$6 million was trans- ported via Sharjah demonstrates
the importance of United Arab Emirates as a transit country.72 In the first six months of
2008, looted antiquities from Yemen alone amounted to 90 law enforcement raids
capturing over 5000 antiquities.73 Upon arrival in Sharjah, antiquities are purchased by
individuals with connections abroad, who collaborate with corrupt customs officials in
order to export them.74 Many artifacts then head to the traditional European transit
country of Switzerland.75
Arriving in Europe, antiquities have passed through many hands, but now enter the
same established routes detailed in the Medici case and other examples. Repatriated
artifacts indicate travel from Switzerland and Germany to market countries like United
Kingdom and Belgium.76 In Blood Antiquities, documentary filmmakers captured how
dealers launder Afghan antiquities in Belgian galleries. One dealer has a “safe house” off the
main gallery street where newly smuggled antiquities arrive and are either sold to other
dealers or placed in his gallery. Another dealer claimed an artifact came from an old
collection, a traditional laundering practice, until the interviewer pointed out that it still
contained dirt.77 The film clearly illustrates that dealers are knowingly engaged in
laundering Afghan antiquities onto the licit market.
After laundering, collectors purchase the newly legitimized artifacts. Collectors in
traditional market countries including the United Kingdom, Belgium, and the United
States have seen an increase in Afghan antiquities since the start of the recent conflict.78
This increase underscores the scale of trafficking occurring since the export of
unprovenienced Afghan antiquities is illegal.79
B. Iraq
Similar to Afghanistan, Iraq experienced widespread looting following military
conflict.80 Numerous sources detail the looting of archaeological sites as well as Iraqi
artifacts repatriated from market countries, but there is an information gap be- tween
looting and the licit market.81 Antiquities disappear into the black market before
reappearing laundered in galleries or collections, making evidence from this in-between
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phase problematic. Neil Brodie has argued that military records could contain a wealth
of information on antiquities trafficking.82 WikiLeaks’ release of the Iraq War Logs83
provides an opportunity to examine military records, albeit leaked, and fill the gaps in the
middle of the Iraqi antiquities trade.
As a source, the WikiLeaks documents are not without issues. The documents
appear to have been chosen randomly and span several years. It is impossible to determine
if the information they contain is representative or not;84 however, even as a fragmentary
record, the WikiLeaks files confirm Brodie’s hypothesis that military records have value for
researchers.
Sources about Iraqi looting indicate a large amount of subsistence digging similar to
Afghanistan, largely due to the country’s 70% unemployment rate following the invasion.85
The WikiLeaks files corroborate this, reporting raids on “major archaeological sites” that
resulted in arrests and confiscation of looted artifacts.86 The same economic hardship that
drives subsistence diggers to loot also keeps them from transporting their looted material
long distances. Iraqi intermediaries appear to come from various backgrounds. Roger Atwood
records an incident where an individual parked on a site and purchased antiquities from the
subsistence diggers.87 Other sources describe criminal networks88 and the WikiLeaks files, as
law enforcement reports, support this view. Most of the antiquities reports come from
countercrime raids.89 Illicit antiquities are profitable for these groups, as demonstrated by
one smuggler captured with artifacts and one million Iraqi dollars.90 Media sources detail
how antiquities exit Iraq. There are numerous exit locations, as smuggled antiquities have
been found transited to Jordan, France, Italy, Syria, Switzerland, Kuwait, Saudi Arabia,
Iran, and Turkey.91 Many end up in established transit countries like United Arab Emirates
and Switzerland, as well as the familiar Karachi to United Arab Emirates route.92
Once in market countries, similarities are seen between Iraqi antiquities and
those from other source countries. One Munich auction house attempted to sell a
smuggled gold vessel, while another dealer purchased a stolen royal battle axe.93 The
Federal Bureau of Investigation (FBI) captured a dealer in the United States with a
“multitude” of smuggled Iraqi antiquities.94 Once laundered into European and North
American galleries, antiquities pass easily to collectors. In an infamous case from the
first Gulf War, University College London found that a collection of Aramaic incantation
bowls owned by Martin Schøyen had been looted in 1991. The university suppressed the
report, but it was eventually leaked through WikiLeaks.95 A certain population of
collectors is cognizant that available Iraqi antiquities are looted. On 24 January 2003, a
group of collectors organized the American Council for Cultural Policy and met with the
Bush administration about relaxing laws governing the sales of Iraqi antiquities in
advance of the 20 March invasion.96
C. Bulgaria
Bulgaria has long experienced looting problems as the third largest source country
in Europe.97 Bulgaria is also a major conduit for antiquities smuggled from the Near East,
Middle East, and Africa since it is a popular trafficking route to European market
countries.98 The history of the Bulgarian antiquities trade shows a shift in the market upon
entering the digital age, as exhibited by online auction sales.99
Under the former communist government, trafficking was state run and fell
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under the auspices of the Bulgarian secret service. Using a front company named
Kintex, the secret service held a monopoly on Bulgarian smuggling that included
antiquities, arms, and other illicit goods.100 Criminal groups supplied Kintex with
antiquities from well-defined territories that were guarded and exploited through related
crimes including murder.101
Today, state run smuggling has been replaced by networks that supply market
countries with large quantities of illegal commodities including humans, narcotics, arms,
and antiquities.102 Smugglers are known to transport antiquities with other illicit goods
including human trafficking.103 Law enforcement has found ties between narcotics, arms,
and antiquities.104 Widespread corruption aids smuggling. Georgi Getov, head of the
National Police’s Cultural Property Department, collaborated with an antiquities smuggling
ring that included police, prosecutors, and museums.105 Prosecutors colluding with
Bulgarian criminal groups keep archaeologists from known archaeological sites.106 Dealers
take advantage of Bulgarian trafficking to create large online stores, such as one dealer
identified by multiple sources as former Prosecutor General Nikola Filchev’s brother, as he
will be referred to in this article since he still freely operates in the United States.107
According to sources, Filchev’s brother has a history of run-ins with the law
between 1994 through 2007 over illicit antiquities. He has not been convicted, but
researchers suggest this is due to Filchev’s status as Bulgaria’s Prosecutor General.108 Filchev
himself has been accused of large-scale corruption while serving in office.109 His brother
allegedly held a protected position while Filchev was in power, allowing him to conduct
antiquities smuggling.110
Charges were first brought against Filchev’s brother in April 1994 for antiquities
trafficking and he faced charges again in December 1997. In May 1998, he was arrested at a
checkpoint attempting to smuggle antiquities across the border to sell them to “an
international organized crime organization.” 111 Filchev’s brother was placed in custody, but
prosecutor Kiril Ivanov released him “without giving due reason” and he left the country
before his trial, while Ivanov received a promot[ion] from Filchev.112 In 1999, Filchev’s
brother moved to Hackensack, New Jersey, where he opened a business named Silenos
Coins and Antiquities that sold artifacts on eBay.113 Silenos Coins applied for several visas
for foreign nationals traveling to the United States.114 In March 1999, German officials
captured a package of illicit antiquities that he was shipping to himself and police also
identified eight previous packages that he had sent to the United States through Germany.115
When German officials sent the details of Filchev’s brother’s case to Bulgaria, the prosecutor’s
office requested all documents related to the case and subsequently buried them from public
view.116 Journalists who mentioned the German incident were brought into the prosecutor’s
office for a false interrogation meant to intimidate them and Filchev told subordinates,
“publishers and all people connected to them should be pressed not to allow such
publications in the future.” 117 According to one of Filchev’s prosecutors, Nikolay Kolev, Filchev
told his staff that a case would not be pursued against his brother for antiquities trafficking.
Shortly after speaking to the media about the incident, Kolev was murdered.118
The contract killer who murdered Kolev was part of an organized crime group
linked to Filchev and the prosecutor’s office never investigated Kolev’s murder. Kolev’s
widow won a human rights case based on the fact that the murder had not been properly
investigated and the court ordered the case back open. Filchev is currently under
investigation for ordering Kolev’s murder, as well as a lawyer’s murder in an unrelated case,
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and other crimes. It should be noted that Filchev is a polarizing figure in Bulgaria,
so some accusations and court cases may be political maneuvers by political opponents.119
Filchev left office in 2006 and Silenos Coins disappeared from eBay in June
2007.120 In March 2007, the new prosecutor general had publically announced that his
office was tracking the brother’s online records.121 Since eBay users in 2007 could leave
feedback up to 90 days following purchase, Filchev’s brother appears to have stopped
selling under Silenos Coins immediately following the announcement.122 However,
another account allegedly owned by him, S*P*Q*R, continued selling antiquities into
2009.123 It is unknown whether Filchev’s brother continues to sell antiquities, but the
Bulgarian court case is pending while he remains abroad.124
Silenos Coins’ eBay records can still be accessed,125 providing detailed information
about online antiquities sales. Most artifacts are coins and the other artifacts are likewise
metal, such as bronze arrowheads, which suggests that looters used metal detectors. Periods
vary from fourth century bce through eighteenth century with the bulk being late Roman
bronzes from Thrace, modern Bulgaria, though coins originating in the Near East, Turkey,
and Greece are found.126 This geographic region fits well with historical events and
antiquities trafficked through Bulgaria.127
Unlike the two previous case studies, this discussion is heavily focused on an
individual. While this is not ideal for a network approach,128 the information is significant
in that these records are detailed transactions of a successful antiquities trader. In contrast,
many law enforcement or media sources are evidence of failed traffickers. Law
enforcement sources can bias trafficking reconstructions,129 so Silenos Coins provides
researchers with direct documentation.
Bulgarian looting is a mixed population of impoverished individuals, hobbyists
looking to supplement their regular income, and well-funded crews supplied with the latest
technology.130 The police estimate that Bulgaria has 30,000 looters, including criminal
groups that oversee illegal excavations.131 There is no evidence of Filchev’s brother looting
himself, so he likely used connections to purchase antiquities from looters. Early in his career,
he was part of an “underground structure,” though it is uncertain whether this began with
general smuggling or if he has always focused on antiquities.132 He used at least two
smuggling methods, physically carrying antiquities across the border and mail,133 though
other methods were potentially used following these reported incidents since he did not
experience any law enforcement issues between 1999 and 2007. Once in the United States,
Filchev’s brother maintained a legitimate storefront; however, he lacked specialized
knowledge about antiquities and resorted to hiring specialists to identify artifacts.134
Silenos Coins was a staple of eBay antiquities sales from 2 February 2000 through 16 June
2007.135 Online antiquities sales are likely to increase as the Internet offers an easy route
to connect with collectors.
III. DISCUSSION
The case studies show large scale trafficking composed of diverse and loosely
connected participants, with interchangeable individuals in the first two stages and a small
reoccurring population in the third stage. Sources show that there is no representative type
of participant in the first stage, revealing that any individual presented with a profitable
opportunity might be inclined to participate. The second stage is composed of
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interchangeable transporters, often general smugglers that
take on antiquities
shipments on an opportunity to opportunity basis. The third stage has the smallest
population, but observable trends show that even this stage is variable, with early stage
intermediaries regularly using different late stage intermediaries. Interactions generally
consist of single exchanges of capital and goods with no promise of long-term agreements or
minimum guarantees of a portion of later profits.136 In contrast to hierarchical structures,
participants in the trade have no fear of sanctions if further interactions do not occur, as
discussed in the Medici case. The mechanisms behind the trade’s observable complexities as
well as the similarities found with other trafficking networks suggest that antiquities
trafficking has a network structure with four transitional stages. For this reason, the trade is
characterized broadly and most accurately as a network with fluid interactions.
By focusing on a structural approach rather than specific individuals or crimes,
behavior is explained as opposed to simply describing observable actions. During
interactions participants are motivated based on personal risk and specialization, often
with no cognizance of the preceding or proceeding nodes in the network. Money is
exchanged at each interaction rather than collaborating together as a chain and
partitioning profits after the final sale, so personal profit is a result of risk and
specialization. Once in possession of an illicit item, concealment is necessary.137 Seeking a
higher profit requires more time to search for participants, resulting in extended risk.
Additionally, the longer an individual has possession of the item, the more risk is
compounded. Those in possession of an illicit object must balance concealing their crime
with being public enough to attract the interest of participants in the next stage. A
nonspecialized participant can attempt to fill a specialized role, but their lack of knowledge
increases possession time with the illicit item and the corresponding risk, so nonspecialists
face increased likelihood of arrest. Therefore, interactions weigh risk against knowledge,
which correlates directly to a participant’s profit.
This balance is observed through all four stages of the trade. Afghanistan, Iraq, and
Bulgaria all have large populations of subsistence diggers attempting to supplement their
meager incomes. These impoverished individuals are unable to transport the antiquities
transnationally where demand is located, so they accept a small sum. A series of transporters
then move the antiquities locally, nationally, and internationally. In the Afghan case,
antiquities traded hands multiple times, while in the Bulgarian example there appeared to be
only one or two early stage intermediaries. Once reaching a transit or market country, the
artifacts are transferred to individuals offering either the largest profit or the safest
transfer. Late stage intermediaries require legitimate storefronts to display artifacts for the
widest population of the target demographic in order to command the highest price
and maximize their own profits. This series of interactions maximizes each participant’s profit
while minimizing individual risk, creating a network from source to market with a
predictable structure.
An interesting result of risk and specialization is decentralized market regulation.
The United States Department of Defense noted that intermediaries in antiquities
trafficking carefully regulate the market to keep demand and prices high.138 During
interviews, looters have noted that market forces maintain both supply and demand
artificially.139 For example, tombaroli are paid preestablished fixed fees by early stage
intermediaries, removing the possibility of receiving a higher price from different
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intermediaries.140 On the surface, it appears questionable that market regulation is
possible in loosely based, noncentralized networks. However, regulation is maintained
through the threat of risk extension. Each proceeding stage has specialized knowledge
unavailable to the preceding one, meaning that the earlier participants can either accept
the given price or extend their risk while attempting to find another buyer. The threat of
risk extension causes early nodes to accept a lower price, demonstrating the influence of risk
and specialization within the stages. These behaviors are useful for answering some of the
lingering questions within this field of research.
A. Using the Network Paradigm: New Perspectives on Lingering Questions
The network paradigm allows researchers to interpret the antiquities trade on various
scales. The case studies examined the observable aspects within each stage, so this
discussion will focus on the behaviors found among each level of participants.
Analyzing the previous case studies for behaviors using the network paradigm offers new
perspectives on several lingering questions and demonstrates the interpretive ability of a
structural approach over research focused on a specific individual or artifact.
Afghanistan and Terrorism
Whether illicit antiquities are funding terrorism is a hotly debated topic. Media
sources claim that the Taliban and Al-Qaeda are benefiting from antiquities sales.141 A widely
cited Der Spiegel article states that 11 September 2001 terrorist Mohamed Atta contacted
a University of Gottingen faculty member about selling Afghan antiquities, while also
mentioning that he needed funds to purchase a plane.142 This article is the most touted
evidence of illicit antiquities funding terrorism, but the article is a brief seven sentences,
published four years after the attacks, and written based on a law enforcement interview
with an anonymous individual who has remained silent despite the enormity of the
claim.143 This is not to say the article is false, but extraordinary claims require evidence. The
article’s tenuous nature has not deterred writers from repeating it and citing each other,
the result being articles far longer than the original Der Spiegel report without providing
new evidence.144 Until the faculty member comes forward, the Der Spiegel article cannot be
viewed as more than what it is: an anonymous secondary source. How- ever, given what is
known about the trade as a network, could Atta have been acting as an early stage
intermediary seeking a late stage intermediary? Do illicit antiquities fund terrorism?
As explored earlier, Afghan early stage intermediaries are typically general smugglers
trafficking any illicit commodity that is in demand. The two major smuggling
organizations are Hezb-i-Islami and the Haqqani network, who work closely with the
Taliban.145 In fact, the Haqqani network is recognized as the most dangerous insurgent
group in Afghanistan and is considered the Taliban’s chief ally.146 The Haqqani network
smuggles illicit commodities into Pakistan, primarily narcotics, where it exchanges them
for arms that are in turn sold to the Taliban.147 Assuming that looters receive around 2%
of the final sale price similar to elsewhere,148 the bulk of Afghan antiquities money goes to
early stage intermediaries in the region and late stage intermediaries in transit or market
countries, meaning that the Haqqani network and other smugglers may receive a significant
amount through antiquities.
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While affiliate organizations may be profiting, it is doubtful that the Taliban
would handle antiquities if they do not even smuggle their own weapons. However,
businessmen smuggling commodities in collaboration with the Haqqani network pay a tax
to the Taliban to operate safely.149 Based on currently available sources, this tax appears to
be the only source of funding for the Taliban related to antiquities, though all commodities
smuggled across the border are a facet of the arms trade that supplies the Taliban.
This fits well with the known Taliban structure in Afghanistan. Former Taliban
foreign minister Waheed Mojda stated that “The international community and the Americans
have been deceiving themselves for the past seven years, saying the Taliban has been getting
all of their money from drugs.” 150 Hezb-i-Islami and the Haqqani network are hardly the
only smuggling groups in Taliban controlled territory and the development of a high profit
crime-driven economy has resulted in “a wide spectrum of illegitimate economic activity,
including . . . smuggling of antiquities and other contraband. . . The main beneficiaries of
these activities are the warlords, spoiler groups and an emerging narco-mafia.” 151 The
many criminal groups exploiting this gray economy not only benefit the Taliban through tax
revenue, but also supply them with weapons on the return route allowing the Taliban to
prolong the conflict.152 It is reasonable to claim that money from the antiquities trade is
making its way to the Taliban. However, the vast majority of this money is likely lining
the pockets of affiliated organizations such as the Haqqani network, though this indirectly
extends the Afghan conflict and benefits the Taliban.
While the Taliban is a political group that governs territory, Al-Qaeda lacks a
governance to impose a similar tax. It appears that Al-Qaeda receives most its revenue
through patrons and donations; however, recent Islamist terrorist attacks have been funded
by crimes including bank robbery and petty theft, credit card fraud, and drug
trafficking.153 The anonymous Der Spiegel source aside, there is currently no direct
evidence of Al-Qaeda profiting from the antiquities trade, though it would not come as a
surprise based on the group’s funding from other criminal activities.
Iraq and Insurgency
Since the Iraq invasion, a number of individuals have claimed antiquities are funding
either insurgency or terrorism. Iraqi ambassador Hussain Mahmood Fadhlalla al-Khateeb
stated that antiquities trafficking is funding terrorists and Iraqi museum director Donny
George claimed that illicit antiquities are funding insurgent groups.154 The United States
Marine Corps states that there is a “strong case” that illicit artifacts are funding weapons.155
United States Colonel Matthew Bogdanos says, “There is no doubt that international trade in
illegal Iraqi art and antiquities is funding the insurgency” and funding arms purchases.156
Bogdanos describes a raid that captured a terrorist bunker containing weapons, ammunition
stockpiles, and illicit antiquities.157
The antiquities trade in Iraq and Afghanistan closely resembles each other.
Subsistence diggers exploit known sites and sell artifacts for a small sum to early stage
intermediaries.158 General criminals or smugglers then transport the antiquities out of the
country to established transit countries, such as United Arab Emirates or Switzerland.159
This fits with Bogdanos’ view that smugglers will transport any illegal commodity that is
profitable, “whether the cargo is drugs, weapons, human beings, or antiquities.” 160 The
WikiLeaks files mention links between general crime and antiquities. For example, in one
raid five individuals were caught with stolen goods, counterfeiting machines, and 31
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artifacts looted from the Baghdad Muse- um.161 Another raid found smugglers with
several valuable illicit commodities including rubies, platinum alloy, gold dust, and
“archaeological material.” 162 Several other files indicate general smugglers were
transporting antiquities.163 The files reveal early stage intermediaries, rather than
subsistence diggers, engaged in all manner of illicit business.
Connections to violent groups are documented as well, potentially linking
antiquities to the insurgency. One raid captured more than 89 arms and related material, as
well as antiquities including “several vases, statues and tools.” 164 Several individuals were
arrested on a tip that they were selling weapons and antiquities.165 The most direct
example is a criminal group that planned a coordinated multipronged attack with rocket
launchers. The purchaser of the rockets was a known antiquities trafficker.166 Potentially
related, the antiquities protection department found a large weapons cache that included
16 mortars167 and a similar cache was found in an “antiquities area” including masks, mortars,
and launchers.168 Are antiquities funding the insurgency? The fragmentary WikiLeaks files
indicate that general, and at times violent, criminals are engaged in the antiquities trade,
but are these insurgents? Certainly, the planned rocket assault paid by an individual
profiting from antiquities fits with an insurgent attack.169 Louise Shelley argues that there is
an artificial distinction between crime and terrorism, since both groups have
interchangeable members and exploit opportunities available for both.170 However,
claiming that insurgents fighting for their country, in their view, are the same as criminals
or terrorists appears to be an oversimplification. Similar to Afghanistan, Iraqi smugglers
acting as early stage intermediaries and market country dealers are most likely to profit
from the trade. Participants that engage in both insurgency and antiquities trafficking are
likely the result of “one crime depend[ing] on another” and smugglers pursuing any
profitable commodity.171 The link between insurgency and the antiquities trade is likely a
question of scale as there is doubtless some measure of overlap between participants.
The Syrian civil war offers a supporting view on participants. Interviews with
smugglers along the Syrian and Lebanese border regarding the role of antiquities in the
conflict provide detailed information on the first two stages. According to the smugglers,
looting is propagated by “opportunists,” or any individuals seeking extra money.172 The
majority of looters are subsistence diggers, “trying to take advantage of the conflict to earn a
few extra dollars, whether to buy bread or weapons.” 173 However, smugglers claim both the
Free Syrian Army and Bashar Al-Assad’s regime are selling looted antiquities to raise
money.
Antiquities and arms are only a portion of the smugglers’ trade, as they transport a
wide range of illicit materials including cigarettes and stolen goods.174 Weapons are the
general currency along the border. Syrians request weapons in exchange for antiquities, while
the smugglers receive weapons instead of money from intermediaries in Beirut.
Smugglers report that the Free Syrian Army has created a looting team to fund their
movement, which a spokesman denies with the caveat, “Sure, there are people who loot, but
they work alone. If that is how they buy weapons to fight, we can’t control them. It’s
revolution, we are not organized, and no one is supporting us.” 175 This telling quote points to
the decentralized system at work, composed of a fluid population of participants similar to
Afghanistan and Iraq. Do Iraqi, or Syrian, antiquities fund violence? In certain instances it
appears so, but these cases show that marginal or desperate groups will exploit any profitable
resources, whether it is counterfeiting, narcotics, or antiquities. To imply that antiquities fund
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violence instead of viewing their exploitation as a product of economic and political
turmoil is placing the cart before the horse.
Internet Sales
The Internet has become a major conduit for criminal activities, so it is hardly
surprising that illicit antiquities are available online.176 The benefits of online sales for
criminals include reaching a wider population, nonpersonal interactions, and what is
termed “simple concealment,” based on the privacy afforded by a personal computer.177 While
some scholars claim that Internet auction sites are hurting the illicit antiquities trade by
driving down prices and introducing fakes,178 sales accounts show that both high- and
low-end antiquities are being sold with considerabl[e] ease through websites, often for
record sums.179 Traditional dealers are frequently moving toward Internet sales, including
established galleries with known links to the illicit antiquities trade.180 Auction site
dealers are able to sell large quantities of cheaply priced, but culturally significant, looted
artifacts.181 This activity is unlikely to cease in the future, so understanding how Internet
sales function is important for researchers.
The Silenos Coins case study can provide insight into Internet sales. Antiquities
trafficking by Internet dealers has the same basic structure as the rest of the trade, but the
role of late stage intermediaries is revised, replacing the traditional participants with [a]
new type of specialist skilled at Internet marketing. Looters supply intermediaries, who
move Bulgarian antiquities through the same channels as other illicit commodities,
reminiscent of the second stage in Afghanistan and Iraq.182 Smugglers transport the
antiquities to market countries and then mail them to dealers,183 presumably because mail
from other market countries is less likely to be screened than packages coming from source
countries. Filchev’s brother’s arrests and German incident suggest that he originally smuggled
antiquities himself, but others procured the artifacts after he moved to the United States.
The establishment of a storefront allowed for sales through auction sites.
The Internet enters the network in the third stage, with auction sites replacing
traditional late stage intermediaries and acting as the interface for the dealer and a much
larger population of potential collectors than a gallery. Auction sites unwittingly launder
artifacts through their appearance of legitimacy provided by the template structure,
sustaining the gray market and being rewarded with a percentage of the profits. Collectors
purchase items that are assumed to be legal based on the site’s guidelines. In reality, there are
few options for checking an item’s provenience, as sites conduct no oversight of listed items
and trust sellers to be ethical. Silenos Coins’ eBay records reveal the extent of the business.
Silenos Coins’ 41,198 transactions reviews are not a wholly accurate method for determining
values since some auction lots contain multiple artifacts and a significant percentage of
trans- actions are never reviewed. eBay users estimate that 40% to 90% of transactions are
reviewed, but never 100%.184 Similarly, seller feedback left by Silenos Coins totals 51,808
transactions; however, customer requests for feedback suggest that not every transaction
was reviewed.185 Therefore, any estimates based on eBay feedback are conservative. Sales
prices are only listed on reviews left between November 14, 2006, and June 16, 2007. During
this seven-month period, 4515 transactions occurred ranging between US$0.99 and
US$481.50 and totaling US$109,109.64. This equates to an average price of US$24.17
per transaction. With 51,808 reviewed transactions, it can be conservatively estimated that
Silenos Coins earned US$1,251,993.85 in the seven years and four months that it operated
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between 2000 and 2007. This equates to approximately US$465 each day since the
store opened or US$779 per business day.186 These figures only account for eBay
transactions, but in-store sales, trade shows, and conventions also contributed profits.
Silenos
Coins reveals the element hidden behind innocuous listings on auction sites.
Future research on antiquities trafficking is likely to focus on Internet sales. The
legitimate appearance of auction templates simplifies laundering and websites have access to
a wider audience than traditional storefronts. eBay alone has over 212 million registered
users.187 eBay auctions are also viewable through major search engines like Yahoo and
Google, increasing the audience to practically any Internet user. The detailed information
from Silenos Coins is useful as a baseline for future research into Internet sales. Canadian
officials captured more than 21,000 illicit Bulgarian antiquities that were destined for the
United States and a numismatist estimated the total value at Y100,000 (US$134,119), or
fewer than Y5 (US$6.71) per artifact.188 Based on Silenos Coins’ data, the shipment is more
accurately estimated as Y378,219 (US$507,570). This figure is conservative considering the
presence of high-value antiquities, like jewels and glass objects, in the shipment. Internet
auctions will likely become a popular research area since online transaction records can
provide more detailed sales information than previously available.
B. Crime within the Network
Researchers have debated the character and proportion of crime within the illicit
antiquities trade and few topics have such contrasting views as organized crime. Blythe
Bowman Proulx argues that organized crime involvement is limited and claims of
organized crime are in fact the product of definitional issues.189 Andrew McCalister argues
for large-scale organized crime participation in both looting and smuggling.190 Noah
Charney states that art crime has developed into a significant business for organized
crime.191 Simon McKenzie supports the notion that organized crime, in the traditional
definition, is limited.192
How are such different views possible while at the same time presenting accurate
evidence and plausible conclusions? Sources reveal the issue. Bowman Proulx uses sources
from the first stage from the perspective of archaeologists. McCalister draws on sources from
the first and second stages. McKenzie’s research is based on gallery and museum sources, the
third and fourth stages. McKenzie notes this source issue, stating that dealers are least likely
to know about or discuss organized crime involvement and this could affect his
interpretation.193 Within this field of study, primary source interviews are available from
looters, late stage intermediaries, and collectors; however, sources on early stage
intermediaries remain elusive.194 Due to the nature of black market crime, sources on the third
and fourth stage will always be more readily available than those about the second stage. In
addition, sources that are available will be mostly failed intermediaries. Examining the
available sources, the author argues that the type of crime is dependent on behaviors
exhibited at each stage. Crime in the first stage is characterized by theft from
archaeological sites, museums, or cultural centers like churches or mosques. These
participants generally use manual labor in public space to steal artifacts, which has limited
concealment and makes it is a high-risk job. Despite the risks, this stage has the largest
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and most diverse population. Participants’ second crime is selling stolen goods to early
stage intermediaries.
The second stage has the most variable population in terms of skills and, therefore,
has connections to other forms of crime. As a multibillion dollar industry with less risk
than narcotics or arms, antiquities draw diverse profit-seeking participants, including
established crime groups.195 Researchers seeking connections between antiquities and
narcotics, arms, human trafficking, and other illicit commodities should focus on the second
stage.196 Likewise, corruption is almost solely found in this stage, including public officials,
police, ambassadors, and customs agents.197 Violent crime, generally rare, is likewise
primarily relegated to this stage when it does occur.198
“Organized crime” is a problematic term whose meaning continues to be debated
without resolution, including in the context of the antiquities trade.199 Suffice it to say, when
crime groups ranging from the Haqqani network to the mafia are involved in the trade, it is
almost entirely found in the second stage. It is important to distinguish between organized
crime members participating individually in a network and organizational participation.
Crime begets crime and criminals can have multiple affiliations. For example, mafia
member Vincenzo Cammarata acted as an intermediary for the Achyris phiale, but there is
no evidence that this was a mafia endeavor.200 However, organized crime does participate
in the trade as an organization. Vaman Narayan Ghiya built a “smuggling cartel” in South
Asia that operated for 30 years, transporting antiquities that ended in sales at auction houses
like Sotheby’s and Christie’s.201 Dealer Bruce McNall states that the Turkish mafia moves
antiquities from looters to the legitimate market.202 In Armenia, the mafia smuggles
humans and antiquities.203 Smugglers along the Syrian and Lebanese border are trafficking
antiquities in exchange for arms.204 The largest organized crime group involved in the
antiquities trade is the Russian mob, known as the Red Mafiya.
The Red Mafiya is emblematic of modern organized crime, earning billions of
dollars worldwide through business of “every shape, manner, and form of crime globally”
including counterfeiting, money laundering, extortion, arms deals, drug trafficking,
prostitution, theft, bribery, smuggling, fraud, tax evasion, contract killing, and even toxic
waste dumping.205 The Red Mafiya is also the preeminent ex- ample of a criminal network
structure.206 As one law enforcement agent stated “Whatever opportunity affords itself—
that is what they do that day.” 207
If there is a central figure in the Red Mafiya, then it is [a] man with the moniker
the “Brainy Don,” who was labeled by the FBI as the “most dangerous mobster in the
world.” 208 When he is not running the largest laundering schemes in the history of Canada
and [ t h e ] United States and taking out US$100,000 assassination contracts on
journalists that write about him, he engages in a wide range of art crime.209 Antiquities
stolen from churches, synagogues, museums, and collectors in Russia, Germany, and
Eastern European countries are smuggled to “front” stores operated by his partners in the
Moscow-based Solntsevskaya crime group, which launders antiquities onto the licit
market.210 The former head of Russian mob activities in Italy was another member
engaged in antiquities trafficking.211 Significant organized crime groups participate in the
antiquities trade; however, it is from an opportunity to opportunity basis as one would
expect from a network structure.
The third and fourth stages are characterized by white-collar crimes with few
examples of violent or crime group participation. Their absence is largely the result of
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success being dependent on maintaining a legitimate appearance and specialized
knowledge in art history. The third stage is defined by laundering, but crimes also include
fraud and tax evasion.212 Crimes in the fourth stage consist of purchasing stolen property,
as an unknown percentage of collectors are complicit with dealers.213 Former J. Paul Getty
Museum curator Marion True allegedly used the Fleishmann Collection to launder
antiquities, even speaking to Hecht and Medici about areas where the tombaroli were
working.214 Some museum donors knowingly purchase illicit antiquities to launder the
artifacts in return for tax write-offs.215 Each of the four stages is populated by dramatically
different participants, with behavior and crimes corresponding to their location within the
network structure. This is not to say there are not exceptions; however, as a broad portrait of
the trade, sources suggest this framework to be accurate.
While the network is composed of a series of individual transactions, it should be
noted that the entire trade is criminal and organized.216 Each participant is cognizant that
they are stealing or purchasing stolen items, with the possible exception of some
collectors, and participants are interacting with sole purpose of facilitating at least two
crimes personally, since each stage has a crime at either interface. In other trafficking
networks, every participant is considered part of organized crime.217 Antiquities participants
are variable, but from “one timers” to Mafiya members, each individual is performing a role
that conspires to commit at a minimum, theft, transnational smuggling, fraud, and
laundering over the course of the network.218 In fact, compared to narcotic and arms
trafficking that often commits only two crimes, transnational smuggling and possession of
illicit goods, antiquities trafficking commits more offenses than these top two illicit trades.
Purchasing laundered antiquities is communicating, directly or indirectly, with
participants in each stage through feedback loops. This funds the trade as well as the
numerous associated crimes discussed above. Mounting evidence reinforces Ricardo Elia’s
statement that collectors are the real looters219 and the network paradigm highlights their
role. Antiquities trafficking participants have thus far escaped the label of “organized crime,”
but it is a term that has encompassed the other forms of trafficking and their members.220
C. Anticipating Antiquities Trafficking
Though “social phenomena are often too complex for social science to emulate the
[predictive ability of the] natural sciences,” criminologists have identified a methodology for
anticipating network crime.221 Since networks lack a central authority to cut off at the head,
they can be combated by removing locations where criminals interact, hence cutting them off
at the feet. Physical locations where criminal interaction and exchange occurs are called
“convergence settings.” On the surface this approach seems simplistic, but removing
convergence settings has a significant impact since “crime prevented is largely crime
depleted” and some criminologists suggest that this approach has more long-term effect than
targeting individuals.222 It is important to remember that participants in criminal networks
typically exploit opportunities rather than create opportunities. Preventing participants from
interacting with others in networks removes opportunity and extends risk. Anticipation
offers nuanced and intellectual solutions for both source and market countries.
Limiting Convergence Settings
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If the entire network is viewed as a criminal market, then targeting the
convergence settings used by participants at each stage can have an immediate impact on
combating the trade.223 All trade, licit and illicit, is a social activity requiring a physical
location and communication. International networks, though they stretch globally, are
composed of a series of individual relationships that occur in local physical settings.224
Since crimes of theft, smuggling, and laundering are necessary for each artifact within the
network, preventing one crime also prevents the subsequent crimes. Prevention is easiest,
and least dangerous, through removing convergence settings. When seeking an
opportunity, participants seek a new collaborator or work with a previous one. Criminals
congregate in locations where they can meet collaborators, but if these locations are
identified by law enforcement, then criminals must find new, riskier, locations.
Importantly, since general criminals participate in antiquities trafficking, collaborations
with law enforcement can prevent other types of trafficking by removing a setting.225
Barring entry to archaeological sites is an obvious example, but identifying cafes or bars
where smugglers congregate prevents progression through the network. For example, Medici
took advantage of private warehouses in Switzerland’s free port, popular with smugglers, to
meet with late stage intermediaries.226
Internet crime is likewise affected by removing convergence settings. Restricting
illegal activity on websites complicates interaction and prevents crime.227 One potential
target is the sale of “crusty” ancient coins on eBay, a name referring to their dirty state after
coming fresh from archaeological sites.228 While eBay claims that it is unable to monitor
coin sales, prohibiting sale of these undeniably looted artifacts would restrict Internet
convergence settings between late stage intermediaries and collectors. It is also important
to remember that though the Internet is global, participants are nevertheless in physical
locations and criminal transactions on auctions sites have a level of transparency, recording
criminals’ banking information and addresses.
Localized Response to Networks
Response to criminal networks can be tailored to the geopolitical conditions in
each country. Why are there subsistence looters in Iraq and not in Italy, where there are
tombaroli? Why are Afghan intermediary[ies] composed of smuggling gangs, while in Italy
and Switzerland Medici worked alone as an intermediary? Importantly, why do antiquities
from all these different groups in the first two stages end up in the same galleries together?
Criminologists examining other trafficking have noted, “Understanding the cultures and
subcultures that facilitate organized crime can provide an important basis for planning,”
and ultimately anticipating networks.229 Crime is dependent on its location and context,230
and develops based on the economics, legislation, and cultural views in each country.
The case studies are good examples of each country’s context. The type of looter is
largely dependent on the economic situation. Subsistence looters are found in countries
with high unemployment, while more specialized tombaroli or huaqueros are found in
economies with less than 10% unemployment.231 Violent and traditional organized
criminal elements are likewise dependent on local conditions. The Afghanistan, Iraq,
and Bulgaria cases are more violent than the examples from Italy and Turkey, who have
more stable economies and governments. Scholarship has reached the level where if the
unemployment rate of a country is known, then it is arguably possible to estimate the type
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of looters present. Furthermore, if there are observations from the first and third stages,
then it is possible to infer information about the second stage. In this way, using what is
known about networks and antiquities trafficking in general can be used to guide
response to local conditions.
Arresting subsistence diggers has a minimal impact since participants are
interchangeable and easily replaceable. It compounds what is at its root an economic
problem; however, these countries can disrupt the trade through focusing on smuggling forms
specific to their own legislation and borders. Organized crime clusters near arterial routes,232
evidenced by antiquities over broad regions following familiar routes to transit countries
like [the] United Arab Emirates and Switzerland. International pressure placed on transit
countries can lead to customs reforms, limiting all types of trafficking.233 Note that the
trade is never static and it changes with new legislation, as the economic situation
improves or degrades, or to exploit new loopholes. For example, new routes are being
formed to replace the traditional transit country of Switzerland, so even as scholars identify
sequences of events the circumstances are changing. This is why tailoring response to local
conditions and targeting convergence settings provides a nuanced and adaptable approach
for each country. Importantly, the first two stages are unique to each source country, but
[the] two final stages are shared across the trade.
Crimes fall into certain rhythms based on local circumstances and response can be
fitted to these rhythms.234 For example, tombaroli and huaqueros work only at night due to
local legislation and cultural views in Italy and Peru. This means law enforcement can
maximize its presence through preventative measure such as early morning spot checks on
roads leading from major archaeological areas, especially toward major cities where
connections to early stage middle men will likely occur. Late stage intermediaries are tied
to a physical location, their storefront, and as the most specialized they are the smallest
population in the entire network, as Figure 2 illustrates. While individuals in the other
stages may participate only once, late stage intermediaries are a constant population. This
creates a bottleneck within the network that is vulnerable to disruption through
monitoring. Black market interactions cannot occur at the store or during public hours, so
law enforcement resources can be maximized during specific hours and targeting offsite
locations. By understanding their own geographical, economic, and cultural factors,
countries can anticipate the types of crime and the rhythms that criminals follow. Both
limiting convergence settings and tailoring local responses are best carried out through
law enforcement collaborations aimed at limiting all forms of trafficking, as well as other
forms of crime.
Culture Change
The most effective long-term option is targeting the social nature of trade.
Criminologists note how difficult it is for crime to continue when society is mobilized
against it, removing both participants and convergence settings.235 By challenging
collectors’ desire for status symbols, a culture change would prevent the trafficking from the
top down. While admittedly difficult, this is the only real option for large-scale prevention
of the trade. Culture changes have found varying success in other areas, including “blood”
diamonds, the anti-fur movement, and the environmental movement.236 This movement has
already begun with archaeologists arguing the similarities between endangered species and
cultural heritage as well as drawing parallels between blood diamonds and illicit
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antiquities.237
A recent antiquities trade example of a mobilized society is the
public protection of the Egyptian museum during the 2011 revolution.238
Artifacts’ esteem, and therefore value, is directly linked to significance within the
culture of origin,239 suggesting that ownership of illicit cultural items is a vestige of the
colonial era tied to dominance over another’s identity.240 Indeed, the gentleman collector, a
concept first introduced during the colonial period, is a common theme among modern
collectors.241 In contrast, the “Good Collector” recognizes the culture behind art, promoting
knowledge over aesthetics, while disparaging destruction of archaeological sites and antiquities
without provenience records.242 Ownership of “old things” should never be discouraged, but
knowingly purchasing stolen culture heritage is neither art appreciation nor the mark of a
cultured individual. Rather, it is participation in organized crime and exploitation of another
culture. Educating the public about the quantitative and qualitative impact of antiquities
trafficking should help promote a culture change.
FIGURE 2. Relative populations in each stage with each symbol representing 1000 participants.244
What would be the result of a culture change? A smaller purchasing population
would decrease the value of the bulk of antiquities and cause capital traveling through the
network to correspondingly decline. If capital decreases below the risk-to-profit threshold,
then general criminal groups will cease to transport antiquities and cut looters’ connections
to dealers. This threshold is significant. The author was conducting archaeological research
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in Albania in 2011, when a local fisherman found a complete amphora in his nets.
Based on previous sales, the fisherman believed he could get 100,000 leke (US$1000) from
intermediaries selling to Italian collectors; however, the market has decline significantly due
to the economy. With intermediaries apparently working elsewhere, there was no one to
transport the artifact to collectors in Italy and in 2012 the fisherman reported that he had
given up attempting to sell the amphora and discarded it. Influencing the market end of the
network, as well as disrupting the middle, can affect the entire interaction chain back to
the source country. There may never be an end to antiquities trafficking, but
understanding its organizational structure can direct resources to combat the trade in an
efficient manner through anticipating interactions at convergence settings and tailoring
societal and legislative disincentives to regional contexts.
IV. CONCLUSION
The apparent complexity observed within the illicit antiquities trade can be
usefully explained through the network paradigm. Hierarchical organization does not
appear to exist currently within the trade. Antiquities trafficking has an underlying four
stage structure that developed as part of role specialization within the network
organization. Each stage is guided by behaviors based on the geographical, economic,
legislative, and cultural conditions that the participants operate within. Participants are
loosely connected through informal interactions, often one time transactions though
sometimes repeating. The average participant is not a career criminal, but a regular
citizen attempting to exploit an opportunity to supplement their income, especially in the
first stage. Though participants may have no knowledge of the other nodes, network
trafficking constitutes organized crime.243 Rather than focus on specific criminals or
artifacts, future research should continue to examin[e] the organizational structure. This
approach explains how participants both interact and behave. The network paradigm offers
a nuanced view of cultural trafficking, including lingering questions within the field about
terrorism, insurgency, and Internet sales. Future research will provide more detailed
information on actual transactions as criminals are identified and their online
accounts are examined. Organized crime, in the traditional sense, can be explored by
researchers focusing on the second stage. By viewing antiquities trafficking as a network,
criminal interactions can be anticipated and law enforcement can conduct safe,
preventative measures like removing convergence settings.
ENDNOTES
1. Calvani, “Frequency and Figures,” 29.
2. UNESCO, International Flows of Selected, 37.
3. For the antiquities trade, see Bowman Proulx, “Organized Criminal Involvement,” 24; for other trafficking,
see Coluccello and Massey, “Out of Africa,” 86.
4. Williams, “Networks, Markets, and Hierarchies,” 62; an overview provided by Williams, “Trans- national
Criminal Networks.”
5. Antoniadou, “Reflections on an Archaeological Ethnography.”
6. Williams and Godson, “Anticipating Organized and Transnational,” 333; Williams, “Networks, Markets,
and Hierarchies,” 62.
7. Felson, “The Ecosystem for Organized Crime,” 7; Felson and Boba, Crime and Everyday Life, 11–12.
8. Felson and Boba, Crime and Everyday Life, 12.
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49
Green, The Smugglers, 9.
Williams and Godson, “Anticipating Organized and Transnational,” 311.
Williams, “Networks, Markets, and Hierarchies,” 73.
United Nations, United Nations Convention Against Transnational, 5.
Williams and Godson, “Anticipating Organized and Transnational,” 332.
Adler and Polk, “The Illicit Traffic in Plundered.”
Merryman, “Two Ways of Thinking,” 832.
Felson and Boba, Crime and Everyday Life, 11.
Atwood, Stealing History, 5.
Ruiz, “My Life as a Tombarolo,” 36–38.
Bowman Proulx, “Organized Criminal Involvement,” 24.
Bell, “Mythscapes,” 67–69; Anderson, Imagined Communities, 182–84.
A term appropriated from whitewashing historical narratives of slavery; see Eichstedt and Small,
Representations of Slavery. Also see Alderman and Campbell, “Symbolic Excavation.”
22. Improper collecting not only debases existing narratives through removing their physical evidence,
but goes further by creating false narratives about the past based on their own views, such as the
invented past of Cycladic figurines discussed in Gill and Chippendale, “Material and Intellectual
Consequences,” 602, 634, 647–48; as well as Egyptian artifacts in Colla, Conflicted Antiquities, 27.
23. Meskell, “Pharaonic Legacies,” 150–56; Anderson, Imagined Communities, 182.
24. Bator, “An Essay on the International,” 292.
25. Kersel, “From the Ground to the Buyer”; Alderman, “Honor Amongst Thieves.”
26. Coluccello and Massey, “Out of Africa,” 88.
27. Pastore et al., “Schengen’s Soft Underbelly,” 107.
28. Pastore et al., “Schengen’s Soft Underbelly,” 102.
29. For an example of locating sites, see Ruiz, “My Life as a Tombarolo.” For transportation and smuggling
transnationally, see McCalister, “Organized Crime and the Theft,” 26. For laundering and art history, see Watson
and Todeschini, The Medici Conspiracy, x.
30. Brodie, “Pity the Poor Middlemen.”
31. Department of Defense, “Several Theories Justifying”; Kersel, “From the Ground,” 188–89.
32. For looters’ knowledge, see Conklin, Art Crime, 158–59; Ruiz, “My Life as a Tombarolo”; and for specialized
transporters, see McCalister, “Organized Crime and the Theft,” 26.
33. Watson and Todeschini, The Medici Conspiracy.
34. Bowman, “Transnational Crimes Against Culture,” 226.
35. MacKenzie, Going, Going, Gone: Regulating the Market; for antiquities and social mobility, see Gill and
Chippendale, “Material and Intellectual Consequences,” 634.
36. Social mobility discussed in Gill and Chippendale, “Material and Intellectual Consequences”; for city-scale
examples, see Greenhalgh, Marble Past, Monumental Present, 390; for examples of collectors, see Kletter, “The
Friends of Antiquities,” 11.
37. Slayman, “The Trial in Rome”; Hoving, Making the Mummies Dance, 217, 310.
38. Bruce Weber, “Robert Hecht, Antiquities Dealer, Dies at 92,” New York Times, 9 February 2012,
http://www.nytimes.com/2012/02/10/arts/design/robert-hecht-antiquities-dealer-dies-at-92.html
?_r=0 (accessed 6 December 2012).
39. Andrew Chang, “Antiquities Trial Evokes Indiana Jones & 007,” ABC News, 13 February 2003,
http://abcnews.go.com/International/story?id=80143&page=1#.UMB5YZOLJPQ (accessed 6 December 2012).
40. Felch and Frammolino, Chasing Aphrodite, 339.
41. Watson and Todeschini, The Medici Conspiracy.
42. Watson and Todeschini, The Medici Conspiracy, 17, 79.
43. Pastore et al., “Schengen’s Soft Underbelly,” 107.
44. Watson and Todeschini, The Medici Conspiracy, 78–79, 316.
45. Watson and Todeschini, The Medici Conspiracy, 166–68.
46. Bowman Proulx, “Organized Criminal Involvement.”
47. Hoving, Making the Mummies Dance, 217; Waxman, “Chasing the Lydian Hoard”; Kline, “Art Market,” 102–
103; Bessieres, “We Have to Change.”
48. Drake, “Italy Awaits Biggest Ever Trial,” 11.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
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Merryman et al., Law, Ethics, and the Visual Arts,
289–91.
Felson, “The Ecosystem for Organized,” 8.
Pastore et al., “Schengen’s Soft Underbelly,” 98.
Pastore et al., “Schengen’s Soft Underbelly,” 98.
ICOM, Red List of Afghanistan, 6.
For Afghan subsistence diggers, see Schetter, “The ‘Bazaar Economy,’” 9–10; for subsistence diggers in
general, see Conklin, Art Crime, 158–59.
55. Atwood, Stealing History, 246.
56. Brems and Van den Eynde, Blood Antiquities; Atwood, Stealing History, 5.
57. Peters, Seeds of Terror, 236; Elizabeth Rubin, “In the Land of the Taliban,” New York Times, 22 October 2006,
http://www.nytimes.com/2006/10/22/magazine/22afghanistan.htm (accessed 2 March 2011); Miriam Al Serkel,
“Federal Law Needed to Fight Smuggling of Antiquities in UAE,” GulfNews, 18 May 2008,
http://gulfnews.com/news/gulf/uae/heritage-culture/federal-law-needed-to-fightsmuggling-of-antiquities-inuae-1.105604 (accessed 28 March 2013).
58. Schetter, “The ‘Bazaar Economy,’” 10.
59. Rubin, “In the Land.”
60. “Al Qaeda-Linked Militants Captured in Afghanistan,” Huffington Post, 13 August 2010, http://
www.huffingtonpost.com/2010/08/13/afghanistan-al-qaeda-mili_n_681012.html (accessed 1 April 2011).
61. Collins and Ali, “Financing the Taliban.”
62. Peters, “More than 1,500 Stolen,” 2; Schetter, “The ‘Bazaar Economy,’” 10.
63. Peters, Seeds of Terror, 236.
64. Peters, “Crime and Insurgency,” 36.
65. Peters, “Crime and Insurgency,” 36.
66. Abdullah Iqbal, “Statues Find Way into Pakistan,” GulfNews, 3 March 2001, http://gulfnews.com
/news/gulf/uae/general/statues-find-way-into-pakistan-1.409988 (accessed 16 March 2011).
67. Al Serkel, “Federal Law Needed”; Charles Stratford, “Illegal Antiquities Pass through Porous Law,”
GulfNews, 31 July 2006, http://gulfnews.com/news/gulf/uae/general/illegal-antiques-pass
-through-porous-law-1.246427 (accessed 7 January 2011); “Dubai Customs Foil a Major Attempt to Smuggle
Antiquities,” AMEInfo, 29 November 2008, http://www.ameinfo.com/177351.html (accessed 12 January
2011).
68. Schetter, “The ‘Bazaar Economy,’” 11.
69. “Antiquities Smuggling Bid to UAE Foiled,” PakTribune, 18 November 2004, http://www
.paktribune.com/news/print.php?id=160417 (accessed 8 January 2011); “Antiquities Smuggling Case: Customs
Want Clearing Agents’ Bail Cancelled,” Daily Times, 20 November 2006. http://www.dailytimes
.com.pk/default.asp?page=2006%5C11%5C20%5Cstory_20-11-2006_pg12_2 (accessed 28 January 2011).
70. For smuggling inside licit commodities, see “Antiquities Smuggling Bid”; Adil Najam, “Smuggling Historical
Artifacts to Sharjah,” Pakistaniat, 19 November 2006, http://pakistaniat.com/2006
/11/19/smuggling-historical-artifacts-to-sharjah/ (accessed 10 February 2011); for falsified cargo manifests, see
Stratford, “Illegal Antiquities Pass”; for false compartment, see “Dubai Customs Foil.”
71. Al Serkel, “Federal Law Needed”; Nasser Arrabyee, “Antiquities Returned to Yemen,” Gulf News, 19 June 2008,
http://gulfnews.com/news/gulf/yemen/antiquities-returned-to-yemen-1.112525 (accessed 11 January 2011).
72. Miriam Al Serkel, “Smuggled Antiquities Worth $6M Seized,” GulfNews, 25 February 2008,
http://gulfnews.com/news/gulf/uae/crime/smuggled-antiques-worth-6m-seized-1.86448 (accessed 8 January
2011).
73. Arrabyee, “Antiquities Returned to Yemen.”
74. For international connections, see “Smugglers of Iraqi Artefacts Arrested,” GulfNews, 28 May 2007,
http://gulfnews.com/news/gulf/uae/crime/smugglers-of-iraqi-artefacts-arrested-1.180199 (accessed 7 January
2011); Al Serkel, “Smuggled Antiquities Worth”; for corruption, see “Antiquities Smuggling Case.”
75. Al Serkel, “Smuggled Antiquities Worth.”
76. For transit countries, see “Antiquities Smuggling Case”; Al Serkel, “Smuggled Antiquities Worth”; for market
countries, see Ray, Deeti Ranjita, “Cultural Crime: Reaching New Heights,” Institute of Peace & Conflict Studies,
3 September 2003, http://www.ipcs.org/article/India/cultural-crime-reaching
-new-heights-1122.html (accessed 6 April 2011); Brems and Van den Eynde, Blood Antiquities; Sarah
Rainsford, “Looted Treasures Return to Afghanistan,” BBC News, 10 June 2009, http://www.news
49.
50.
51.
52.
53.
54.
51
51
.bbc.co.uk/2/hi/8093573.stm (accessed 1 April 2011).
77. For laundering through claiming an old collection, see Gill and Chippendale, “Material and
Intellectual Consequences,” 623; for a Belgian example, see Brems and Van den Eynde, Blood Antiquities.
78. Tijhuis, Transnational Crime, 117; “Taliban Making Profit from Belgian Antiques Dealers,”
Expatia, 9 July 2009, http://www.expatica.com/be/news/local_news/Taliban-making-profit-from-Belgianantiques-dealers-_56076.html (accessed 12 April 2011).
79. ICOM, Red List of Afghanistan, 2.
80. McCalister, “Organized Crime and the Theft.”
81. For a looting, see Atwood, Stealing History; for repatriation, see Lucian Harris, “German Court Orders
Return of Ancient Vessel to Iraq,” Art Newspaper 18 November 2009, http://www
.theartnewspaper.com/articles/German-court-orders-return-of-ancient-vessel-to-Iraq/19796 (accessed 21
April 2013). Eric Kelsey, “Germany Hands Ancient Battle Axe Back to Iraq,” Reuters, 10 February 2011,
http://in.reuters.com/article/2011/02/10/idINIndia-54805020110210 (accessed 12 February 2011).
82. Brodie, “The Market in Iraqi Antiquities,” 72–73.
83. WikiLeaks, “WikiLeaks Iraq War Logs.”
84. Simon Rogers, “WikiLeaks Iraq: What’s Wrong with the Data?” Guardian, 25 October 2010,
http://www.guardian.co.uk/news/datablog/2010/oct/25/wikileaks-iraq-data (accessed 2 April 2011).
85. For subsistence diggers, see Atwood, Stealing History, 4–6;“Stealing Undiscovered History in Iraq,” Aljazeera, 14
April 2004, http://english.aljazeera.net/archive/2004/04/2008410141833634744.html (accessed 7 March 2011); for
unemployment rate, see McCalister, “Organized Crime and the Theft,” 36.
86. WikiLeaks, “Materials Recovered by 2004-02-20”; WikiLeaks, “(Friendly Action) Detain RPT 2008-10-19”;
WikiLeaks, “(Criminal Event) Smuggling RPT 2008-4-3.”
87. Atwood, Stealing History, 5.
88. McCalister, “Organized Crime and the Theft,” 32.
89. WikiLeaks, “During Op. 2004-02-20”; WikiLeaks, “Raid by Wolf BDE 2005-07-18”; WikiLeaks, “Friendly
Action Arrest RPT 2008-03-18.”
90. WikiLeaks, “Friendly Action Raid RPT 2008-7-3.”
91. Chalmers Johnson, “The Smash of Civilizations,” Asia Times, 9 July 2005, http://www
.atimes.com/atimes/Middle_East/GG09Ak01.html (accessed 9 February 2011).
92. For transit countries, see Johnson, “The Smash of Civilizations”; Al Serkel, “Federal Law Needed”;
Frank Christiansen, “Stolen Iraqi Artefacts Seized in Germany, But Sellers to Go Free,” Newcomers Network,
22 December 2010, http://www.accessmylibrary.com/article-1G1-245165052
/stolen-iraqi-artefacts-seized.html (accessed 13 January 2011); for UAE, see Stratford, “Illegal Antiquities Pass”;
Najam, “Smuggling Historical Artifacts”; “Smugglers of Iraqi Artefacts.”
93. Harris, “German Court Orders”; Kelsey, “Germany Hands Ancient.”
94. Federal Bureau of Investigation, “Iraqi Artifacts Seized.”
95. WikiLeaks, “UK Possession of Arts Works”; Vanessa Thorpe and James Doeser, “UK Scholars Linked to
‘Stolen’ Bowls of Babylon,” Guardian, 8 November 2009, http://www.guardian.co.uk
/world/2009/nov/08/british-link-stolen-treasures?cat=world&type=article (accessed 1 April 2011).
96. Johnson, “The Smash of Civilizations.”
97. Malcolm Moore, “Tomb Raiders Strip Bulgaria of its Treasures,” Telegraph, 29 August 2007, http://
www.telegraph.co.uk/news/worldnews/1561613/Tomb-raiders-strip-Bulgaria-of-its-treasures.html (accessed 8
February 2011).
98. Bozhidar Dimitrov, “Antiques Are Smuggled in Bulgaria through Drug Traffic Channels,” Stan- dart News,
12 May 2008, http://www.paper.standartnews.com/en/article.php?d=2008-05-12&article=23660 (accessed 10
April 2011).
99. Zornitsa Gavrilova, “Bulgaria Takes Back Its Antique Treasures: Prosecutors Inspect Foreign Museums
for Bulgarian Treasures,” Standart News, 13 December 2007, http://www.paper.standartnews
.com/en/article.php?d=2007-12-13&article=3874 (accessed 1 April 2011).
100. “Kintex—Key Player in Bulgaria’s Secret Transit,” Sofia News Agency, 29 February 2010, http://
www.novinite.com/view_news.php?id=90870 (accessed 6 March 2011); “Illegal Antiques Channels and Lyudmila
Zhivkova’s Role, Part I,” Sofia News Agency, 20 May 2008, http://www.novinite.com
/view_news.php?id=93302 (accessed 6 March 2011).
101. Guineva, “Illegal Antiques Channels.”
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52
102. Harry Quetteville, “Bulgaria Acts to Smash
Mafia’s EU Network,” Telegraph, 6 May 2008,
http://www.telegraph.co.uk/news/worldnews/europe/bulgaria/1932962/Bulgaria-acts-to-smash-mafias
-EU-network.html (accessed 1 April 2011).
103. Shentov, Organized Crime in Bulgaria, 186.
104. “Nine Arrested in Drug Bust in Bulgarian Town of Blagoevgrad,” Sofia Echo, 26 July 2010, http://
sofiaecho.com/2010/07/26/937695_nine-arrested-in-drug-bust-in-bulgarian-town-of-blagoevgrad (ac- cessed 2
April 2011).
105. Shentov, Organized Crime in Bulgaria, 194.
106. Ivan Dikov, “Bulgaria: An Archaeology and Treasure Hunting Paradise. Or Hell,” Sofia News Agency, 31
July 2009, http://www.novinite.com/view_news.php?id=106385 (accessed 22 February 2011).
107. Shentov, Organized Crime in Bulgaria; Dragieva, Political Corruption Practices; “Bulgaria to Recover
Smuggled Archaeology Finds from Canada Shortly,” Sofia News Agency, 6 August 2010,
http://www.novinite.com/view_news.php?id=118921 (accessed 6 March 2011); “Publications against Nikola
Filchev Only Reason for Prosecutor Investigations Nikolay Kolev, Ex-Military Prosecutor Speaks to
Mediapool.bg,” Dnevnik.bg, 3 August 2001, http://www.m.dnevnik.bg/bulgaria/2001/03
/08/14915_publications_against_nikola_filchev_only_reason_for/?print=1T (accessed 4 April 2011).
108. Shentov, Organized Crime in Bulgaria, 186; Dragieva, Political Corruption Practices, 58; “Pub- lications
Against Nikola Filchev.”
109. “Bulgaria Ex Chief Prosecutor to Be Interrogated over ‘Octopus’ Mafia Case,” Sofia News Agency, 15 February
2010, http://www.novinite.com/view_news.php?id=113192 (accessed 6 March 2011).
110. Shentov, Organized Crime in Bulgaria, 186.
111. Shentov, Organized Crime in Bulgaria, 186; Dragieva, Political Corruption Practices, 58.
112. For Filchev’s brother leaving the country, see Shentov, Organized Crime in Bulgaria, 186; for prosecutor
Ivanov’s promotion, see Dragieva, Political Corruption Practices, 58.
113. Several buyers thank Filchev’s brother by his first name in the transaction feedback, eBay, “eBay My
World”; MyVisaJobs.com, “Silenos Coins and Antiquities.”
114. MyVisaJobs.com, “Silenos Coins and Antiquities.”
115. Shentov, Organized Crime in Bulgaria, 186.
116. Shentov, Organized Crime in Bulgaria, 186.
117. “Publications against Nikola Filchev.”
118. “Widow Accuses Bulgarian Ex Secret Agent of Plotting Murders,” Sofia News Agency, 11 February
2010, http://www.thebulgariannews.com/view_news.php?id=113032 (accessed 6 March 2011).
119. “Bulgaria Ex Chief Prosecutor”; “Widow Accuses Bulgarian”; “The Attacks against Prosecutor General Nikola
Filchev
and
the
Shortcomings
of
Media
Coverage,”
Anticorruption.bg,
2003,
http://
www.anticorruption.bg/index.php?id=918 (accessed 4 February 2011).
120. eBay, “Feedback Profile.”
121. Gavrilova, “Bulgaria Takes Back.”
122. eBay, “Feedback Profile.”
123. ForgeryNetwork, “Item: 7090”; S*P*Q*R, “Feedback Profile.”
124. “Bulgaria to Recover Smuggled.”
125. eBay, “Feedback Profile.”
126. eBay, “Feedback Profile.”
127. Dimitrov, “Antiques Are Smuggled.”
128. Felson, “The Ecosystem for Organized Crime,” 8.
129. Pastore et al., “Schengen’s Soft Underbelly,” 98.
130. For subsistence looters, see Dikov, “Bulgaria: An Archaeology”; Gabriel Hershman, “Risky Business,” Sofia
Echo, 30 October 2009, http://sofiaecho.com/2009/10/30/806677_risky-business (ac- cessed 18 January 2011); for
well-funded looters, see Marion Kraske, “Bulgaria Plagued by ‘Grave Robbers,’” Spiegel International, 21
December 2007, http://www.spiegel.de/international/europe
/0,1518,524976,00.html (accessed 15 January 2011).
131. Moore, “Tomb Raiders Strip Bulgaria”; Dimitrov, “Antiques Are Smuggled.”
132. Dragieva, Political Corruption Practices, 58.
133. Shentov, Organized Crime in Bulgaria, 186; Dragieva, Political Corruption Practices, 58.
134. SalaryList.com, “Silenos Coins and Antiquities.”
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53
135. eBay, “eBay My World.”
136. Pastore et al., “Schengen’s Soft Underbelly,” 107. Demonstrated in antiquities trafficking by interactions
between tombaroli and intermediaries in Watson and Todeschini, The Medici Conspiracy, 78–79, 316
137. Felson, “The Ecosystem for Organized Crime,” 10.
138. Department of Defense, “Several Theories Justifying.”
139. Brodie et al., Stealing History, 19; Ruiz, “My Life as a Tombarolo”; “Spanish Cops Bring Down Ring That Sold
Looted
Antiquities,”
Latin
American
Herald
Tribune,
11
December
2010,
http://
www.laht.com/articl.asp?CategoryId=12395&ArticleId=381239 (accessed 11 April 2011).
140. Ruiz, “My Life as a Tombarolo.”
141. Kaplan, “Paying for Terror”; Deeti Ranjita Ray, “Cultural Crime: Reaching New Heights,”
Institute of Peace & Conflict Studies, 3 September 2003, http://www.ipcs.org/article/India/cultural
-crime-reaching-new-heights-1122.html (accessed 6 April 2011).
142. “Kunst als Terrorfinanzierung?” Der Spiegel, 18 July 2005, http://www.spiegel.de/spiegel
/print/d-41106138.html (accessed 11 January 2011).
143. “Kunst als Terrorfinanzierung”; Ruiz, “9/11 Hijacker Attempted to Sell Afghan Loot,” 1.
144. For several references by writers, see Ruiz, “9/11 Hijacker Attempted”; Cindy Ho quoted in De La Torre,
“Terrorists Raise Cash,” 10.
145. “Al Qaeda-Linked Militants.”
146. Anand Gopal, “The Most Deadly US Foe,” Christian Science Monitor, 1 June 2009, http://
www.csmonitor.com/World/Asia-South-Central/2009/0601/p10s01-wosc.html (accessed 1 April 2011).
147. “Antiquities Smuggling Case”; “Al Qaeda-Linked Militants.”
148. Brodie, “Pity the Poor Middlemen.”
149. Peters, “Crime and Insurgency,” 36.
150. Craig Whitlock, “Afghan Insurgents’ Diverse Funding Sources Pose Challenges,” Washington Post, 27
September 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/09/26
/AR2009092602707.html?sid=ST2009092602905 (accessed 11 April 2011).
151. Sedra, “Introduction,” 9.
152. Collins and Ali, “Financing the Taliban.”
153. Kaplan, “Paying for Terror.”
154. Andrea Loebbecke, “Germany Returns Antique Battleaxe to Iraq,” Boston Herald, 9 February 2011,
http://www.bostonherald.com/news/international/europe/view.bg?articleid=1315631 (accessed 1 April
2011); Bootie Cosgrove-Mather, “Looted Iraqi Art Funds Terrorism,” CBS News, 23 June 2005,
http://www.cbsnews.com/2100-500257_162-703841.html (accessed 10 April 2011).
155. Thorpe and Doeser, “UK Scholars Linked.”
156. Jacob Stockinger, “Recovering Pillaged Iraqi Art is Expert’s Goal,” Capital Times, 17 April 2006,
http://www.madison.com/tct/news/index.php?ntid=80428&ntpid=0 (accessed 2 April 2011).
157. Matthew Bogdanos, “The Terrorist in the Art Gallery,” New York Times, 10 December 2005,
http://www.nytimes.com/2005/12/10/opinion/10bogdanos.html?_r=2&scp=5&sq=bogdanos&st=nyt (accessed 12
January 2011).
158. “Stealing Undiscovered History”; Atwood, Stealing History, 4–6.
159. Johnson, “The Smash of Civilizations.”
160. Bogdanos, “The Terrorist in the Art.”
161. WikiLeaks, “Raid by 2005-06-03.”
162. WikiLeaks, “Friend Action Confiscation RPT 2009-08-18.”
163. WikiLeaks, “Criminal Event Smuggling RPT 2009-06-07”; WikiLeaks, “Criminal Event Smuggling RPT
2008-01-27”; WikiLeaks, “(Friendly Action) Arrest RPT Kirkuk 2007-12-27.”
164. WikiLeaks, “In An Nasiriyah (South Part) 2004-10-28.”
165. WikiLeaks, “(Friendly Action) Raid RPT 2007-12-07.”
166. WikiLeaks, “Threat Warning: Poss Attk on 2005-12-28.”
167. WikiLeaks, “(Friendly Action) Cache Found 2008-11-02.”
168. WikiLeaks, “(Friendly Action) Cache Found 2008-05-28.”
169. WikiLeaks, “Threat Warning: Poss Attk on 2005-12-28.”
170. Shelley, “The Globalization of Crime.”
171. Felson, “The Ecosystem for Organized Crime,” 16; Bogdanos, “The Terrorist in the Art.”
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Baker and Anjar, “Syria’s Looted Past.”
Baker and Anjar, “Syria’s Looted Past.”
Baker and Anjar, “Syria’s Looted Past.”
Baker and Anjar, “Syria’s Looted Past.”
For crime on the net, see Felson, “The Ecosystem for Organized Crime,” 12; for antiquities sales online,
see “Bulgarian Police Bust Priest for Illegal Antiquities Trading,” Sofia News Agency, 29 May 2010,
http://www.novinite.com/view_news.php?id=116671 (accessed 6 March 2011); “Italy Seizes Looted Artifacts for
Sale on e-Bay,” Deseret News, 14 January 2009, http://www.deseretnews.com
/article/705277533/Italy-seizes-looted-artifacts-for-sale-on-e-Bay.html (accessed 18 December 2010).
177. Felson, “The Ecosystem for Organized Crime,” 12.
178. Stanish, “Forging Ahead.”
179. eBay, “Feedback Profile”; Nadira Hira, “Really Old Money,” Fortune, 23 October 2008, http://
money.cnn.com/2008/10/23/magazines/fortune/antiquities_hira.fortune/index.htm (accessed 15 January 2011).
180. Hira, “Really Old Money”; Watson and Todeschini, The Medici Conspiracy, 122.
181. eBay, “Feedback Profile.”
182. Dimitrov, “Antiques Are Smuggled.”
183. “Canada Seizes Bulgarian Archaeology Items in Smuggling Attempt,” Sofia News Agency, 5 August 2010,
http://www.novinite.com/view_news.php?id=118873 (accessed 3 November 2011).
184. eBay, “What Percentage of People.”
185. eBay, “Feedback Profile,” 1–212.
186. eBay, “Feedback Profile,” 1–212.
187. “eBay Registers 212 Million Users,” BBC News, 18 October 2006,
http://news.bbc.co.uk/2/hi/business/6064718.stm (accessed 3 March 2011).
188. “Bulgaria to Recover Smuggled.”
189. Bowman Proulx, “Organized Criminal Involvement.”
190. McCalister, “Organized Crime and the Theft.”
191. Charney, Art Crime in Context, xxii.
192. MacKenzie, “Identifying and Preventing Opportunities,” 48.
193. MacKenzie, “Identifying and Preventing Opportunities,” 48.
194. For looters, see Ruiz, “My Life as a Tombarolo”; Ariel David, “Modern-Day ‘Tomb Raiders’ Feel the Heat,”
MSNBC, 6 July 2007, http://www.msnbc.msn.com/id/19585643/ns/technology
_and_science-science/t/modern-day-tomb-raiders-feel-heat/#.T1d1FUrGaGh (accessed 2 January 2012); for
late stage intermediaries, see McNall and D’Antonio, Fun While It Lasted; Van Rijn, Hot Art, Cold Cash; and
Hecht’s memoir in Watson and Todeschini, The Medici Conspiracy; for collec- tors, see Hoving, Making the
Mummies Dance.
195. Doole, “In the News”; Paul Sussman, “Antiquities Smuggling: ‘A Crime Against Humanity,’ ”
CNN, 12 December 2006, http://www.articles.cnn.com/2006-12-11/world/illegal.antiquities_1
_antiquities-ancient-artifacts-parthenon?_s=PM:WORLD (accessed 2 April 2011); Rory Carroll, “Loot,”
Guardian, 4 May 2002, http://arts.guardian.co.uk/arttheft/story/0,,1034288,00.html (ac- cessed 3 March
2011).
196. Brody et al., Stealing History, 16; McNall and D’Antonio, Fun While It Lasted, 48; Van Rijn, Hot Art, Cold
Cash, 31, 33; Lo, The Politics of Cross-Border, 23; “Spanish Cops Bring Down”; “Nine Arrested in Drug Bust in
Bulgarian Town of Blagoevgrad,” Sofia Echo, 26 July 2010, http://sofiaecho
.com/2010/07/26/937695_nine-arrested-in-drug-bust-in-bulgarian-town-of-blagoevgrad (accessed 2 April
2011).
197. Drake, “Italy Awaits Biggest”; Lo, The Politics of Cross-Border, 23; Shentov, Organized Crime in Bulgaria, 194;
Associated Press, “Italian Art Police Recover 60,000 Stolen, Looted Works, Artifacts,” Dallas
Morning
News, 15
January 2010,
http://www.dallasnews.com/news/nation-world/world/20100115-Italian-art-police-recover-60000-2510.ece (accessed 1 April 2011).
198. “Publications against Nikola Filchev”; Cook, More Dangerous Ground, 204; Michael Back- man,
“Mysterious Deaths, the Marquess and the Forbidden Treasure,” Age, 10 November 2006, http://
www.theage.com.au/news/business/mysterious-deaths-the-marquess-and-the-forbidden-treasure
/2006/11/09/1162661830797.html?page=fullpage#contentSwap1 (accessed 16 January 2011).
199. For general definitional debates, see Van Dijck, “Discussing Definitions of Organized Crime”; Finckenauer,
172.
173.
174.
175.
176.
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55
“Problems of Definition.” For definitional issues
regarding antiquities trade research, see Bowman
Proulx, “Organized Criminal Involvement.”
200. Merryman et al., Law, Ethics, and the Visual Arts, 289–290.
201. Keefe, “The Idol Thief.”
202. McNall and D’Antonio, Fun While It Lasted, 65.
203. Van Rijn, Hot Art, Cold Cash, 31, 33.
204. Baker and Anjar, “Syria’s Looted Past.”
205. Similar to Filchev’s brother, the author has chosen not to use active criminals names, though sources
clearly state them, Friedman, Red Mafiya, 177–178; Robert Friedman, “The Most Dangerous Mobster in the
World,” The Village Voice, May 1998.
206. Finckenauer and Waring, Russian Mafia; Williams, “Transnational Criminal Networks,” 88–91.
207. Friedman, Red Mafiya, 60.
208. Friedman, Red Mafiya, 152–165.
209. Friedman, Red Mafiya, 8, 152, 154–156, 163, 164.
210. Friedman, “The Most Dangerous”; Friedman, Red Mafiya, 152.
211. Friedman, Red Mafiya, 199–200.
212. McNall and D’Antonio, Fun While It Lasted, 65; Jason Felch, “Raids Suggest a Deeper Network of Looted
Art,” Los Angeles Times, 25 January 2008, http://articles.latimes.com/2008/jan/25
/local/me-museums25 (accessed 20 January 2011).
213. S. Fidler, “A Black Art: How the Trade in Stolen Artifacts Aids Money Laundering, Organized Crime, and
Terrorism,” Financial Times, 24 May 2003.
214. Slayman, “The Trial in Rome.”
215. Felch, “Raids Suggest a Deeper.”
216. The trade is “in itself (as a criminal market) an example of organised crime,” in MacKenzie, “Identifying
and Preventing Opportunities,” 41.
217. Coluccello and Massey, “Out of Africa,” 89.
218. Watson, Sotheby’s; Watson and Todeschini, The Medici Conspiracy; McNall and D’Antonio, Fun While It
Lasted; Shentov, Organized Crime in Bulgaria.
219. Elia, “A Seductive and Troubling,” 61.
220. Williams, “Networks, Markets, and Hierarchies,” 62; Coluccello and Massey, “Out of Africa,” 89.
221. Williams and Godson, “Anticipating Organized and Transnational,” 314.
222. Felson, “The Ecosystem for Organized Crime,” 8, 12, 15.
223. Felson, “The Ecosystem for Organized Crime,” 9.
224. Bowman Proulx, “Organized Criminal Involvement,” 3.
225. Felson, “The Ecosystem for Organized Crime,” 12.
226. Watson and Todeschini, The Medici Conspiracy.
227. Felson, “The Ecosystem for Organized Crime,” 12.
228. As shown in eBay, “Uncleaned Crusty Roman”; and described in Gill, “The Portable Antiquities.”
229. Williams and Godson, “Anticipating Organized and Transnational,” 351.
230. Felson, “The Ecosystem for Organized Crime,” 9.
231. Illicit populations are extremely difficult to estimate and this exercise is only to paint a broad picture
since correlate numbers from source to market chain are not available. Therefore, these populations are based
on single country estimates for each stage. Stage one is based on Bulgarian estimates of 30,000 looters in
Moore, “Tomb Raiders Strip Bulgaria”; stage two is based on Haqqani network’s membership of 15,000 in
National Public Radio, “Deadly Insurgents with Ties to U.S. Dollars,” National Public Radio, 29 September
2011, http://www.npr.org/2011/09/29/140872030/deadly-insurgents-with-ties-to-u-s-dollars (accessed 2 March
2012); stage three is based on the UK’s 18 members of the Antiquities Dealers Association, Antiquities
Dealers Association, http://www.theada.co.uk/, 2012 (accessed 2 March 2012), and 350 members of the
British Antique Dealers’ Association, http://www.bada.org (accessed 2 September 2012); stage four is based on
United States’ Ancient Coin Collectors Guild purported membership size of 10,001 in Ancient Coin
Collectors Guild, Ancient Coin Collectors Guild, March 2012, http://www.linkedin.com/company/ancientcoin- collectors-guild (accessed 2 March 2012).
232. Subsistence digging includes Afghanistan (35%) and postinvasion Iraq (near 70%). Tombaroli-type
looting occurs in Italy (8.2%) and Peru (6.8%). This relates to law enforcement capabilities and social issues
56
56
in a foundering economy rather than directly to
unemployment. Central Intelligence
Agency,
“World Factbook”; McCalister, “Organized Crime and the Theft,” 36.
233. Felson, “The Ecosystem for Organized Crime,” 11.
234. For example Al Serkel, “Federal Law Needed.”
235. Felson, Crime and Nature, 6–7.
236. Felson, “The Ecosystem for Organized Crime,” 12.
237. GlobalWitness.org, “Conflict Diamonds”; Slocum-Schaffer, “Animal Rights,” 230; Brulle,
Agency, Democracy, and Nature.
238. Keith and Carrell, “Going, Going, Gone”; Brems and Van den Eynde, Blood Antiquities.
239. “Egyptians Form Chain to Protect King Tut,” Herald Sun, 30 January 2011, http://www
.heraldsun.com.au/ipad/egyptians-form-chain-around-museum-to-protect-king-tut/story-fn6s8
50w1225996801338 (accessed 12 January 2012).
240. For example Marilee Enge, “Whale House Series: The Sale of the Whale House Legacy.” Anchorage Daily
News, 1993, http://www.ankn.uaf.edu/curriculum/Tlingit/WhaleHouse/part1.html (accessed 2 August 2012);
Atwood, Stealing History, 7; “Qianlong Chinese Porcelain Vase Sold for £43m,” BBC News, 12 November 2010,
http://www.bbc.co.uk/news/uk-england-london-11739781 (accessed 24 January 2012).
241. For Colonial collecting and archaeology as domination, see Meskell, “Pharaonic Legacies,” 150–151.
For an example of Southeast Asia, see Miksic et al., Rethinking Cultural Resource Management, 68–69;
Anderson, Imagined Communities, 182–184. For a description of the British Museum as a state-funded
patriotic center that revised historical narratives, reconstructing artifacts toward the goal of displaying “the
forward march of human civilization from its classical origins in Greece and Rome, through Renaissance Italy,
to modern-day London,” see Colla, Conflicted Antiquities, 5.
242. For the origin of the “gentleman-scholar,” see Pearce and Arnold, The Collector’s Voice, xiv; for a
description of gentleman collectors, see Pearce and Arnold, The Collector’s Voice, 29–32. For current
collectors known to purchase looted antiquities described as preservationists and interested in scholarship, see
Hira, “Really Old Money.”
243. McIntosh et al., “The Good Collector.”
244. Williams and Godson, “Anticipating Organized and Transnational,” 331.
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Notes & Questions
1. Good Faith in Market Transactions: Mackenzie discusses the role of good faith in art
market transactions and the concept is referred to in some of the quotes from dealers. The
following incident is related by Mackenzie in his book, Going, Going, Gone: Regulating the
Market in Illicit Antiquities (2005), which is a fuller presentation of the research on which the
article excerpted here is based.
There is much data to support this observed practice of obtaining a signature on a
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document of title as one way of allaying fears of repercussions when proceeding in a
transaction with a suspicious seller. The following story told by London Dealer 4 is one
of the more arresting in this regard, as the extraordinary measures he takes to protect
himself demonstrate his (quite reasonable in the circumstances) suspicions about the
seller. This is particularly interesting as it takes the form of an immediate contradiction to
his first assertion that he would probably not deal with anyone he did not trust:
If it is someone you are not 100% satisfied is 100% trustworthy, you probably
don't do business with them at all. Secondly, you would insist on a proper written
invoice with guarantees, etc. So that should there ever be a problem down the
line, at least if you're taken to court as maybe part of a chain, you can actually
show the judge this. I mean I used to have to buy things from people who
preferred to have paper payment — they preferred cash. And it got to the stage
with one person who I did a reasonable amount of business with for large sums of
money. But the last time I said look, you don't have to talk to me, but you have to
my bank a bank account for them to transfer into. "No, no, no, I want cash." So I
said okay. He was going to meet me somewhere a couple of days later. So I hired
a photographer. I went to the bank in question, which had big glass windows, and
I said I want you to roll off a roll of film, at three different times of day. Because I
don't know yet what time. And if I'm standing just inside the window, counting
the money apparently, in which case the other person will be in there too, it is
visible who the person is — you don't get glare or reflection or that sort of thing.
And it worked absolutely fine. I never told the person this, and it was a good
many years ago now, and it's sitting in a solicitor's office somewhere in the world,
just in case. Because you know, there had been a problem on that particular piece,
the person of course would have denied selling it to me in the first place, and as
there was a cash transaction there would have been no chain of evidence
whatever. And when it was coming up for trial, you'd simply say to him very
quietly, here's a copy of the photograph — do you still want to go to court? But
you know, it's pretty horrible to have to think of your friends like that. But if
people want to do extreme things which are not part and parcel of the present
world, the modern world, you have to have some sort of protection for yourself,
or you don't do the business. And you can't go on just not doing the business.
(London Dealer 4)
One point should be made here about this extraordinary purchase. The dealer went ahead
with the transaction even although he was clearly suspicious of the seller, and by
implication, of what he was selling. Instead of investigating the provenance of the object
for sale, however the dealer tries to protect himself by obtaining evidence that he bought
it from someone else (as opposed, one presumes, to being assumed to have stolen it
himself, if indeed it turned out to be stolen). Quite what protection in law he thinks he is
getting by recording evidence of the purchase is not clear. The very act of recording the
evidence in this way might well be taken as proof that he was not acting in good faith,
having reasonable suspicions about the legality of the object for sale which he did not
properly investigate. The confidence among dealers that the act of purchase in some way
protects them from the consequences of possession of stolen goods — that it is not their
fault for buying stolen property but the seller's fault for selling it — is quite misplaced.
This transaction frankly sounds more akin to a drug deal than an open market sale.
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Id. at 30–31. In several of the cases involving stolen art works and application of the statute
of limitations and laches defenses, the courts discuss the good faith or due diligence of the
purchaser. This is particularly an issue in the discussion of the Swiss presumption of good faith
in Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg. How would you compare the
good faith efforts of the dealers described in their own words in Mackenzie's research with Peg
Goldberg's efforts to ascertain the background of the Kanakaria mosaics?
2. Chance Finds: Mackenzie's research indicates that many market participants believe
that if an object is a "chance" find, then it can be legitimately traded. They seem to go further and
often indulge in the fiction that many of the antiquities on the market are the result of chance
finds, rather than deliberate looting, and the accompanying rationalization that this excuses sales
that may be illegal. This rationalization — that the source of unprovenanced antiquities is chance
finds — ignores the fact that chance finds are generally not in sufficiently good condition to
make it into the international antiquities market. Tubb and Brodie commented that "true chance
finds are difficult to come by. . . . Very few, if any, intact antiquities have been found [in twenty
years of archaeological surface surveys]. The published material consists largely of pieces of
broken pottery and small architectural fragments. The idea that there are large quantities of
antiquities lying about waiting to be found is a myth." Kathryn Walker Tubb & Neil Brodie,
From Museum to Mantelpiece: the Antiquities Trade in the United Kingdom, in Destruction and
Conservation of Cultural Property 102, 106 (Robert Layton, Peter G. Stone & Julian Thomas eds
2001). True chance finds are found near the surface and will be fragmentary, scattered and
weathered; objects that are of sufficiently high quality and condition to be collectible by a highend collector or museum are most likely found in tombs. It therefore is not credible that most
antiquities on the international market are chance finds. In fact, one collector went so far as to
classify any objects found by digging not carried out by an archaeologist as chance finds!
Mackenzie, Going, Going, Gone, at 56–57. For more discussion of some of the “myths” of the
antiquities market, including chance finds, see Ricardo J. Elia, Mythology of the Antiquities
Market, in Cultural Heritage Issues: The Legacy of Conquest, Colonization, and Commerce 239
(James A.R. Nafziger and Ann M. Nicgorski eds. 2010).
In the United Kingdom, where the Portable Antiquities Scheme requires the reporting of
finds, the following data were reported for the year 2011: 83.2% of finds were discovered by
metal detecting; another 10.2% were discovered during deliberate field-walking and other
intentional searching for finds but without the use of a metal detector; only 4.4% were found
during construction, agricultural and gardening activities, with 2.2% found during controlled
excavation. The Portable Antiquities Scheme Statistical Analysis of the Database for 2011,
available at http://finds.org.uk/database/statistics/annual/datefrom/2011-01-01/dateto/2011-1231. Thus less than 5% of reported "finds" were true chance finds.
3."Source" and "Market" Nations: Many scholars divide nations into “source” and
“market” nations. In the perspective of the legal scholar, John Henry Merryman, source nations
are those with an excess of cultural objects (that is, more cultural objects than are needed to
satisfy internal market demands), while market nations have a greater demand for cultural
objects than can be satisfied through the available domestic supply. As Rosemary Coombe has
pointed out, this categorization ignores values other than market value that are inherent in
cultural objects. The term "source" nations implies that these nations' only purpose is to be a
source to the Western nations for cultural objects, just as, in the past, their natural resources were
freely exploited by the colonial powers. Rosemary J. Coombe, The Properties of Culture and the
Politics of Possessing Identity: Native Claims in the Cultural Appropriation Controversy, 6
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Canadian J.L. & Juris. 249, 259-265 (1993). This categorization also ignores the fact that
many nations both consume cultural objects through the international market and are themselves
rich in cultural resources. Examples of such nations include the United States, Great Britain, and
Italy.
The United States presents a particularly interesting conflict. The dominant population in
the United States has little or no relationship to the indigenous Native American culture. Rather,
the dominant culture sees its roots in Europe and particularly the Mediterranean world of
classical Greece and Rome. It has therefore perhaps been particularly important to the United
States that cultural links to other parts of the world be maintained. Today, a similar argument is
made that since the United States is a nation of immigrants, representations of all cultures from
throughout the world should be present in the United States through artistic and cultural objects.
Is this a justification for discouraging regulation of the art market in the United States?
Kersel presents a different perspective on the market vs. source nation debate and rejects
the simple dichotomy. She correctly points out that nations should be viewed as the origin of
archaeological objects, but that market nations need to be divided between transit and destination
countries. In developing a legal scheme to discourage illegal trafficking in looted artifacts, would
different legal approaches be appropriate for these different categories of market nations? How
do modern developments in communications and transportation means affect our understanding
of how most effectively to discourage this market activity?
4. Intersection with Other Criminal Activity: As outlined in Campbell’s article, the
question of the relationship between the trade in illegal antiquities and other forms of
international illegal activity has become a significant subject of study but one which has largely
eluded hard data. Why does it matter from a legal and policy perspectives how these activities
interrelate?
Part II
Theft and National Ownership of Archaeological Artifacts
All nations have laws against the theft of property and the knowing handling of stolen
property. In the United States, for example, one who possesses, transfers, receives, or otherwise
deals in stolen property with the requisite criminal knowledge or intent is subject to criminal
liability under either state law or, if the stolen property has been transferred in interstate or
international commerce and is worth more than $5,000, the National Stolen Property Act
(NSPA), 18 U.S.C. §§2314 and 2315.
However, particular legal and policy issues are raised by a certain type of theft—that is,
theft of archaeological artifacts directly from the ground. In order to protect archaeological
objects while they are still in the ground, deterrence to the looting itself is required. Many
archaeologically rich nations as early as the nineteenth century and increasingly during the
twentieth century enacted laws that vest ownership in the nation of archaeological objects that
have not yet been discovered and excavated. The removal of such objects without the permission
of the nation constitutes theft. Such laws are one of the most effective methods to reduce
incentives to purchase undocumented antiquities by denying title to the finder and subsequent
purchasers and thus to prevent the looting of archaeological sites and dismemberment of
monuments. This doctrine has been litigated in the United States in both civil and criminal cases
and it has been the subject of considerable commentary. Art market proponents have criticized
this principle arguing that such objects are not really owned by the nation and that such laws, in
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British Journal of Criminology Advance Access published June 13, 2014
doi:10.1093/bjc/azu038
BRIT. J. CRIMINOL
TEMPLE LOOTING IN CAMBODIA
Anatomy of a Statue Trafficking Network
Simon Mackenzie* and Tess Davis
Keywords: trafficking, smuggling, cultural heritage, cultural property, cultural objects,
antiquities, organized crime, transnational crime
Introduction: from Source to Market, but How?
Compared to other types of commodity traffic, in drugs, wildlife or even human
beings, relatively little reliable empirical data have previously been gathered and published about the process of ‘trafficking’ in antiquities. Scholars of the international
criminal market in cultural objects have access to a number of analyses of what we
might characterize as the two ends of the global supply chain, in the form of studies of ‘source’ and ‘market’, but comparatively little about how looted cultural objects
actually move from the ground to the international market buyer (see Brodie et al.
2013 for a literature review of evidence-based studies in this field). With limited exceptions, the available data have clustered around looters who take objects from important
archaeological sites (Staley 1993; Paredes Maury 1996; van Velzen 1996; Matsuda 1998;
Farchakh Bajjaly 2008a; 2008b) and dealers, museums and collectors around the world
who provide the destinations for these stolen artefacts as part of their general acquisitive practices (Gill and Chippindale 1993; Chippindale and Gill 2000; Nørskov 2002;
Mackenzie 2005; Davis 2011; Brodie and Bowman Proulx 2013).
In empirical terms, the few exceptions to these studies of the two ends of the chain
essentially have been limited to a modest body of important investigative journalism, which understandably tends not to adopt a conventional academic–theoretical approach (Watson 1997; Atwood 2004; Watson and Todeschini 2006; Felch and
*Simon Mackenzie and Tess Davis, Trafficking Culture, SCCJR, School of Social and Political Sciences, University of Glasgow,
Ivy Lodge, 63 Gibson Street, Glasgow G12 8LR, UK; [email protected].
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© The Author 2014. Published by Oxford University Press on
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Qualitative empirical studies of the illicit antiquities trade have tended to focus either on the supply end, through interviews with looters, or on the demand end, through interviews with dealers,
museums and collectors. Trafficking of artefacts across borders from source to market has until
now been something of an evidential black hole. Here, we present the first empirical study of a
statue trafficking network, using oral history interviews conducted during ethnographic criminology fieldwork in Cambodia and Thailand. The data begin to answer many of the pressing but
unresolved questions in academic studies of this particular criminal market, such as whether
organized crime is involved in antiquities looting and trafficking (yes), whether the traffic in looted
artefacts overlaps with the insertion of fakes into the market (yes) and how many stages there are
between looting at source and the placing of objects for public sale in internationally respected
venues (surprisingly few).
MACKENZIE AND DAVIS
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Frammolino 2011). There is nothing in this field of study, however, which approximates
the sort of global trafficking research that is emerging in anthropology, history or international relations (e.g. van Schendel and Abraham 2005; Nordstrom 2007; Bruns and
Miggelbrink 2012), or in criminology for other international trafficking problems (e.g.
Kelly et al. 2005; Hornsby and Hobbs 2007; Lee 2011), and so we are left with something
of a black hole in our understanding of illicit antiquities trafficking networks. This article aims to begin to fill that hole.
Speculation on the likely structure of antiquities trafficking networks has evolved
over the last three decades in the literature. An early writer in this field set out what
he perceived to be a role-based structure to the movement of looted cultural objects
from source to market. These stages included (1) looters (‘local diggers’), (2) ‘black
market middlemen’ and (3) ‘local or foreign dealers’ (Bator 1982: 292). More recently,
Campbell has undertaken an analysis of secondary data and proposed a four-stage
network structure: (1) looter, (2) early-stage intermediary, (3) late-stage intermediary
and (4) collector (Campbell 2013). Polk has simultaneously produced a similar network
outline: (1) ‘extractors’, (2) ‘middlemen’, (3) ‘dealers’ and (4) ‘buyers’ (Polk 2014). Polk
also notes that his and other models refer to activity mainly taking place in the 1980s
and 1990s and that conditions of globalization such as the growth in Internet sales, as
well as more attention now paid to looting during conflict, would require adjustments
to the model to ensure a contemporary fit. Other writers have produced models with
a regional focus, in which the main roles above are again identified with some local
inflections (Kersel 2007: 86–7).
We can see clear continuity and convergence in these various expressions of the constituent network roles. Interestingly, both of the Campbell and Polk analyses pick up
on the importance of a type of middleman or dealer role that involves a particular
individual having the capacity to ‘face both ways’ up and down the network, as it were,
with a criminal face when looking down and a legitimate face when looking up. This
is the particular type of international fencing that is necessary to allow the early-stage
criminality of trafficking and looting to link up with the later-stage trading, which
takes place in the ‘grey market’ (Mackenzie 2005; Bowman 2008) of apparently legitimate and often highly public deals involving auction houses, dealers, museums and collectors. The fence who ‘faces both ways’ is therefore the personification of a sanitizing
portal for loot, taking it by reaching down the trafficking chain with a dirty hand and
passing it onwards up the supply chain with an apparently clean one. As such, he is of
fundamental importance in regulatory analysis of this illicit market. He is Janus—one
face looking into the illicit past of an artefact and one looking into its public future
where that dark past is concealed—the point of transition, or gateway between local
looting and the international art market. Several examples of alleged, and in some
cases convicted, occupants of the Janus role can be found in the case study literature
on this market. We identify a similar Janus in the Cambodian traffic in the outline that
follows.
In respect of the fit of the data and analysis presented here with contemporary theory
on forms of groups and networks in other types of organized crime, there is both continuity and conflict. An article recently published in this journal by Lo sets out a progression of organizational analysis of Asian organized crime groups, with an emphasis
on Chinese Triads (Lo 2010). Lo describes the ‘structure–control’ perspective, which
emphasizes ‘structural and subcultural control’ through which ‘triad societies were
ANATOMY OF A STATUE TRAFFICKING NETWORK
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able to compel their members to run illicit activities’ (Lo 2010: 852). This perspective
has been developed through critique and ongoing empirical research, culminating in
Zhang and Chin’s ‘structural deficiency perspective’, which essentially locates in this
same property of structure–control the failure of traditional triad societies to exploit
transnational illicit market opportunities in trades such as human trafficking and
heroin supply (Zhang and Chin 2003). These international globalized illicit markets
are, for these authors, the domain of small, flexible, entrepreneurial groups of traders
who are unbound to, or stepping outside of, conventional organized criminal structural bases, to ‘somehow find one another for a few sporadic transnational operations’
(Zhang and Chin 2003: 486) and, therefore, present a considerably more elusive target
for law enforcement than larger and more stable organized crime groups. These are
‘enterprising agents [with] no identifiable organisations, no rigid structure, no clearly
defined deviant norms and values’ (Zhang and Chin 2003: 485). Lo puts a social capital frame of analysis around these two perspectives on transnational organized crime,
identifying high degrees of internal ‘bonding capital’ in traditional organized crime
structures like triads, together with horizontal ‘bridging’ and vertical ‘linking’ capital providing opportunities for illicit enterprise via complicity respectively with other
legitimate or illegitimate groups, or corrupt state interests (Lo 2010).
The research literature on trafficking in a variety of illicit markets has often supported the flexible, informal, small-scale trafficking model, somewhat in the face of
an entrenched policy discourse that constructs the threat of transnational organized
crime in considerably more fixed, structural, grand and opaque terms (Hobbs 1998;
2001; Woodiwiss and Hobbs 2009). This seems to have been the case in relation to
much wildlife trafficking, for example where Naylor has identified in relation to the
illicit ivory trade that ‘while much anti-animal trade rhetoric emphasises the alleged
participation of “organised crime” in the clandestine traffic, the reality is that, not just
with ivory, but with all wildlife trade, the illegal market is run (and always has been run)
by the same actors who operate the legal one, and with the same infrastructure’ (Naylor
2004). The high-level international policy discourse of illicit antiquities regulation has
been criticized in similar terms for reliance on and promulgation of a language of
organized criminal underworld, when equally if not more important must be questions
of corruption, complicity and facilitation of illicit trade by apparently legitimate actors,
since the insertion of looted artefacts into open public trading venues is clearly a core
problem (Mackenzie 2011).
Looking across the literature on social networks and organized crime, we can note
that Morselli’s studies of criminal networks have premised the ‘flexible order’ in which
both hierarchically and loosely structured settings of criminal enterprise subsist, in
which ‘criminal entrepreneurs’ exploit ‘brokerage configurations’ that are essentially
opportunity structures that arise out of criminal contacts and associations between
potential co-offenders (Morselli 2005, 2009, 2013). And these social network theories
of organized crime have been stressed by Asian area studies in the discipline, especially
with regard to Chinese criminal syndicates where the emphasis has come to be on
‘the superiority of familial and personal networks and fortuitous social contacts, with
limited hierarchical structures’ (Lo 2010: 868; and see also Williams and Godson 2002;
Zhang and Chin 2002; Xia 2008).
The question, therefore, arises: to what extent are these theoretical developments
in analysis of organized crime structural models applicable to the transnational
MACKENZIE AND DAVIS
Methodology
In the summer of 2013, the authors travelled to Phnom Penh and from there toured
the country by road, covering approximately 2,500 km before crossing into Thailand
and finally departing from Bangkok. We were accompanied by a local contact who
had been doing regional scoping research in the preceding year and was therefore
able to introduce us to some potentially useful interviewees. We uncovered more
interviewees ourselves during the course of fieldwork. We rotated three interpreters (one also an expert on the illicit antiquities trade) throughout our travels, so
that we usually had two on site at any interview. This made conversation less stilted,
since the first could ask our questions of the interviewee, while the second translated their responses. This approximated a free flowing ‘normal’ conversation as
much as possible in an environment where locals spoke Khmer or Thai and usually
no English.
We explored the network from the bottom-up, beginning at six major archaeological
sites. These were Angkor (including the Roulous grouping and Banteay Srei), Banteay
Chhmar (including Banteay Torp), Koh Ker, Phnom Banan, Preah Khan of Kompong
Svay (the Bakan) and Sambor Prei Kuk. These represent a wide spectrum of Cambodia’s
ancient history, geography and current development. These sites are indicated on the
map in Figure 1.
The oldest site (the city of Sambor Prei Kuk) dates back to the sixth century, while the
latest (the monument of Banteay Torp) was modified as late as the 16th century. They
thus include examples of two major religious traditions—Hinduism and Buddhism—
and a number of distinct artistic styles. Most were built during the height of the Khmer
Empire, the Angkorian Period, from the 9th to 15th century. Several were the work of a
single ambitious king, Jayavarman VII, who ruled from circa 1181 to 1218. In size, they
range from a single temple (Phnom Banan) to ancient capitals with dozens of temples
(Angkor, Koh Ker and Sambor Prei Kuk). In location, they span from the centre of the
country, to the far north, to the far west. Some fell to the Khmer Rouge as early as 1970;
some remained under their control until their 1998 surrender. Now, the most tourist
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illicit antiquities trade? We engage with that issue here, suggesting that commonplace claims about the eclipse of hierarchical organized crime enterprises by looser
and shifting networks may not be universally accurate. Historical issues of military
presence and control in Cambodia present a different context to that underscoring most research on trafficking and smuggling by Asian organized crime groups.
Broadly stated, our conclusion will be that while the present case study is undoubtedly of a network, in which nodes, contacts and certain types of social capital are
useful explanatory concepts, there is also an observable stability, and identifiable
forms of hierarchy, both along the chain of the whole network and within each of
its nodes. We conceptualize the network as a repetitive process, having developed by
way of linking nodal actors in long-term trading relations, and harnessing the benefits at different stages in the chain of both localized territorial ‘structure-controlled’
organized crime and (as the trades move increasingly towards the transnational)
more flexible entrepreneurial trafficker-dealers who are less tied into frameworks
involving territory or group.
ANATOMY OF A STATUE TRAFFICKING NETWORK
friendly (Angkor) is mere kilometres away from an international airport and welcomes
millions of sightseers each year. The least accessible on our itinerary (Preah Khan of
Kompong Svay) is so isolated that we had to approach four drivers before finding one
willing to attempt the road, and not surprisingly, it receives only the most adventurous
visitors. All are very much ‘living’ sites. This is most obviously the case at Angkor, where
within the park’s boundaries over 120,000 people inhabit 112 villages, some of which
are said to be as ancient as the monuments themselves (Hauser-Schäublin 2001: 128).
Even at the remote Preah Khan, there is a small community. Furthermore, each temple
we surveyed is still used as a place of worship, and most have an active pagoda on the
grounds or nearby.
We started our search for data at these temples, led by our local contact or by local
guides. Aside from the latter’s usual brochure-style recitations delivered on tours of
the sites, they were also able to answer our more directed questions about the recent
history of the area. These ‘children of the temples’, as they are called in Khmer, were
mostly around 30 years old and, therefore, often had stories of growing up in the
nearby village and witnessing looting first hand. These 30 year olds in Cambodia have
known war for half their lifetime. While born after the Killing Fields (1975–79), they
grew up in the Vietnamese Occupation (1979–89), when much of the country was still
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Fig. 1 Map of sites visited and key locations.
MACKENZIE AND DAVIS
The Network Structure
In crude overview, we have established a picture of a funnelling network, which took
statues from the various temples of Cambodia and passed them into a small number of
channels that moved them by oxcart, truck and even elephant out of the country and
into Thailand.
One of these channels operated from Cambodia’s northwest (including the sites of
Angkor, Banteay Chhmar, Koh Ker, Phnom Banan, etc.) through Sisophon, a town
around 20 km from Thailand. From Sisophon, statues went through Poipet on the
Cambodian side of the border to Aranyaprathet and Sa Kaeo on the Thai side. From
1
While some knew more than others, every time we asked a local where looted Khmer antiquities go, the answer was always
‘Thailand’. However, some expressed surprise upon learning that from there, Khmer antiquities have ended up in the United
States, Europe and Japan.
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under Khmer Rouge control, or that of other paramilitary groups, or of course the
Vietnamese themselves.
Another useful strategy we found for accessing local knowledge on looting, recommended by our local contact, was to go to a temple complex and seek out the ‘oldest
person in the village’ or ‘the person who knows stories about the village’. In some cases,
this was the village or commune chief, or Buddhist monks or nuns. Even in a country
where only 3.9 per cent of the population is over age 65, elders were quite easily found
and were generally happy to sit down and talk to us about their community’s relationship with the temple dating back to the colonial period. Some were able to point us to
people who had witnessed looting, or even been involved in it, and thus might be better
sources of information. Consultation with these individuals, especially those who had
taken statues and other parts from temples, led to information about who had organized the looting ventures and/or where the objects had gone.1 This enabled us to move
up the chain of supply.
All of the information we present here is historical, in the sense that the narratives we
have gathered refer to the period from the mid-1960s to mid-2000s, with the majority of
activity occurring during the 1970–98 Civil War. Few of the erstwhile looters we spoke to
admitted involvement in contemporary trafficking. Some attributed this to their realization that disturbing sacred sites brings only bad luck, and feared their role in the illicit
antiquities trade had cursed them, or worse their families. Others mentioned increased
temple security, especially at the heavily guarded Angkor. Another explanation is that
‘most of the good pieces have already gone’—which rings true to our site visits, where we
accumulated many pictures of headless statues, pedestals from which statues have been
broken off at the ankles and holes in walls where reliefs used to be.
As we shall see, however, remnants of the trafficking networks remain in place. We were
told by a receiver at the Thai border that if we wanted any piece that was currently in situ,
we should go and take a picture of it and he would arrange for it to be looted and delivered to us within a month. A number of archaeologists, conservators and curators have
told the authors such ‘theft on demand’ was a common practice in the 1990s. So while
the networked looting and trafficking activity we analyse here does seem to have abated
somewhat in recent years, there is an open question around how much is still going on.
ANATOMY OF A STATUE TRAFFICKING NETWORK
Fig. 2 Trafficking routes in the ‘Channel 1’ network.
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there, it is a straight drive up a main road to Bangkok—a journey that now can be made
by car in three hours. In this article, we will outline the roles played by key traffickers
identified in the course of our research. These criminals worked at the main points
along this channel: at Koh Ker, in Sisophon and in Aranyaprathet. The routes involved
in this channel are indicated in Figure 2.
Another channel used the due north border with Thailand, taking objects through
the deep forests of the Kulen region and former Khmer Rouge stronghold of Anlong
Veng on the Cambodian side, across the Dangrek Mountains which traverse that northern border, to Khun Han and Kantharalak on the Thai side. Again, from here, the
statues move to Bangkok.
Each of these two channels has been confirmed by a number of different sources, so
we can be reasonably secure in our view of the reliability of this information. However,
we present these channels as illustrative rather than definitive. This is because we
focused on Battambang, Banteay Meanchey, Kampong Thom, Oddar Meanchey, Preah
Vihear and Siem Reap provinces, in other words, the central, northern and western
areas of the country. Also the ethnographic methods of our research make it an opportunistic rather than a comprehensive survey. This raises the question whether, for example there might be different channels for objects originating in southern Cambodia:
perhaps by sea through the port of Sihanoukville or overland to Vietnam. The greatest
concentration of Angkorian temples is obviously centred on Angkor itself, but southern Cambodia is also archaeologically rich, especially with pre-Angkorian sites and
the occasional Angkorian outpost such as Phnom Chisor. It is thus not surprisingly
that Lafont (2004: 40) and Nagashima (2002: 107) both cite an antiquities smuggling
route from this part of the country, through the port of Sihanoukville, to Singapore.
Nagashima further reports that some pieces are then ‘re-exported’ from there to
Thailand before entering the Western art market (see also Thosarat 2001).
MACKENZIE AND DAVIS
(1)Thom, a regional ‘broker’, who organized the looting of statues and delivered them
to Sisophon.
(2) Two organized criminals in Sisophon, Sambath and Phala, who acted as the northwestern hub for Cambodian statue traffic, buying from the regional brokers and
delivering the loot to the border with Thailand.
(3)Rachana, a receiver on the Thai side of the border who would take delivery of the
statues and move them to Bangkok.
(4)Kanok, an internationally connected dealer of statues in Bangkok, who was the
‘Janus’ interface between the licit and illicit trades.
Temples: the Start of the Chain
The 12th-century citadel of Banteay Chhmar is infamous in the academic literature
for ‘the most daring and devastating theft that ever took place in Cambodia’ (Lafont
2004: 54). In late 1998, rogue Cambodian military surrounded the temple at dawn and
blockaded it from the local community, with no explanation. The Cambodian generals responsible no doubt used the country’s ongoing tumult to their advantage, as the
Khmer Rouge was disintegrating near simultaneously, just 130 km away from Banteay
Chhmar in Anlong Veng. For the next two weeks, heavy machinery was used to break up
the complex and when the clamour finally stopped, soldiers loaded an estimated 30 tons
of stone—including an entire 30 m of the southern wall, prized for its skilled bas-reliefs
of Lokeshvara and Apsaras—onto six trucks and drive off for the Thai border just 15 km
away. It is believed the convoy crossed at Ban San Ro Changan, where it was met by Thai
dealers, who transported the antiquities on to Bangkok (Lafont 2004: 52–6).
Thai authorities stopped one of the trucks in Sa Kaeo province and seized over a
hundred antiquities, including an 11.5-m span of wall. The two drivers were arrested—
and eventually tried and convicted—despite denying knowledge of their illegal cargo.
They likewise could not (or feared to) identify who had hired them or to whom they
were delivering their shipment. There were no further prosecutions, even though an
investigation later identified the Cambodian generals responsible and further implicated the military in other thefts (Phnom Penh Post 1999). After over a year of political
wrangling between Cambodia and Thailand, the seized pieces were finally returned to
Phnom Penh. But the rest of haul from Banteay Chhmar which escaped in the other
five trucks has, aside from a few opportunistic recoveries, disappeared into the art
market.
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In this article, we will outline the processes of trafficking involved in the first channel mentioned above. A companion piece to this article will perform the same type of
analysis for the other channel (Davis and Mackenzie 2014). The northwest channel we
address here is in broad terms an ‘organized crime channel’: the major players in the
early-stage traffic along this channel are identifiable as local gangsters. The northern
channel, by contrast, was used by Khmer Rouge to move statues out of Cambodia and
is therefore more amenable to analysis under the question that is often asked as to
whether antiquities traffic funds armed conflict, rather than whether it is linked with
organized crime, although of course the two questions are not mutually exclusive.
To foreshadow the main discussion in this article, the channel we identify here has
four major network nodes (all names are pseudonyms):
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While scholars and journalists have described the 1998 heist as unprecedented,
we learned instead that it is fairly representative of the history of looting at Banteay
Chhmar and just the tip of the iceberg in terms of looting across the country. Village
elders at Banteay Chhmar told us that in their youth there were many statues in and
around the temple (a fact confirmed by colonial accounts and photographs). Then
in the early 1970s—during an attack foreshadowing that in 1998—soldiers from the
US-backed Lon Nol army closed off the complex, raided it during the night and carried off their spoils by helicopter. The next years are a question mark, as the villagers
were displaced during the 1975–79 Killing Fields, and many also spent the subsequent
years of occupation and famine in Thai refugee camps. Those present in the 1980s and
onwards, however, report a revolving door of armies—from the Khmer Rouge, to paramilitary groups, to government forces—that ended only with the Civil War in 1998.
During this time, local villagers were ‘invited’ (in the sense of ‘instructed’) to loot
the temple at night by these various armed factions, who effectively functioned as
gangmasters for this looting enterprise. Local men were offered 300 Thai Baht (today
approximately US$7, though in the 1990s, it would have been closer to $12) per night
to work on the effort and faced violent intimidation and possibly death if they refused.
One source in the village said it was not a difficult choice, if it can be called that, and
that he and many of his friends had become looters.
The looters at Banteay Chhmar report having witnessed Thai dealers (up to four at
a time) negotiate the purchase of pieces with the military chiefs who were organizing
the looting gangs. Again, Banteay Chhmar is very close to both Cambodia’s northwest
border with Thailand (15 km) and the large town of Sisophon (60 km), an integral stop
on the path taken by objects running along the first looting channel we identified. The
looted statuary of Banteay Chhmar thus crossed into Thailand both ways—in some
cases directly and in some cases through Sisophon.
Nowadays, there is little left to steal. During our visit, we did not see a single intact
statue. Archaeologists do hope some have survived inside the complex, protected under
the tons of collapsed architecture, but it is possible looters have reached these as well.
The large perimeter wall is really all that visibly remains, and it is still impressive in its
structure and artistic adornment. One can see how it would make an attractive target
for organized looters with the capacity to lift and carry away heavy chunks of it, as happened in 1998.
Just as the 1998 incident is representative of looting at Banteay Chhmar, so too is
the looting at Banteay Chhmar representative of that throughout the country. We
learned the basic elements were repeated, in varying forms, at all the temples we
visited. Locals report that each of these sites had been well protected in the colonial
era and early years of independence (1800s–1960s). In most cases, organized looting and trafficking is only remembered as beginning around 1970, with the start of
the Civil War. There is no little irony in the observation that 1970 was also the date
of the culmination of successful negotiations around the landmark United Nations
Educational, Scientific and Cultural Organization Convention, which in that year
drew countries together in recognition of the need to protect the cultural heritage
of humanity against plunder and illicit trade (UNESCO 1970). In Cambodia, the
plunder would remain closely tied to the conflict through to the 1998 surrender of
the Khmer Rouge, with heavy involvement from the various armed forces in the country (including the Cambodian military, paramilitary groups and the Khmer Rouge).
MACKENZIE AND DAVIS
These groups would use local labour (willing and unwilling, paid and unpaid) when
needed. From the temples, the pieces would be carried by oxcart, truck/military
truck and occasionally even helicopter or elephant to the border. From there, they
would go to Bangkok, often with the help of Thai military. Importantly, however,
although we note that the traffic was ‘closely tied to the conflict’, this does not mean
that looting and trafficking was the exclusive preserve of military groups. As we shall
turn to discuss now, organized criminals with no military affiliations were active in
the looting of Cambodia, as were others with fleeting or otherwise non-committal ties
to a particular armed faction.
By accessing villagers near the temple sites—as we did at Banteay Chhmar and others—we moved up the trafficking chain. In particular, our local contact led us to a
‘broker’ (his term for himself), whose organized crime activities included controlling the regional looting network. We received a wealth of richly detailed information
from this broker, Thom, which first led us to realize the importance of Sisophon as
the Cambodian hub for cross-border traffic to Thailand down the north-west channel.
Thom, and subsequently others, described this town as the main portal between the
regional Cambodian brokers like himself and the Thai border trade.
Thom ran the temple looting network in a region containing Mount Kulen and Koh
Ker, as well as countless other archaeological sites. The territorial limits of his ‘ jurisdiction’ were quite precisely defined; so much so that he was able to identify a street
corner in a particular town where ‘his’ territory ended. He controlled the looting in
this area in partnership with another man—each region, he said, had two brokers who
controlled it together. His relationship with his partner was based on what he described
as a very high level of trust.
Thom had grown up in this region, but was forced into the military at age 11, during the early years of the Civil War. His ability to ride a horse earned him the coveted
post of Khmer Rouge messenger, tasked with delivering missives between their regional
camps. In his teenage years, he graduated within the Khmer Rouge from messenger to
soldier. At the height of the purges, Thom defected from the Khmer Rouge, fleeing to
the jungles of Kulen. For three years, he remained there in hiding, often taking shelter
in temples (knowledge that would serve him well in later years). After the Vietnamese
overthrew the Khmer Rouge in 1979, weary of war and regretful of his part in it, Thom
resolved to do something with his life that did not involve so much death, thus began
his career in statue trafficking.
In the 1980s, he began this enterprise as a solo effort, knowing little about what he
was doing but learning what he needed to from his uncle, who was already an active
statue trafficker. He described to us his very first venture, in which he took a large and
valuable statue from a nearby temple but sold it for only 50 Cambodian Riel. This is
less than a penny in today’s currency, but even in the 1980s, it would have been mere
dollars at most.
Desperately in need of money, facing poverty and starvation, Thom’s family helped
him to improve his skills as a looter. As well as his uncle having first-hand knowledge
of statue theft, his father-in-law was a former cultural official and had given him an
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The Role of Regional Brokers
ANATOMY OF A STATUE TRAFFICKING NETWORK
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illustrated Khmer art history book, from which he learned a great deal, despite being
illiterate. Over the course of his trafficking career, he would develop an expert eye for
statuary. We showed him catalogues of Khmer ancient art and he was able to quickly
and accurately identify objects from only the pictures by their date and style (‘12th
century’, ‘Angkor Wat Style’ and so on). He recognized several of the objects, now in
established collections outside Cambodia, as some of those he had been involved in
trafficking.
As the 1980s passed, he developed his trading business. He joined forces with his
partner and they began to become more organized by recruiting people to work for
them. Over time, the two men established a gang, which Thom says at its height had ‘a
thousand’ people in it. This is probably an exaggeration and is in part explained by the
somewhat loose-knit practical arrangement of his network of workers described below.
In Thom’s looting operation, there is a clear hierarchy, with Thom and his partner at
the top, and a relatively small group of colleagues around them who we might think of
as forming the second tier. But below this, there is a much more fluid and opportunistic
network-type structure. Thom would drive around the region in the morning, picking
up willing participants for that day’s looting. In some cases, he would order local villagers to take part where they would otherwise have been unwilling, and they would obey
through fear of his reputation for violence. He would generally pay the willing participants, but not the unwilling ones.
The enterprise was, therefore, characterized in the field by flexible groups of casualized looters, looking somewhat like a contemporary ‘zero-hours’ contract arrangement where an employee is always available to work but only gets paid for the hours
they actually put in. On many days, the looting groups would be large in number;
Thom describes one particularly heavy statue which took 40 men to carry. Having
to pay all of these workers led to an escalation in the amount of looting and traffic,
both through high capacity to undertake thefts and movement and also through
business prerogatives—Thom ruefully described how his sense of fairness in wanting
to pay all of his workers meant that he ‘had to steal more’ in order to make sufficient
profits. When asked about an average example of the split of proceeds, he recalls
one statue sale where he took 1500 baht for himself and paid each of his six gang
members involved in that theft 600 baht. In his general recollection, he reported
that quality pieces would fetch 5,000, 20,000 or even 40,000 baht (about £750 in
today’s prices).
Thom found it difficult to say how many statues he had trafficked in his career, which
was active from the 1980s until recently. While leafing through the Khmer antiquities
catalogues we had brought to show him, he would occasionally point to modestly sized
pieces in bronze and say that he had found ‘thousands’ like them. When pressed to put
a number on the volume of his activity, he stressed that like any business, some years
were better than others. For example, 1994–96 was a bad period, due to heavy fighting
in the region. But he remembered mid-1997 to mid-1998 as a ‘good year’ for looters,
as the ongoing collapse of the Khmer Rouge opened up the country for the safer internal movement of people and goods. In that 12-month period, he estimated his group
had trafficked 92 statues. Some of the objects his network handled were pieces that are
now celebrated as among the most important Khmer statues in world collections. For
example, he has identified several major statues that he took from the Prasat Krachap
temple at Koh Ker.
MACKENZIE AND DAVIS
On to Sisophon
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Thom and numerous others identified a main channel as the preferred route for trafficking Khmer art out of the country. It funnelled antiquities from Cambodia’s archaeologically rich northwest to Sisophon. From here, smugglers would travel along Highway
5 to the border, crossing at Poipet/Aranyaprathet.
Two brothers who were dealers in Sisophon were the Cambodia-side destination
for objects passing through this channel. They were individually attached to different
military factions, but they worked together on the trafficking business. We learned
that such cooperation between enemy factions was typical, and while Cambodia’s various armed forces refused to govern together, some of their soldiers had no problem
doing business together. Both Sambath and Phala are remembered by locals as running a wide range of illicit enterprises as well as statue traffic, including drug smuggling and prostitution. One of the brothers, Phala, is now deceased, while the other
brother is still alive and runs a business in Sisophon. He is widely feared for his violent
reputation, having reportedly killed many people in disputes over the brothers’ illicit
businesses.
In the days when Sambath and Phala were in business together, Sambath was ‘the
money man’ and Phala was ‘the delivery man’ in the statue traffic. Sambath would collect payments from the receivers above them in the network chain, and Phala would
deliver the statues from Sisophon to the Thai border, often using military trucks that
he had access to through his affiliation with a paramilitary faction.
Thom, the regional broker introduced above, was one of those who supplied
Sambath and Phala. Further, Thom and others told us that the 1998 Banteay
Chhmar looting detailed above had been organized by Phala. Although Sambath
and Phala were Cambodians, they both spoke Thai, so this may explain the reports
from the looters we met at Banteay Chhmar that the statues taken from the temple
had gone to ‘Thai dealers’. The Cambodian/Thai border has in any event long been
porous, and frequently disputed, with some provinces having gone back and forth
between the two countries multiple times over the last centuries. As a result, there
are many native Khmer speakers on the Thai side of the border, and vice versa. The
aggregate of all the various reports we received from interviewees on Sambath and
Phala therefore seems to place them as a major node in the Cambodian trafficking
network, with a number of regional lines of supply connecting to the Thai border
through them.
Thom also told us that Sambath had organized the killing of his uncle. The
uncle had attempted to cut Sambath and Phala out by taking one of Thom’s looted
statues direct to the Thai border and trying to sell it to the dealer Kanok we mention below. Kanok declined, apparently concerned with repercussions that might
arise if Sambath and Phala found out. They did, and the uncle was shot shortly
afterwards at Sambath’s business premises. Thom himself had once taken a statue
up the northern route in an attempt to cut Sambath and Phala in Sisophon out
of the deal. When he tried to sell the statue to the dealer Kanok in Kantharalak,
Kanok insisted on including in the price the normal commission which Sambath
and Phala would charge had the statue passed along their supply channel and
which he duly remitted to them. This left Thom with the impression that attempting to circumvent the operations of the north-western border channel was fruitless
ANATOMY OF A STATUE TRAFFICKING NETWORK
The Thai-Side Border Trade
At the Thai border, the objects were received by people reported to us to be variously
‘Thai dealers’ or ‘the Thai army’. We attempted to get more specificity on this link
in the chain by travelling to Aranyaprathet on the Thai side of the border and the
smaller town of Sa Kaeo, which is arranged along both sides of the highway that leads
from ‘Aran’, as the locals call it, to Bangkok. In Aran, we met the owner of an antiquities shop and hotel, Rachana, who suggested that he was Thailand’s premier faker of
ancient statues. He had also been the main receiving point for objects coming across
the border from Sambath and Phala, working with a general in the Thai military, and
in his own words having ‘seen every statue that came from Cambodia in the last thirty
years’. Rachana mixed his trafficking business with a faking business, which in some
cases supplied the same customers. From Aran, he was able to sell the looted and fake
objects relatively freely to buyers in Bangkok who could transport them out of the country without obstruction. There has been, and remains, no appetite at Thai customs for
restricting the export of any country’s cultural heritage other than their own Buddhist
pieces, and the export of fakes is not prohibited by law.
Fakes are a difficult concept in Cambodian statues. From high-end shopping complexes for antiquities like Rivercity in Bangkok, down to street stalls in the city’s
Chatuchak market, fakes are in abundance. They are marketed under a number of
different names, however, and rarely called fakes explicitly. Instead, we find apparently
oxymoronic labels like ‘genuine reproductions’ or ‘modern ancient art’. Rachana, the
receiver in Aran, had a team of 20 Cambodian fakers working for him, reproducing
old statues using a variety of techniques to artificially give them the impression of age.
After manufacture, statues were buried in the ground for between six months and five
years to give them a musty patina, so that when sprayed with water they would give off
a smell suggesting they were older. Rachana suggested he supplied ‘40–50 per cent’ of
the tourist outlets at Rivercity. When describing his creations, he did not use the Thai
word for ‘fake’ but called them ‘copies’ which, in the context he used it, suggested an
2
Note this is in contrast to what the Thai dealer Rachana said when he offered us theft to order in 2013.
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and also that Kanok himself seemed to be concerned not to cross the dealers in
Sisophon.
The normal procedure for arranging traffic up the network from ground to the border was that Thom would send Sambath and Phala photos of the objects his gang had
looted or sometimes pre-looting photos of objects in situ. An offer would come down
the line from Sisophon with a price. This price was open to marginal negotiation but
was generally not very flexible. Although the art crime literature regularly discusses
the possibility of ‘theft to order’, Thom said that this never happened in the course of
his involvement in the traffic in as specific a way as the literature has sometimes imagined. In other words, photos would be sent up the chain saying ‘we have stolen this,
would you like to buy it’, but photos of statues in situ never came down the chain saying
‘please steal this’. The closest arrangement to this latter possibility was that occasionally
requests would come down to supply a particular type of statue, but these were general
types rather than specifically identified artefacts.2
MACKENZIE AND DAVIS
Bangkok
A dealer, Kanok, had been a major buyer of looted statuary in Bangkok for decades,
via both the channel we have outlined here and the second northern channel we
address elsewhere. Thom, the regional broker, thought Kanok to be the main buyer of
all the looted statues travelling down the north-western channel. Thom remembered
Kanok to have tight links with the Thai military, so all the Cambodian side of the network had to do was to get the objects to the border and they would be delivered from
there to Kanok by the military-dealing network on the Thai side. There were a small
number of other such high-end high-volume Thai dealers too, and some of these were
suppliers of Kanok, as well as dealers for other clients. Thom noted with some resignation that there was a considerable widening of profit margin on transactions further
up the chain, so that one of Kanok’s main Thai dealers/associates was now very rich
and had relocated to the United States, whereas Thom was still exactly where he had
been all his life, albeit in slightly more comfortable accommodation than some of his
neighbours.
Rachana, the dealer in Aran, cited Kanok as a major customer of both fakes and the
genuine looted pieces. Kanok commissioned Rachana to make fakes for him and as
Kanok was renowned for having one of the best eyes in the business, Rachana took great
delight in telling us about the time Kanok visited his outlet and after some appraisal
declared a piece to be genuine when it was in fact a fake that Rachana had produced
at Kanok’s behest, but which Kanok had forgotten about. After speaking to people who
had observed, supplied or worked for Kanok, a recurring suggestion seems to be that
Kanok was commissioning these fakes to sell, or donate to museums. As one source
put it, he ‘loved the objects too much’ and so could not bear to part with the original
pieces he had acquired—thus the suspicion this source held that he had them copied
and donated or sold the copies instead.
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artistic process involving respect for the older original pieces and a legitimate attempt
to recreate their genius.
A few miles up the highway from Aran towards Bangkok is Sa Kaeo, a town that everyone will have to pass through who is taking the border-crossing land route from Poipet
in Cambodia to Bangkok. Lining the highway and with nothing to recommend it other
than its location along a main thoroughfare near the border, this has always been a
town of traders—before statues, it was other types of goods. People in Sa Kaeo remember trucks, many of them military vehicles, filled with looted statues rolling through
the town on their way to Bangkok from the 1970s until around ten years ago. Locals
report that ‘everyone’ in the town was involved in the statue trade and that the richest
people in the town earned their money originally through buying and selling looted
statues. A major regional dealer is still based in the town, running a hotel with ‘secret’
rooms where major pieces of looted statuary are available for viewing by interested buyers. As with so many ‘secrets’ in this trade, and indeed in this region, these are things
that are widely known and easily confirmed. As well as the organized border trade
involving Sambath, Phala and Rachana, there was a more disorganized trade where
poor Cambodians would arrive at the border needing food and medicine with statues
to sell by way of payment.
ANATOMY OF A STATUE TRAFFICKING NETWORK
On the road from Phnom Pehn to Kampong Thom, we met another master faker
who had produced works for Kanok. He had produced over 100 fake statues for Kanok
alone and had at one point been flown to Bangkok by Kanok so that he could do his
work there to remove the problems of transporting the fakes out of Cambodia.
Conclusion
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How does the network identified here fit with the models of organized crime groups/
networks identified in the general literature on ‘the organization of serious crimes for
gain’ (Levi 2014), and further and more narrowly, how does it fit with the commodityspecific models proposed in the transnational crime literature concerned with trafficking cultural objects, reviewed at the outset of this article, which consider the trade
as a role-differentiated network taking the form (1) looter, (2) early-stage dealer, (3)
late-stage dealer and (4) buyer?
The structure of the network identified here seems in some respects to support Lo’s
(2010) arguments for a progression from theories of ‘structure–control’ versus ‘social
network’ towards a ‘social capital’ approach, which he suggests can incorporate previous observations on group and network, while also adding a layer of explanation around
political dynamics as they support and affect the development of social networks and
organized crime. Importantly, the social capital approach allows us to acknowledge
a picture in which both groups and networks exist, with regionally bounded and in
Lo’s terms ‘bonded’ (structure-controlled) groups interfacing with a network of transnational actors who become more flexible in their trading partners—and therefore
look more like a social network and less structure-controlled—the further up the chain
towards the market we progress, using bridging (horizontal) social capital to pass looted
and fake statues through the variety of market channels in Bangkok. The involvement of
corrupt military officials and the complicity of other powerful actors may appear to be
a form of linking (vertical) social capital. But there are also many elements of the analysis that seem to continue to demand a more traditional structure–control approach to
explanation. We conclude by looking a little more closely at this issue through the framework of the role-differentiated models proposed for antiquities trafficking chains.
At Stage 1, we have Thom and his gang. Thom is an ‘organized’ looter, but some
of his employees may be better classed as volunteers looking for a modest daily rate
of pay—not quite the subsistence diggers of the illicit antiquities literature (Matsuda
1998), but not serious profiteers either. Thom is also a broker, or as some other models have it an ‘early-stage middleman’. Sambath and Phala are also ‘early-stage middlemen’, however, so clearly some distinction is required between levels of early-stage
middlemen. Likewise, the Thai border traders are also (later-stage still) early-stage
middlemen. Only when we get to Kanok in Bangkok do we arrive at a late-stage middleman—but Kanok is also a collector, so he confuses somewhat the last two steps in
the four-stage model. It becomes clear therefore that the models previously proposed
are identifying roles which (1) can be filled on several levels by multiple individuals or
groups, leading in some stages to more trades in a network chain than are suggested by
the models in their basic form and (2) the opposite is also true, in that one individual
or group can occupy multiple roles. Indeed, the proponents of these models have recognized this dimension to them.
MACKENZIE AND DAVIS
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Of the first—‘looter’—stage in his model, Campbell says ‘sources show there is no
representative type of participant… revealing that any individual presented with a profitable opportunity might be inclined to participate’ (Campbell 2013: 125). Our data
add some context to that rather asocial opportunity-theory-based rational choice position on the matter (Felson and Clarke 1998). As might be expected, looting choices
are made in a culturally situated social space where personal decisions are cast in light
of personal and group-based historical influences including in particular in our case
study traumatic participation in war and mass killing for Thom, and threats made for
non-participation against some members of his workforce. It is not just ‘any individual’
who appears in this role—in our case, Thom’s personal journey was important as was
the social learning aspect of picking up the routines of the trade from his uncle, who
was already involved. In some senses then, a deeper understanding of participants’ life
histories allows us to see the ‘pathway’ rather than mere ‘opportunity’ elements of the
process of ‘becoming’ a statue trafficker.
On the second and third stages of his model—early- and late-stage intermediaries—
Campbell says ‘observable trends show that even this stage is variable, with early-stage
intermediaries regularly using different late-stage intermediaries. Interactions generally consist of single exchanges of capital and goods with no promise of long-term
agreements…. In contrast to hierarchical structures, participants in the trade have no
fear of sanctions if further interactions do not occur…’ (Campbell 2013: 125). Yet our
research has uncovered a trafficking channel that was essentially fixed for several decades, in terms of its roles, the occupants of those roles and their trading relationships.
Where occasionally an individual may have tried to step outside of the norms of this
trafficking chain, they experienced sanctions from the established hierarchy, which
either quickly brought them back into line or resulted in their being used as examples
to others not to try similar innovations. The involvement of organized criminals in this
supply chain has precisely had the effect of encouraging the ‘promise of long-term
agreements’ on pain of violent repercussions in the case of breach, since such stable
sources of income generation are the life blood of illicit business.
For various reasons, therefore, it can be suggested that based on this case study evidence, antiquities trafficking ‘networks’ might be thought of as more stable, hierarchical
and repetitively functioning supply chains than the highly fluid picture that has been
developed both in the general organized crime literature and in recent papers in the
illicit antiquities sub-field. Clearly, much more primary empiricism needs to be done to
adequately verify this pattern as being generally representative rather than just a regional
historical observation. It seems, however, that to say that ‘the illicit antiquities trade can
be usefully explained through the network paradigm. Hierarchical organisation does
not appear to exist currently within the trade’ (Campbell 2013: 138) is to overlook the
stability of organized criminal routines in the early stages of the network, which certainly
entail hierarchies of an important kind. It also seems to misdiagnose the Janus role as an
opportunistic networked transition point for illicit objects, seeing it as the exploitation of
a passing profitable opportunity rather than a pinnacle of the organized crime hierarchy,
driving an illicit market in important practical ways that have previously been thought to
be better identified at the very end point of the supply chain via widely supported statements that embody the sentiment that ‘collectors are the real looters’ (Elia 1993; Renfrew
1993). In the trafficking network under study in this article, it might equally be thought
to be Janus who is the real looter.
ANATOMY OF A STATUE TRAFFICKING NETWORK
Funding
This work was supported by the European Research Council under the European
Union’s Seventh Framework Programme (FP7/2007-2013)/European Research Council
Grant agreement no. 283873 GTICO.
Acknowledgement
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On the Trail of Lost Art :
A Conversation with Lynn H. Nicholas
NEH Chairman William R. Ferris spoke recently with historian Lynn H. Nicholas about the
disppearance of artwork during World War II and its ramifications in the art world today. Her book,
The Rape of Europa, is the subject of an NEH-supported documentary to be produced by Actual Films in
association with Oregon Public Broadcasting.
William R.Ferris: Most art historians are primarily interested in the history of art, the materials of art,
or interpreting art, but in your book, The Rape of Europa, provenance is the subject. How did you get
interested in art provenance?
Lynn H. Nicholas: My very first job in Washington was a very lowly one at the National Gallery of Art.
I am not an art historian, I am a historian, so I was always more interested in how the pictures had gotten
there, whom they had belonged to, things like that. At the National Gallery, I met a number of people
who had been involved in recovering works of art at the end of the war. They were all trained museum
professionals who had been drafted, to recover and protect works of art in the battle areas. Nobody had
ever talked to them about this or put their story together.
Ferris: It is said that virtually no medieval cathedral bells are left in all of Europe because they were all
melted down for bronze during the last war and their sound, unable to be duplicated, has been lost
forever. What do you see as the long-lasting effect of two world wars on Europe's art treasures?
Nicholas: The remarkable thing is how much was saved. I have a wonderful picture of stacks and stacks
of church bells on the docks in Hamburg waiting to be melted down that were recovered by the Allies.
There was a very dedicated gentleman who spent his whole life trying to figure out which church they
had come from. Both in the First World War and in the Second World War, there were special groups in
the German armies and occupation forces whose job it was to protect works of art. They did a very good
job, as did the national governments. A few major works were lost, but essentially the bulk of it was
saved. That is really a miracle and a tribute to all the people who worked on protecting art.
Germany and Russia lost the most because so much of the war was fought on their territory and they had
so much bombing. In Italy, and France too, a lot of the churches and buildings were very heavily
damaged. But movable works of art, for the most part, had been put into shelters and were okay.
Ferris: Your book begins with a description of the sale of art in Lucerne just before the Second World
War. How did the sale come about, and where did the art come from?
Nicholas: They were works of art that the Nazis had deaccessioned from the German national museums
because they considered them degenerate. They believed that modern art, abstract art, was degenerate
and that people should not be allowed to see it. They thought the artists were communists and left-wing
and antiwar, which was sometimes but not always true. The Nazi regime wanted their artists to show the
glories of German life—the German peasant, the German soldier, and so forth. They appointed
commissions that went through the museums and said, "This picture has to go, this one can stay."
Although the pieces were not pure enough for the Nazis, they realized that they were worth a lot of
money. So they sold some of them in Switzerland to generate foreign currency, which they needed
badly. A lot of people outside Germany did buy these things, and a tremendous number of them are in
American museums. They are not considered loot or displaced art—that's the new word for loot—but art
that was legitimately deaccessioned by the German government at the time. Later, when they did steal
art, they kept the Old Masters and sold off what they considered degenerate. Many of those works are
now reappearing in strange places.
Ferris: What were the effects of the sale?
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Nicholas: Basically it was very good for the American art market and some European museums. The
war intervened or Germany would have had more sales like that. The Nazis did burn and destroy a
number of things in Germany itself that were in this category of "degenerate art." The main effect was in
occupied countries later—modern art was used as barter by the Nazis to get Old Masters. After the war,
the modern stuff was harder to recover because it was not kept by the Nazi leaders. If you had your art
confiscated and kept by Hitler, it wasn't very hard to find. But if it had been sold on the market in rather
secretive ways, it was much harder to locate after the war.
Ferris: What was the art world's reaction and the reaction of dealers and collectors to the sale?
Nicholas: They were of two minds. Some dealers did refuse to participate. They assumed the sale was
supporting the Nazi regime, and that was not good. But others felt they were saving the paintings. Only
about one hundred and twenty paintings were sold at that sale. The Nazis sold other things from Berlin
itself, quite a bit more. Many dealers did try to buy artworks and get them out of there because they
knew that otherwise they would be destroyed.
On the other hand, there were some German dealers who encouraged the Nazis to deaccession more and
more. The dealers acted as middlemen and made a nice profit. It was quite a shady business.
Ferris: What was the Nazi policy of stealing art from private individuals before and during the war?
Nicholas: Their confiscations of art during the war were based on their ideology. They considered it
perfectly okay to take things from Jews, who were considered non-people and non-citizens, and, in their
view, didn't have any right to the possession of works of art. If you were a French Jew, in the eyes of the
Nazis you were not a citizen of France and you were not protected by the international conventions
which prevent looting of private property from citizens in an occupied country. So the collections were
open to looting. In Eastern Europe, where they considered the whole population less than human, they
took everything—from the state museums, from private collectors, and so forth.
Ferris: How did Hitler and the Nazis determine what was "good art" and what was "degenerate art"?
Nicholas: It was pretty subjective. Hitler's own friends weren't quite sure what he meant by degenerate
art, particularly at the beginning. Von Ribbentrop liked impressionist pictures and Goebbels had German
expressionist paintings in his house. They had to hide them after a while from Hitler, who didn't like any
of that. So it was really Hitler's personal choice. Basically, he liked propaganda art and anything that
was by a German artist, anything that glorified Germanism. He did not like religious pictures, so the
German museums also deaccessioned religious scenes by Old Masters.
Ferris: Why were the Nazis interested in stealing modern art on a massive scale when that was the very
art that they termed degenerate?
Nicholas: I don't think they did target modern art particularly. They deaccessioned it from their
museums in order to make money, and then they sold it abroad. They also wanted to clear the museums
of that kind of thing because they didn't like it. In the countries they occupied, they would confiscate
whole collections belonging to Jews or other political targets—the modern stuff they would sell to
dealers, who would then resell it somewhere, and the Old Masters they would keep for their own
museums and collections.
Ferris: How much great, or near-great art was taken by the Nazis from private collections? Was it
harder or easier to take this privately held art than, say, from state museums?
Nicholas: There were two branches of this. In the Soviet Union and Eastern Europe and Poland, they
took things from private collectors and state museums and redistributed them to their own museums and
amongst themselves. In Western Europe, in France and Holland and so forth, they kept the state
collections intact, but they confiscated works that belonged to Jews and others. They did not confiscate
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things that belonged to people they regarded as Aryans or politically harmless. But the Germans were
planning to rearrange the public collections once they won the war. They were going to take all the
Germanic art (which was very generously defined) out of the Louvre and take it to Germany. They had
all kinds of little rules that they had to follow, but basically the idea was to get everything German back
into the Reich.
Ferris: How did the Nazis legitimize thefts from museums as opposed to from private collectors?
Nicholas: The works that they took from museums in the West—and they didn't manage to get away
with very much because people protested—they justified by saying they were trying to keep them safe
or it was a cultural exchange. That was the public excuse.
One great example is the Ghent altarpiece, the Van Eyck altarpiece. The Belgians had put it in France to
keep it safe during the war and the Germans just went and took it. They said it was to protect it, and that
it was revenge for the Versailles Treaty. Under the Treaty of Versailles after World War I, the Germans
had been forced to give a couple of panels of the Ghent altarpiece—which Germany had had for
generations—to Belgium. The Germans said they were getting those panels back. In fact, they took the
whole thing back and not just the panels. In the East, in Poland and Russia, they took whatever they
wanted, tons of stuff, because the Slavs were to be treated as a sort of rural slave labor and were not, in
their view, worthy of owning works of art.
Ferris: There were some fairly distinguished personalities involved in this looting. Who did the actual
dirty work, and what happened to them?
Nicholas: Hitler and Goering and a number of other people had large bureaucracies that dealt with
looting. Hitler had a very distinguished art historian, the director of the Dresden Museum, who directed
his operations. This man, whose name was Hans Posse, had been a museum director for years. He knew,
as all museum directors should know, where the collections were that he wanted—which were the good
ones, which would fill gaps in his collections, and so forth. Hitler wanted to build a completely new
museum in Linz, his hometown, which would have been the biggest and most important museum in
Europe. So Dr. Posse was given the commission of going all around Europe to pick out the things that
he wanted. Some of them came from confiscated collections, but a large number came from the art
market. The Nazis bought thousands of works of art on the markets in Germany itself and in the
occupied countries. There were lots of dealers who were perfectly happy to sell to them, and they paid
very good prices. Goering had a somewhat less distinguished gentleman working for him and probably
the best known agency in this business. It was the ERR, run by Alfred Rosenberg. They operated on a
big scale in France, but mostly with confiscated art, not with purchased art.
Ferris: Who would you consider the villains of the story?
Nicholas: The big villains, of course, are Hitler and Goering. But there were a number of dealers in the
West who wanted to make a bundle. Art historians in Germany worked right along with the Nazi
leaders. It is a little hard to tell how much coercion there was, because by the time the war started, it was
hard to resist the Nazis if they wanted you to do something. The alternative was to go to a concentration
camp or be killed.
Ferris: Who was Max Friedlander?
Nicholas: Max Friedlander was a German Jewish art historian who had moved to Holland during the
thirties because of the Nuremberg laws. He was one of Germany's most famous art historians. When the
Germans took over Holland, many, many Jews were sent to concentration camps. But they needed
Friedlander to give expertise on works of art, so he was made an honorary Aryan by Goering's curator
and, in that situation, did provide expertise on paintings that Goering wanted to either buy or confiscate.
He survived the war, but he had to be fished out of concentration camps twice by Goering's curator.
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Ferris: The Germans were not the only looters. What were the Russians doing at the end of the war?
Nicholas: The Russians had a special part of their army, which was called the Trophy Brigade. They
were art historians who were assigned not just to protect things, but to recover items that had been taken
from the Soviet Union. They also were told to gather up any works of art they found and take them back
to the Soviet Union as reparations for what the Nazis had taken and destroyed there. They did take back
vast amounts of art, which they then distributed to museums in Russia. Some went to the Hermitage in
St. Petersburg, some went to the Pushkin in Moscow, and some went to other museums all over the
Soviet Union.
Ferris: How much European art today is thought to reside in the caverns of Russian art museums and
archives?
Nicholas: There is a considerable amount. After the opening up of Russia, it was revealed that this art
was there and had been kept secret for fifty years, which was quite a feat.
If you count books and archives and everything, there are hundreds of thousands of objects. A number
of things have been returned, for instance the archives of the art dealer Paul Rosenberg. The Russian
parliament passed a law nationalizing the objects that have been taken, but there was a clause which
authorized private people to make claims. Many people are trying to get the Russian politicians to
approve further returns to Europe, and I think that will slowly happen.
Ferris: I'd like to talk with you about the heroes of your story. Your book tells about the valiant attempts
to preserve collections from the ravages of war. You tell the story of how the contents of Britain's
National Gallery were hauled off to Welsh mines for safekeeping. You also write about some heroes in
Russia and France, people like Rose Valland.
Nicholas: Rose Valland was a curator at the Louvre Museum. During the war the Germans took over a
small and beloved museum called the Jeu de Paume, which was where the impressionists and more
modern pictures were shown. They took over that building as a storage place for the things they were
confiscating and buying. Rose Valland was the person who watered the potted palms and took care of
the French maintenance staff. In fact, the whole time, she was spying on the Germans and making lists
of what had been confiscated and where they were sending things, which was very brave. The Nazis
took photographs of everything they stole, and she would take the negatives home at night and make
copies of them, so that after the war the French were able to provide the Allies with information on
where the objects were hidden.
In the last days of the war—it's a great story—the Nazis had loaded up a train with works of art that they
wanted to remove before the Allies got to Paris. Rose told the French Resistance about it and they
managed to keep the train kind of backing and filling around Paris for a couple of days until the Allied
armies could liberate the city. They found the train sitting on a siding right near Paris. This was made
into a movie called The Train with Burt Lancaster and a beautiful French lady playing Rose Valland—
not very accurate, but it's a good movie.
On the German side, too, there were people who risked their lives, particularly at the end of the war, to
protect their own collections and the stored collections of other people. In Thuringia they had put a lot of
things in a mine to protect them. There was a curator called Paul Rave who stayed there while the
American army was coming in one direction and the Russians in another, until he could hand over the
works of art to the Americans to make sure they were okay. They were major, major things from the
Berlin Museum. There were heroes—well, I could go on—in Italy and everywhere.
Ferris: Can you talk for a moment about Russian efforts to preserve the collections of the Hermitage?
What kind of conditions were they working under?
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Nicholas: The Russians had waited very late to protect their works of art. They were—which is always
amazing to me—completely surprised by Hitler's attack on the Soviet Union in 1941. St. Petersburg, of
course, is not far from the border, and at the Hermitage, which has several million items, and at the
palaces around St. Petersburg, there was just frantic packing. Even as the bombing was going on, they
got one trainload off to Siberia, to Sverdlosk. Meanwhile, the Russians had run out of packing materials
and were using fresh-cut hay from the fields and old uniforms of the tsar to wrap up these very delicate
items. At the palaces around St. Petersburg, they buried statues in the gardens and walled up things in
basements. It was a remarkable effort as the bullets were flying. A lot of curators went to Siberia with
the works of art. They didn't have enough clothes to wear—it was already snowing and they had on their
summer shoes. They put all the works of art in an old theater and they all survived there, one way or
another, until the war was over. It really does read like Indiana Jones, the whole story of that evacuation.
Tens of thousands of people died of starvation in St. Petersburg during the siege by the Nazis, which
lasted two and a half years. The Hermitage became a center of resistance, and despite all, they would
have poetry readings and concerts in this freezing museum. And every day they were bombed, they
would sweep up snow and glass from the galleries.
Ferris: What happened to the famous Amber Room at Catherine the Great's palace?
Nicholas: It's one of the great unsolved mysteries of the war. The Amber Room consists of a series of
large panels made of little slivers of amber that are put together like stained glass, so they are very
delicate. They were taken down by the Nazis and packed away, and then they were exhibited at one
point in Königsburg or Kaliningrad, as it's called now, where the Nazis had set up a museum of works
they had taken from Russia. As the war came to an end, they were packed up again and put somewhere,
and nobody knows where that is. The Kaliningrad was bombed, so it is possible that the panels were
destroyed there, but it is also possible that they were on a ship that sank in the Baltic or that they are in a
cave somewhere. Every treasure hunter in the world is out there trying to find them. In the meantime,
the Russians have started restoring the Amber Room and recreating the panels. Probably before they
find anything, it will be finished.
Ferris: Great Britain and America come away as the heroes of the war to save cultural property. What
was the MFAA, and how effective was it?
Nicholas: Before the Allies invaded the continent, the American museum establishment realized that it
was going to be very difficult to protect movable works of art as well as the physical buildings. There
are rules of warfare that prohibit soldiers and armies from stealing private property and church property
and whatnot, but they had heard many rumors about the confiscations. There was lobbying in
Washington by the director of the Metropolitan Museum and the officers of the National Gallery. They
managed to get the Army to assign specialist officers to the various Army groups so that as they
progressed through Europe, they would have someone who knew about works of art. I think there were
twelve for all of Europe at the beginning.
When they got to Germany, their main job was to gather movable works of art and put them in
collecting points—buildings which eventually would hold tens of thousands of paintings and sculptures
and books—and then try to sort them out and send them back to the countries that they had come from.
After the war, those involved in art protection returned to their regular jobs. John Walker continued at
the National Gallery, where he eventually became its director. John Nicholas Brown, father of Walker's
successor, Carter Brown, was an adviser to General Eisenhower on art matters and returned to being a
private citizen. Mason Hammond went back to Harvard and taught classics. Most of these men—and
there are many others—Craig Hugh Smyth, who was at New York University, and James Rorimer, who
became director of the Metropolitan Museum—were art professionals, and they came back and just did
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their jobs without talking much about the heroic things they had done during the war. It was a
remarkable group.
Ferris: You were involved in a recent court case surrounding the ownership of a small Degas monotype,
Landscape with Smokestacks. What does that case tell us about ownership issues surrounding art that
was taken by the Nazis in World War II?
Nicholas: This particular picture, the Degas monotype, was not a major work of art. It was not of
interest to the Nazi higher-ups and it wasn't particularly valuable for the dealers. It was, I believe, stolen
or spirited away by one of the Nazi dealers and kept in his collection in Switzerland for a long time. It
eventually got back into the art market and Mr. Searle bought it. It is a perfect example of the need to do
more research on works of art that have gaps in their provenance during the war. If you are buying a
painting and it can't be accounted for between 1933 and 1955 or so, then you should do extra research to
see where it was and who owned it and what its history is, because it could well be one of the
unrecovered works that disappeared during the war.
The whole story of Nazi looting, which was revived in the middle nineties, has led museums and dealers
and collectors and governments to be more aware of the need to be careful and do research on possible
confiscated works. It has also revived interest on the part of the people who lost the art, or their heirs.
Prices in the art world have gone up so astronomically that things people got for very little at that time
now are huge assets.
Ferris: We know that American museums unknowingly acquired stolen works of art after World War II.
How have American museums addressed this issue in recent years?
Nicholas: It is a difficult issue because museums get a lot of things by donation. There is no main list
that you can refer to, to see whether something has been looted. They are trying to set up lists, but it is
very difficult. Because of the revival of interest, the museums have now published new guidelines for
research and provenance. That doesn't mean to say that they just hand things back when a work of art is
questioned. There should be evidence beyond a reasonable doubt that it is the right work of art and that
it was looted. Some museums have been very gracious when this happens. When the claim is proven to
their satisfaction, they have handed things back. Other museums tend to fight a little harder. It is a
difficult situation for the museums, but, theoretically, they have agreed to be more open about the issue
and to make efforts to return things that are proven loot.
Ferris: How many works of art, for example, in the Metropolitan are difficult to trace in terms of
provenance or have questions attached to the legitimate provenance?
Nicholas: There is no way to answer that question. Provenance research is a difficult proposition. For
centuries people have not been very straightforward about where they got things for a number of
reasons—not because they were stolen but, say, they do not want their cousin to know they got it from
their grandmother or they do not want to pay taxes. So all provenances are full of holes. And all
museums have been going through their records and looking at things that they acquired during the war
years and trying to determine which things should be investigated further. I don't think it is possible to
put any numbers on that. I doubt that many are real problems.
Ferris: The whereabouts of a number of works of art is still unknown. Which would be the most
important works of art that were lost, destroyed, or unaccounted for after World War II?
Nicholas: There are a few major things, for instance a beautiful Raphael portrait that was taken from
Poland, Portrait of a Young Man. Of course, many works belonging to Germany are thought to have
been destroyed in the bombing. I think Germany lost the most—Bellinis and Caravaggios and all kinds
of things from the Berlin museums. Mostly the objects that were lost, probably from private collectors,
would be impressionist works that went into the market, or objets d'art—clocks, little plates, small
89
furniture—which are very hard to identify or trace. Of the things that were displaced, which is the word
you use to describe art being stolen or looted or sold, probably 80 or 90 percent of it has been returned.
Ferris: How and why was the looting of Europe's art by the Nazis different from what happened under
Napoleon or during the Thirty Years' War or, for that matter, Lord Elgin taking off chunks from the
pediment of the Parthenon?
Nicholas: Actually, it wasn't so different from Napoleon. Even before Napoleon, the French
revolutionary governments, just like Hitler, had drawn up lists of things that they wanted. They felt that
France was the best civilization and that their people deserved the best works of art in the world. They
had dealers advising them and their armies went to Belgium and Germany, and then later under
Napoleon to Italy, and brought back works which they had actually been told to bring back. The scale on
which the Nazis operated was greater and, of course, the biggest difference was the ideological aspect,
the taking of things from Jews just on a racial basis and not for any other reason.
Lord Elgin is a big controversy. The British Navy helped get the marbles out of Athens, but the French
were after them, too, so it was really a matter of who got there first. They had been given permission of
a sort to remove some of the sculpture, and I think they took rather more than they should, but I don't
believe that is in the same category.
Ferris: How widespread is looting in museums of art today?
Nicholas: I think that it will be interesting to see what happens to items in Bosnia and the Balkans in
general. I gather there has been a lot of destruction and looting. Whenever a group has total power over
another there is the chance for destruction. Another instance is the Taliban destroying Buddhist
statues—again, that's an ideological reason to destroy a work of art—which is totally unfortunate. But I
don't believe there is very much looting in museums otherwise. There is theft, which causes excitement
from time to time, but it is not very general except in a war situation.
Ferris: Perhaps we need working definitions for "cultural property" or "national patrimony." How do we
define cultural property in the context of history, with what has gone on in Europe over the last five
hundred years?
Nicholas: The various conventions—the Hague Convention, a number of other international
agreements, and the International Rules of Warfare—all define these things quite clearly. I think the
definition goes way back. Even in Shakespeare's Henry V, the king tells his troops not to take things
from the churches. But in times of war, where people are helpless, it is hard to control troops, so the
rules are violated all the time. After the Napoleonic wars, the Duke of Wellington set up a commission
and forced the French to give back a lot of what they had taken. The commission only managed to get
about half of it back because everybody cheated a lot. That was really the beginning of the modern idea
of restitution. Until the middle of the eighteenth century, there was no such thing as national patrimony.
That is a concept that came in with the nation-states. Before, collections belonged to the king or to
cardinal so-and-so or some rich merchant, but they were not national patrimony. That is a fairly new
idea, but is now very established. It is like any international agreement, which people will obey as long
as it is convenient for them. When they want to violate it, they will.
Ferris: How do we determine the legitimate ownership of anything? Things change, as you point out,
from period to period. The Elgin Marbles, for example. Who owns those? The Greek or British people?
Nicholas: Works of art that people have bought on the market follow the rules of commerce and
ownership. For the Elgin Marbles in the British Museum, there is an act of parliament which says that
they cannot be deaccessed. Lord Elgin did have, I think, permission from the local Ottoman leader to
remove some of the objects, so I suppose ownership could be debated in an international court on that
basis. What makes it possible for things to be returned in that sort of situation is the change in view. A
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perfect example would be the Rothschild collection from Austria. The Austrian Rothschilds reclaimed
their collection after the war, and a big part of it was returned, but they weren't allowed to export some
pieces from Austria because they were considered national treasures. When some of the family moved
away, in exchange for being allowed to take certain works out, they had to agree to leave other things in
the national museums of Austria. Since the World War II looting has come up again, that policy was
revisited. The minister of culture in Austria thought it was not right, and so the government did give
back all the works belonging to the Rothschilds.
That is an example of a government changing a decision, which seemed legitimate at the time but, in
retrospect, seems unfair. This process is going on all over Europe in regard to works of art. The Soviet
Union, because of the tremendous destruction during the war at the hands of the Nazis, didn't want to
give anything back. They said, "We deserve to keep these works to make up for what was done to us."
They, too, are beginning to moderate that view, and I think they eventually will return quite a lot of
things to Germany and elsewhere.
Ferris: Thank you so much for taking time to talk with us about it.
Humanities, September/October 2000, Volume 22/Number 3
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L E T
T
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F
R O M
P A
K
I S T A
N
SPOILS OF WAR
Excavating the underground trade in Buddhist antiquities
By Shahan Mufti
T
he auction catalogue is 134 pages long and weighs a full pound. Its
cover is glossy and thick, and its pages
are sharp-edged enough to deliver a
nasty paper cut. There are photographs within of the nearly two hundred Asian objects on auction: ancient clay pots, ceramic dishes,
weapons, and miniature paintings.
There is also a vast selection of sculptures. Some are wrathful gods, their
bronze teeth clenched in vengeance,
while others are more peaceful, with
serenely drooping eyelids. Christie’s
expects the afternoon to bring in
more than $3.5 million.
In the viewing gallery, security guards
in black suits stand at every corner.
Glass display cabinets line the walls,
each attended by a pretty young woman
in a black pencil skirt holding a walkietalkie. In front of me, a graying, heavily
bejeweled couple is waiting to examine
lot 112: a head of Lord Buddha.
The stucco head, which has been
ripped off its torso, is anticipated to
fetch between $15,000 and $20,000. It
has been impaled on a thin shaft, and
Lord Buddha’s eyes are half shut. The
nose is angular and impressive, the lips
are curled at the edges, and the crumbling earlobes have left some powdery
Shahan Mufti is writing a book on the religious
and cultural roots of modern Pakistan. His last
article for Harper’s Magazine, “Persian Gulf
View,” appeared in the February 2010 issue.
38
HARPER’S MAGAZINE / APRIL 2011
(38-44) Mufti final3cx2.indd 38
white debris on the pedestal. The violence done to the sculpture is stunning. (There are many heads of Lord
Buddha on display in the viewing
gallery—I count nearly thirty—and
many larger sculptures in various
states of amputation, including a fourfoot-tall Maitreya with both arms
hacked off at the elbows.)
Lot 112 was likely made between the
third and fourth centuries a.d. in the
ancient kingdom of Gandhara, whose
ruins litter the border between Pakistan
and Afghanistan. How exactly the head
ended up in the viewing gallery at
Christie’s Manhattan branch, along
with a good many other Gandharan
treasures, is anybody’s guess. At some
point, Lord Buddha’s head was procured
by Julian Sherrier, a British dealer who
has fought legal battles in both India
and the United States over his dubious
holdings. Now Sherrier has decided to
liquidate a large part of his collection—
and the head awaits a new owner.
As two o’clock approaches, I join the
trickle of people walking upstairs to the
main auction floor. I enter the grand
space and take a seat along the back
wall. Next to me, three older men in
suits are conversing in a cacophony of
Euro-accented English. They have several catalogues among them and are
spitefully dissecting them.
“He is asking six million dollars for
this pair,” one of the men says, pointing
to a page in a private gallery’s catalogue, “but I think it’s a fake!” The
other two gasp audibly and they all
begin talking at once about the scandal
of it all. The group falls silent when a
tall man walks over and vigorously
shakes their hands. “So this is where
the big money’s sitting, huh?” he says,
his voice full of loud American charm.
“Should I just give up and go back
home?” The men laugh uncomfortably.
It is soon obvious that the two hundred or so chairs in the hall are not
enough. A sizable crowd spills out the
door, and security men herd people away
from the entrance, mumbling about a
fire hazard. At ten minutes after the
hour, a handsome man in a dark suit
approaches the auctioneer’s dais and
gives it several firm taps with his gavel.
The chatter instantly ceases.
“Good afternoon, ladies and gentlemen,” he announces in another unplaceable European accent. “Welcome to Christie’s.”
After he rattles off a few details
about sales tax and pickup locations,
the bidding begins. All across the floor,
paddles are flying into the air. Hundreds of telephone and Internet bids
pour in. Lord Buddha’s head eventually sells for $43,750, much higher than
the estimate. A small Gandharan coin
goes for $4,375 to paddle 178, and a
seated Maitreya—one of the rare specimens in full possession of his limbs—
92
2/21/11 11:40 AM
fetches six figures. When the
auction ends three hours
later, Christie’s has handily
beaten its own estimate, with
more than $6 million in sales.
The anonymous attendees
quietly filter out of the auction
hall, and as the numbered
paddles are returned, it is impossible to track the winners.
A short bald man in an illfitting tweed jacket, who was
casting nervous glances at me
all afternoon, noting my seat
among the wealthy collectors,
approaches me. We shake
hands, and he awkwardly introduces himself as a Pakistani antiquities dealer. He
gives me a business card: “If
you like to do business sometime, I have many special
items.” His eyes dart left and
right, and before I can say a
word, he has disappeared into
the crowd at the door. The
card lists a phone number and
address in Yokohama, Japan.
There is a New York City
phone number scribbled in
red pen on the back.
Owning a piece of another culture’s heritage
seems to feed some primordial urge. I had felt it in the
auction room. It was more than just
greed or the excitement of acquiring
a beautiful object. To possess Lord
Buddha’s head, or even a bit of antique small change, is to control a
part of the civilization that created
those objects. I wondered whether
the only way to truly understand
this impulse is to trace such artifacts
back to their source—to observe
them being pried loose from their
native lands. And today, perhaps
the best place to see that
happening is Gandhara.
T
he Gandharans were a sophisticated people who had the misfortune of living among the Central
Asian mountain ranges that have
for millennia been in the path of
various invading armies. Alexander
the Great, far from the first of these
invaders, arrived around 330 b.c.,
one hundred and fifty years after
the Buddha’s death. The Greeks
came to Gandhara to subjugate it—
but they also brought with them a
powerful tradition of devotional
sculpture, which would long outlast
their tenure as occupiers.
The Gandharan artisans who
chiseled the Buddha’s image into
living rock created the earliestknown physical representation of
the philosopher king. They also
produced thousands of sculptures in
schist, stucco, terra-cotta, and marble, and carved intricate narrative
reliefs chronicling the Buddha’s life.
In the process, they created a
unique style of sculpture that melded the aesthetics of Greece and
Central Asia.
By 50 b.c., the Greeks were gone,
having been pushed out by the Parthians. In subsequent centuries, many
more conquerors passed through
Gandhara. The White Huns of Central Asia attacked from the north;
South Asian peoples invaded from the
Photograph of a sculpture found in the Buddhist monastery of Yusufzai depicting Pañcika in Kushan
dress, holding a spear, and accompanied by children © The Trustees of the British Museum
93
(38-44) Mufti final3cx2.indd 39
east, the Sasanians from the
west; later, the Mongols pillaged the region, and various
Muslim armies wreaked further havoc. The Gandharan
civilization, and much of its
art, was consigned to the
rubble of war.
Conquering armies have
always looted. At the turn of
the first millennium a.d., the
army of Mahmud Ghaznavi
returned to its South Asian
stronghold with legendary
spoils from its periodic raids
across the Indus. Napoleon’s
troops ransacked their way
across Europe, and when the
emperor stood with his troops
at the gates of Rome in 1797,
he wrote: “We have now all
that is beautiful in Italy, except a few objects that remain in Turin and Naples.”
Colonialism gave the
pillagers of Western Europe
a second wind. Spanish
conquistadors took the Aztec gold; the British established their flagship museum in London and stocked
it with precious souvenirs
from Benin, Egypt, Ghana,
Greece, and India. These
badges of conquest were
ostentatiously displayed, and their
value could never be measured in
mere pounds and shillings. After all,
they informed empires of
their own greatness.
T
akht Bahi is a small town in
northwest Pakistan. It lies at the center of the wide and green flatland of
the Peshawar Valley, the cradle of
Gandharan civilization. The Hindu
Kush range rises to the north, the Himalayas to the east, and the Safed
Koh range wraps around the west and
south, forming the border with Afghanistan. The Kabul River runs
eastward through the plains, bringing
water to tobacco and sugarcane fields.
I was standing on a ridge outside
town, near the ruins of a Buddhist
monastery where you can still find the
face of Lord Buddha carved into the
crumbling walls. Along with a scattering of other visitors, I had climbed up
to watch the sun set. Most of my com-
LETTER FROM PAKISTAN
39
2/21/11 11:40 AM
panions were locals. Some, however,
were refugees—among the thousands
who had poured into Takht Bahi,
themselves just a fraction of the more
than a million Pakistanis driven from
their homes in the mountains by their
nation’s clash with the Taliban. In the
valley below the monastery, I saw a lake
of blue-green tents: a U.N. refugee
camp. Militants had begun quietly slipping into the inevitable chaos of the
camps, and only a few days earlier, police had arrested five suspects.
There was no question that war had
once again come to Gandhara. The hills
of the Waziristan tribal areas, where the
CIA is experimenting with a new era of
robotic warfare, were to my left. Islamabad, the capital, besieged by Islamist
militants, was behind me. And to my
right, a few valleys to the north, the
Pakistani army was battling the Taliban
forces that had overrun parts of the Swat
Valley. That was where I was headed.
Weeks before I arrived in Pakistan,
the Swat Museum in Saidu Sharif had
been damaged when a suicide bomber
hit a nearby security checkpoint. Afterward, the museum, which houses one
of the largest collections of Gandharan
art in the world, was shuttered, and I
was traveling there to see the damage
for myself. Here in Takht Bahi, almost
exactly halfway between Islamabad and
Swat, I had stopped to check out the
ruins—and maybe, in the shadows of
this old Buddhist monastery, encounter
some historic art uprooted by war.
I hired a guide and told him I was
serious about buying antiquities. He
said he knew a few people. And so one
day we drove to the edge of town,
where he asked me to stop the car and
wait for him near a row of small shops.
I watched him through the windshield as he chatted with a group of
men. One of them walked back to the
car with my guide and slid into the
back seat. “He sells,” my guide said,
pointing to the man. Zafar, as he introduced himself, was young, and
freshly shaven except for a thick black
mustache. He spoke decent Urdu with
a thick Pashto accent. He also had
only one functional eye—the right
one was glazed over white—and this
gave his otherwise unthreatening demeanor a sinister edge.
“What do you have?” I asked.
“Whatever you like,” he said.
40
HARPER’S MAGAZINE / APRIL 2011
(38-44) Mufti final3cx2.indd 40
We drove down a side street and
into a dusty clearing along the edge of
a tobacco field. We parked and strolled
down a series of narrow alleys until we
reached a colony of small houses. The
large metal door to Zafar’s house
opened onto a living room big enough
for a game of ping-pong. The walls were
decorated with photos and magazine
cutouts showing the Masjid al-Haram
in Mecca and some sculptures of the
Buddha. An elderly man, Zafar’s father,
was seated on the soft rug in the middle
of the room. I shook hands with him.
The old man was excited to hear I had
come all the way from Islamabad.
“We do business with many people
in Islamabad,” he chirped. “Welcome!”
Zafar brought out a pot of bitter
green tea and a platter of sugarcoated
almonds. Before long, I was on the
floor with my feet stretched out, leaning back on a hard round pillow, feeling perfectly at ease.
“So what is it that you’d like?” Zafar began.
“I’m wondering if there is anything
coming out of Swat,” I said.
“There’s always things coming out
of Swat. Are you looking for something in particular?”
“I like the stone stuff.”
The father muttered in Pashto at the
son, who got up and went outside.
“Many people in the village, these
young boys you see outside, they work
for us,” the old man said. “They’ll go
and dig and dig till they find something. Then they bring it to us. That’s
what we have. Some of it’s good. Some
of it, not so much. But it’s all sellable.
There will be respected buyers like
yourself, but the rest we can sell locally
in Peshawar. I’ve been doing this my
whole life. You’ve made the right choice
coming to me.”
Zafar returned with two woven
plastic-fiber bags. He pulled a life-size
brick-colored head from one bag,
tossed it between his hands like a
basketball, and placed it on the rug in
front of me. I picked it up and examined it, tracing the intricate facial
features and the elaborately carved
turban. The nose was badly damaged,
but still, the head was beautiful.
Whose hands had made this? How
many hands had touched it since?
How many centuries of war and peace
had these lifeless eyes witnessed? “It’s
beautiful,” I said, trying to control my
sudden desire to own it.
The son reached over and took it
from my hands. “It’s a fake. I just pulled
it out of the oven last week. I buried it
for a few days to get the dirt in good. It
turned out well, don’t you think?”
He briefly inspected his handiwork
before putting it back in the bag. He
then removed a small forearm of gray
schist from the other bag. The forefinger and thumb were delicately touching
at the tips. “This is from a real Buddha,” he said, handing it to me. “This
is a Swat piece.” He waited a few moments. “This one I can give to you for
eight thousand rupees,” meaning approximately a hundred dollars.
As we sipped our tea, the father told
me that the war in Swat had been good
for them. “There’s been a lot coming
out in the past month. We’re cutting
down on making much ourselves. The
originals are much better business. Of
course, if you’re interested in getting
something made, we’re taking orders.”
He reached deep into his tunic
pocket and pulled out playing-cardsize photos of artifacts. As I leafed
through the stack, he pointed to a
cupboard in the corner. “If you want
something in this size, give us two
weeks and we can have something
ready. Maybe ten thousand rupees.”
“How would I transport it?” I asked.
“We can arrange a dubba,” he
said, referring to a minivan. “It’ll fit
in the back and you can drive with
it to Islamabad.”
I hesitated. “What if I want to take
it out of the country?”
He seemed delighted at my entrepreneurial spirit. He held his thumb to
his ear like a telephone and said, “One
phone call and we clear you through
customs. Guarantee.” I wanted to
make sure that this old man sitting in
a shantytown in Takht Bahi was securing me safe passage out of Pakistan.
“And what about at the other end?
In New York, London?” I asked.
He scrunched his eyebrows and
held out one palm, in a gesture
often seen in the Buddhas of Gandhara. “You’ll have to plan
that yourself.”
P
rior to World War II, it was relatively easy to move antiquities across
international borders. And during the
94
2/21/11 11:40 AM
conflict itself, the belligerents plundered one another’s art and relics
without reservation. The Third Reich
established a special department “for
the seizure and securing of objects of
cultural value.” The Americans and
Soviets looted from Germany toward
the end of the war. In the Far East,
the Japanese stole as many as 100,000
pieces of art from Korea alone.
After the war, things changed. The
Allies proposed that all looted European artworks be returned to their
places of origin. The task was too big
to complete with any degree of
efficiency, and the European powers
were determined to retain the art taken
from their colonies. Finally, in 1954,
the Convention for the Protection of
Cultural Property in the Event of
Armed Conflict was signed by fortyeight countries at The Hague (the
United States waited until 2009 to
ratify the treaty). The agreement conferred protected status on all “cultural
property.” Invading armies were henceforth made responsible for ensuring
that no cultural property—including
art, monuments, and objects from archaeological and historical sites—was
harmed or removed.
With governments largely out of the
art-stealing business, the trade moved
into private hands. Individuals with
wealth and means began amassing vast
collections of looted art. To stanch the
flow, the United Nations in 1970 established the Convention on the Means
of Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property. This
agreement stated that objects that had
already been removed (the word “looted” wasn’t used) from their place of
origin could be traded. From that point
forward, however, nothing could be
taken without government approval.
None of these conventions have
been treated very seriously by anyone,
anywhere. A vivid demonstration came
in 2003, when the Iraqi National Museum in Baghdad was ransacked. As
thieves carried off some of humanity’s
most ancient artifacts, American soldiers stood by and watched, unsure of
their responsibilities.
Perhaps their confusion had something to do with the United States’
reluctance to sign the 1954 convention. In any case, the episode prompt-
ed the Department of Defense to
train soldiers in the protection of antiquities and cultural sites. And in
2009, the Iraqi government announced that 632 antique objects
looted from the museum in Baghdad
had been recovered and returned by
the United States. Another 542 pieces were returned a year later. Of the
fifteen thousand artifacts that were
stolen, at least half remain missing,
presumably moving from one private
collection to the next.1
How such artifacts made their way
into the hands of dealers and collectors is, of course, a key question. The
military reports released by WikiLeaks
last summer contain at least half a
dozen references to antiquities being
found in the hands of insurgents in
both Afghanistan and Iraq, cheek by
jowl with large caches of arms and
explosives. This confirmed a longstanding suspicion that the sale of
antiquities to the West was helping to
fund the militants.
Ancient art now crisscrosses the
globe via clandestine networks of individual dealers and organized-crime
syndicates. The market for illegal antiquities is estimated at between $2
and $6 billion a year, and the merchandise often travels by the same
routes as narcotics, illegal arms, and—
according to Robert Puffer, an American antiquities dealer who has worked
with U.S. security agencies in
Pakistan —even nuclear material.
War, needless to say, is always a boon for the trade.
A
s I continued north toward the
Swat Valley, I made a short detour to
the town of Lund Khwar to meet with
a man named Ali Muhammad Khan.
He had, I was told, once worked at the
National Museum of Pakistan, and
was responsible for the excavation and
protection of all archaeological sites in
the country. I drove past thick foliage
on the jeep trail, honking at cattle, until I finally reached Khan’s house. He
invited me into a humid and darkened
living room to talk. A fan hung motionless from the ceiling. “I’m sorry,
1
The initial 632 items returned by the United
States went missing when the shipment arrived in Iraq. They were eventually found at
the offices of Prime Minister Nouri al-Maliki
in September 2010.
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LETTER FROM
95 PAKISTAN
(38-44) Mufti final3cx2.indd 41
41
2/21/11 11:41 AM
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the power’s been out for hours,” he
said, snapping at one of his servants to
get us some Pepsi.
Khan took over at the National Museum as head of archaeology in 1989.
The Soviets had just left Afghanistan,
and the civil war that followed their
exit had begun. Both benign and profiteering lovers of ancient art of the
Persian, Zoroastrian, and Gandharan
cultures took great interest in the conflict. The Kabul Museum, for example,
had housed thousands of artifacts representing more than five millennia of
Afghan history. In 1989, says Khan, it
was slowly being cleaned out: “The
dealers were showing collectors the
Kabul Museum catalogue as a menu.”
Peshawar, the largest frontier town
in Pakistan, became the central trading
post for looted Afghan antiquities.
Pakistani traffickers made millions cutting deals with buyers in New York
City, London, Zurich, Tokyo. “From
Peshawar,” Khan said, “these things
were going in more directions than we
could know.”
The purchases were hardly confined
to the criminal underground. In blatant violation of both international
conventions and its own laws, the
Pakistani government bought hundreds of thousands of dollars’ worth of
Afghan antiquities—on the pretext of
protecting them. And that was just
the official business. Benazir Bhutto,
who was then prime minister, was an
avid collector, as was her husband,
Asif Ali Zardari. Under her watch,
some of Pakistan’s senior officials, including the interior minister, built up
formidable collections of Afghan artifacts. Far from being shy about it,
these high-profile Pakistanis openly
displayed their treasures to international dignitaries and journalists.2
It was also during this period that
the trade in Gandharan antiques became inextricably linked to the Afghan opium trade. In some instances,
hollowed-out relics were packed with
drugs and shipped internationally. “It
was the same people running it,” Khan
2
More recently, Zardari, who is now president of Pakistan, was indicted in his own
country for smuggling eight boxes of antiquities intercepted at Heathrow Airport in
2007. The case was dismissed by a loyalist
Pakistani court in 2008, just months before
Zardari became president.
42
(38-44) Mufti final3cx2.indd 42
told me. “Some even said this stuff was
more valuable than heroin, so why
wouldn’t they trade it?”
Predictably enough, the U.S.-led
invasion of Afghanistan in 2001 gave
the illicit trade yet another boost. As
the fighting spilled over into Pakistani
territory, the heart of Gandhara was
once again engulfed by war. The robust trade in Afghan antiquities was
now augmented by a fresh supply of
Gandharan treasures from Pakistan.
As they did in Iraq, American officials have tried to make amends. In
2007, Ryan Crocker, the former U.S.
ambassador to Pakistan, returned
thirty-nine stolen Gandharan artifacts,
including a rare sculpture of a fasting,
emaciated Buddha, in a highly publicized ceremony in Islamabad. The objects had been intercepted at Newark
airport as they arrived on flights from
London and Tokyo, and were estimated
to be worth several million dollars.
Their return, Crocker said, was a sign
of America’s “true respect for the profound cultural heritage of Pakistan.”
I asked Khan what he thought
about the efforts of United States and
Pakistani law enforcement to bring
these artifacts back to the country. He
was skeptical, and also suspected that
some of the returned artifacts were
fakes. During his tenure at the National Museum in the 1990s, he said,
he had a brush with the “high levels”
of leadership in Pakistan.
“We caught a big shipment of Gandharans in a crate, packed in with furniture,” he recalled, “and we brought it
all back to the museum for safekeeping
while customs investigated. A few days
later I get a call from the son of—let’s
say, someone important—and he makes
an offer. He says if I lend him one of the
pieces for one week, he would return it
without a scratch. And of course he
offered me money for this rental.”
Khan knew that the artifact would
be stolen and a fake returned to the
museum. The truth would never come
out, and the real piece would have
another chance to make it out of the
country. He refused.
“I never joined the racket, and
look at where it’s landed me,” Khan
said, glancing up at the motionless
fan. It was sweltering in the house, so
we walked out to the porch to finish
our Pepsis. I thanked Khan and told
HARPER’S MAGAZINE
/ APRIL 2011
96
2/21/11 11:41 AM
him I was hoping to make it to the
Swat Museum.
“The road is closed a few miles up
north,” he said. “I don’t think the
military will let you pass. They’re being very strict.” He looked me up and
down. “You could try, but what is the
point? You’re not going to find anything there. It’s been all cleaned out!”
I stood dumbstruck.
“No, no, not the Taliban,” he said,
sensing my dismay. “It was the government.” Khan meant this as good news,
but I was not reassured. “They decided
to clear out the entire museum. I think
they’ve moved it to the museum in
Taxila. You should probably
check over there first.”
I
never made it to the Swat Valley.
The road was indeed blocked by the
military, and I was told that the Swat
Museum was under lockdown. So I
turned back and, as Khan had suggested, visited the museum in Taxila.
Taxila, once the capital of Gandhara,
has a long history. Its name occurs in
ancient Hindu religious texts and Chinese travelogues, and the Greek historian Arrian described it as “the largest
town between the rivers Indus and Hydaspes.” In the sixth century a.d., Chinese pilgrims who passed through the
city reported it deserted. After that,
Taxila was lost for more than a thousand years—until 1872, when an English engineer and lover of antiquities
named Alexander Cunningham stumbled onto the ruins of the ancient city
near the Punjab Plain.
The rediscovery of Taxila was a major archaeological event. Cunningham
was no archaeologist—he was best
known for leading the royal commission that drew the border between British India and Tibet. Still, he was probably the first Westerner to study the
thousand-year-old sculptures in Taxila
with a critical eye. Cunningham wrote
that they “exhibit a boldness of design
and a freedom of execution which no
Eastern artist has ever yet shown.” He
also stated that they “owe all their
beauty as well as all their truth of
grouping to the teachings of Greek
artists.” The Buddhist sculptures and
relics were promptly crated and shipped
off to London.
Today, the British Museum’s collection of Gandharan sculpture, the larg-
est outside Pakistan, owes much to
Cunningham. A catalogue of Gandharan art published by the museum in
1996 lists 25 sculptures from his personal collection. Another 181 pieces
can be traced to his excavations in
northwestern Pakistan, including many
from Taxila. Still, the catalogue does
make a show of postcolonial contrition,
alluding to the “chequered history of
oriental collections” and insisting that
“nothing exported since 1947 has been
knowingly acquired.”
I battled maddening midday traffic,
driving past fortified military-hardware
factories on the historic Grand Trunk
Road, and when I finally reached the
Taxila museum complex, it inspired a
deep spiritual calm in me. Bright green,
manicured grounds surround the preserved ruins of the ancient city. A plaque
at the entrance dedicates the museum
to its founder, Sir John Marshall, who,
like Cunningham, served as director of
the Archaeological Survey of India.
I met with Abdul Nasir Khan, a
curator at the museum who had previously worked in the Swat Valley for
seventeen years. Together we walked
the museum’s galleries, looking at objects that had been dug from the very
earth on which we were standing. Nasir Khan told me he had just been in a
meeting with the local police. There
had been a major Taliban attack only
a few days earlier on a nearby ammunition factory, and the museum had also
been put on alert. “We are talking
about raising the boundary wall by a
few feet and getting some barbed wire,”
he said, widening his blue-gray eyes.
Nasir Khan confirmed for me that
the “Swat Museum operation” had in
fact taken place. Late one night a few
weeks before, a fleet of large flatbed
trucks was driven to the Swat Museum
and loaded with the entire collection.
Covered with nothing but tarps, the
antiquities were transported nearly 150
miles through steep mountain passes
and deposited at storage units in Taxila. “There was war all around,” he recounted, “and we didn’t even have a
military escort.”
“We didn’t have time to get to the
reserve collection in the basement, but
I’m pretty sure it’s safe,” Nasir Khan
added, trying very much to sound convincing. He fell silent and was lost in
thought for a moment. The museum
LETTER FROM
97 PAKISTAN
(38-44) Mufti final3cx2.indd 43
With all
the money
she’d saved at
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had a few visitors, and next to us a
young girl tugged at her mother and
pointed to a life-size standing sculpture
of Lord Buddha.
“Who’s this, Mama?” she asked.
“It’s Buddha. He used to live here a
long time ago.”
Nasir turned to me and said, “I have
a son who’s about the same age, and
you know what I worry about? Pretty
soon there won’t be anything left to
show him.”
The fact is that looters are not the
only menace to ancient relics. For
years, militants in both Pakistan
and Afghanistan have attacked preIslamic historical sites. Many private
collectors in the West use this as justification for siphoning such artifacts
away from their native lands. They
often point to the Taliban’s destruction of the colossal Buddhas at Bamiyan, in eastern Afghanistan, in 2001.
Like many, I had long assumed that
Mullah Omar had the massive sculptures destroyed because he hated
them. It was a simple enough explanation, and it fit in with a centuries-old
tradition of Islamic iconoclasm.
Some, however, suspect that the
Bamiyan Buddhas might have been
destroyed out of fiscal prudence. The
Taliban was aware of the international
demand for Gandharan art and may
have considered the Buddhas too valuable to be left intact on a mountainside. The assault on the sculptures,
conducted with explosives, tanks, and
anti-aircraft guns, made for some
shocking footage. But in the days that
followed, as the world decried the Taliban’s barbarity, tons of debris began arriving quietly in Pakistan’s tribal areas
from across the border with Bamiyan.
Newspapers reported that local dealers
were selling fragments in bulk, and
that international buyers
were biting.
O
ne afternoon last spring, I
paid a visit to a dealer named Carlton Rochell at his gallery space off
Park Avenue in Manhattan. The
gallery was perfectly sunlit that day,
warming the half-dozen customers
examining the ancient items on the
walls. Rochell was selling off the private collection of Robert and Bernice Dickes, who, according to the
catalogue, “were fortunate to collect
44
HARPER’S MAGAZINE / APRIL 2011
(38-44) Mufti final3cx2.indd 44
at a time when wonderful objects
from India and the Himalayas could
be readily found on the market.” It
was only the second day of the show,
and Rochell said he had already sold
two thirds of the collection. At least
one piece had been snatched up by
the Metropolitan Museum of Art.
Rochell spent eighteen years at
Sotheby’s, establishing their Indian
art department before beginning to
deal privately in 2002. His is one of
several galleries selling Gandharan
art that have sprung up on Manhattan’s Upper East Side during the past
decade. Looking at the market, it’s
easy to understand why the field is
becoming more crowded.
In the spring of 2002, Sotheby’s was
surprised to see a head of Lord Buddha, with an estimated value of
$30,000 to $50,000, fetch $234,000
after a bidding war. Encouraged, perhaps, by this Gandharan gold rush,
the auction house chose a striking
image for the cover of its catalogue a
few months later: a Gandharan Buddha procured by a British officer in
Peshawar in the nineteenth century.
The top estimate for the piece was
$150,000—but the hammer fell at
$669,500, doubling the world record
for Gandharan art sold at auction.
As the American military began its
long campaign in what the diplomats
like to call Af-Pak, Sotheby’s issued a
press release stating that the market for
Gandharan art had “changed forever.”
The next year, the auction house broke
its own record, when a Gandharan
piece sold for $736,000. One could
hardly ask for a more precise correlation
between the ravages of war and the
dubious trade in cultural treasures.
Auction houses, of course, offer a
glimpse into the public workings of the
art market. But in a discreet location
like Rochell’s gallery, tucked away in a
Manhattan apartment, museums and
other institutional buyers will spend
hundreds of millions of dollars on ancient art. The Brooklyn Museum, for
example, owns many pieces from the
Dickes collection. Rochell’s other clients
have their names inscribed in museums
in Los Angeles, Houston, and Canberra.
In the process, the primordial urge to
own such objects is transformed into
something else: they become dynastic
tokens, each with its own pedigree of
connoisseurship and American wealth.
The idea of such a pedigree clearly
excited Rochell. “Look at that Gandharan Bodhisattva behind you,” he
said, gesturing at a gleaming, two-foottall figure with one arm broken off at
the elbow. “That’s Mathias Komor,” he
explained, naming one of the godfathers of the trade in Asian antiquities,
who, as a dealer, helped the Met build
its collection in the 1960s. “You
know, there’s real history
with some of these things.”
A
few weeks after my meeting
with Rochell, I called Nasir Khan, the
curator in Taxila. He sounded glad to
hear from me and reported that he
was still holding down the fort. There
had been no attacks on the museum,
he said happily, and for the time being
there were no pending threats either. I
asked him about his son, and he told
me that they might visit Swat, which
was long the most popular tourist spot
in Pakistan, before the war.
A precarious order now holds in
Swat. The Pakistani Army claims that
“complete peace has been restored” to
the area. The refugee camp with the
blue-green tents in Takht Bahi has
emptied out, and most of its occupants
have returned home. The Pakistani
tourism board has been encouraging
people to visit the region in an attempt to revive the local economy.
Meanwhile, a million other refugees
from the tribal areas have fled their
homes, escaping American drones and
Pakistani helicopter gunships, and setting up tents near Peshawar. The men
and boys among them will look for any
kind of work. Some will become drug
mules, some will undoubtedly pick up
a gun, and others will dig the earth in
search of Lord Buddha.
This spring, as New York City’s Asia
Society unveils the largest museum
exhibition of Gandharan art ever
mounted in America, the Swat Museum remains closed. Its collection is
still in storage in Taxila. The emaciated Gandharan Buddha and many of
the items returned by Ambassador
Crocker in 2007 have yet to be put on
display, but Nasir Khan told me that
he expected one of them to be the
ceremonial centerpiece whenever the
museum opens its doors once again.
■
There is, at present, no date set.
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Danti’s Inference: The Known Unknowns Of ISIS and Antiquities Looting | CHASING APHRODITE
CHASING APHRODITE
The Hunt for Looted Antiquities in the World's Museums
Danti’s Inference: The Known Unknowns Of ISIS and
Antiquities Looting
Posted on November 18, 2014 | 51 Comments
Over the last month, a new meme has spread like a sandstorm across the internet: Looting of antiquities,
we’re told, has become “the second largest source of revenue” for the hated terror group ISIS.
The claim is almost certainly false, as I explain below. Its provenance can be traced to a State Department­
funded archaeologist who is now leading U.S. efforts to protect heritage sites in Syria.
The first reference to it came on October 17 in the magazine Foreign Policy, which published a provocative
report on the role that antiquities looting plays in funding the Islamic State terror group.
The terror group’s
profits from antiquities
looting “are second
only to the revenue
the group derives
from illicit oil sales,”
the article stated. “So
understanding the
Islamic State’s
approach to the fate
of ancient artifacts
actually could be key
to stopping its
advance.” The
article’s headline went
even further:
“Degrading and
destroying ISIS could
take place in the halls
of auction houses, not
the Pentagon.”
Foreign Policy’s source was Michael Danti, an assistant professor at Boston University and co­director of the
American Schools of Oriental Research’s State Department­funded campaign to track cultural heritage
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destruction in Syria. In August, the State Department gave ASOR $600,000 to
launch the Syria Heritage Initiative. The project is doing important work
documenting the destruction of cultural heritage sites in the country, primarily
through the use of satellite imagery. Weeks before a week after the Foreign
Policy article appeared, Sec. of State John Kerry gave a speech at the
Metropolitan Museum calling Danti and his ASOR colleagues “literally the gold
standard” for information on the issue. (Danti and his ASOR colleagues will
give a public presentation on their work in San Diego on Nov. 23rd.)
Danti’s claim was surprising for those of us who have followed the looting in
Syria. The scale of looting is devastating, undeniable and relatively well documented in satellite imagery. But
to date, very little reliable evidence has come to light about where those looted objects are being sold, much
less the profitability for sponsors of the plunder. I’m not aware of a single object offered for sale in auction
houses having been reliably traced back to the conflict so far. And past research shows that the biggest
profits in the illicit antiquities trade happen far upstream from the excavators, who take a paltry share of profits
compared to middlemen and dealers.
Curious about his sourcing, I asked Danti for more information in an exchange on Twitter. Initially, Danti
said the claim was based on “in­country sources.” Danti has dug in Syria for years, but did his Syrian sources
really have access to ISIS accounting records? When pressed, he referred to “analogies with AQI [Al Qaeda
in Iraq] finances,” and pointed me to a 2010 RAND study, Economic Analysis of the Financial Records of al­
Qa’ida in Iraq. The study is based on data from Iraq’s Al Anbar province dating to 2005 – 2006.
Of course, ISIS did not exist in 2010, much less 2005, and there is ample evidence that, while structurally
similar to its predecessor Al Qaeda in Iraq, ISIS enjoys different funding streams. Further, the RAND study
Danti cited makes no mention — zero — of antiquities looting. The only reference to “looting” in the entire
paper is this chart:
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In context, its clear that this “looting” refers more broadly to the spoils of war —
seized cars and other commercial goods. “The provincial administration collected
revenue mostly from the sale of stolen commercial goods and did not collect much
revenue from black market fuel sales, large­scale extortion, or direct taxation,” the
report states. “The financing of the western sector was similar, where AQI funded
itself through the sale of cars and lesser­valued commercial goods.”
In short, the study sheds no light on contemporary archaeological looting in Syria by ISIS or any other group,
something Danti has conceded only half­heartedly: “Needt to know more on how these estimates are made. In
Syria/Iraq ‘ghanima’ is used for all looting/theft.”
I called Danti last week for more thoughts on the issue. After a lengthy discussion, he asked not to be quoted,
saying he would need to clear any comments with the Department of State. (He hasn’t taken that stance in
dozens of other interviews.) In essence, Danti said he stands by his claim while acknowledging there is little
public evidence to support it. He also noted that as a “dirt” archaeologist, he is unaccustomed to the media
attention his recent role has given him, and says he may have been misquoted.
There is no question that looting of archaeological
sites has exploded across Syria in recent years, and
the satellite evidence is unmistakable. I and others
have argued that the various groups involved in
looting on the ground — ISIS, al Nusra, Syrian
opposition groups, the Assad regime, criminal groups
and desperate civilians — would be unlikely
to engage in such vast, laborious mining efforts if
they weren’t paying off in some way. So, who’s to
say Danti’s claim may not be right?
Apamea, April 2012
Just a week after Danti’s Foreign
Policy article, David S. Cohen,
the Under Secretary for Terrorism and Financial Intelligence, gave a talk at the Carnegie
Endowment describing the U.S. government’s best assessment of the Islamic States’
sources of funding. The assessment is based on intelligence sharing between
Treasury, the State Department, the Department of Defense, the intelligence community,
law enforcement and foreign governments.
In order, Cohen said ISIS’ primary funding sources are:
1. The sale of oil from seized fields and refineries, estimated to generate $1 million a day.
2. The kidnap of civilians to profit from ransoms. With ISIS making “at least 20 million” in ransom in 2014
alone, Cohen described it as “one of the most significant terrorist financing threats today.”
3. Sophisticated extortion rackets, which bring in “up to several million dollars per month,” Cohen said.
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4. Criminal activity, including bank robberies, stealing livestock and crops from farmers and, yes, looting
antiquities.
Cohen’s testimony did little to stop the spread of Danti’s “second biggest source” meme. On Oct 27th, the
claim was repeated by the U.S. Naval Institute in a article written by a retired brigadier general and two
terrorism finance researchers at the Monterrey Institute (“How ISIS Funds Terror Through Black Market
Antiquities Trade.” Soon after, in an op­ed for Al Jazeera, Stephennie Mulder, an assistant professor of
Islamic Art and Architecture at the University of Texas at Austin, repeated the claim. (She had it removed
from the article after Danti’s sourcing was brought to her attention by other experts.) On Nov.
6th, Newsweek reported it again.
By Nov 13th, the claim was being repeated by Congressmen during a hearing on terror financing on Capitol
Hill:
Key Capitol Hill Hearings :
CSPAN3 : November 13, 2014 9:00pm EST
Danti is hardly the first to speak beyond the available evidence. I have spoken with imprecision about the link
between terrorism and the antiquities trade. UNESCO officials frequently cite a $7 billion dollar figure for the
global illicit antiquities trade that has a very shaky foundation. The Antiquities Coalition has referred to $3 – $5
billion generated by looting in Egypt alone since 2011 (or in some instances, per year), but the research
supporting that claim has yet to be published. Rajendra Abhyankar, a professor at Indiana University and
former Indian Ambassador to Syria, declared in the Huffington Post earlier this month that “thirty to fifty
percent” of ISIS income comes from the theft and looting of antiquities. When asked for a source, he told
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me it was based on notes he had taken while reading articles that he could no longer find. (I’m now told
Abhyankar relied in part on this story in Al­Monitor, which states, “Some even say the looting of historical
artifacts has become the Islamic State’s main source of revenue…”) The problem is significant enough that
Dr. Sam Hardy at Conflict Antiquities has made a cottage industry of debunking such claims.
The truth is we have very little reliable data on the global revenue generated by the illicit antiquities trade, and
even less on the role it plays in funding terror groups. It is, to paraphrase Donald Rumsfeld, a known
unknown: we know it happens, but not much more. Claiming otherwise may in the short term bring attention
to the issue of looting, but ultimately saps it of credibility – and the urgency to answer those important
questions with well­documented research. It can also taint important policy decisions, as Patty Gerstenblith,
chair of the State Departments Cultural Property Advisory Committee, noted in response to Danti and similar
claims: “Commentators and scholars should avoid sensationalism…Exaggerated [or] baseless claims hinder
rational policies to restrict trade in illegal antiquities.”
This is particularly true, and troubling, when baseless claims come from a highly respected academic group
being paid — and held out as the gold standard — by the State Department. When John Kerry gives a speech
about looting at the Met, he is using the issue to help justify the escalating U.S. military intervention in Syria.
In that context, it is more important than ever to stick to the known knowns.
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5/19
4/28/2015 Unanimously Adopting Resolution 2199 (2015), Security Council Condemns Trade with Al­Qaida Associated Groups, Threatens Further Targeted Sancti…
MEETINGS COVERAGE AND
PRESS RELEASES
12 FEBRUARY 2015
SC/11775
Unanimously Adopting Resolution 2199
(2015), Security Council Condemns Trade with
Al-Qaida Associated Groups, Threatens
Further Targeted Sanctions
7379th Meeting (AM)
SECURITY COUNCIL
MEETINGS COVERAGE
The Security Council this morning underlined the obligations of Member States to take steps to
prevent terrorist groups in Iraq and Syria from benefiting from trade in oil, antiquities and hostages,
and from receiving donations.
Unanimously adopting resolution 2199 (2015) under the binding Chapter VII of the United Nations
Charter, the Council condemned any trade with the Islamic State in Iraq and the Levant (ISIL, also
known as Daesh), the Al-Nusrah Front and other entities designated to be associated with Al-Qaida
under resolutions 1267 (1999) and 1989 (2011), threatening possible further listings for targeted
sanctions under those resolutions.
It affirmed that the direct and indirect trade in oil and refined oil products, modular refineries and
related materials was subject to the requirement of resolution 2161 (2014) that countries ensure
that their nationals and those in their territories not make assets or economic resources available
to ISIL and related terrorist groups.
Condemning the destruction of cultural heritage in Iraq and Syria, particularly by ISIL and the AlNusrah Front, it decided that all Member States should take steps, in cooperation with Interpol, the
United Nations Educational, Scientific and Cultural Organization (UNESCO) and other international
organizations, to prevent the trade in items of cultural, scientific and religious importance illegally
removed from either country during periods of conflict.
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4/28/2015 Unanimously Adopting Resolution 2199 (2015), Security Council Condemns Trade with Al­Qaida Associated Groups, Threatens Further Targeted Sancti…
Expressing its determination to end hostage-taking by the terrorist groups, it said that the
provisions of resolution 2161 (2014) also banned the payment of ransom to such groups, regardless
of how or by whom the ransom is paid. It reiterated its call on Member States to help secure the
safe release of hostages without payments or political concessions. It further emphasized the
importance of all Member States in preventing their nationals and others in their territories from
making donations to the terrorists.
Finally, it urged States to prevent the terrorist groups from gaining access to international financial
institutions and reaffirmed States’ obligations to prevent the groups from acquiring arms and
related materiel, along with its call to enhance coordination at the national, regional and
international level for that purpose.
It called upon Member States to report within 120 days to the Al-Qaida Sanctions Committee on
their compliance with the resolution, calling for the United Nations counter-terrorism bodies to also
track progress on implementation.
Speaking after the adoption, the representatives of the Russian Federation, United States, United
Kingdom, Jordan and China welcomed the action. The Russian representative, Vitaly I. Churkin,
thanked the other members of the Security Council for their constructive collaboration on the text,
calling it an important step on suppressing the terrorist threat in the Middle East, the effect of
which was felt far beyond the region.
The representative of the United States, Samantha Power, agreed that the resolution showed the
joint international commitment on countering terrorism and, in particular, defeating ISIL. She said
that because of actions of the coalition against ISIL, securing resources had become harder for it
and the resolution would help cut off further sources of funds and help end the ongoing brutality of
the group. She regretted, however, that the Council had not dealt with a major factor that led to the
rise ISIL, the cruelty of the Assad regime.
The representative of the United Kingdom, Mark Lyall Grant, said he looked forward to working on
the full and effective implementation of the resolution, and France’s representative, François
Delattre, said that the recent attacks on his country made it even more resolute to fight the scourge
of terrorism. 105
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4/28/2015 Unanimously Adopting Resolution 2199 (2015), Security Council Condemns Trade with Al­Qaida Associated Groups, Threatens Further Targeted Sancti…
Jordan’s representative, Mahmoud Daifallah Mahmoud Hmoud, said that all the tools of
international law must be used to fight terrorism, pledging his country would remain one of the
leaders in the battle following the martyrdom of its pilot. Finally, the representative of China, Liu
Jieyi, emphasized the importance of avoiding double standards in fighting terrorism and avoiding a
linkage with any religion or ethnic group. He called for cooperation on cutting off terrorists’ ability
to utilize the Internet for their activities.
The meeting opened at 10:05 a.m. and closed at 10:23 a.m.
Resolution
The full text of resolution 2199 (2015) reads as follows:
“The Security Council,
“Reaffirming its primary responsibility for the maintenance of international peace and security, in
accordance with the Charter of the United Nations,
“Reaffirming that terrorism in all forms and manifestations constitutes one of the most serious
threats to international peace and security and that any acts of terrorism are criminal and
unjustifiable regardless of their motivations, whenever and by whomsoever committed,
“Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations
and international law, including applicable international human rights, refugee, and humanitarian
law, threats to international peace and security caused by terrorist acts, stressing in this regard the
important role the United Nations plays in leading and coordinating this effort,
“Emphasizing that sanctions are an important tool under the Charter of the United Nations in the
maintenance and restoration of international peace and security including countering terrorism,
and underlining the importance of prompt and effective implementation of relevant resolutions, in
particular Security Council resolutions 1267 (1999) and 1989 (2011) as key instruments in the fight
against terrorism,
“Recalling its Resolutions 1267 (1999), 1989 (2011), 2161 (2014), 2170 (2014), and 2178 (2014) and its
Presidential Statements of 28 July 2014 and 19 November 2014, including its stated intention to
consider additional measures to disrupt oil trade by Islamic State in Iraq and the Levant (ISIL, also
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known as Daesh), Al-Nusrah Front (ANF) and all other individuals, groups, undertakings and entities
associated with Al-Qaida, as a source of terrorism financing,
“Recognizing the importance of the role that financial sanctions play in disrupting ISIL, ANF and all
other individuals, groups, undertakings and entities associated with Al-Qaida, and emphasizing also
the need for a comprehensive approach to fully disrupt ISIL and ANF that integrates multilateral
strategies with national action by Member States,
“Reaffirming the independence, sovereignty, unity and territorial integrity of the Republic of Iraq and
the Syrian Arab Republic, and reaffirming further the purposes and principles of the Charter of the
United Nations,
“Reaffirming also that terrorism cannot and should not be associated with any religion, nationality,
or civilization,
“Stressing that terrorism can only be defeated by a sustained and comprehensive approach
involving the active participation and collaboration of all States, and international and regional
organizations to impede, impair, isolate and incapacitate the terrorist threat,
“Expressing, in this regard, its deep appreciation for Arab League Resolution 7804 (September 7,
2014), the Paris Statement (September 15, 2014), the FATF statement on countering the financing of
ISIL (October 24, 2014) and the Manama declaration on countering terrorist finance (November 9,
2014),
“Reaffirming its resolution 1373 (2001) and in particular its decisions that all States shall prevent and
suppress the financing of terrorist acts and refrain from providing any form of support, active or
passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of
members of terrorist groups and eliminating the supply of weapons to terrorists,
“Recognizing the significant need to build capacities of Member States to counter terrorism and
terrorist finance,
“Reiterating its deep concern that oilfields and their related infrastructure, as well as other
infrastructure such as dams and power plants, controlled by ISIL, ANF and potentially other
individuals, groups, undertakings and entities associated with Al-Qaida, are generating a significant
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portion of the groups’ income, alongside extortion, private foreign donations, kidnap ransoms and
stolen money from the territory they control, which support their recruitment efforts and
strengthen their operational capability to organize and carry out terrorist attacks,
“Condemning in the strongest terms abductions of women and children, expressing outrage at their
exploitation and abuse, including rape, sexual abuse, forced marriage, committed by ISIL, ANF, and
other individuals, groups, undertakings and entities associated with Al-Qaida, and encouraging all
state and non-state actors with evidence to bring it to the attention of the Council, along with any
information that human trafficking may support the perpetrators financially,
“Reaffirming the obligation of Member States to freeze without delay funds and other financial
assets or economic resources of persons who commit, or attempt to commit, terrorist acts or
participate in or facilitate the commission of terrorist acts; of entities owned or controlled directly or
indirectly by such persons; and of persons and entities acting on behalf of, or at the direction of
such persons and entities, including funds derived or generated from property owned or controlled
directly or indirectly by such persons and associated persons and entities,
“Expressing its concern that economic resources such as oil, oil products, modular refineries and
related material, other natural resources including precious metals such as gold, silver, and copper,
diamonds, and any other assets are made available to ISIL, ANF, and other individuals, groups,
undertakings and entities associated with Al-Qaida, and noting that direct or indirect trade with ISIL
and ANF in such materials could constitute a violation of the obligations imposed by resolution
2161 (2014),
“Reminding all States of their obligation to ensure that any person who participates in the financing,
planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to
justice,
“Reaffirming its decision 2133 (2014) and noting again that ransom payments to terrorist groups are
one of the sources of income which supports their recruitment efforts, strengthens their
operational capability to organize and carry out terrorist attacks, and incentivizes future incidents of
kidnapping for ransom,
“Expressing concern at the increased use, in a globalized society, by terrorists and their supporters,
of new information and communications technologies, in particular the Internet, to facilitate
terrorist acts, as well as their use to incite, recruit, fund or plan terrorist acts,
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“Expressing grave concern at the increased incidents of kidnapping and hostage-murdering
committed by ISIL, and condemning those heinous and cowardly murders which demonstrate that
terrorism is a scourge impacting all of humanity and people from all regions and religions or belief,
“Welcoming the report on ANF and ISIL from the Analytical Support and Sanctions Monitoring Team,
published on November 14, 2014, and taking note of its recommendations,
“Noting with concern the continued threat posed to international peace and security by ISIL, ANF and
all other individuals, groups, undertakings and entities associated with Al-Qaida, and reaffirming its
resolve to address all aspects of that threat,
“Acting under Chapter VII of the Charter of the United Nations,
Oil Trade
“1. Condemns any engagement in direct or indirect trade, in particular of oil and oil products, and
modular refineries and related material, with ISIL, ANF and any other individuals, groups,
undertakings and entities designated as associated with Al-Qaida by the Committee pursuant to
resolutions 1267 (1999) and 1989 (2011), and reiterates that such engagement would constitute
support for such individuals, groups, undertakings and entities and may lead to further listings by
the Committee;
“2. Reaffirms that States are required by resolution 2161 (2014) to ensure that their nationals and
those in their territory not make assets or economic resources, directly or indirectly, available to
ISIL, ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida, and
notes that this obligation applies to the direct and indirect trade in oil and refined oil products,
modular refineries and related material;
“3. Reaffirms that States are required by resolution 2161 (2014) to freeze without delay the funds
and other financial assets or economic resources of ISIL, ANF, and other individuals, groups,
undertakings and entities associated with Al-Qaida, including funds derived from property owned
or controlled directly or indirectly, by them or by persons acting on their behalf or at their direction;
“4. Reaffirms that States are required by resolution 2161 (2014) to ensure that no funds, other
financial assets or economic resources are made available, directly or indirectly, by their nationals
or by persons within their territory for the benefit of ISIL, ANF, and other individuals, groups,
undertakings and entities associated with Al-Qaida;
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“5. Recalls that funds and other financial assets or economic resources made available to or for the
benefit of listed individuals or entities are not always held directly by them, and recalls in addition
that in identifying such funds and benefits, States should be alert to the possibility that property
owned or controlled indirectly by the listed party may not be immediately visible;
“6. Confirms that economic resources include oil, oil products, modular refineries and related
material, other natural resources, and any other assets which are not funds but which potentially
may be used to obtain funds, goods or services;
“7. Emphasizes therefore that States are required by UN Security Council resolution 2161 (2014) to
freeze without delay funds, other financial assets and economic resources of ISIL, ANF, and other
individuals, groups, undertakings and entities associated with Al-Qaida, including oil, oil products,
modular refineries and related material and other natural resources owned or controlled by them,
or persons acting on their behalf or at their direction, as well as any funds or negotiable benefit
arising from such economic resources;
“8. Recognizes the need to take measures to prevent and suppress the financing of terrorism,
individual terrorists, and terrorist organizations, including from the proceeds of organized crime,
inter alia, the illicit production and trafficking of drugs and their chemical precursors, and the
importance of continued international cooperation to that aim;
“9. Emphasizes that States are required to ensure that their nationals and persons in their territory
not make available, directly or indirectly, any funds, other financial assets or economic resources,
including oil, oil products, modular refineries and related material and other natural resources that
are identified as directed to, collected for, or otherwise for the benefit of ISIL, ANF, and other
individuals, groups, undertakings and entities associated with Al-Qaida, as well as any funds or
negotiable benefit arising from such economic resources;
“10. Expresses concern that vehicles, including aircraft, cars and trucks and oil tankers, departing
from or going to areas of Syria and Iraq where ISIL, ANF or any other groups, undertakings and
entities associated with Al-Qaida operate, could be used to transfer oil and oil products, modular
refineries and related material, cash, and other valuable items including natural resources such as
precious metals and minerals like gold, silver, copper and diamonds, as well as grain, livestock,
machinery, electronics, and cigarettes by or on behalf of such entities for sale on international
markets, for barter for arms, or for use in other ways that would result in violations of the asset
freeze or arms embargo in paragraph 1 of resolution 2161 (2014) and encourages Member States to
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take appropriate steps in accordance with international law to prevent and disrupt activity that
would result in violations of the asset freeze or targeted arms embargo in paragraph 1 of resolution
2161 (2014);
“11. Reaffirms that all States shall ensure that any person who participates in the financing,
planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to
justice and ensure that such terrorist acts are established as serious criminal offenses in domestic
laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts,
and emphasizes that such support may be provided through trade in oil and refined oil products,
modular refineries and related material with ISIL, ANF and all other individuals, groups,
undertakings and entities associated with Al-Qaida;
“12. Decides that Member States shall inform the 1267/1989 Committee within 30 days of the
interdiction in their territory of any oil, oil products, modular refineries, and related material being
transferred to or from ISIL or ANF, and calls upon Member States to report to the Committee the
outcome of proceedings brought against individuals and entities as a result of such activity;
“13. Encourages the submission of listing requests to the Committee by Member States of
individuals and entities engaged in oil trade-related activities with ISIL, ANF and all other individuals,
groups, undertakings and entities associated with Al-Qaida and directs the 1267/1989 Al-Qaida
Sanctions Committee to immediately consider designations of individuals and entities engaged in
oil trade-related activities with ISIL, the ANF and all other individuals, groups, undertakings and
entities associated with Al-Qaida;
“14. Calls upon Member States to improve international, regional, and subregional cooperation,
including through increased sharing of information for the purpose of identifying smuggling routes
used by ISIL and ANF, and for Member States to consider provision of technical assistance and
capacity building to assist other Member States to counter smuggling of oil and oil products, and
modular refineries and related material, by ISIL, ANF and any other individual, group, undertaking
or entity associated with Al-Qaida;
Cultural Heritage
“15. Condemns the destruction of cultural heritage in Iraq and Syria particularly by ISIL and ANF,
whether such destruction is incidental or deliberate, including targeted destruction of religious sites
and objects;
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“16. Notes with concern that ISIL, ANF and other individuals, groups, undertakings and entities
associated with Al-Qaida, are generating income from engaging directly or indirectly in the looting
and smuggling of cultural heritage items from archaeological sites, museums, libraries, archives,
and other sites in Iraq and Syria, which is being used to support their recruitment efforts and
strengthen their operational capability to organize and carry out terrorist attacks;
“17. Reaffirms its decision in paragraph 7 of resolution 1483 (2003) and decides that all Member
States shall take appropriate steps to prevent the trade in Iraqi and Syrian cultural property and
other items of archaeological, historical, cultural, rare scientific, and religious importance illegally
removed from Iraq since 6 August 1990 and from Syria since 15 March 2011, including by
prohibiting cross-border trade in such items, thereby allowing for their eventual safe return to the
Iraqi and Syrian people and calls upon the United Nations Educational, Scientific, and Cultural
Organization, Interpol, and other international organizations, as appropriate, to assist in the
implementation of this paragraph;
Kidnapping for Ransom and External Donations
“18. Reaffirms its condemnation of incidents of kidnapping and hostage-taking committed by ISIL,
ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida for any
purpose, including with the aim of raising funds or gaining political concessions and expresses its
determination to prevent kidnapping and hostage-taking committed by terrorist groups and to
secure the safe release of hostages without ransom payments or political concessions, in
accordance with applicable international law;
“19. Reaffirms that the requirements of paragraph 1(a) of resolution 2161 (2014) apply to the
payment of ransoms to individuals, groups, undertakings or entities on the Al-Qaida Sanctions List,
regardless of how or by whom the ransom is paid, emphasizes that this obligation applies to ISIL and
ANF, and calls upon all Member States to encourage private sector partners to adopt or to follow
relevant guidelines and good practices for preventing and responding to terrorist kidnappings
without paying ransom;
“20. Reiterates its call upon all Member States to prevent terrorists from benefiting directly or
indirectly from ransom payments or from political concessions and to secure the safe release of
hostages, and reaffirms the need for all Member States to cooperate closely during incidents of
kidnapping and hostage-taking committed by terrorist groups;
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“21. Expresses its grave concern of reports that external donations continue to make their way to
ISIL, ANF and other individuals, groups, undertakings and entities associated with Al-Qaida, and
recalls the importance of all Member States complying with their obligation to ensure that their
nationals and persons within their territory do not make donations to individuals and entities
designated by the Committee or those acting on behalf of or at the direction of designated entities;
“22. Stresses that donations from individuals and entities have played a role in developing and
sustaining ISIL and ANF, and that Member States have an obligation to ensure that such support is
not made available to those terrorist groups and other individuals, groups, undertakings and
entities associated with Al-Qaida by their nationals and persons within their territory, and urges
Member States to address this directly through enhanced vigilance of the international financial
system and by working with their non-profit and charitable organizations to ensure financial flows
through charitable giving are not diverted to ISIL, ANF or any other individuals, groups,
undertakings and entities associated with Al-Qaida;
Banking
“23. Urges Member States to take steps to ensure that financial institutions within their territory
prevent ISIL, ANF or other individuals, groups, undertakings or entities associated with Al-Qaida
from accessing the international financial system;
Arms and related materiel
“24. Reaffirms its decision that States shall prevent the direct or indirect supply, sale, or transfer to
ISIL, ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida from
their territories or by their nationals outside their territories, or using their flag vessels or aircraft, of
arms and related materiel of all types including weapons and ammunition, military vehicles and
equipment, paramilitary equipment, and spare parts for the aforementioned, and technical advice,
assistance or training related to military activities, as well as its calls for States to find ways of
intensifying and accelerating the exchange of operational information regarding traffic in arms, and
to enhance coordination of efforts on national, subregional, regional and international levels;
“25. Expresses concern at the proliferation of all arms and related materiel of all types, in particular
man-portable surface-to-air missiles, to ISIL, ANF and all other individuals, groups, undertakings and
entities associated with Al-Qaida, and its potential impact on regional and international peace and
security and impeding efforts to combat terrorism in some cases;
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“26. Reminds Member States of their obligation pursuant to paragraph 1 (c) of resolution 2161
(2014), to prevent the direct or indirect supply, sale or transfer of arms and related materiel of all
types to listed individuals and entities, including ISIL and ANF;
“27. Calls upon all States to consider appropriate measures to prevent the transfer of all arms and
related materiel of all types, in particular man-portable surface-to-air missiles, if there is a
reasonable suspicion that such arms and related materiel would be obtained by ISIL, the ANF or
other individuals, groups, undertakings and entities associated with Al-Qaida;
Asset Freeze
“28. Reaffirms that the requirements in paragraph 1 (a) of Security Council resolution 2161 apply to
financial and economic resources of every kind, including but not limited to those used for the
provision of Internet hosting or related services, used for the support of Al-Qaida and other
individuals, groups, undertakings or entities included on the Al-Qaida Sanctions List;
Reporting
“29. Calls upon Member States to report to the Committee within 120 days on the measures they
have taken to comply with the measures imposed in this resolution;
“30. Requests the Analytical Support and Sanctions Monitoring Team, in close cooperation with
other United Nations counter-terrorism bodies to conduct an assessment of the impact of these
new measures and to report to the Committee established pursuant to resolutions 1267 (1999) and
1989 (2011) within 150 days, and thereafter to incorporate reporting on the impact of these new
measures into their reports to the Committee in order to track progress on implementation,
identify unintended consequences and unexpected challenges, and to help facilitate further
adjustments as required, and further requests the Committee established pursuant to resolutions
1267 (1999) and 1989 (2011) to update the Security Council on the implementation of this
resolution as part of its regular oral reports to the Council on the state of the overall work of the
Committee and the Monitoring Team;
“31. Decides to remain actively seized of the matter.”

For information media. Not an official record.
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Rome Statute
of the International
Criminal Court
Text of the Rome Statute circulated as
document A/CONF.183/9 of 17 July 1998
and corrected by process-verbaux of 10
November 1998, 12 July 1999, 30 November
1999, 8 May 2000, 17 January 2001 and 16
January 2002. The Statute entered into force
on 1 July 2002.
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Rome Statute of the International Criminal Court
3.
(f)
‘Forced pregnancy’ means the unlawful confinement of a woman forcibly
made pregnant, with the intent of affecting the ethnic composition of any
population or carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting national laws
relating to pregnancy;
(g)
‘Persecution’ means the intentional and severe deprivation of fundamental
rights contrary to international law by reason of the identity of the group
or collectivity;
(h)
‘The crime of apartheid’ means inhumane acts of a character similar to
those referred to in paragraph 1, committed in the context of an
institutionalized regime of systematic oppression and domination by one
racial group over any other racial group or groups and committed with the
intention of maintaining that regime;
(i)
‘Enforced disappearance of persons’ means the arrest, detention or
abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization, followed by a refusal to
acknowledge that deprivation of freedom or to give information on the
fate or whereabouts of those persons, with the intention of removing them
from the protection of the law for a prolonged period of time.
For the purpose of this Statute, it is understood that the term ‘gender ’ refers to the
two sexes, male and female, within the context of society. The term ‘gender ’ does
not indicate any meaning different from the above.
Article 8
War crimes
1.
The Court shall have jurisdiction in respect of war crimes in particular when
committed as part of a plan or policy or as part of a large-scale commission of such
crimes.
2.
For the purpose of this Statute, ‘war crimes’ means:
(a)
Grave breaches of the Geneva Conventions of 12 August 1949, namely,
any of the following acts against persons or property protected under the
provisions of the relevant Geneva Convention:
(i)
Wilful killing;
(ii)
Torture or inhuman treatment, including biological experiments;
(iii)
Wilfully causing great suffering, or serious injury to body or health;
(iv)
Extensive destruction and appropriation of property, not justified by
military necessity and carried out unlawfully and wantonly;
(v)
Compelling a prisoner of war or other protected person to serve in
the forces of a hostile Power;
5
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Rome Statute of the International Criminal Court
(vi)
Wilfully depriving a prisoner of war or other protected person of the
rights of fair and regular trial;
(vii)
Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b)
Other serious violations of the laws and customs applicable in
international armed conflict, within the established framework of
international law, namely, any of the following acts:
(i)
Intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in
hostilities;
(ii)
Intentionally directing attacks against civilian objects, that is,
objects which are not military objectives;
(iii)
Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance
or peacekeeping mission in accordance with the Charter of the
United Nations, as long as they are entitled to the protection
given to civilians or civilian objects under the international law
of armed conflict;
(iv)
Intentionally launching an attack in the knowledge that such
attack will cause incidental loss of life or injury to civilians or
damage to civilian objects or widespread, long-term and severe
damage to the natural environment which would be clearly
excessive in relation to the concrete and direct overall military
advantage anticipated;
(v)
Attacking or bombarding, by whatever means, towns, villages,
dwellings or buildings which are undefended and which are not
military objectives;
(vi)
Killing or wounding a combatant who, having laid down his arms or
having no longer means of defence, has surrendered at discretion;
(vii)
Making improper use of a flag of truce, of the flag or of the
military insignia and uniform of the enemy or of the United
Nations, as well as of the distinctive emblems of the Geneva
Conventions, resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the Occupying Power of parts
of its own civilian population into the territory it occupies, or the
deportation or transfer of all or parts of the population of the
occupied territory within or outside this territory;
(ix)
Intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded
are collected, provided they are not military objectives;
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Rome Statute of the International Criminal Court
(x)
Subjecting persons who are in the power of an adverse party to
physical mutilation or to medical or scientific experiments of any
kind which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his or
her interest, and which cause death to or seriously endanger the
health of such person or persons;
(xi)
Killing or wounding treacherously individuals belonging to the
hostile nation or army;
(xii)
Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such destruction
or seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the
rights and actions of the nationals of the hostile party;
(xv)
Compelling the nationals of the hostile party to take part in the
operations of war directed against their own country, even if they
were in the belligerent's service before the commencement of the
war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all
analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in the human body,
such as bullets with a hard envelope which does not entirely cover
the core or is pierced with incisions;
(xx)
Employing weapons, projectiles and material and methods of
warfare which are of a nature to cause superfluous injury or
unnecessary suffering or which are inherently indiscriminate in
violation of the international law of armed conflict, provided
that such weapons, projectiles and material and methods of
warfare are the subject of a comprehensive prohibition and are
included in an annex to this Statute, by an amendment in
accordance with the relevant provisions set forth in articles 121
and 123;
(xxi) Committing outrages upon personal
humiliating and degrading treatment;
dignity,
in
particular
(xxii) Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced
sterilization, or any other form of sexual violence also constituting a
grave breach of the Geneva Conventions;
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Rome Statute of the International Criminal Court
(xxiii) Utilizing the presence of a civilian or other protected person to
render certain points, areas or military forces immune from military
operations;
(xxiv) Intentionally directing attacks against buildings, material, medical
units and transport, and personnel using the distinctive emblems of
the Geneva Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare
by depriving them of objects indispensable to their survival,
including wilfully impeding relief supplies as provided for under the
Geneva Conventions;
(xxvi) Conscripting or enlisting children under the age of fifteen years into
the national armed forces or using them to participate actively in
hostilities.
(c)
In the case of an armed conflict not of an international character, serious
violations of article 3 common to the four Geneva Conventions of 12
August 1949, namely, any of the following acts committed against persons
taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by
sickness, wounds, detention or any other cause:
(i)
Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(ii)
Committing outrages upon personal
humiliating and degrading treatment;
(iii)
Taking of hostages;
(iv)
The passing of sentences and the carrying out of executions
without previous judgement pronounced by a regularly constituted
court, affording all judicial guarantees which are generally
recognized as indispensable.
dignity,
in
particular
(d)
Paragraph 2 (c) applies to armed conflicts not of an international character
and thus does not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence or other acts
of a similar nature.
(e)
Other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the established
framework of international law, namely, any of the following acts:
(i)
Intentionally directing attacks against the civilian population as
such or against individual civilians not taking direct part in
hostilities;
8
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Rome Statute of the International Criminal Court
(ii)
Intentionally directing attacks against buildings, material, medical
units and transport, and personnel using the distinctive emblems of
the Geneva Conventions in conformity with international law;
(iii)
Intentionally directing attacks against personnel, installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United
Nations, as long as they are entitled to the protection given to
civilians or civilian objects under the international law of armed
conflict;
(iv)
Intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded
are collected, provided they are not military objectives;
(v)
Pillaging a town or place, even when taken by assault;
(vi)
Committing rape, sexual slavery, enforced prostitution, forced
pregnancy, as defined in article 7, paragraph 2 (f), enforced
sterilization, and any other form of sexual violence also constituting
a serious violation of article 3 common to the four Geneva
Conventions;
(vii)
Conscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in
hostilities;
(viii) Ordering the displacement of the civilian population for reasons
related to the conflict, unless the security of the civilians involved or
imperative military reasons so demand;
(ix)
Killing or wounding treacherously a combatant adversary;
(x)
Declaring that no quarter will be given;
(xi)
Subjecting persons who are in the power of another party to the
conflict to physical mutilation or to medical or scientific experiments
of any kind which are neither justified by the medical, dental or
hospital treatment of the person concerned nor carried out in his or
her interest, and which cause death to or seriously endanger the
health of such person or persons;
(xii)
Destroying or seizing the property of an adversary unless such
destruction or seizure be imperatively demanded by the necessities
of the conflict;
9
121
Rome Statute of the International Criminal Court
(f)
3.
Paragraph 2 (e) applies to armed conflicts not of an international
character and thus does not apply to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence or other
acts of a similar nature. It applies to armed conflicts that take place in the
territory of a State when there is protracted armed conflict between
governmental authorities and organized armed groups or between such
groups.
Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a Government
to maintain or re-establish law and order in the State or to defend the unity and
territorial integrity of the State, by all legitimate means.
Article 9
Elements of Crimes
1.
Elements of Crimes shall assist the Court in the interpretation and application of
articles 6, 7 and 8. They shall be adopted by a two-thirds majority of the members
of the Assembly of States Parties.
2.
Amendments to the Elements of Crimes may be proposed by:
(a)
Any State Party;
(b)
The judges acting by an absolute majority;
(c)
The Prosecutor.
Such amendments shall be adopted by a two-thirds majority of the members of
the Assembly of States Parties.
3.
The Elements of Crimes and amendments thereto shall be consistent with this
Statute.
Article 10
Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or
developing rules of international law for purposes other than this Statute.
Article 11
Jurisdiction ratione temporis
1.
The Court has jurisdiction only with respect to crimes committed after the entry
into force of this Statute.
2.
If a State becomes a Party to this Statute after its entry into force, the Court may
exercise its jurisdiction only with respect to crimes committed after the entry into
force of this Statute for that State, unless that State has made a declaration under
article 12, paragraph 3.
10
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18 USC 2314
NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 113 - STOLEN PROPERTY
§ 2314. Transportation of stolen goods, securities, moneys, fraudulent State tax stamps,
or articles used in counterfeiting
Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares,
merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been
stolen, converted or taken by fraud; or
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining
money or property by means of false or fraudulent pretenses, representations, or promises,
transports or causes to be transported, or induces any person or persons to travel in, or to be
transported in interstate or foreign commerce in the execution or concealment of a scheme or
artifice to defraud that person or those persons of money or property having a value of $5,000 or
more; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any
falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have
been falsely made, forged, altered, or counterfeited; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any
traveler’s check bearing a forged countersignature; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool,
implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting
any security or tax stamps, or any part thereof—
Shall be fined under this title or imprisoned not more than ten years, or both.
This section shall not apply to any falsely made, forged, altered, counterfeited or spurious
representation of an obligation or other security of the United States, or of an obligation, bond,
certificate, security, treasury note, bill, promise to pay or bank note issued by any foreign
government. This section also shall not apply to any falsely made, forged, altered, counterfeited,
or spurious representation of any bank note or bill issued by a bank or corporation of any foreign
country which is intended by the laws or usage of such country to circulate as money.
(June 25, 1948, ch. 645, 62 Stat. 806; May 24, 1949, ch. 139, § 45, 63 Stat. 96; July 9, 1956, ch. 519, 70
Stat. 507; Pub. L. 87–371, § 2, Oct. 4, 1961, 75 Stat. 802; Pub. L. 90–535, Sept. 28, 1968, 82 Stat. 885;
Pub. L. 100–690, title VII, §§ 7057, 7080, Nov. 18, 1988, 102 Stat. 4402, 4406; Pub. L. 101–647, title
XII, § 1208, Nov. 29, 1990, 104 Stat. 4832; Pub. L. 103–322, title XXXIII, § 330016(1)(K), (L), Sept. 13,
1994, 108 Stat. 2147.)
Historical and Revision Notes
1948 Act
Based on title 18, U.S.C., 1940 ed., §§ 413, 415, 418, 418a, 419 (May 22, 1934, ch. 333, §§ 1, 3, 6, 48 Stat. 794, 795;
May 22, 1934, ch. 333, § 7, as added Aug. 3, 1939, ch. 413, § 5, 53 Stat. 1179; May 22, 1934, ch. 333, § 7, renumbered
§ 8 by Aug. 3, 1939, ch. 413, § 6, 53 Stat. 1179; Aug. 3, 1939, ch. 413, §§ 1, 4, 5, 53 Stat. 1178, 1179).
Section consolidates sections 413, 415, 417, 418, 418a, and 419 of title 18, U.S.C., 1940 ed.
Words “or with intent to steal or purloin, knowing the same to have been so stolen, converted, or taken” were omitted
as surplusage, since property so “taken” is “stolen,” and insertion of word “knowingly” after “Whoever” at beginning
of section renders such omission possible.
123
-1-
18 USC 2314
NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
Reference to persons causing or procuring was omitted as unnecessary in view of definition of “principal” in section
2 of this title.
Section 413 of title 18, U.S.C., 1940 ed., providing the short title “National Stolen Property Act,” was omitted as not
appropriate in a revision.
Section 414 of title 18, U.S.C., 1940 ed., containing definitions of “interstate or foreign commerce,” “securities,” and
“money,” is incorporated in sections 10 and 2311 of this title.
Section 417 of title 18, U.S.C., 1940 ed., relating to indictments and determination of “value” of goods, wares,
merchandise, securities, and money referred to in indictments, is also incorporated in section 2311 of this title.
Section 418 of title 18, U.S.C., 1940 ed., relating to venue, was omitted as completely covered by section 3237 of
this title.
Section 418a of title 18, U.S.C., 1940 ed., relating to conspiracy, was omitted as covered by section 371 of this title,
the general conspiracy section.
Section 419 of title 18, U.S.C., 1940 ed., providing that nothing contained in the National Stolen Property Act should be
construed to repeal, modify, or amend any part of the National Motor Vehicle Theft Act, was omitted as unnecessary,
in view of this revision and reenactment of the provisions of the latter act (sections 10, 2311–2313 of this title).
Changes were made in phraseology and arrangement.
1949 Act
This amendment [see section 45] restates and clarifies the first paragraph of section 2314 of title 18, U.S.C., to conform
to the original law upon which the section is based.
Amendments
1994—Pub. L. 103–322, § 330016(1)(L), substituted “fined under this title” for “fined not more than $10,000” in
penultimate par.
Pub. L. 103–322, § 330016(1)(K), which directed the amendment of this section by striking “not more than $5,000”
and inserting “under this title”, could not be executed because the phrase “not more than $5,000” did not appear in text.
1990—Pub. L. 101–647 inserted “or foreign” after “interstate” in second par.
1988—Pub. L. 100–690, § 7057(a), substituted “transports, transmits, or transfers” for “transports” in first par.
Pub. L. 100–690, § 7080, inserted “or persons” after “any person” and “or those persons” after “that person” in second
par.
Pub. L. 100–690, § 7057(b), struck out “or by a bank or corporation of any foreign country” after “foreign government”
in last par. and inserted at end “This section also shall not apply to any falsely made, forged, altered, counterfeited,
or spurious representation of any bank note or bill issued by a bank or corporation of any foreign country which is
intended by the laws or usage of such country to circulate as money.”
1968—Pub. L. 90–535 prohibited transportation with unlawful or fraudulent intent in interstate or foreign commerce
of traveler’s checks bearing forged countersignatures.
1961—Pub. L. 87–371 inserted “or tax stamps” after “securities” in third par. and after “security” in fourth par., and
“fraudulent State tax stamps,” in section catchline.
1956—Act July 9, 1956, inserted par. relating to interstate transportation of persons in schemes to defraud.
1949—Act May 24, 1949, substituted “knowing the same to have been stolen, converted or taken by fraud” for
“theretofore stolen, converted, or taken by fraud” in first par.
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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 113 - STOLEN PROPERTY
§ 2315. Sale or receipt of stolen goods, securities, moneys, or fraudulent State tax
stamps
Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or
merchandise, securities, or money of the value of $5,000 or more, or pledges or accepts as security
for a loan any goods, wares, or merchandise, or securities, of the value of $500 or more, which
have crossed a State or United States boundary after being stolen, unlawfully converted, or taken,
knowing the same to have been stolen, unlawfully converted, or taken; or
Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any falsely made,
forged, altered, or counterfeited securities or tax stamps, or pledges or accepts as security for a loan
any falsely made, forged, altered, or counterfeited securities or tax stamps, moving as, or which
are a part of, or which constitute interstate or foreign commerce, knowing the same to have been
so falsely made, forged, altered, or counterfeited; or
Whoever receives in interstate or foreign commerce, or conceals, stores, barters, sells, or disposes
of, any tool, implement, or thing used or intended to be used in falsely making, forging, altering,
or counterfeiting any security or tax stamp, or any part thereof, moving as, or which is a part of,
or which constitutes interstate or foreign commerce, knowing that the same is fitted to be used,
or has been used, in falsely making, forging, altering, or counterfeiting any security or tax stamp,
or any part thereof—
Shall be fined under this title or imprisoned not more than ten years, or both.
This section shall not apply to any falsely made, forged, altered, counterfeited, or spurious
representation of an obligation or other security of the United States or of an obligation, bond,
certificate, security, treasury note, bill, promise to pay, or bank note, issued by any foreign
government. This section also shall not apply to any falsely made, forged, altered, counterfeited,
or spurious representation of any bank note or bill issued by a bank or corporation of any foreign
country which is intended by the laws or usage of such country to circulate as money.
For purposes of this section, the term “State” includes a State of the United States, the District of
Columbia, and any commonwealth, territory, or possession of the United States.
(June 25, 1948, ch. 645, 62 Stat. 806; Pub. L. 87–371, § 3, Oct. 4, 1961, 75 Stat. 802; Pub. L. 99–646, §
76, Nov. 10, 1986, 100 Stat. 3618; Pub. L. 100–690, title VII, §§ 7048, 7057 (b), Nov. 18, 1988, 102 Stat.
4401, 4402; Pub. L. 101–647, title XII, § 1205(m), Nov. 29, 1990, 104 Stat. 4831; Pub. L. 103–322, title
XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)
Historical and Revision Notes
Based on title 18, U.S.C., 1940 ed., § 416 (May 22, 1934, ch. 333, § 4, 48 Stat. 795; Aug. 3, 1939, ch. 413, § 2, 53
Stat. 1178).
(See reviser’s notes under sections 10, 2311 and 2314 of this title for explanation of consolidation or omission of other
sections of title 18, U.S.C., 1940 ed., which were derived from the National Stolen Property Act.)
Minor changes were made in phraseology.
Amendments
1994—Pub. L. 103–322 substituted “fined under this title” for “fined not more than $10,000” in fourth par.
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1990—Pub. L. 101–647 inserted par. at end defining “State”.
1988—Pub. L. 100–690, § 7048, substituted “moving as, or which are a part of, or which constitute interstate or foreign
commerce” for “which have crossed a State or United States boundary after being stolen, unlawfully converted, or
taken” in second par.
Pub. L. 100–690, § 7057(b), struck out “or by a bank or corporation of any foreign country” after “foreign government”
in last par. and inserted at end “This section also shall not apply to any falsely made, forged, altered, counterfeited,
or spurious representation of any bank note or bill issued by a bank or corporation of any foreign country which is
intended by the laws or usage of such country to circulate as money.”
1986—Pub. L. 99–646 substituted “receives, possesses, conceals” for “receives, conceals” and “which have crossed a
State or United States boundary after being stolen, unlawfully converted, or taken” for “moving as, or which are part
of, or which constitute interstate or foreign commerce” in first and second pars.
1961—Pub. L. 87–371 inserted “or tax stamps” after “securities”, wherever appearing, in second par., and “or tax
stamp” after “security”, wherever appearing, in third par., and substituted “moneys, or fraudulent State tax stamps”
for “or monies” in section catchline.
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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 31 - EMBEZZLEMENT AND THEFT
§ 668. Theft of major artwork
(a) Definitions.— In this section—
(1) “museum” means an organized and permanent institution, the activities of which affect
interstate or foreign commerce, that—
(A) is situated in the United States;
(B) is established for an essentially educational or aesthetic purpose;
(C) has a professional staff; and
(D) owns, utilizes, and cares for tangible objects that are exhibited to the public on a regular
schedule.
(2) “object of cultural heritage” means an object that is—
(A) over 100 years old and worth in excess of $5,000; or
(B) worth at least $100,000.
(b) Offenses.— A person who—
(1) steals or obtains by fraud from the care, custody, or control of a museum any object of cultural
heritage; or
(2) knowing that an object of cultural heritage has been stolen or obtained by fraud, if in fact the
object was stolen or obtained from the care, custody, or control of a museum (whether or not that
fact is known to the person), receives, conceals, exhibits, or disposes of the object,
shall be fined under this title, imprisoned not more than 10 years, or both.
(Added Pub. L. 103–322, title XXXII, § 320902(a), Sept. 13, 1994, 108 Stat. 2123; amended Pub. L.
104–294, title VI, § 604(b)(18), Oct. 11, 1996, 110 Stat. 3507.)
Amendments
1996—Subsec. (a). Pub. L. 104–294 designated first and second pars. beginning with quotation mark as pars. (1) and
(2), respectively, and made technical amendment to provisions appearing in original.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104–294 effective Sept. 13, 1994, see section 604(d) of Pub. L. 104–294, set out as a note
under section 13 of this title.
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TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 95 - RACKETEERING
§ 1956. Laundering of monetary instruments
(a) (1) Whoever, knowing that the property involved in a financial transaction represents the proceeds
of some form of unlawful activity, conducts or attempts to conduct such a financial transaction
which in fact involves the proceeds of specified unlawful activity—
(A) (i) with the intent to promote the carrying on of specified unlawful activity; or
(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of
the Internal Revenue Code of 1986; or
(B) knowing that the transaction is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control
of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice the value of the property
involved in the transaction, whichever is greater, or imprisonment for not more than twenty
years, or both. For purposes of this paragraph, a financial transaction shall be considered to
be one involving the proceeds of specified unlawful activity if it is part of a set of parallel or
dependent transactions, any one of which involves the proceeds of specified unlawful activity,
and all of which are part of a single plan or arrangement.
(2) Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a
monetary instrument or funds from a place in the United States to or through a place outside the
United States or to a place in the United States from or through a place outside the United States—
(A) with the intent to promote the carrying on of specified unlawful activity; or
(B) knowing that the monetary instrument or funds involved in the transportation,
transmission, or transfer represent the proceeds of some form of unlawful activity and knowing
that such transportation, transmission, or transfer is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the ownership, or the control
of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice the value of the monetary
instrument or funds involved in the transportation, transmission, or transfer, whichever is
greater, or imprisonment for not more than twenty years, or both. For the purpose of the offense
described in subparagraph (B), the defendant’s knowledge may be established by proof that
a law enforcement officer represented the matter specified in subparagraph (B) as true, and
the defendant’s subsequent statements or actions indicate that the defendant believed such
representations to be true.
(3) Whoever, with the intent—
(A) to promote the carrying on of specified unlawful activity;
(B) to conceal or disguise the nature, location, source, ownership, or control of property
believed to be the proceeds of specified unlawful activity; or
(C) to avoid a transaction reporting requirement under State or Federal law,
conducts or attempts to conduct a financial transaction involving property represented to be the
proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful
activity, shall be fined under this title or imprisoned for not more than 20 years, or both. For
purposes of this paragraph and paragraph (2), the term “represented” means any representation
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made by a law enforcement officer or by another person at the direction of, or with the approval
of, a Federal official authorized to investigate or prosecute violations of this section.
(b) Penalties.—
(1) In general.— Whoever conducts or attempts to conduct a transaction described in subsection
(a)(1) or (a)(3), or section 1957, or a transportation, transmission, or transfer described in
subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of—
(A) the value of the property, funds, or monetary instruments involved in the transaction; or
(B) $10,000.
(2) Jurisdiction over foreign persons.— For purposes of adjudicating an action filed or
enforcing a penalty ordered under this section, the district courts shall have jurisdiction over any
foreign person, including any financial institution authorized under the laws of a foreign country,
against whom the action is brought, if service of process upon the foreign person is made under
the Federal Rules of Civil Procedure or the laws of the country in which the foreign person is
found, and—
(A) the foreign person commits an offense under subsection (a) involving a financial
transaction that occurs in whole or in part in the United States;
(B) the foreign person converts, to his or her own use, property in which the United States
has an ownership interest by virtue of the entry of an order of forfeiture by a court of the
United States; or
(C) the foreign person is a financial institution that maintains a bank account at a financial
institution in the United States.
(3) Court authority over assets.— A court may issue a pretrial restraining order or take any
other action necessary to ensure that any bank account or other property held by the defendant in
the United States is available to satisfy a judgment under this section.
(4) Federal receiver.—
(A) In general.— A court may appoint a Federal Receiver, in accordance with subparagraph
(B) of this paragraph, to collect, marshal, and take custody, control, and possession of all
assets of the defendant, wherever located, to satisfy a civil judgment under this subsection, a
forfeiture judgment under section 981 or 982, or a criminal sentence under section 1957 or
subsection (a) of this section, including an order of restitution to any victim of a specified
unlawful activity.
(B) Appointment and authority.— A Federal Receiver described in subparagraph (A)—
(i) may be appointed upon application of a Federal prosecutor or a Federal or State
regulator, by the court having jurisdiction over the defendant in the case;
(ii) shall be an officer of the court, and the powers of the Federal Receiver shall include
the powers set out in section 754 of title 28, United States Code; and
(iii) shall have standing equivalent to that of a Federal prosecutor for the purpose of
submitting requests to obtain information regarding the assets of the defendant—
(I) from the Financial Crimes Enforcement Network of the Department of the
Treasury; or
(II) from a foreign country pursuant to a mutual legal assistance treaty, multilateral
agreement, or other arrangement for international law enforcement assistance,
provided that such requests are in accordance with the policies and procedures of the
Attorney General.
(c) As used in this section—
(1) the term “knowing that the property involved in a financial transaction represents the proceeds
of some form of unlawful activity” means that the person knew the property involved in the
transaction represented proceeds from some form, though not necessarily which form, of activity
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that constitutes a felony under State, Federal, or foreign law, regardless of whether or not such
activity is specified in paragraph (7);
(2) the term “conducts” includes initiating, concluding, or participating in initiating, or concluding
a transaction;
(3) the term “transaction” includes a purchase, sale, loan, pledge, gift, transfer, delivery, or other
disposition, and with respect to a financial institution includes a deposit, withdrawal, transfer
between accounts, exchange of currency, loan, extension of credit, purchase or sale of any stock,
bond, certificate of deposit, or other monetary instrument, use of a safe deposit box, or any other
payment, transfer, or delivery by, through, or to a financial institution, by whatever means effected;
(4) the term “financial transaction” means
(A) a transaction which in any way or degree affects interstate or foreign commerce
(i) involving the movement of funds by wire or other means or
(ii) involving one or more monetary instruments, or
(iii) involving the transfer of title to any real property, vehicle, vessel, or aircraft, or
(B) a transaction involving the use of a financial institution which is engaged in, or the
activities of which affect, interstate or foreign commerce in any way or degree;
(5) the term “monetary instruments” means
(i) coin or currency of the United States or of any other country, travelers’ checks,
personal checks, bank checks, and money orders, or
(ii) investment securities or negotiable instruments, in bearer form or otherwise in such
form that title thereto passes upon delivery;
(6) the term “financial institution” includes—
(A) any financial institution, as defined in section 5312 (a)(2) of title 31, United States Code,
or the regulations promulgated thereunder; and
(B) any foreign bank, as defined in section 1 of the International Banking Act of 1978 (12
U.S.C. 3101);
(7) the term “specified unlawful activity” means—
(A) any act or activity constituting an offense listed in section 1961 (1) of this title except an
act which is indictable under subchapter II of chapter 53 of title 31;
(B) with respect to a financial transaction occurring in whole or in part in the United States,
an offense against a foreign nation involving—
(i) the manufacture, importation, sale, or distribution of a controlled substance (as such
term is defined for the purposes of the Controlled Substances Act);
(ii) murder, kidnapping, robbery, extortion, destruction of property by means of
explosive or fire, or a crime of violence (as defined in section 16);
(iii) fraud, or any scheme or attempt to defraud, by or against a foreign bank (as defined
in paragraph 7 of section 1(b) of the International Banking Act of 1978)); 1
(iv) bribery of a public official, or the misappropriation, theft, or embezzlement of public
funds by or for the benefit of a public official;
(v) smuggling or export control violations involving—
(I) an item controlled on the United States Munitions List established under section
38 of the Arms Export Control Act (22 U.S.C. 2778); or
(II) an item controlled under regulations under the Export Administration
Regulations (15 C.F.R. Parts 730–774);
(vi) an offense with respect to which the United States would be obligated by a
multilateral treaty, either to extradite the alleged offender or to submit the case for
prosecution, if the offender were found within the territory of the United States; or
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(vii) trafficking in persons, selling or buying of children, sexual exploitation of children,
or transporting, recruiting or harboring a person, including a child, for commercial sex
acts;
(C) any act or acts constituting a continuing criminal enterprise, as that term is defined in
section 408 of the Controlled Substances Act (21 U.S.C. 848);
(D) an offense under section 32 (relating to the destruction of aircraft), section 37 (relating to
violence at international airports), section 115 (relating to influencing, impeding, or retaliating
against a Federal official by threatening or injuring a family member), section 152 (relating
to concealment of assets; false oaths and claims; bribery), section 175c (relating to the
variola virus), section 215 (relating to commissions or gifts for procuring loans), section
351 (relating to congressional or Cabinet officer assassination), any of sections 500 through
503 (relating to certain counterfeiting offenses), section 513 (relating to securities of States
and private entities), section 541 (relating to goods falsely classified), section 542 (relating
to entry of goods by means of false statements), section 545 (relating to smuggling goods
into the United States), section 549 (relating to removing goods from Customs custody),
section 554 (relating to smuggling goods from the United States), section 641 (relating
to public money, property, or records), section 656 (relating to theft, embezzlement, or
misapplication by bank officer or employee), section 657 (relating to lending, credit, and
insurance institutions), section 658 (relating to property mortgaged or pledged to farm credit
agencies), section 666 (relating to theft or bribery concerning programs receiving Federal
funds), section 793, 794, or 798 (relating to espionage), section 831 (relating to prohibited
transactions involving nuclear materials), section 844 (f) or (i) (relating to destruction
by explosives or fire of Government property or property affecting interstate or foreign
commerce), section 875 (relating to interstate communications), section 922 (l) (relating to the
unlawful importation of firearms), section 924 (n) (relating to firearms trafficking), section
956 (relating to conspiracy to kill, kidnap, maim, or injure certain property in a foreign
country), section 1005 (relating to fraudulent bank entries), 1006 2 (relating to fraudulent
Federal credit institution entries), 1007 2 (relating to Federal Deposit Insurance transactions),
1014 2 (relating to fraudulent loan or credit applications), section 1030 (relating to computer
fraud and abuse), 1032 2 (relating to concealment of assets from conservator, receiver, or
liquidating agent of financial institution), section 1111 (relating to murder), section 1114
(relating to murder of United States law enforcement officials), section 1116 (relating to
murder of foreign officials, official guests, or internationally protected persons), section 1201
(relating to kidnaping), section 1203 (relating to hostage taking), section 1361 (relating to
willful injury of Government property), section 1363 (relating to destruction of property
within the special maritime and territorial jurisdiction), section 1708 (theft from the mail),
section 1751 (relating to Presidential assassination), section 2113 or 2114 (relating to bank
and postal robbery and theft), section 2252A (relating to child pornography) where the child
pornography contains a visual depiction of an actual minor engaging in sexually explicit
conduct, section 2260 (production of certain child pornography for importation into the
United States), section 2280 (relating to violence against maritime navigation), section 2281
(relating to violence against maritime fixed platforms), section 2319 (relating to copyright
infringement), section 2320 (relating to trafficking in counterfeit goods and services), section
2332 (relating to terrorist acts abroad against United States nationals), section 2332a (relating
to use of weapons of mass destruction), section 2332b (relating to international terrorist acts
transcending national boundaries), section 2332g (relating to missile systems designed to
destroy aircraft), section 2332h (relating to radiological dispersal devices), section 2339A
or 2339B (relating to providing material support to terrorists), section 2339C (relating to
financing of terrorism), or section 2339D (relating to receiving military-type training from
a foreign terrorist organization) of this title, section 46502 of title 49, United States Code, a
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felony violation of the Chemical Diversion and Trafficking Act of 1988 (relating to precursor
and essential chemicals), section 590 of the Tariff Act of 1930 (19 U.S.C. 1590) (relating to
aviation smuggling), section 422 of the Controlled Substances Act (relating to transportation
of drug paraphernalia), section 38 (c) (relating to criminal violations) of the Arms Export
Control Act, section 11 (relating to violations) of the Export Administration Act of 1979,
section 206 (relating to penalties) of the International Emergency Economic Powers Act,
section 16 (relating to offenses and punishment) of the Trading with the Enemy Act, any
felony violation of section 15 of the Food and Nutrition Act of 2008 (relating to supplemental
nutrition assistance program benefits fraud) involving a quantity of benefits having a value of
not less than $5,000, any violation of section 543(a)(1) of the Housing Act of 1949 (relating to
equity skimming), any felony violation of the Foreign Agents Registration Act of 1938, any
felony violation of the Foreign Corrupt Practices Act, or section 92 of the Atomic Energy Act
of 1954 (42 U.S.C. 2122) (relating to prohibitions governing atomic weapons) 3
environmental crimes
(E) a felony violation of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.),
the Ocean Dumping Act (33 U.S.C. 1401 et seq.), the Act to Prevent Pollution from Ships (33
U.S.C. 1901 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), or the Resources
Conservation and Recovery Act (42 U.S.C. 6901 et seq.); or
(F) any act or activity constituting an offense involving a Federal health care offense;
(8) the term “State” includes a State of the United States, the District of Columbia, and any
commonwealth, territory, or possession of the United States; and
(9) the term “proceeds” means any property derived from or obtained or retained, directly or
indirectly, through some form of unlawful activity, including the gross receipts of such activity.
(d) Nothing in this section shall supersede any provision of Federal, State, or other law imposing
criminal penalties or affording civil remedies in addition to those provided for in this section.
(e) Violations of this section may be investigated by such components of the Department of Justice
as the Attorney General may direct, and by such components of the Department of the Treasury as
the Secretary of the Treasury may direct, as appropriate, and, with respect to offenses over which
the Department of Homeland Security has jurisdiction, by such components of the Department of
Homeland Security as the Secretary of Homeland Security may direct, and, with respect to offenses
over which the United States Postal Service has jurisdiction, by the Postal Service. Such authority of the
Secretary of the Treasury, the Secretary of Homeland Security, and the Postal Service shall be exercised
in accordance with an agreement which shall be entered into by the Secretary of the Treasury, the
Secretary of Homeland Security, the Postal Service, and the Attorney General. Violations of this section
involving offenses described in paragraph (c)(7)(E) may be investigated by such components of the
Department of Justice as the Attorney General may direct, and the National Enforcement Investigations
Center of the Environmental Protection Agency.
(f) There is extraterritorial jurisdiction over the conduct prohibited by this section if—
(1) the conduct is by a United States citizen or, in the case of a non-United States citizen, the
conduct occurs in part in the United States; and
(2) the transaction or series of related transactions involves funds or monetary instruments of a
value exceeding $10,000.
(g) Notice of Conviction of Financial Institutions.— If any financial institution or any officer,
director, or employee of any financial institution has been found guilty of an offense under this section,
section 1957 or 1960 of this title, or section 5322 or 5324 of title 31, the Attorney General shall provide
written notice of such fact to the appropriate regulatory agency for the financial institution.
(h) Any person who conspires to commit any offense defined in this section or section 1957 shall
be subject to the same penalties as those prescribed for the offense the commission of which was the
object of the conspiracy.
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(i) Venue.—
(1) Except as provided in paragraph (2), a prosecution for an offense under this section or section
1957 may be brought in—
(A) any district in which the financial or monetary transaction is conducted; or
(B) any district where a prosecution for the underlying specified unlawful activity could
be brought, if the defendant participated in the transfer of the proceeds of the specified
unlawful activity from that district to the district where the financial or monetary transaction
is conducted.
(2) A prosecution for an attempt or conspiracy offense under this section or section 1957 may be
brought in the district where venue would lie for the completed offense under paragraph (1), or in
any other district where an act in furtherance of the attempt or conspiracy took place.
(3) For purposes of this section, a transfer of funds from 1 place to another, by wire or any other
means, shall constitute a single, continuing transaction. Any person who conducts (as that term is
defined in subsection (c)(2)) any portion of the transaction may be charged in any district in which
the transaction takes place.
Footnotes
1 So in original. The second closing parenthesis probably should not appear.
2 So in original. Probably should be preceded by “section”.
3 So in original. Probably should be followed by a semicolon.
(Added Pub. L. 99–570, title I, § 1352(a), Oct. 27, 1986, 100 Stat. 3207–18; amended Pub. L. 100–690,
title VI, §§ 6183, 6465, 6466, 6469 (a)(1), 6471 (a), (b), title VII, § 7031, Nov. 18, 1988, 102 Stat.
4354, 4375, 4377, 4378, 4398; Pub. L. 101–647, title I, §§ 105–108, title XII, § 1205(j), title XIV, §§
1402, 1404, title XXV, § 2506, title XXXV, § 3557, Nov. 29, 1990, 104 Stat. 4791, 4792, 4831, 4835,
4862, 4927; Pub. L. 102–550, title XV, §§ 1504(c), 1524, 1526 (a), 1527 (a), 1530, 1531, 1534, 1536,
Oct. 28, 1992, 106 Stat. 4055, 4064–4067; Pub. L. 103–322, title XXXII, § 320104(b), title XXXIII,
§§ 330008(2), 330011 (l), 330012, 330019, 330021 (1), Sept. 13, 1994, 108 Stat. 2111, 2142, 2145,
2146, 2149, 2150; Pub. L. 103–325, title IV, §§ 411(c)(2)(E), 413 (c)(1), (d), Sept. 23, 1994, 108 Stat.
2253–2255; Pub. L. 104–132, title VII, § 726, Apr. 24, 1996, 110 Stat. 1301; Pub. L. 104–191, title II, §
246, Aug. 21, 1996, 110 Stat. 2018; Pub. L. 104–294, title VI, §§ 601(f)(6), 604 (b)(38), Oct. 11, 1996,
110 Stat. 3499, 3509; Pub. L. 106–569, title VII, § 709(a), Dec. 27, 2000, 114 Stat. 3018; Pub. L. 107–56,
title III, §§ 315, 317, 318, 376, title VIII, § 805(b), title X, § 1004, Oct. 26, 2001, 115 Stat. 308, 310, 311,
342, 378, 392; Pub. L. 107–273, div. B, title IV, §§ 4002(a)(11), (b)(5), (c)(2), 4005 (d)(1), (e), Nov. 2,
2002, 116 Stat. 1807, 1809, 1812, 1813; Pub. L. 108–458, title VI, § 6909, Dec. 17, 2004, 118 Stat. 3774;
Pub. L. 109–164, title I, § 103(b), Jan. 10, 2006, 119 Stat. 3563; Pub. L. 109–177, title III, § 311(c), title
IV, §§ 403(b), (c)(1), 405, 406 (a)(2), 409, Mar. 9, 2006, 120 Stat. 242–244, 246; Pub. L. 110–234, title
IV, §§ 4002(b)(1)(B), (D), (2)(M), 4115 (c)(1)(A)(i), (B)(ii), May 22, 2008, 122 Stat. 1096, 1097, 1109;
Pub. L. 110–246, § 4(a), title IV, §§ 4002(b)(1)(B), (D), (2)(M), 4115 (c)(1)(A)(i), (B)(ii), June 18, 2008,
122 Stat. 1664, 1857, 1858, 1870; Pub. L. 110–358, title II, § 202, Oct. 8, 2008, 122 Stat. 4003; Pub. L.
111–21, § 2(f)(1), May 20, 2009, 123 Stat. 1618.)
References in Text
Sections 7201 and 7206 of the Internal Revenue Code of 1986, referred to in subsec. (a)(1)(A)(ii), are classified,
respectively, to sections 7201 and 7206 of Title 26, Internal Revenue Code.
The Federal Rules of Civil Procedure, referred to in subsec. (b)(2), are set out in the Appendix to Title 28, Judiciary
and Judicial Procedure.
The Controlled Substances Act, referred to in subsec. (c)(7)(B)(i), (D), is title II of Pub. L. 91–513, Oct. 27, 1970, 84
Stat. 1242, which is classified principally to subchapter I (§ 801 et seq.) of chapter 13 of Title 21, Food and Drugs.
Section 422 of the Act is classified to section 863 of Title 21. For complete classification of this Act to the Code, see
Short Title note set out under section 801 of Title 21 and Tables.
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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
The Chemical Diversion and Trafficking Act of 1988, referred to in subsec. (c)(7)(D), is subtitle A (§ 6051–6061) of
title VI of Pub. L. 100–690, Nov. 18, 1988, 102 Stat. 4312. For complete classification of subtitle A to the Code, see
Short Title of 1988 Amendment note set out under section 801 of Title 21, Food and Drugs, and Tables.
Section 38(c) of the Arms Export Control Act, referred to in subsec. (c)(7)(D), is classified to section 2778 (c) of Title
22, Foreign Relations and Intercourse.
Section 11 of the Export Administration Act of 1979, referred to in subsec. (c)(7)(D), is classified to section 2410 of
Title 50, Appendix, War and National Defense.
Section 206 of the International Emergency Economic Powers Act, referred to in subsec. (c)(7)(D), is classified to
section 1705 of Title 50.
Section 16 of the Trading with the Enemy Act, referred to in subsec. (c)(7)(D), is classified to section 16 of Title
50, Appendix.
Section 15 of the Food and Nutrition Act of 2008, referred to in subsec. (c)(7)(D), is classified to section 2024 of
Title 7, Agriculture.
Section 543(a)(1) of the Housing Act of 1949, referred to in subsec. (c)(7)(D), is classified to section 1490s (a)(1) of
Title 42, The Public Health and Welfare.
The Foreign Agents Registration Act of 1938, referred to in subsec. (c)(7)(D), is act June 8, 1938, ch. 327, 52 Stat.
631, which is classified generally to subchapter II (§ 611 et seq.) of chapter 11 of Title 22, Foreign Relations and
Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 611 of Title
22 and Tables.
The Foreign Corrupt Practices Act, referred to in subsec. (c)(7)(D), probably means the Foreign Corrupt Practices Act
of 1977, title I of Pub. L. 95–213, Dec. 19, 1977, 91 Stat. 1494, which enacted sections 78dd–1 to 78dd–3 of Title 15,
Commerce and Trade, and amended sections 78m and 78ff of Title 15. For complete classification of this Act to the
Code, see Short Title of 1977 Amendment note set out under section 78a of Title 15 and Tables.
The Federal Water Pollution Control Act, referred to in subsec. (c)(7)(E), is act June 30, 1948, ch. 758, as amended
generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 816, which is classified generally to chapter 26 (§ 1251 et
seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short Title
note set out under section 1251 of Title 33 and Tables.
The Ocean Dumping Act, referred to in subsec. (c)(7)(E), probably means title I of the Marine Protection, Research,
and Sanctuaries Act of 1972, Pub. L. 92–532, Oct. 23, 1972, 86 Stat. 1053, which is classified generally to subchapter
I (§ 1411 et seq.) of chapter 27 of Title 33. For complete classification of title I to the Code, see Tables.
The Act to Prevent Pollution from Ships, referred to in subsec. (c)(7)(E), is Pub. L. 96–478, Oct. 21, 1980, 94 Stat.
2297, which is classified principally to chapter 33 (§ 1901 et seq.) of Title 33. For complete classification of this Act
to the Code, see Short Title note set out under section 1901 of Title 33 and Tables.
The Safe Drinking Water Act, referred to in subsec. (c)(7)(E), is title XIV of act July 1, 1944, as added Dec. 16, 1974,
Pub. L. 93–523, § 2(a), 88 Stat. 1660, which is classified generally to subchapter XII (§ 300f et seq.) of chapter 6A
of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note
set out under section 201 of Title 42 and Tables.
The Resources Conservation and Recovery Act, referred to in subsec. (c)(7)(E), probably means the Resource
Conservation and Recovery Act of 1976, Pub. L. 94–580, Oct. 21, 1976, 90 Stat. 2796, which is classified generally
to chapter 82 (§ 6901 et seq.) of Title 42. For complete classification of this Act to the Code, see Short Title of 1976
Amendment note set out under section 6901 of Title 42 and Tables.
Codification
Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234
were repealed by section 4(a) of Pub. L. 110–246.
Amendments
2009—Subsec. (c)(9). Pub. L. 111–21 added par. (9).
2008—Subsec. (c)(7)(D). Pub. L. 110–358 inserted “section 2252A (relating to child pornography) where the child
pornography contains a visual depiction of an actual minor engaging in sexually explicit conduct, section 2260
(production of certain child pornography for importation into the United States),” before “section 2280”.
Pub. L. 110–246, § 4115(c)(1)(A)(i), (B)(ii), substituted “benefits” for “coupons”.
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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
Pub. L. 110–246, § 4002(b)(1)(B), (D), (2)(M), substituted “Food and Nutrition Act of 2008” for “Food Stamp Act of
1977” and “supplemental nutrition assistance program benefits” for “food stamp”.
2006—Subsec. (a)(1). Pub. L. 109–177, § 405, inserted last sentence.
Subsec. (b)(3), (4)(A). Pub. L. 109–177, § 406(a)(2), struck out “described in paragraph (2)” after “A court”.
Subsec. (c)(7)(B)(vii). Pub. L. 109–164 added cl. (vii).
Subsec. (c)(7)(D). Pub. L. 109–177, § 409, inserted “, section 2339C (relating to financing of terrorism), or section
2339D (relating to receiving military-type training from a foreign terrorist organization)” after “section 2339A or
2339B (relating to providing material support to terrorists)” and struck out “or” before “section 2339A or 2339B”.
Pub. L. 109–177, § 403(b), which directed amendment of subsec. (c)(7)(D) by substituting “any felony violation of
the Foreign Corrupt Practices Act” for “or any felony violation of the Foreign Corrupt Practices Act”, could not be
executed because of the amendment by Pub. L. 108–458, § 6909(3). See 2004 Amendment note below.
Pub. L. 109–177, § 311(c), inserted “section 554 (relating to smuggling goods from the United States),” before “section
641 (relating to public money, property, or records),”.
Subsec. (e). Pub. L. 109–177, § 403(c)(1), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as
follows: “Violations of this section may be investigated by such components of the Department of Justice as the
Attorney General may direct, and by such components of the Department of the Treasury as the Secretary of the
Treasury may direct, as appropriate and, with respect to offenses over which the United States Postal Service has
jurisdiction, by the Postal Service. Such authority of the Secretary of the Treasury and the Postal Service shall be
exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury, the Postal
Service, and the Attorney General. Violations of this section involving offenses described in paragraph (c)(7)(E) may
be investigated by such components of the Department of Justice as the Attorney General may direct, and the National
Enforcement Investigations Center of the Environmental Protection Agency.”
2004—Subsec. (c)(7)(D). Pub. L. 108–458, § 6909(3), struck out “or” after “any felony violation of the Foreign Agents
Registration Act of 1938,” and substituted “, or section 92 of the Atomic Energy Act of 1954 (42 U.S.C. 2122) (relating
to prohibitions governing atomic weapons)” for semicolon at end.
Pub. L. 108–458, § 6909(2), which directed the insertion of “section 2332g (relating to missile systems designed
to destroy aircraft), section 2332h (relating to radiological dispersal devices),” after “section 2332 (b) (relating to
international terrorist acts transcending national boundaries),” was executed by making the insertion after text which
contained the words “section 2332b” rather than “section 2332 (b)”, to reflect the probable intent of Congress.
Pub. L. 108–458, § 6909(1), inserted “section 175c (relating to the variola virus),” before “section 215”.
2002—Subsec. (c)(6)(B). Pub. L. 107–273, § 4005(d)(1), substituted semicolon for period at end.
Subsec. (c)(7)(B)(ii). Pub. L. 107–273, § 4002(b)(5)(A), realigned margins.
Subsec. (c)(7)(D). Pub. L. 107–273, § 4005(e), repealed Pub. L. 107–56, § 805(b). See 2001 Amendment note below.
Pub. L. 107–273, § 4002(c)(2), substituted “services),” for “services),,” and “Code,” for “Code,,”.
Pub. L. 107–273, § 4002(b)(5)(B), struck out “or” at end.
Pub. L. 107–273, § 4002(a)(11), made technical corrections to directory language of Pub. L. 104–132, § 726(2). See
1996 Amendment note below.
Subsec. (c)(7)(E). Pub. L. 107–273, § 4002(b)(5)(C), substituted “; or” for period at end.
Subsec. (c)(7)(F). Pub. L. 107–273, § 4002(b)(5)(D), substituted “any” for “Any” and semicolon for period at end.
2001—Subsec. (b). Pub. L. 107–56, § 317, inserted subsec. heading, designated existing provisions as par. (1), inserted
heading and inserted “, or section 1957” after “or (a)(3)” in introductory provisions, redesignated former pars. (1) and
(2) as subpars. (A) and (B), respectively, of par. (1), realigned margins, and added pars. (2) to (4).
Subsec. (c)(6). Pub. L. 107–56, § 318, added par. (6) and struck out former par. (6) which read as follows: “the term
‘financial institution’ has the definition given that term in section 5312 (a)(2) of title 31, United States Code, or the
regulations promulgated thereunder;”.
Subsec. (c)(7)(B). Pub. L. 107–56, § 315(1), substituted “destruction of property by means of explosive or fire, or a
crime of violence (as defined in section 16)” for “or destruction of property by means of explosive or fire” in cl. (ii),
inserted a closing parenthesis after “1978” in cl. (iii), and added cls. (iv) to (vi).
Subsec. (c)(7)(D). Pub. L. 107–56, § 376, inserted “or 2339B” after “2339A”. Pub. L. 107–56, § 805(b), which
amended subpar. (D) identically, was repealed by Pub. L. 107–273, § 4005(e).
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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
Pub. L. 107–56, § 315(2), inserted “section 541 (relating to goods falsely classified),” before “section 542”, “section
922 (l) (relating to the unlawful importation of firearms), section 924 (n) (relating to firearms trafficking),” before
“section 956”, “section 1030 (relating to computer fraud and abuse),” before “1032”, and “any felony violation of the
Foreign Agents Registration Act of 1938,” before “or any felony violation of the Foreign Corrupt Practices Act”.
Subsec. (i). Pub. L. 107–56, § 1004, added subsec. (i).
2000—Subsec. (c)(7)(D). Pub. L. 106–569 inserted “any violation of section 543(a)(1) of the Housing Act of 1949
(relating to equity skimming),” after “coupons having a value of not less than $5,000,”.
1996—Subsec. (c)(7)(B)(ii). Pub. L. 104–132, § 726(1), amended cl. (ii) generally. Prior to amendment, cl. (ii) read
as follows: “kidnapping, robbery, or extortion; or”.
Subsec. (c)(7)(B)(iii). Pub. L. 104–294, § 601(f)(6), struck out one closing parenthesis after “1978”.
Subsec. (c)(7)(D). Pub. L. 104–294, § 604(b)(38), amended directory language of Pub. L. 103–322, § 320104(b). See
1994 Amendment note below.
Pub. L. 104–132, § 726(2), as amended by Pub. L. 107–273, § 4002(a)(11), inserted “section 32 (relating to the
destruction of aircraft), section 37 (relating to violence at international airports), section 115 (relating to influencing,
impeding, or retaliating against a Federal official by threatening or injuring a family member),” after “an offense
under”, “section 351 (relating to congressional or Cabinet officer assassination),” after “section 215 (relating to
commissions or gifts for procuring loans),”, “section 831 (relating to prohibited transactions involving nuclear
materials), section 844 (f) or (i) (relating to destruction by explosives or fire of Government property or property
affecting interstate or foreign commerce),” after “798 (relating to espionage),”, “section 956 (relating to conspiracy
to kill, kidnap, maim, or injure certain property in a foreign country),” after “section 875 (relating to interstate
communications),”, “section 1111 (relating to murder), section 1114 (relating to murder of United States law
enforcement officials), section 1116 (relating to murder of foreign officials, official guests, or internationally protected
persons),” after “1032 (relating to concealment of assets from conservator, receiver, or liquidating agent of financial
institution),”, “section 1361 (relating to willful injury of Government property), section 1363 (relating to destruction
of property within the special maritime and territorial jurisdiction),” after “section 1203 (relating to hostage taking),”,
“section 1751 (relating to Presidential assassination),” after “1708 (theft from the mail),”, “section 2280 (relating to
violence against maritime navigation), section 2281 (relating to violence against maritime fixed platforms),” after
“2114 (relating to bank and postal robbery and theft),”, and substituted “section 2320” for “or section 2320” and
“, section 2332 (relating to terrorist acts abroad against United States nationals), section 2332a (relating to use of
weapons of mass destruction), section 2332b (relating to international terrorist acts transcending national boundaries),
or section 2339A (relating to providing material support to terrorists) of this title, section 46502 of title 49, United
States Code,” for “of this title”.
Subsec. (c)(7)(F). Pub. L. 104–191 added subpar. (F).
1994—Subsec. (a)(2). Pub. L. 103–325, § 413(c)(1)(A)(ii), substituted “transfer” for “transfer.” in concluding
provisions and two times in subpar. (B).
Pub. L. 103–322, § 330019(a)(3), and Pub. L. 103–325, § 413(c)(1)(A)(i), amended par. (2) identically, inserting “not
more than” before “$500,000” in concluding provisions.
Subsec. (b). Pub. L. 103–325, § 413(c)(1)(B), inserted “or (a)(3)” after “(a)(1)” and substituted “transfer” for “transfer.”
Subsec. (c)(7)(B)(ii). Pub. L. 103–322, § 330021(1), substituted “kidnapping” for “kidnaping”.
Subsec. (c)(7)(B)(iii). Pub. L. 103–322, § 330019(a)(1), and Pub. L. 103–325, § 413(c)(1)(C), each amended cl. (iii)
by inserting a closing parenthesis after “1978”.
Subsec. (c)(7)(D). Pub. L. 103–322, § 330019(b), and Pub. L. 103–325, § 413(c)(1)(D), amended subpar. (D)
identically, substituting “section 15 of the Food Stamp Act of 1977” for “section 9(c) of the Food Stamp Act of 1977”.
Pub. L. 103–322, § 330011(l), and Pub. L. 103–325, § 413(d), made identical amendments repealing Pub. L. 101–647,
§ 3557(2)(E). See 1990 Amendment note below.
Pub. L. 103–322, § 320104(b), as amended by Pub. L. 104–294, § 604(b)(38), substituted “section 2319 (relating to
copyright infringement), or section 2320 (relating to trafficking in counterfeit goods and services),” for “or section
2319 (relating to copyright infringement)”.
Subsec. (c)(7)(E). Pub. L. 103–322, § 330012, and Pub. L. 103–325, § 413(c)(1)(E), amended subpar. (E) identically,
striking out second period at end.
Subsec. (e). Pub. L. 103–322, § 330008(2), and Pub. L. 103–325, § 413(c)(1)(F), amended subsec. (e) identically,
substituting “Environmental Protection Agency” for “Evironmental Protection Agency”.
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Subsec. (g). Pub. L. 103–325, § 411(c)(2)(E), in subsec. (g) relating to notice of conviction of financial institutions,
substituted “section 5322 or 5324 of title 31” for “section 5322 of title 31”.
Pub. L. 103–322, § 330019(a)(2), and Pub. L. 103–325, § 413(c)(1)(G), made identical amendments redesignating
subsec. (g) relating to penalty for money laundering conspiracies as (h).
Subsec. (h). Pub. L. 103–322, § 330019(a)(2), and Pub. L. 103–325, § 413(c)(1)(G), made identical amendments
redesignating subsec. (g) relating to penalty for money laundering conspiracies as (h).
1992—Subsec. (a)(2). Pub. L. 102–550, § 1531(a), substituted “transportation, transmission, or transfer.” for
“transportation” wherever appearing in subpar. (B) and concluding provisions.
Subsec. (a)(3). Pub. L. 102–550, § 1531(b), in concluding provisions, substituted “property represented to be the
proceeds” for “property represented by a law enforcement officer to be the proceeds”.
Subsec. (b). Pub. L. 102–550, § 1531(a), substituted “transportation, transmission, or transfer.” for “transportation”
in introductory provisions.
Subsec. (c)(3). Pub. L. 102–550, § 1527(a)(2), inserted “use of a safe deposit box,” before “or any other payment”.
Subsec. (c)(4)(A). Pub. L. 102–550, § 1527(a)(1), added clause (iii), struck out “which in any way or degree affects
interstate or foreign commerce,” after “or aircraft,” and inserted “which in any way or degree affects interstate or
foreign commerce” after “(A) or transaction”.
Subsec. (c)(6). Pub. L. 102–550, § 1526(a), substituted “or the regulations” for “and the regulations”.
Subsec. (c)(7)(B). Pub. L. 102–550, § 1536, designated part of existing provisions as cl. (i) and added cls. (ii) and (iii).
Subsec. (c)(7)(D). Pub. L. 102–550, §§ 1524, 1534 (1), (2), struck out “1341 (relating to mail fraud) or section 1343
(relating to wire fraud) affecting a financial institution, section 1344 (relating to bank fraud),” after “hostage taking),”,
inserted “section 1708 (theft from the mail),” before “section 2113”, substituted “section 422 of the Controlled
Substances Act” for “section 1822 of the Mail Order Drug Paraphernalia Control Act (100 Stat. 3207–51; 21 U.S.C.
857)”, and struck out “or” before “section 16”.
Pub. L. 102–550, § 1534(3), which directed insertion of “, any felony violation of section 9(c) of the Food Stamp Act
of 1977 (relating to food stamp fraud) involving a quantity of coupons having a value of not less than $5,000, or any
felony violation of the Foreign Corrupt Practices Act” before semicolon, was executed by making insertion before
semicolon at end to reflect the probable intent of Congress.
Subsec. (g). Pub. L. 102–550, § 1530, added subsec. (g) relating to penalty for money laundering conspiracies.
Pub. L. 102–550, § 1504(c), added subsec. (g) relating to notice of conviction of financial institutions.
1990—Subsec. (a)(2). Pub. L. 101–647, § 108(1), inserted at end “For the purpose of the offense described in
subparagraph (B), the defendant’s knowledge may be established by proof that a law enforcement officer represented
the matter specified in subparagraph (B) as true, and the defendant’s subsequent statements or actions indicate that
the defendant believed such representations to be true.”
Subsec. (a)(3). Pub. L. 101–647, § 108(2), inserted “and paragraph (2)” after “this paragraph” in last sentence.
Subsec. (c)(1). Pub. L. 101–647, § 106, substituted “State, Federal, or foreign” for “State or Federal”.
Subsec. (c)(4). Pub. L. 101–647, § 1402, inserted “(A)” before “a transaction” the first place it appears, “(B)” before “a
transaction” the second place it appears, “(i)” before “involving” the first place it appears, and “(ii)” before “involving”
the second place it appears.
Subsec. (c)(5). Pub. L. 101–647, § 105, amended par. (5) generally. Prior to amendment, par. (5) read as follows: “the
term ‘monetary instruments’ means coin or currency of the United States or of any other country, travelers” checks,
personal checks, bank checks, money orders, investment securities in bearer form or otherwise in such form that title
thereto passes upon delivery, and negotiable instruments in bearer form or otherwise in such form that title thereto
passes upon delivery;”.
Subsec. (c)(7)(A). Pub. L. 101–647, § 3557(1), substituted “subchapter II of chapter 53 of title 31” for “the Currency
and Foreign Transactions Reporting Act”.
Subsec. (c)(7)(C). Pub. L. 101–647, § 1404(a)(1), struck out “or” at end.
Subsec. (c)(7)(D). Pub. L. 101–647, § 3557(2)(A)–(D), substituted “section 2113” for “or section 2113”, substituted
“theft), or” for “theft) of this title,”, inserted “of this title” after “2319 (relating to copyright infringement)”, and
substituted “paraphernalia” for “paraphenalia”.
Pub. L. 101–647, § 3557(2)(E), which directed the amendment of subpar. (D) by striking the final period, was repealed
by Pub. L. 103–322, § 330011(l), and Pub. L. 103–325, § 413(d).
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NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
Pub. L. 101–647, § 2506(2), inserted “section 1341 (relating to mail fraud) or section 1343 (relating to wire fraud)
affecting a financial institution,” after “section 1203 (relating to hostage taking),”.
Pub. L. 101–647, § 2506(1), inserted “section 1005 (relating to fraudulent bank entries), 1006 (relating to fraudulent
Federal credit institution entries), 1007 (relating to Federal Deposit Insurance transactions), 1014 (relating to fraudulent
loan or credit applications), 1032 (relating to concealment of assets from conservator, receiver, or liquidating agent of
financial institution),” after “section 875 (relating to interstate communications),”.
Pub. L. 101–647, § 1404(a)(2), inserted “; or” after “Trading with the Enemy Act” at end.
Pub. L. 101–647, § 107, substituted “a felony violation of the Chemical Diversion and Trafficking Act of 1988” for
“section 310 of the Controlled Substances Act (21 U.S.C. 830)”.
Subsec. (c)(7)(E). Pub. L. 101–647, § 1404(a)(2), amended par. (7) by inserting “; or” and subpar. (E) before the
period.
Subsec. (c)(8). Pub. L. 101–647, § 1205(j), added par. (8).
Subsec. (e). Pub. L. 101–647, § 1404(b), inserted at end “Violations of this section involving offenses described in
paragraph (c)(7)(E) may be investigated by such components of the Department of Justice as the Attorney General
may direct, and the National Enforcement Investigations Center of the Evironmental [sic] Protection Agency.”
1988—Subsec. (a)(1)(A). Pub. L. 100–690, § 6471(a), amended subpar. (A) generally, designating existing provisions
as cl. (i) and adding cl. (ii).
Subsec. (a)(2). Pub. L. 100–690, § 6471(b), substituted “transports, transmits, or transfers, or attempts to transport,
transmit, or transfer” for “transports or attempts to transport” in introductory provisions.
Subsec. (a)(3). Pub. L. 100–690, § 6465, added par. (3).
Subsec. (c)(7)(D). Pub. L. 100–690, § 7031, substituted “section 513” for “section 511” and “section 545” for “section
543” and inserted “section 657 (relating to lending, credit, and insurance institutions), section 658 (relating to property
mortgaged or pledged to farm credit agencies),”.
Pub. L. 100–690, § 6466, inserted “section 542 (relating to entry of goods by means of false statements),”, “section
549 (relating to removing goods from Customs custody),”, and “section 2319 (relating to copyright infringement),
section 310 of the Controlled Substances Act (21 U.S.C. 830) (relating to precursor and essential chemicals), section
590 of the Tariff Act of 1930 (19 U.S.C. 1590) (relating to aviation smuggling), section 1822 of the Mail Order Drug
Paraphernalia Control Act (100 Stat. 3207–51; 21 U.S.C. 857) (relating to transportation of drug paraphenalia [sic]),”.
Pub. L. 100–690, § 6183, substituted “section 38 (c) (relating to criminal violations) of the Arms Export Control Act,
section 11 (relating to violations) of the Export Administration Act of 1979, section 206 (relating to penalties) of the
International Emergency Economic Powers Act, or section 16 (relating to offenses and punishment) of the Trading
with the Enemy Act.” for “section 38 of the Arms Export Control Act (22 U.S.C. 2778), section 2 (relating to criminal
penalties) of the Export Administration Act of 1979 (50 App. U.S.C. 2401), section 203 (relating to criminal sanctions)
of the International Emergency Economic Powers Act (50 U.S.C. 1702), or section 3 (relating to criminal violations)
of the Trading with the Enemy Act (50 App. U.S.C. 3)”.
Subsec. (e). Pub. L. 100–690, § 6469(a)(1), substituted “and, with respect to offenses over which the United States
Postal Service has jurisdiction, by the Postal Service. Such authority of the Secretary of the Treasury and the Postal
Service shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury,
the Postal Service, and the Attorney General.” for “. Such authority of the Secretary of the Treasury shall be exercised
in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the Attorney
General.”
Effective Date of 2008 Amendment
Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of
enactment of Pub. L. 110–234, except as otherwise provided, see section 4 of Pub. L. 110–246, set out as an Effective
Date note under section 8701 of Title 7, Agriculture.
Amendment by sections 4002(b)(1)(B), (D), (2)(M), and 4115(c)(1)(A)(i), (B)(ii) of Pub. L. 110–246 effective Oct.
1, 2008, see section 4407 of Pub. L. 110–246, set out as a note under section 1161 of Title 2, The Congress.
Effective Date of 2002 Amendment
Pub. L. 107–273, div. B, title IV, § 4002(a)(11), Nov. 2, 2002, 116 Stat. 1807, provided that the amendment made by
section 4002 (a)(11) is effective Apr. 24, 1996.
Pub. L. 107–273, div. B, title IV, § 4005(e), Nov. 2, 2002, 116 Stat. 1813, provided that the amendment made by
section 4005 (e) is effective Oct. 26, 2001.
138
- 11 -
18 USC 1956
NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
Effective Date of 1996 Amendment
Amendment by section 604(b)(38) of Pub. L. 104–294 effective Sept. 13, 1994, see section 604(d) of Pub. L. 104–294,
set out as a note under section 13 of this title.
Effective Date of 1994 Amendments
Section 330011(l) of Pub. L. 103–322 and section 413(d) of Pub. L. 103–325 provided that the repeal of section
3557(2)(E) of Pub. L. 101–647 made by those sections is effective as of the date of enactment of Pub. L. 101–647,
which was approved Nov. 29, 1990.
139
- 12 -
18 USC 1957
NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 95 - RACKETEERING
§ 1957. Engaging in monetary transactions in property derived from specified unlawful
activity
(a) Whoever, in any of the circumstances set forth in subsection (d), knowingly engages or attempts
to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and
is derived from specified unlawful activity, shall be punished as provided in subsection (b).
(b) (1) Except as provided in paragraph (2), the punishment for an offense under this section is a fine
under title 18, United States Code, or imprisonment for not more than ten years or both.
(2) The court may impose an alternate fine to that imposable under paragraph (1) of not more than
twice the amount of the criminally derived property involved in the transaction.
(c) In a prosecution for an offense under this section, the Government is not required to prove the
defendant knew that the offense from which the criminally derived property was derived was specified
unlawful activity.
(d) The circumstances referred to in subsection (a) are—
(1) that the offense under this section takes place in the United States or in the special maritime
and territorial jurisdiction of the United States; or
(2) that the offense under this section takes place outside the United States and such special
jurisdiction, but the defendant is a United States person (as defined in section 3077 of this title, but
excluding the class described in paragraph (2)(D) of such section).
(e) Violations of this section may be investigated by such components of the Department of Justice
as the Attorney General may direct, and by such components of the Department of the Treasury as
the Secretary of the Treasury may direct, as appropriate, and, with respect to offenses over which
the Department of Homeland Security has jurisdiction, by such components of the Department of
Homeland Security as the Secretary of Homeland Security may direct, and, with respect to offenses
over which the United States Postal Service has jurisdiction, by the Postal Service. Such authority of
the Secretary of the Treasury, the Secretary of Homeland Security, and the Postal Service shall be
exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury,
the Secretary of Homeland Security, the Postal Service, and the Attorney General.
(f) As used in this section—
(1) the term “monetary transaction” means the deposit, withdrawal, transfer, or exchange, in or
affecting interstate or foreign commerce, of funds or a monetary instrument (as defined in section
1956 (c)(5) of this title) by, through, or to a financial institution (as defined in section 1956 of this
title), including any transaction that would be a financial transaction under section 1956 (c)(4)(B)
of this title, but such term does not include any transaction necessary to preserve a person’s right
to representation as guaranteed by the sixth amendment to the Constitution;
(2) the term “criminally derived property” means any property constituting, or derived from,
proceeds obtained from a criminal offense; and
(3) the terms “specified unlawful activity” and “proceeds” shall have the meaning given those
terms in section 1956 of this title.
(Added Pub. L. 99–570, title I, § 1352(a), Oct. 27, 1986, 100 Stat. 3207–21; amended Pub. L. 100–690,
title VI, §§ 6182, 6184, 6469 (a)(2), Nov. 18, 1988, 102 Stat. 4354, 4377; Pub. L. 102–550, title XV,
§§ 1526(b), 1527 (b), Oct. 28, 1992, 106 Stat. 4065; Pub. L. 103–322, title XXXIII, § 330020, Sept.
13, 1994, 108 Stat. 2149; Pub. L. 103–325, title IV, § 413(c)(2), Sept. 23, 1994, 108 Stat. 2255; Pub. L.
109–177, title IV, § 403(c)(2), Mar. 9, 2006, 120 Stat. 243; Pub. L. 111–21, § 2(f)(2), May 20, 2009, 123
Stat. 1618.)
140
-1-
18 USC 1957
NB: This unofficial compilation of the U.S. Code is current as of Jan. 4, 2012 (see http://www.law.cornell.edu/uscode/uscprint.html).
Amendments
2009—Subsec. (f)(3). Pub. L. 111–21 added par. (3) and struck out former par. (3) which read as follows: “the term
‘specified unlawful activity’ has the meaning given that term in section 1956 of this title.”
2006—Subsec. (e). Pub. L. 109–177 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows:
“Violations of this section may be investigated by such components of the Department of Justice as the Attorney
General may direct, and by such components of the Department of the Treasury as the Secretary of the Treasury may
direct, as appropriate and, with respect to offenses over which the United States Postal Service has jurisdiction, by the
Postal Service. Such authority of the Secretary of the Treasury and the Postal Service shall be exercised in accordance
with an agreement which shall be entered into by the Secretary of the Treasury, the Postal Service, and the Attorney
General.”
1994—Subsec. (f)(1). Pub. L. 103–322, § 330020, and Pub. L. 103–325, § 413(c)(2), amended par. (1) identically,
striking out second comma after “(as defined in section 1956 of this title)”.
1992—Subsec. (f)(1). Pub. L. 102–550 substituted “section 1956 of this title” for “section 5312 of title 31” and inserted
“, including any transaction that would be a financial transaction under section 1956 (c)(4)(B) of this title,” before
“but such term does not include”.
1988—Subsec. (e). Pub. L. 100–690, § 6469(a)(2), substituted “and, with respect to offenses over which the United
States Postal Service has jurisdiction, by the Postal Service. Such authority of the Secretary of the Treasury and the
Postal Service shall be exercised in accordance with an agreement which shall be entered into by the Secretary of the
Treasury, the Postal Service, and the Attorney General.” for “. Such authority of the Secretary of the Treasury shall
be exercised in accordance with an agreement which shall be entered into by the Secretary of the Treasury and the
Attorney General.”
Subsec. (f)(1). Pub. L. 100–690, §§ 6182, 6184, substituted “in section 1956 (c)(5) of this title” for “for the purposes
of subchapter II of chapter 53 of title 31” and inserted “, but such term does not include any transaction necessary to
preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution”.
141
-2-
Copyright (c) 2007 President and Fellows of Harvard College
Harvard Journal on Legislation
Winter, 2007
44 Harv. J. on Legis. 251
RECENT DEVELOPMENT: EVALUATING THE APPLICATION OF THE NATIONAL STOLEN PROPERTY ACT TO
ART TRAFFICKING CASES
LENGTH: 7128 words
NAME: Graham Green *
BIO: * B.A., Cornell University, 2002; J.D. Candidate, Harvard Law School, Class of 2007. The author would like to thank Professor Terry Martin for his
assistance during the research and writing of this Recent Development.
SUMMARY: ... In 1934 Congress legislated the National Stolen Property Act ("NSPA") to coordinate federal and state
prosecution of the illegal interstate movement of fraudulent securities, counterfeit money, and stolen goods. ... The analysis
proceeds in Part V by considering whether the use of the NSPA to prosecute art trafficking conflicts with the Convention on
Cultural Property Implementation Act ("CPIA"), which implemented U.S. treaty obligations under the 1970 United Nations
Educational, Scientific and Cultural Organization Convention ("UNESCO 1970"). ... In a landmark 1969 article,
archaeologist Clemency Coggins demonstrated that a principal danger posed by the illicit art trade was the loss of vital
historical and archaeological data that occurs when a cultural artifact is hastily removed from its original location. ... These
core values include: (1) the preservation of site-specific monuments and other endangered works; (2) the national retention of
a limited selection of cultural property; and (3) trade that does not threaten any nation's cultural heritage. ... United States v.
Schultzbuilt upon McClain and Johnson and confirmed the McClain doctrine that a foreign omnibus statute could be used as
the basis for domestic NSPA prosecution. ... These varying definitions of "stolen" property create diverging incentives for
foreign states when designing their legal regimes governing cultural property. ...
TEXT:
[*251] In 1934 Congress legislated the National Stolen Property Act ("NSPA") n1 to coordinate federal and state
prosecution of the illegal interstate movement of fraudulent securities, counterfeit money, and stolen goods. n2 In recent
years, however, federal attorneys have used the NSPA to prosecute the illegal importation of cultural property n3 into the
United States. After summarizing the problems presented by the illicit art trade in Part I, and outlining the goals of a
legitimate art trade in Part II, in Parts III and IV this Recent Development analyzes the effectiveness of applying the NSPA to
cases involving cultural property. The analysis proceeds in Part V by considering whether the use of the NSPA to prosecute
art trafficking conflicts with the Convention on Cultural Property Implementation Act ("CPIA"), n4 which implemented U.S.
treaty obligations under the 1970 United Nations Educational, Scientific and Cultural Organization Convention ("UNESCO
1970"). n5 This Recent Development concludes that such an application of the NSPA potentially violates Congress's more
recent statement of U.S. policy regarding cultural property in the CPIA. Following this assessment are recommendations for
how to enhance the effectiveness [*252] of the NSPA in prosecuting art trafficking cases by bringing the NSPA's
application into greater accord with the CPIA and with cultural internationalist interests. Such a shift in the use of the NSPA
would also have the effect of promoting a limited, licit art trade.
I. THE PROBLEM OF ILLICIT TRAFFICKING IN CULTURAL PROPERTY
The adverse consequences of the illicit art trade underscore the need for greater regulation. In a landmark 1969 article,
archaeologist Clemency Coggins demonstrated that a principal danger posed by the illicit art trade was the loss of vital
historical and archaeological data that occurs when a cultural artifact is hastily removed from its original location. n7
n6
Art trafficking and the loss of cultural property can also threaten modern national identity because "the art of a society is
both a manifestation and a mirror of its culture" and consequently, the loss of cultural property may disrupt the processes
through which citizens shape their national identities. n8 Other scholars have gone beyond this nationalist understanding of
cultural property to emphasize the loss to all people that follows from the destruction of any culture's objects. n9
Economic consequences also follow from the illicit art trade: UNESCO estimates the annual value of the illegal art trade
at $ 6 billion, second in value only to the illegal narcotics trade. n10 An unquantifiable consequence of the illicit art trade is
the tension trafficking establishes between source and market nations. n11 The trade operates as a global exchange between
financially poor, artifact-rich source nations and wealthy but artifact-poor market nations. The stress between source and
market nations is exaggerated by the historical and colonial experiences of the two groups of countries. n12 The transnational
effects of the illicit art trade present a unique set [*253] of challenges to any attempt to regulate the art trade. The
application of the NSPA to cases involving art trafficking, evaluated in Part IV of this Recent Development, must be assessed
in light of these pressures.
142
II. THE GOALS OF A LEGITIMATE ART TRADE
Any measure of the effectiveness of the NSPA in combating the problems described above must also consider the goals
of a legitimate art trade. Paul Bator has described a limited set of principles that should inform any legal regime regulating
the art trade. n13 These core values include: (1) the preservation of site-specific monuments and other endangered works; n14
(2) the national retention of a limited selection of cultural property; and (3) trade that does not threaten any nation's cultural
heritage. n15 The principles summarized by Bator reflect both nationalist and internationalist interests in cultural property. n16
Cultural nationalists stress a close link between an object and the culture that created it, usually embodied in a nation-state.
n17
Nationalist scholars therefore favor a strong regime of national retention of cultural patrimony. n18 By contrast, cultural
internationalists emphasize a looser, more universal relationship between [*254] an art object and the "common human
culture." n19 Consequently, internationalists stress the need for cultural property to move relatively freely. n20 The competing
values advocated by cultural nationalists and internationalists are reflected in the judicial opinions examined in Part III that
apply the NSPA to art trafficking. Having described the unique challenges posed in regulating the art trade in Part I, as well
as outlining some key goals of a lawful trade, this Recent Development next considers the effectiveness of applying the
NSPA in prosecuting art trafficking cases and promoting the goals of a limited, licit, international art trade.
III. THE APPLICATION OF THE NATIONAL STOLEN PROPERTY ACT TO ART TRAFFICKING CASES
The NSPA criminalizes the importation or interstate transport of goods worth $ 5,000 or more when the defendant acts
"knowing the same to have been stolen, converted or taken by fraud." n21 In the three leading cases, United States v. McClain,
n22
Peru v. Johnson, n23 and United States v. Schultz, n24 U.S. courts have considered whether to recognize foreign
nationalizing legislation, also known as omnibus statutes, n25 as sufficient to fulfill the definition of "stolen" goods under the
NSPA.
In McClain, decided in 1977, the Fifth Circuit considered the application of the NSPA to the export of cultural property
from Mexico. n26 While there was clear evidence that Mexico's nationalizing statute applied to the Pre-Columbian artifacts in
the case, there was no evidence proving when the pieces had entered the United States. n27 Since prosecutors could not
establish the timing of the importation with greater precision, a conviction under the NSPA appeared difficult. n28 U.S.
prosecutors overcame this legal obstacle by showing that the artifacts were "stolen" because Mexico had [*255] nationalized
all Pre-Columbian artifacts in 1972. n29 Since the government of Mexico had owned the artifacts, the defendants must
necessarily have stolen the property by illegally removing it from Mexican territory. n30 This finding depended on the court's
acceptance of the Mexican nationalizing statute and the propriety of applying Mexican law in U.S. courts. McClain was
significant for its deference to a foreign statute in defining "stolen" property under the NSPA. However, this deference was
qualified with "the proviso that a clear national ownership law has to have been enacted before an object was taken for the
object to be considered stolen." n31
The McClain decision raised considerable concern in the U.S. art community about the legitimacy of all Mexican objects
imported into the country since 1972. n32 In 1989, however, one court retreated from McClain's broad deference to foreign
omnibus statutes. In Peru v. Johnson, the Government of Peru brought a civil action to recover native objects from an
American collection. n33 The Government of Peru alleged that the objects at issue were stolen under the NSPA because in
1822 Peru had nationalized its entire cultural patrimony, both discovered and unexcavated. n34 Peru's argument was consistent
with the reasoning of the McClain court. However, in contrast to the holding in McClain, the Johnson court found that Peru
had not actively enforced its own omnibus statutes. n35 Consequently, the court reasoned, Peru had enacted only export
controls and had not gone so far as to establish ownership over the disputed cultural property. n36 Since the goods were never
the property of Peru, the artifacts were not stolen for NSPA purposes. n37 The Johnson court held that U.S. [*256] courts
would recognize foreign omnibus statutes only when the foreign nation had actively enforced its own nationalizing laws. n38
The holding in Johnson may also be attributable, in part, to the fact that the objects in question were duplicates--works for
which many similar examples exist. n39 There is a stronger cultural internationalist argument in favor of allowing duplicate
forms of cultural property to travel. This allows for a more universal disbursement of the works, and also better provides for
their preservation, which source nations often cannot afford. n40
United States v. Schultz n41 built upon McClain and Johnson and confirmed the McClain doctrine that a foreign omnibus
statute could be used as the basis for domestic NSPA prosecution. n42 At trial the government proved Frederick Schultz's
heavy involvement in the illegal excavation of numerous Egyptian cultural objects, including a relief which was mutilated for
export. n43 After demonstrating the defendant's involvement, the key issue for the government in Schultz was establishing that
the goods were "stolen" under the NSPA. To make this argument, the government relied on the precedent in McClain to show
that Egypt had nationalized the objects in 1983. n44 The dispositive issue in Schultz was whether the Egyptian statute was
more like the vague Peruvian export controls in Johnson or the more precise nationalizing statute of Mexico recognized in
McClain. After considering expert testimony from Egyptian officials, the District Court for the Southern District of New
York ruled that the Egyptian statute, while not precise, had established Egypt's rightful ownership of the artifacts. n45 As in
McClain, the Schultz court held that a foreign nationalizing statute was an appropriate source for defining whether goods
were stolen under the NSPA. n46
143
[*257] IV. EVALUATING THE EFFECTIVENESS OF THE NATIONAL STOLEN PROPERTY ACT
McClain, Johnson, and Schultz remain the most prominent art trafficking cases. The use of the NSPA in these cases
raises questions about how well it advances the ideals of a legitimate international art market described in Part II of this
Recent Development. The NSPA, although not originally enacted to ensure the preservation of cultural property, successfully
provides for preservation interests in multiple ways. By supporting nations' efforts to retain archaeological works, the NSPA
promotes the preservation of artifacts, especially monumental and site-specific works such as the looted relief in Schultz. The
national restitution of monumental works, as witnessed in Schultz, aligns well with Coggins's argument about the need to
avoid the decontextualization of this form of cultural property. The Johnson court's hint in dicta that duplicates should travel
also encourages the preservation of these artifacts, which source countries often lack the resources to care for adequately. n47
That U.S. courts will only enforce omnibus statutes where the foreign government has taken active steps to enforce its laws,
according to the Johnson court, also encourages these states to preserve their own cultural property. The reservation of U.S.
courts as a forum to settle cultural property disputes for cases in which the foreign government has actively protected its
cultural property provides an incentive for foreign states to actively preserve their heritage.
Despite its potential benefits, the NSPA also fails to account for other goals of a legitimate art trade by granting broad
judicial deference towards the incorporation of foreign omnibus statutes. The NSPA will enforce foreign statutes even when
they are over-inclusive, as in McClain, n48 so long as these statutes are sufficiently specific about government ownership, as
was the Egyptian statute in Schultz. n49 This aspect of the NSPA defers too heavily to cultural nationalism. By wholly
incorporating foreign nationalizing legislation, the current application of the NSPA potentially encourages arbitrage and the
development of a black market by driving the art trade underground. n50 In spite of the use of nationalizing statutes [*258]
that aim to stem the supply of cultural property by criminalizing its export from source nations, international demand for the
endangered cultural property often remains high in market nations. n51 This international demand creates internal pressure
within the source country for illegal excavation for sale abroad. n52
Cultural internationalists argue that because nationalizing legislation ignores international demand for cultural property
by attempting to statutorily limit the supply of works, these statutes spur black markets in cultural property. n53 Alternatively,
cultural internationalists propose that each nation should reserve a limited number of especially important works for national
retention while allowing less significant works to travel to satisfy international demand. n54 For example, Bator and other
cultural internationalists have praised the British selective export system for its legislative restraint in retaining a limited
number of works of vital cultural significance to Britain while allowing the export of the vast majority of less important
works. n55
By aligning the new application of the NSPA in cultural property cases with cultural internationalist interests in a
limited, legitimate art market, the NSPA could better provide for the preservation of cultural property while also deterring a
black market. However, in addition to the overreliance of the NSPA upon the foreign omnibus statutes favored by cultural
nationalists, the current use of the NSPA to prosecute art trafficking also conflicts with the more current and comprehensive
statement of U.S. policy regarding cultural property in the CPIA. This Recent Development now explores this inter-branch
conflict between Congress's legislation of U.S. policy regarding cultural property in the CPIA and the judiciary's innovative
use of the NSPA to address art trafficking.
V. THE CONVENTION OF CULTURAL PROPERTY IMPLEMENTATION ACT
The United States implemented UNESCO 1970 n56 through the CPIA in 1983. n57 Articles 7 and 9 of UNESCO 1970 are
the convention's two substantive provisions. n58 CPIA § 308 implements article 7 of UNESCO 1970 [*259] by criminalizing
the importation into the United States "of cultural property documented as appertaining to the inventory of a museum or
religious or secular public monument or similar institution in any State Party (signatory to the convention)." n59 Section 308
manifests the nationalist interest of article 7 in preventing the movement of nationalized or otherwise reserved works.
In contrast to the cultural nationalist goals promoted by section 308 of the CPIA, section 303, which implements article 9
of UNESCO 1970, balances nationalist and internationalist concerns. Article 9 requires signatory nations to erect import and
export barriers to prevent the movement of cultural property upon the request of any signatory nation whose cultural
patrimony is endangered. n60 Under section 303, Congress requires the executive branch to determine the following to
institute import restrictions on foreign cultural property:
(A) that the cultural patrimony of the State Party [to the Convention] is in jeopardy from pillage of
archaeological or ethnological materials of the State Party;
(B) that the State Party has taken measures consistent with the Convention to protect its cultural patrimony;
(C) that (i) the application of the import restrictions . . . would be of substantial benefit in deterring a serious
situation of pillage, and (ii) remedies less drastic than the application of the restrictions set forth in such
section are not available; and
144
(D) that the application of the import restrictions . . . in the particular circumstances is consistent with the
general interest of the international community in the interchange of cultural property among nations for
scientific, cultural, and educational purposes. n61
[*260] While article 9 of UNESCO 1970 called for an automatic system of matching import and export barriers
between source and market nations, the U.S. has more narrowly interpreted its treaty obligations in the CPIA to mandate only
a system of discretionary import barriers. n62 The section 303 factor analysis is consistent with the policy goals for a
legitimate art trade described by Bator and other cultural internationalists in contrast to the more nationalist leanings of
articles 7 and 9 of UNESCO 1970. n63 Building on the prohibition of trafficking in stolen works in section 308, section 303
stresses the preservation of endangered works. Congress noted both nationalist and internationalist interests in cultural
property when it passed the CPIA and attempted to balance these concerns through the CPIA's four factor approach. In
legislating the CPIA to implement UNESCO 1970, the House of Representatives acknowledged that "[i]ts purpose is to
combat the illegal international trade of national art treasures," n64 and the Senate similarly affirmed that the purpose of the
bill was to "[preserve] the cultural treasures that not only are of importance to the nations whence they originate, but also to a
greater international understanding of our common heritage." n65
Under section 303(B) of the CPIA, the United States will only honor export controls that the petitioning foreign
government has already attempted to enforce. However, under the current application of the NSPA as seen in McClain n66
and Schultz, n67 U.S. courts will enforce broader foreign omnibus statutes than those authorized by Congress in the CPIA. The
divergence of criminal liability under the NSPA from the statement of U.S. policy in the CPIA is problematic because both
pieces of legislation affect the form the art trade will take and seem to work at cross-purposes. Different definitions of what
constitutes "stolen" property in each act highlights this problem. n68 One scholar has noted that whereas only a documented
object may be considered stolen under the CPIA, "cultural property is deemed stolen if it is subject to a national declaration
of ownership regardless [*261] of whether the plaintiff can document that any owner actually lost possession" under the
current application of the NSPA. n69 These varying definitions of "stolen" property create diverging incentives for foreign
states when designing their legal regimes governing cultural property. While the application of the CPIA favors the
specification by each nation of what pieces constitute its national patrimony, n70 the application of the NSPA instead favors
all-encompassing omnibus statutes that nationalize all works. n71
The current application of the NSPA in art trafficking cases muddles Congress's express statement of U.S. policy
regarding cultural property in the CPIA. Although Congress was warned of such a potential conflict when it legislated the
CPIA, it failed to address the issue by revising the CPIA to take account of the McClain decision. Douglas Dillon, president
of the Metropolitan Museum of Art, testified before a subcommittee of the House Ways and Means Committee that the
McClain decision had the potential to create a broader incorporation of foreign omnibus statutes than allowable under the
prospective legislation of the CPIA. n72 Dillon was concerned about divergence of the McClain holding from the proposed
CPIA, and testified that the McClain decision "could significantly undermine the intention and scope of the UNESCO
convention." n73
Through Dillon, the Metropolitan Museum proposed revisions to the draft version of the CPIA to "prevent the
application of the National Stolen Property Act where the alleged act of stealing or conversion is based solely on a broad
national patrimony statute." n74 However, the proposed amendments were never adopted. n75 Similarly, Douglas Ewing,
president of the American Association of Dealers in Ancient, Oriental and Primitive Art, testified before the subcommittee
that the draft version of the CPIA failed to "deal with the recent decision by the Court of Appeals for the Fifth Circuit in
United States v. McClain" n76 and that "[t]his decision [*262] announced an interpretation of the [NSPA] which would
vitiate the regulatory system to control art imports provided by H.R. 5643 [CPIA]." n77 To reconcile the judicial and
legislative actions, Ewing also proposed an amendment to the CPIA to specifically address McClain. n78 Congress's failure to
consider adequately the policy implications of McClain created the conditions for the present-day conflict between the
judiciary's interpretation of the NSPA and Congress's legislation of U.S. policy regarding cultural property in the CPIA.
The judiciary's broad deference to foreign omnibus statutes under the NSPA creates a judicial forum to address cultural
property cases that Congress foreclosed by delegating this authority to the executive in the CPIA. Sections 303(a)(2) and 306
of the CPIA shifted the administration of questions involving cultural property to the President and the Executive Branch's
Cultural Property Advisory Committee and provided a four factor analysis in section 303 for use in resolving issues involving
cultural property. n79 Although the current use of the NSPA mostly promotes a legitimate international art market, the NSPA
would be improved by recognizing only more specific foreign omnibus statutes that protect a narrowly tailored definition of
the cultural patrimony in accordance with the CPIA. This shift in the application of the NSPA would resolve the conflicting
policies presently promoted by the NSPA and the CPIA.
The conflict between the NSPA and the CPIA will be tested in future art trafficking cases where liability is based on the
NSPA. One such group of cases involves art looted by the Nazis. In United States v. One Oil Painting Entitled "Femme En
Blanc" by Pablo Picasso, n80 federal prosecutors for the first time premised NSPA liability on the interstate transportation of
Nazi-looted art. n81 In the case, the U.S. Attorney's Office intervened in an ongoing dispute between two claimants to the
145
rightful title to Picasso's "Femme en Blanc" and charged Marilynn Alsdorf under the NSPA. The government's prosecution
was premised on Alsdorf's knowledge that the painting was stolen from its former owners by the Nazis and her transport of
the work between states. n82 Alsdorf's motion to dismiss [*263] was denied by the District Court. n83 Soon thereafter, in
August 2005 the parties settled and the government consented to drop the NSPA charges, satisfied that the matter had been
resolved. n84 Although there is potential for a great number of Nazi-looted art cases involving works in the United States, the
number of such cases that will involve NSPA liability is much lower. The application of the NSPA in these cases will likely
be limited by the knowledge and intent requirements of the NSPA to cases in which the defendant acquired the cultural
property knowing it to have been stolen by the Nazis. n85
Another group of cases in which the tension between the NSPA and the CPIA will be further tested involves foreign
claims against works in U.S. collections. In Rome, J. Paul Getty Museum antiquities curator Marion True currently stands
trial for conspiring to traffic in looted antiquities and receiving stolen property for display at the Getty. n86 Although Italian
prosecutors desired to try True in an Italian forum, it was a major challenge for the prosecutors to bring True to trial given the
defendant's U.S. residency. n87 However, because the charges in True's case align well with the elements of the NSPA
liability, the current application of the NSPA potentially creates a parallel U.S. forum for criminal liability in such cases.
In the future, cases similar to True's might be more easily tried in the United States. The abundance of current foreign
claims against imported cultural property in U.S. collections indicates the potential for numerous future domestic trials
involving NSPA liability. An increased volume of NSPA cases may result in greater expertise by domestic courts in dealing
with cultural property issues and increased consistency in these decisions. In these cases, courts will have to consider the
conflict between broad NSPA liability and the more limited scope of U.S. policy concerning cultural property in the CPIA.
One way courts could resolve this conflict is by lessening their deference to cultural nationalism and overly broad definitions
of cultural patrimony in foreign omnibus statutes. By bringing the application of the NSPA into line with cultural
internationalist interests and Congress's statement of policy in the CPIA, the courts could best provide for the preservation of
works while fostering a legitimate trade in cultural property.
Legal Topics:
For related research and practice materials, see the following legal topics:
International Trade LawForfeitures & PenaltiesGeneral OverviewInternational Trade LawImports & ExportsGeneral
OverviewTransportation LawCarrier Duties & LiabilitiesContraband
FOOTNOTES:
n1 The National Stolen Property Act extended the National Motor Vehicle Theft Act to other property. See Pub. L. No. 73-246, 48 Stat. 794
(codified at 18 U.S.C. §§ 2314-2315 (2006)).
n2 18 U.S.C. § 2314; see also United States v. Sheridan. 329 U.S. 379, 384 (1946); United States v. McClain, 545 F.2d 988, 994 (5th Cir. 1977)
("The apparent purpose of Congress in enacting stolen property statutes was to discourage both the receiving of stolen goods and the initial taking .
. . .") (citing United States v. Gardner, 516 F.2d 334, 349 (7th Cir. 1975)); United States v. Bolin, 423 F.2d 834, 838 (9th Cir. 1970); United States
v. Patten, 345 F. Supp. 967. 968 (D.P.R. 1972)); George W. Nowell, American Tools to Control the Illegal Movement of Foreign Origin
Archaeological Materials: Criminal and Civil Approaches, 6 SYR. J. INT'L L. & COM. 77, 88-91 (1978) (describing Congress's intent in
legislating the NSPA and the disjuncture between this legislative intent and its subsequent application to cultural property cases).
n3 A community's designation of an object as "cultural property" links that piece to a collective identity. "'Cultural property' refers to those objects
that are the product of a particular group or community and embody some expression of that group's identity, regardless of whether the object has
achieved some universal recognition of its value beyond that group." Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural
Property in the United States, 75 B.U. L. REV. 559, 569-70 (1995).
n4 19 U.S.C. § 2601 (1983).
n5 See Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Nov. 14,
1970, 823 U.N.T.S. 231 [hereinafter UNESCO 1970]. After World War II, UNESCO emerged as the preeminent international organization charged
with protecting cultural property. The post-war cooperation among nations led to the 1954 Convention on the Protection of Cultural Property in the
Event of Armed Conflict. Years later, as international focus shifted towards regulating the peacetime art trade, UNESCO's efforts led to the
creation of the 1970 Convention. See Teresa McGuire, African Antiquities Removed During Colonialism; Restoring a Stolen Cultural Legacy, 1990
DET. C.L. REV. 31, 39, 46 (1990) (describing the role of UNESCO after World War II); see also John Merryman, Free International Movement of
Cultural Property, 31 N.Y.U. J. INT'L L. & POL. 1, 3-4 (1998) (describing the UNESCO's role in forging the "modern period" of cultural property
protection).
n6 See Clemency Coggins, Illicit Traffic of Pre-Columbian Antiquities, 29 ART J. 94, 94 (1969) (providing a case study of the decontextualization
of Pre-Columbian artifacts).
n7 Id.
n8 Paul Bator, An Essay on the International Trade in Art, 34 STAN. L. REV. 275, 304 (1981).
n9 See John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, 831-32 (1986).
146
n10 See Trafficking in Art Objects Next Only to Narcotics Trade: UNESCO, NAVHIND TIMES, Sept. 7, 2005, available at
http://cpprot.te.verweg.com/2005-September/001638.html (last visited Oct. 31, 2006). But see Kate Fitz Gibbon, The Illicit Trade--Fact or
Fiction?, in WHO OWNS THE PAST? 179, 179-180 (Kate Fitz Gibbon ed., 2005) (disputing the current valuation of the illicit art market and
further criticizing comparisons of the art market to the illicit narcotics and armaments trades).
n11 Merryman defines "source nations" as those that are rich in cultural artifacts, such as Egypt or Mexico. By contrast, demand exceeds supply in
market nations like Japan or the United States. Thus, "[d]emand in the market nation encourages export from source nations. When, as is often (but
not always) the case, the source nation is relatively poor and the market nation wealthy, an unrestricted market will encourage the net export of
cultural property." Merryman, supra note 9, at 832.
n12 See Kwame Anthony Appiah, Whose Culture Is It?, N.Y. REV. OF BOOKS 2, 38-41 (Feb. 9, 2006); see also McGuire, supra note 5, at 32-34.
n13 Bator, supra note 8. Bator's description of the goals of a legitimate art trade provides an apt framework for evaluating legal regulation of the
international art market because it attempts to balance both cultural national and internationalist arguments. His work has also been cited in the
precedent cases. See McClain, 545 F.2d at 996 n.13; see also United States v. Schultz, 178 F. Supp. 2d 445, 449 (S.D.N.Y. 2002).
n14 On this point Coggins has advocated that "[t]he ideal scenario is to leave antiquities underground (unless threatened by construction or public
works), where they have rested safely for centuries, having established a stable physical equilibrium that will be destroyed on exposure to the
modern environment. Such hands-off stewardship of the past is a conservation initiative. Cultural heritage is a non-renewable resource that must be
depleted very cautiously, very conservatively, and above all, very consciously." Clemency Coggins, Cultural Property and Ownership: Antiquities,
16 CONN. J. INT'L L. 183, 186 (2001).
n15 Bator, supra note 8, at 309-10. To distinguish between works for retention and works for the market, the scholarship of James Cuno is useful.
Cuno distinguishes between "cultural patrimony," which should be nationalized, and other "cultural property," which should be free to travel. "For
example, all old bells are cultural property but the Liberty Bell is cultural patrimony. Cultural patrimony, in other words, suggests a level of
importance greater than that of cultural property. It is not something owned by a people, but something of them, a part of their defining identity."
James Cuno. Museums and the Acquisition of Antiquities, 19 CARDOZO ARTS & ENT. L. J. 83, 84-85 (2001) (emphasis in the original). See also
David Rudenstine, The Rightness and Utility of Voluntary Repatriation, 19 CARDOZO ARTS & ENT. L.J. 69, 76 (2001). (distinguishing cultural
patrimony from cultural property, noting that "[i]t must be emphasized that cultural patrimony is a much smaller and narrower group of antiquities
than the broad term cultural property").
n16 See Bator, supra note 8, at 294-95, 308-09 (suggesting preferable goals for those "who are willing to set aside the narrowest nationalistic
perspectives").
n17 See Merryman, supra note 9, at 832 ("Another way of thinking about cultural property is as part of a national cultural heritage. This gives
nations a special interest, implies the attribution of national character to objects, independently of their location or ownership, and legitimizes
national export controls and demands for the 'repatriation' of cultural property.").
n18 See Merryman, supra note 9, at 831-32.
n19 Merryman, supra note 9, at 831 ("One way of thinking about cultural property . . . is as components of a common human culture, whatever
their places of origin or present location, independent of property rights or national jurisdiction.").
n20 See Merryman, supra note 9, at 831-32.
n21 18 U.S.C. § 2314 (2000).
n22 545 F.2d 988 (5th Cir. 1977).
n23 720 F. Supp. 810 (C.D. Cal. 1989).
n24 178 F. Supp. 2d 445 (S.D.N.Y. 2002).
n25 Nationalizing statutes can range from less-intrusive screening mechanisms to total embargoes of the export of cultural property. In the cases
discussed here, the nationalizing statutes aimed to prevent the export of any cultural property from the foreign state and also established
constructive ownership of the artifacts. This state ownership applied to both discovered and undiscovered works. See Bator, supra note 8, at 314
(describing the history and content of different omnibus statutes).
n26 See McClain, 545 F.2d at 991-92.
n27 See id. at 992 ("The government presented no evidence as to how and when the artifacts were acquired in Mexico, nor as to when the pieces
were exported.").
n28 Bator, supra note 8, at 347-48 (describing the challenge to prosecutors in demonstrating that the defendant fulfilled the general knowledge
requirement of NSPA liability).
n29 The lower court accepted the prosecutors' suggestion that Mexico nationalized its artifacts in 1897; however, the Fifth Circuit found that
nationalization occurred in 1972. See McClain, 545 F.2d at 1000. Since Mexico established constructive ownership of the artifacts when it
implemented nationalizing legislation in 1972, the removal of the works from Mexican territory after this time constituted theft for NSPA purposes.
See Bator, supra note 8, at 348.
n30 See McClain, 545 F.2d at 1000-01 ("We hold that a declaration of national ownership is necessary before illegal exportation of an article can
be considered theft, and the exported article considered 'stolen,' within the meaning of the [NSPA]. Such a declaration combined with a restriction
on exportation without consent of the owner (Mexico) is sufficient to bring the NSPA into play.").
n31 Alexi Shannon Baker, Selling the Past: United States v. Frederick Schultz, ARCHAEOLOGY, Apr. 22, 2002, available at
http://www.archaeology.org/online/features/schultz/criminal.html. This qualification precluded foreign nations from passing nationalizing statutes
and then seeking restitution from American collections in U.S. courts under the NSPA. See id.
n32 See McClain, 545 F.2d at 991 ("Museum directors, art dealers, and innumerable private collectors throughout this country must have been in a
state of shock when they read the news if they did of the conviction of the five defendants in this case.").
147
n33 See Johnson, 720 F. Supp. 811 (C.D. Cal. 1989).
n34 See id. at 811-13.
n35 See id. at 814.
n36 See id. ("There is no indication in the record that Peru has ever sought to exercise its ownership rights in such property, so long as there is no
removal from that country. The laws of Peru concerning its artifacts could reasonably be considered to have no more effect than export restrictions .
. . .").
n37 See Johnson, 720 F. Supp. at 815.
n38 See id. at 814-15.
n39 See id. at 812 ("The fact that the subject items are identifiable with excavation sites in modern Peru does not exclude the possibility that they
are equally similar to artifacts found in archeological monuments in Bolivia and Ecuador.").
n40 See Gordon Gaskill, The Smuggle History, ILLUSTRATED LONDON NEWS, June 14, 1969, at 28. Paul Bator also notes that in the view of
the art community, "the practice of exporting antiquities has materially aided the preservation of the artistic patrimony of mankind. . .[e]xport may
thus put a work of art into hands far more eager and able to conserve it than any available at home." Bator, supra note 8, at 297.
n41 178 F. Supp. 2d 445 (S.D.N.Y. 2002).
n42 See id. at 448-49.
n43 Alexi Shannon Baker, Selling the Past: United States v. Frederick Schultz, ARCHAEOLOGY, Apr. 22, 2002, available at
http://www.archaeology.org/online/features/schultz/trial.html.
n44 See Schultz, 178 F. Supp. 2d at 446.
n45 See id. at 448-49.
n46 See id.
n47 See Johnson, 720 F. Supp. at 812. See also Karen S. Jore, The Illicit Movement of Art and Artifact: How Long will the Art Market Continue to
Benefit from Ineffective Laws Governing Cultural Property?, 13 BROOK. J. INT'L L. 55, 70-71 (1987) (citing Turkey as a case study of strong
nationalizing laws coupled with weak enforcement and heavy looting).
n48 See 545 F.2d at 997-1000 (examining legislation vesting constructive ownership of all Pre-Columbian artifacts in its territory, both discovered
and undiscovered, with the Mexican government).
n49 See 178 E Supp. 2d at 445-48 (holding that Egyptian Law 117 was sufficiently specific to establish Egyptian ownership of the artifacts thereby
creating a cause of action under the NSPA).
n50 See Bator, supra note 8, at 310-11 (describing the challenges of preventing art theft through standard criminal law techniques in light of
market forces which encourage looting). But see Adam Goldberg, Comment: Reaffirming McClain: The National Stolen Property Act and the
Abiding Trade in Looted Cultural Objects, 53 UCLA L.REV. 1031, 1039-46 (2006) (challenging criticisms of the McClain doctrine and presenting
policy arguments in favor of a broad application of McClain and the nationalizing statutes at issue in the case).
n51 See Bator, supra note 8, at 310-311.
n52 See id.
n53 See id. at 317-19 (arguing that flawed export control systems and misaligned economic incentives encourage illegal trade).
n54 See Bator, supra note 8, at 317-19.
n55 See id. at 319-25 (providing a general discussion of the benefits and potential limits of the British and Japanese selective export systems).
n56 See UNESCO 1970, supra note 5.
n57 Pub. L. No. 97-446, Title III, §§ 302-324, 96 Stat. 2329, (1983) (codified at 19 U.S.C. §§ 2601-2613 (2006)); see also UNESCO 1970, supra
note 5.
n58 See Convention on Cultural Property Implementation Act: Hearing on H.R. 5643 and S. 2261 Before the Subcomm. on Int'l. Trade of the
Senate Comm. on Fin., 95th Cong. 18, 2d. Sess. (1978) [hereinafter Hearings] (statement of Mark B. Feldman, Deputy Legal Advisor for the
Department of State) ("[The CPIA] contains two principal obligations that require implementing legislation. The first is the obligation under article
7(b) of the convention ... The other obligation, Mr. Chairman, implemented by this legislation is that set forth in article 9 of the convention . . . .").
n59 CPIA § 308, 19 U.S.C. § 2607.
n60 See UNESCO 1970, supra note 5, at Art. 9.
n61 CPIA § 308, 19 U.S.C. § 2602. In a 1975 House hearing regarding this section of the CPIA, the State Department explained the purpose of the
factor analysis: "The requirement that the President make these findings prior to entering into an agreement is meant to ensure that a factual
situation does indeed exist where such measures as import controls are appropriate, that less dramatic measures are not available, and that import
controls by the United States would have the intended effect in remedying the situation." H.R. REP. No. 94-14171, at 15 (1976) (Conf. Rep.). The
State Department's testimony underscores the conservative approach of the United States in implementing the UNESCO 1970 convention.
However, there was some concern at the time of implementation that section 303 of the CPIA conferred too much power on the executive to make
a discretionary finding and impose import restrictions. Given the restrained application of the section 303 analysis since 1983--there are currently
only twelve import restrictions in place--these concerns have not been borne out. See H.R REP. NO. 94-14171, at 21 (1976) (Conf. Rep.). See also
Hearings before the Subcomm. on Trade of the H. Comm. on Ways and Means: Hearing on H.R. 5643, 95th Cong. 35 (1977). But see James F.
Fitzpatrick, Stealth Unidroit: Is USIA the Villain?, 31 INT'L L. & POL. 47, 53 (1998) (criticizing the executive's enforcement of the CPIA).
148
n62 One possible explanation for this narrow interpretation of UNESCO 1970 is that "U.S. history has always favored the free trade approach
toward movement of cultural properties into and out of the United States." Fitzpatrick, supra note 61, at 47, 48.
n63 See Part III, supra (describing the goals of a limited, licit art trade and briefly summarizing the debate between cultural nationalism and
cultural internationalism).
n64 H.R. REP. NO. 94-14171 at 1 (1976) (Conf. Rep.).
n65 See S. REP. No. 97-564 at 21 (1980) (Conf. Rep.), reprinted in 1980 U.S.C.C.A.N. 4098, 4100.
n66 See 545 F.2d at 999-1001.
n67 See 178 F. Supp. 2d at 448-49.
n68 See CPIA § 308, 19 U.S.C. § 2607 (defining the scope of the CPIA as applying only to "cultural property documented as appertaining to the
inventory of a museum or religious or secular monument. . ."). The NSPA only uses the term "stolen," allowing the judiciary to define what
constitutes stolen property under the Act. See 18 U.S.C. § 2314 (2006).
N69 William G. Pearlstein, Cultural Property, Congress, The Courts, and Customs: The Decline and Fall of the Antiquities Market?, in WHO
OWNS THE PAST? 9, 16 (Kate Fitz Gibbon ed., 2006). However, in dicta, the court in Schultz distinguished between the customs focus of the
CPIA and the criminal law content of the NSPA. Recognizing the potential for overlapping or alternative liability for defendants under the CPIA
and NSPA, the Schultz court indicated that one can distinguish between a customs violation under the CPIA and criminal liability under the NSPA.
See Schultz, 178 F. Supp. 2d at 448-49.
n70 See 19 U.S.C. §§ 2604-06 (2006).
n71 See McClain, 545 F.2d at 1000-01 (holding that a declaration of national ownership combined with export restrictions can implicate the
NSPA).
n72 See Hearings, supra note 58, at 2 (statement of Douglas Dillon) (noting that the broad definitions of national patrimony could potentially
subject people to criminal prosecution and civil actions. In contrast, the CPIA "is prospective in operation and limits the material or property which
may be claimed to that which is subject to a particular embargo under section 3").
n73 Id. at 2.
n74 Id. at 3.
n75 See id. at 15-17.
n76 See Hearings, supra note 58, at 31. Ewing also raised some questions about the overlapping functions of the NSPA and CPIA, musing that
"[i]f a foreign nation can by its own actions render it illegal to bring art into the United States, why enact H.R. 5643 [CPIA] at all?" Id. at 35.
n77 See Hearings, supra note 58, at 31 (citation omitted).
n78 Id. at 35.
n79 See CPIA §§ 303(a)(2), 306, 19 U.S.C. §§ 2602, 2604 (2002). See also President Reagan's delegation of CPIA duties within the executive
branch in Exec. Order No. 12,555, 51 Fed. Reg. 3475-76 (Mar. 10, 1986) (delegating authority primarily to the Department of State, but also to the
United States Information Agency, Department of the Treasury, and Secretary of the Interior).
n80 362 F. Supp. 2d 1175 (C.D. Cal. 2005).
n81 See Sue Choi, The Legal Landscape of the International Art Market after Republic of Austria v. Altmann, 26 NW. J. INT'L L. & BUS. 167,
187 (2005) (exploring the limits and potential of applying the NSPA to Nazi-looted art cases).
n82 See Femme en Blanc, 362 F. Supp. 2d at 1179-80.
n83 See id. at 1178.
n84 See Press Release, Burris & Schoenberg, LLP, Litigation Over Picasso Painting Settled Out of Court (Aug. 9, 2005), available at
http://www.bslaw.net/news/050809.html (last visited on Nov. 10, 2006) (announcing the $ 6.5 million settlement).
n85 See Jennifer Anglim Kreder, The Choice between Civil and Criminal Remedies in Stolen Art Litigation, 38 VAND. J. TRANSNAT'L L. 1199,
1222 (2005).
n86 Andrew L. Slayman, The Trial in Rome, ARCHAEOLOGY, (Feb. 6, 2006), http://www.archaeology.org/online/features/italytrial (last visited
on Oct. 18, 2006).
n87 See id.
149
U.S. v. SCHULTZ, 178 F. Supp.2d 445 (S.D.N.Y. 2002)
United States District Court, S.D. New York.
U.S. v. SCHULTZ
178 F. Supp.2d 445 (S.D.N.Y. 2002)
Decided January 3rd, 2002
UNITED STATES of America,
Frederick SCHULTZ, Defendant.
v.
and "fence" them in New York. This, says the indictment, makes the defendant guilty of conspiracy to violate section 2315 of Title 18, United States Code,
which provides, in pertinent part, that "[w]hoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise . . . which
have crossed a State or United States boundary after
being stolen . . . knowing the same to have been stolen
. . . [is guilty of a crime]."
No. 01 CR 683 JSR.
United States District Court, S.D. New
York.
January 3, 2002. *446
Marcia Isaacson, New York City, Peter Neiman, New
York City, for U.S.
The defendant has pleaded not guilty and is presumed
innocent. For purposes of this pre-trial motion, however, he assumes the facts as stated in the indictment
and maintains that the indictment nonetheless fails to
state a conspiracy to violate section 2315 because it
presupposes, wrongly in his view, that someone who
conspires to smuggle ancient artifacts out of Egypt
is thereby guilty of, among other things, dealing in
stolen goods, by virtue of Egyptian Law 117. See In-
Linda Imes, Daniel C. Zinman, Richards Spears Kibbe
Orbe, New York, NY, for defendant.
OPINION AND ORDER
dictment ¶¶ 1-6. That law provides that, as of 1983,
all Egyptian "antiquities" — that is, objects over a century old having archeological or historical importance
1
(Law 117, Art. 1) — "are considered to be public
property," that is, property of the state. Law 117, Art.
6. The defendant principally argues: (i) that Law 117,
despite its assertion of state ownership, is really more
in the nature of a licensing and export regulation, the
violation of which does not constitute theft of property in the sense covered by section 2315; (ii) that, assuming Law 117 really does work an expropriation of
property by Egypt, the special kind of property thereby vested in that foreign state does not give rise to
interests entitled to protection under United States
law; and (iii) that even if such foreign interests might
RAKOFF, District Judge.
The marvelous artifacts of ancient Egypt, so wondrous in their beauty and in what they teach of the advent of civilization, inevitably invite the attention, not
just of scholars and aesthetes, but of tomb-robbers,
smugglers, black-marketeers, and assorted thieves.
Every pharaoh, it seems, has a price on his head (at
least if the head is cast in stone); and if the price is
right, a head-hunter will be found to sever the head
from its lawful owner. So, at least, is the theory of the
instant indictment, which alleges, in effect, that the
defendant and one or more co-conspirators arranged
to steal highly valuable ancient Egyptian artifacts —
including a million-dollar head of Amenhotep III —
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sometimes be entitled to such protection, here *447
nonetheless "where the find is located on private
property, the Authority shall decide within three
months whether to remove the find, to initiate measures for expropriating the land upon which it is located, or to leave the antiquity in its place and register
it in accordance with the provisions of this law." (Art.
23). Similarly, pre-1983 owners or possessors of antiquities, though now required to register their antiquities with the state if they have not already done so,
may in certain circumstances maintain possession or
even dispose of their antiquities, but only with permission of the Authority. See, e.g. Arts. 7, 8, 9, 13.
Congress, in enacting the Cultural Property Implementation Act of 1983, 19 U.S.C. § 2601 et seq., chose
to substitute a civil enforcement regime for criminal
prosecution.
1. While the defendant expends much time
and energy in arguing that the definition of
"antiquities" under Law 117 is too vague to afford fair notice of what is covered and what is
not, none of the ancient Egyptian artifacts that
is the subject of the instant indictment (and
corresponding bill of particulars) — such as a
pharaoh's head and two old Kingdom painted
reliefs, see Indictment, ¶¶ 8(a),8(g) — remotely
These adjustments to physical and historical circumstances only serve to confirm, however, that the
statute's primary purpose is to transfer ownership to
2
the state to the extent reasonably practicable.
raises questions of fair notice under any reasonable interpretation of that definition. That
a definition may be fuzzy around the edges
does not render it meaningless, or inapplicable
to what it clearly covers at its core.
2. Moreover, the conspiracy here alleged relates only to movable antiquities, and the Government has formally disclaimed any intention
to argue to the jury that the defendant knew
that any pre-1983 antiquities were stolen. See
The primary problem with defendant's first argument
— that Law 117 is really regulatory in nature — is
the language of the law itself, which unequivocally
asserts state ownership of all antiquities (Art. 6), requires their recording by the state (Art. 26), prohibits
(with certain practical exceptions) private ownership,
possession, or disposal of such antiquities (Arts. 6-8),
and requires anyone finding or discovering a new antiquity to promptly notify the Antiquities Authority
(Arts. 23-24), which, in the case of movable antiquities, then takes physical possession and stores the antiquities in the museums and storage facilities of the
Authority (Art. 28). Thus, so far as Egyptian antiquities are concerned, Law 117 on its face vests with the
state most, and perhaps all, the rights ordinarily associated with ownership of property, including title,
possession, and right to transfer. This, on its face, is
far more than a licensing scheme or export regulation.
Government's Post-Hearing Memorandum In
Opposition to Defendant's Motion to Dismiss
the Indictment, at 3 fn. 2.
Despite the plain language of Law 117, however, defendant argues that, in practice, even those antiquities
discovered after 1983 have been left in the hands of
their discoverers or other private transferees and that
the law in operation really works more like a licensing
or export regulation than like a transfer of property.
But when, in response to these and other defense assertions, the Court convened an evidentiary hearing,
pursuant to Rule 26.1 of the Federal Rules of Criminal
Procedure, the defendant was unable to adduce any
material, let alone persuasive evidence to support this
contention. The most he could offer in this respect
was the opinion of Professor Abou El Fadl, a professor
of Islamic and Middle Eastern law at UCLA Law
School, to the effect that nothing in Law 117 definitively prevents the Antiquities Authority from leaving
physical possession of even an antiquity discovered af-
To be sure, Law 117 qualifies certain aspects of state
ownership where obvious practicalities so require.
For example, while every newly-discovered but immovable antiquity is still deemed state owned,
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U.S. v. SCHULTZ, 178 F. Supp.2d 445 (S.D.N.Y. 2002)
Rule 26.1, Fed.R.Crim.P. At the November 20
hearing, the Court reserved on defendant's
objections until the defendant had been provided with the underlying documents and had
had a further opportunity to brief his objections. This having been done ( see, e.g., Gov-
ter 1983 in the hands of a private finder, so long as the
private finder promptly notifies the Authority of his
find. See transcript of hearing of November 20, 2001
3
("Tr."), at A20. *448
ernment's letter of December 18, 2001 and attachments thereto), the Court hereby determines that the objected-to evidence shall be
received. It may also be noted that, even if
the Court were to exclude this evidence, that
would in no way change the result, since the
provisions of Law 117 transferring ownership
and right to possession to the state (which,
contrary to defendant's argument, the Court
finds to be unambiguous) must be presumed
to be in force unless the defendant comes forward with at least some material evidence to
the contrary — which, as noted, he has wholly
failed to do.
3. The transcript pages of the first portion of
the November 20 hearing, taken by the Court
Reporters, are denoted "A" followed by the
page number. The transcript pages of the second portion of the November 20 hearing,
originally taped and then transcribed by the
Transcription Service, are denoted "B" followed by the page number.
In response to this purely hypothetical opinion, the
Government presented, among much else, the testimony of Dr. Gaballa Ali Gaballa, Secretary General to
the Supreme Council of Antiquities, that in fact the
state takes immediate physical custody of newly discovered antiquities, sometimes by the tens of thousands, tr. A77-79. Another Government witness,
General Ali Sobky, Director of Criminal Investigations for the Antiquities Police (which employs more
than 400 police officers), testified that his department
regularly investigates and prosecutes dozens of serious
violations of Law 117, of which relatively few are for
smuggling and most are for trafficking within Egypt
(including unlawfully possessing and disposing of
4
state-owned antiquities), tr. B51-55. General Sobky
also testified that even in the case where someone is
acquitted of stealing a newly discovered antiquity, the
antiquity is confiscated by the state as the lawful owner, tr. B69.
It is clear, therefore, that Law 117, far from being
a disguised licensing scheme or export regulation, is
precisely what it purports to be: a transfer of ownership of Egyptian antiquities to the state, effective 1983.
As for defendant's second argument — to the effect
that American law does not, or should not, recognize
the kind of "special" property interest created by "patrimony" laws like Law 117, see United States v. McClain,
545 F.2d 988, 994 (5th Cir. 1977) (Wisdom, J.) (rejecting such an argument) — it should first be noted
that section 2315, which expressly refers to foreign
commerce, has consistently "been applied to thefts in
foreign countries and subsequent transportation into
the United States," McClain, 545 F.2d at 994 (citing
4. The defendant objected to certain of this
testimony on hearsay and "due process"
grounds, as well as on the ground that the underlying Egyptian documents that General Ali
El Sobky summarized were not made available
to the defendant. However, a "court, in determining foreign law, may consider any relevant
material or source, including testimony,
whether or not submitted by a party or admissible under the Federal Rules of Evidence."
cases): an implicit recognition of the interest of the
United States in deterring its residents from dealing
in the spoils of foreign thefts. In effectuating this policy, why should it make any difference that a foreign
nation, in order to safeguard its precious cultural heritage, has chosen to assume ownership of those objects
in its domain that have historical or archeological im5
portance, rather than leaving them in private hands?
If an American conspired to steal the Liberty Bell and
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stated that the Act "neither pre-empts state law in any
way, nor modifies any Federal or State remedies. . . ."
S.Rep. No. 97-564, at 25 (2d Sess. 1982).
sell it to a foreign collector of artifacts, there is *449 no
question he could be prosecuted under section 2315.
Mutatis mutandis, the same is true when, as here alleged, a United States resident conspires to steal Egypt's
antiquities.
Nor, indeed, is there any inconsistency between the
application of the Cultural Property Implementation
Act and the application of section 2315 to the "cultural
property" involved in this case. See United States v.
5. Egyptian law, like United States law, requires just compensation for takings, tr. A57.
Accordingly, Law 117 expressly provides for
full compensation to those who owned Egyptian antiquities prior to the state's assumption
of ownership in 1983 or, even thereafter, to
those whose land the state chooses to take by
eminent domain in order to preserve the im
movable antiquities upon it. See, e.g., Arts. 7,
Stephenson, 895 F.2d 867,872 (2d Cir. 1990). The Cultural Property Implementation Act, rather than banning the importation of all cultural property exported
in violation of foreign law, takes a more nuanced and
complicated approach to when and under what circumstances such property can be imported into the
United States; but this is because the Act is chiefly
concerned with balancing foreign and domestic import and export laws and policies, not with deterring
theft. Section 2315, by contrast, only applies in cases
of intentional theft and knowing disposal of stolen
goods, a situation in which even the primary academic
proponent of the Cultural Property Implementation
Act has stated that criminal prosecution is appropriate. See Paul M. Bator, An Essay on the International
13, 14, 16, 25. Furthermore, even those persons who discover antiquities after 1983 and
are therefore on notice of the state's ownership qualify, in the discretion of the Antiquities Authority, for financial rewards for their
efforts. See Arts. 23, 24.
To be sure, even if the Government proves the defendant knew he was importing antiquities that were
smuggled out of Egypt — an act that may not be inherently violative of United States law and policy, see Mc-
Trade in Art, 34 Stan. L.Rev. 275, 353 (1982).
While defendant raises still other arguments in support of his motion to dismiss the indictment, the
Court finds them sufficiently meritless as not to war6
rant discussion here.
Clain, 545 F.2d at 996 — there may still be a jury question as to whether he knew he was dealing in stolen
goods, an essential element of a section 2315 violation.
But the indictment alleges he possessed such knowledge, and the Government asserts that it will prove,
inter alia, that the defendant knew that at least two of
6. For example, the fact that an Egyptian
court, in connection with a criminal prosecution of certain of defendant's co-conspirators,
did not name the defendant as a co-conspirator, in no way constitutes, as defendant here
argues, a judicial determination of defendant's
innocence binding on this Court. Defendant,
indeed, was not even a party to the other proceeding.
the items he conspired to import had been stolen from
the Antiquities Police. This is more than sufficient for
purposes of the present motion.
Finally, as for defendant's argument that the Cultural
Property Implementation Act of 1983, a civil customs
law, somehow supersedes section 2315 when applied
to the same subject matter, suffice to say that there is
nothing in the language or the history of the Cultural
Property Implementation Act to support this unlikely result. On the contrary, the Senate, in reporting out
the Cultural Property Implementation Act, expressly
Accordingly, the Court, confirming its Order of December 27, 2001, hereby denies defendant's motion to
dismiss the indictment.
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SO ORDERED.
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United States Court of Appeals,Second Circuit.
UNITED STATES of America, Appellee, v. Frederick SCHULTZ, Defendant­
Appellant.
No. 02­1357.
Decided: June 25, 2003
Before:  MESKILL, CARDAMONE and CABRANES, Circuit Judges. Paul Shechtman, New York City (Kathryn
A. Meyers, Stillman & Friedman, New York City, of counsel), for Appellant. Marcia R. Isaacson, Assistant
United States Attorney, Southern District of New York, New York City (James B. Comey, United States Attorney
for the Southern District of New York, Gary Stein, Assistant United States Attorney, Southern District of New
York, New York City, of counsel), for Appellee.
Defendant­appellant Frederick Schultz (Schultz) appeals from a judgment of conviction entered in the United
States District Court for the Southern District of New York, Rakoff, J., after a trial by jury. Schultz was
convicted of one count of conspiracy to receive stolen property that had been transported in interstate and
foreign commerce, in violation of 18 U.S.C. § 371. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. Appellate jurisdiction is appropriate because “[w]e have jurisdiction to consider appeals from final
decisions of the district courts, which are judgments of conviction and sentence in criminal cases.” United
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BACKGROUND
Schultz was a successful art dealer in New York City. On July 16, 2001, he was indicted on one count of
conspiring to receive stolen Egyptian antiquities that had been transported in interstate and foreign commerce,
in violation of 18 U.S.C. § 371. The underlying substantive offense was a violation of 18 U.S.C. § 2315, the
National Stolen Property Act (NSPA).
Schultz moved to dismiss the indictment, asserting that the items he was charged with conspiring to receive
were not stolen within the meaning of the NSPA. Specifically, Schultz contended that the Egyptian antiquities
he allegedly conspired to receive were not owned by anyone, and therefore could not be stolen. The
prosecution asserted that the antiquities were owned by the Egyptian government pursuant to a patrimony law
known as “Law 117” which declared all antiquities found in Egypt after 1983 to be the property of the Egyptian
government. After an evidentiary hearing, the district court denied the motion to dismiss in a written
memorandum and order. See United States v. Schultz, 178 F.Supp.2d 445 (S.D.N.Y.2002). Schultz was tried
before a jury in January and February 2002.
The following facts were adduced at trial.
Got Gadgets?
In 1991, Schultz met Jonathan Tokeley Parry (Parry), a British national, through a mutual friend. Parry
showed Schultz a photograph of an ancient sculpture of the head of Pharaoh Amenhotep III, and told Schultz
that he had obtained the sculpture in Egypt earlier that year from a man who represented himself to be a
building contractor. Parry had used an Egyptian middle­man named Ali Farag (Farag) to facilitate the deal. Parry had smuggled the sculpture out of Egypt by coating it with plastic so that it would look like a cheap
souvenir, then removed the plastic coating once the sculpture was in England.
Schultz offered Parry a substantial fee to serve as the agent for the sale of the Amenhotep sculpture, which Parry
accepted. Parry and Schultz discussed the problems that might arise if they were discovered to have the piece,
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and set out to create a false provenance for the sculpture, so that they could sell it. They decided that they
would claim that the sculpture had been brought out of Egypt in the 1920s by a relative of Parry and kept in an
English private collection since that time. Parry and Schultz invented a fictional collection, the “Thomas
Alcock Collection,” and represented to potential buyers that the sculpture came from this collection. With
Schultz's knowledge, Parry prepared fake labels, designed to look as though they had been printed in the 1920s,
and affixed the labels to the sculpture. Parry also restored the sculpture using a method popular in the 1920s.
Acting as Parry's agent, Schultz attempted to sell the Amenhotep sculpture to various parties, using the
“Thomas Alcock Collection” story, but was unsuccessful. Eventually, Parry sold the sculpture to Schultz for
$800,000, and Schultz sold it to a private collector in 1992 for $1.2 million. In June 1995, Robin Symes
(Symes), who then owned the Amenhotep sculpture, asked Schultz to provide him with more details about the
sculpture's origin, because he had learned that the Egyptian government was pursuing the sculpture. Schultz
responded by asking questions regarding the Egyptian pursuit, but did not provide Symes with any additional
information regarding the Amenhotep sculpture.
Parry and Schultz became partners, in a sense. They endeavored to bring more Egyptian antiquities into
America for resale, smuggling them out of Egypt disguised as cheap souvenirs, assigning a false provenance to
them, and restoring them with 1920s techniques. Parry testified about six items or groups of items, in addition
to the Amenhotep sculpture, that he and Schultz attempted to remove from Egypt and sell under the false
provenance of the Thomas Alcock Collection.
In 1991, Parry smuggled a sculpture of Meryet Anum (a daughter of Pharoah Ramses II) out of Egypt and
performed extensive restorations on it. Parry brought the sculpture to New York and showed it to experts who
determined it to be a fake.
In 1992, Parry sold Schultz a black top vase for $672, informing Schultz that the vase had been brought out of
Egypt. Parry affixed a Thomas Alcock Collection label to the vase. Schultz and Parry acquired this vase
because they believed that including some less valuable pieces in the imaginary Thomas Alcock Collection
would make the Collection more believable.
In 1992, Parry wrote to Schultz from Egypt, telling Schultz that he had obtained a sculpture he called “The
Offeror.” Parry smuggled The Offeror out of Egypt and performed extensive restoration work on it. Parry
believed the sculpture was authentic until testing revealed it to be a fake. Parry delivered The Offeror to Schultz
without informing him of either the extensive restorations or the fact that the sculpture was not authentic. However, when Schultz discovered the sculpture was a fake, he returned it to Parry. Later, when Parry was
arrested, The Offeror was confiscated by British authorities. Schultz contacted the authorities attempting to
claim The Offeror as his own, eventually sending a forged invoice purporting to show that Schultz had bought
the sculpture from a New York art dealer and had given it to Parry only for restoration. Schultz did not succeed
in claiming The Offeror.
In 1992, Parry and Farag learned that someone had reported them to the Egyptian authorities for dealing in
antiquities. Due in part to the assistance of Farag's father, who was a powerful Egyptian government official,
Parry and Farag were able to get their names removed from police records by paying a bribe to certain corrupt
members of the Egyptian antiquities police. These same corrupt police officers then entered into a deal with
Parry and Farag, offering them a variety of antiquities in police possession in exchange for Parry and Farag
paying off some debts owed by the police officers. Parry chose three items from the “bran tub”  1 full of items
offered;  he later sent those items to Schultz. Parry informed Schultz of how he had obtained the items. One
of the items was marked with an Egyptian government registry number, which Parry succeeded in partially
obliterating.
In 1992, Parry purchased the top half of a limestone sculpture of a striding figure, which he dubbed “George,”
from a group of Egyptian villagers. Apparently, when the sculpture had been found, it was in pieces, and the
pieces were divided among rival groups of villagers. Parry wrote to Schultz telling him of the acquisition and
informing Schultz that he was attempting to obtain George's bottom half. Parry also requested money to assist
in the purchase of George and other items. Parry and Farag eventually succeeded in purchasing the bottom
half of the sculpture, and reassembled the whole thing. Parry then coated George in plastic, and in plaster,
and painted it to look like a tourist souvenir so it could be taken out of Egypt. Parry kept Schultz informed of
his progress and eventually brought George to New York for Schultz to sell. When George was offered for sale,
it was treated with 1920s restoration techniques and represented to be part of the Thomas Alcock Collection. Schultz was unable to sell George, and Parry requested that Schultz send George to Switzerland, where Parry
planned to retrieve it. For reasons that are not clear from the record, Parry was not able to retrieve George.
In June 1994, Parry was arrested in Great Britain, and Farag was arrested in Egypt. Each was charged with
dealing in stolen antiquities. Schultz was aware of the arrests and communicated extensively with Parry after
his arrest about Parry's legal situation. Parry and Schultz also continued to correspond regarding plans for
new acquisitions.
In December 1994, Parry wrote to Schultz describing three limestone “stelae,” or inscribed slabs, which had
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been discovered by builders in Egypt and were being offered for sale. Parry had an expert review photographs
of the stelae, and the expert determined that the pieces were newly discovered and not listed in any of the
catalogs of antiquities known to the Egyptian government. By 1995, there were ten pieces available from this
find, and although Parry had been taken into custody in Great Britain, he continued attempting, with Schultz,
to obtain the stelae. Schultz sent money for this purpose, and Parry directed that the pieces be shipped to
Switzerland for Parry to retrieve in 1996. However, neither Parry nor Schultz ever actually obtained the stelae.
Throughout their partnership, Parry and Schultz communicated regularly;  many of their letters were introduced
in evidence by the government. Their letters indicate an awareness that there was a great legal risk in what
they were doing. This awareness is reflected both in the content of the letters and in Parry's and Schultz's use
of “veiled terms,” code, or even languages other than English.
The jury found Schultz guilty on the sole count of the indictment, and on June 11, 2002, Schultz was sentenced
principally to a term of 33 months' imprisonment. This appeal followed.
On appeal, the Court received three amicus curiae briefs. The National Association of Dealers in Ancient,
Oriental & Primitive Art, Inc.;   International Association of Professional Numismatists;  The Art Dealers
Association of America;  The Antique Tribal Art Dealers Association;  The Professional Numismatists Guild;  
and The American Society of Appraisers filed a brief in support of Schultz. An ad hoc group called Citizens for
a Balanced Policy with Regard to the Importation of Cultural Property, made up of politicians, academics, and
art collectors, also filed a brief in support of Schultz. These briefs argue primarily that allowing Schultz's
conviction to stand would threaten the ability of legitimate American collectors and sellers of antiquities to do
business. The Archaeological Institute of America;  The American Anthropological Association;  The Society
for American Archaeology;  The Society for Historical Archaeology;  and the United States Committee for the
International Council on Monuments and Sites filed a brief in support of the United States. This brief argues
primarily that sustaining Schultz's conviction and applying the NSPA to cases such as this one will help to
protect archaeological and cultural sites around the world.
DISCUSSION
I. Application of the NSPA to Cases Involving Patrimony Laws
In order to preserve its cultural heritage, Egypt in 1983 enacted a “patrimony law” which declares all antiquities
discovered after the enactment of the statute to be the property of the Egyptian government. The law provides
for all antiquities privately owned prior to 1983 to be registered and recorded, and prohibits the removal of
registered items from Egypt. The law makes private ownership or possession of antiquities found after 1983
illegal. Schultz's primary argument is that the NSPA does not apply to cases in which an object was “stolen”
only in the sense that it was possessed or disposed of by an individual in violation of a national patrimony law,
as opposed to “stolen” in the commonly used sense of the word, for instance, where an object is taken from a
museum or a private collection. The government contends that the plain language of the NSPA indicates that
the NSPA applies to any stolen property, regardless of the source of the true owner's title in the property. The
question, in other words, is whether an object is “stolen” within the meaning of the NSPA if it is an antiquity
which was found in Egypt after 1983 and retained by an individual (and, in this case, removed from Egypt)
without the Egyptian government's consent.
The NSPA reads, in pertinent part, as follows:
Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise,
securities, or money of the value of $5,000 or more ․ which have crossed a State or United States boundary after
being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or
taken ․ [s]hall be fined under this title or imprisoned not more than ten years, or both.
18 U.S.C. § 2315 (2000).
This statute is unambiguous. It applies to goods that are “stolen, unlawfully converted, or taken.” Id.
Goods that belong to a person or entity and are taken from that person or entity without its consent are “stolen”
in every sense of that word. See, e.g., Black's Law Dictionary 989­90 (6th ed. abr.1991) (defining “stolen” as
“[a]cquired or possessed, as a result of some wrongful or dishonest act or taking, whereby a person willfully
obtains or retains possession of property which belongs to another, without or beyond any permission given,
and with the intent to deprive the owner of the benefit of ownership (or possession) permanently”);  Webster's
Third New International Dictionary 2248 (1971) (defining “stolen” as “obtained or accomplished by theft,
stealth, or craft”). Accordingly, Schultz's actions violated the NSPA if the antiquities he conspired to receive in
the United States belonged to someone who did not give consent for Schultz (or his agent) to take them. That
“someone” is the nation of Egypt.
In 1983, Egypt enacted Law 117. The law, which is entitled “The Law on the Protection of Antiquities,” reads,
in pertinent part, as follows:
Article 1
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An “Antiquity” is any movable or immovable property that is a product of any of the various civilizations or any
of the arts, sciences, humanities and religions of the successive historical periods extending from prehistoric
times down to a point one hundred years before the present, so long as it has either a value or importance
archaeologically or historically that symbolizes one of the various civilizations that have been established in
the land of Egypt or that has a historical relation to it, as well as human and animal remains from any such
period.
․
Article 6
All antiquities are considered to be public property­except for charitable and religious endowments․ It is
impermissible to own, possess or dispose of antiquities except pursuant to the conditions set forth in this law
and its implementing regulations.
Article 7
As of [1983], it is prohibited to trade in antiquities.
․
Article 8
With the exception of antiquities whose ownership or possession was already established [in 1983] or is
established pursuant to [this law's] provisions, the possession of antiquities shall be prohibited as from [1983].
Law 117 includes a chapter entitled “Sanctions and Penalties” detailing the criminal penalties to be imposed on
persons found to have violated the law. This section provides, inter alia, that a person who “unlawfully
smuggles an antiquity outside the Republic or participates in such an act shall be liable to a prison term with
hard labor and a fine of not less than 5,000 and not more than 50,000 pounds.” A person who steals or
conceals a state­owned antiquity faces a prison term of three to five years and a minimum fine of 3,000 pounds.
A person who removes or detaches an antiquity from its place, counterfeits an antiquity, or unlawfully
disposes of an antiquity faces a prison term of one to two years and a minimum fine of 100 pounds. A person
who writes on, posts notices on, or accidentally defaces an antiquity faces a prison term of three to twelve
months and/or a fine of 100 to 500 pounds.
Schultz moved in the district court to dismiss the indictment on the ground that Law 117 did not vest true
ownership rights in the Egyptian government, and, accordingly, the items he conspired to smuggle out of Egypt
were not “stolen” within the meaning of the NSPA. In response to Schultz's motion, the district court conducted
an evidentiary hearing regarding Law 117 pursuant to Federal Rule of Criminal Procedure 26.1. 2 At that
hearing, two Egyptian officials testified as fact witnesses for the government:  Dr. Gaballa Ali Gaballa and
General Ali El Sobky.
Dr. Gaballa is Secretary General of Egypt's Supreme Council of Antiquities, which is a part of the Ministry of
Culture. The Supreme Council employs more than 20,000 people. Dr. Gaballa was asked:  “Who owns all
newly discovered antiquities?” He responded:  “The Egyptian government, of course.” Dr. Gaballa clarified
that people who owned antiquities prior to the adoption of Law 117 in 1983 are permitted to continue to possess
the antiquities, but they may not transfer, dispose of, or relocate the antiquities without notifying the Egyptian
government. Dr. Gaballa testified that pursuant to Law 117, when the Egyptian government learns that an
antiquity has been discovered, agents of the government immediately take possession of the item. The item is
then registered and given a number.
In response to questioning by the court, Dr. Gaballa asserted that there are no circumstances under which a
person who finds an antiquity in Egypt may keep the antiquity legally. The person who found the antiquity is
not compensated for the item, because it never belonged to the finder. The only time compensation is paid is
when a person owns a plot of land on which an immovable structure is located, and the government takes
possession of the entire plot of land in order to possess the structure;  in such a case, only the value of the land
itself, and not the value of the structure, is taken into account in determining the amount of payment.
The court also asked Dr. Gaballa whether Law 117 had been used to bring legal actions against persons in
Egypt who did not comply with the law, but did not attempt to remove an antiquity from Egypt. Dr. Gaballa
responded that he was aware of cases in which Law 117 had been applied to persons whose violations of the
law took place entirely inside Egypt.
The government's second witness, General El Sobky, is the Director of Criminal Investigations for the Egyptian
Antiquities Police. General El Sobky testified that his department, which employs more than 400 officers,
regularly investigates and prosecutes people for violating Law 117. General El Sobky testified that most of the
Law 117 investigations and prosecutions conducted by his department are of people who are trafficking in
antiquities within Egypt, as opposed to exporting them out of Egypt. Furthermore, General El Sobky testified,
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even when a person is acquitted in such a prosecution, if the person is found to possess an antiquity, that
antiquity is seized and retained by the government.
Schultz called one expert witness at the hearing, Khaled Abou El Fadl, a professor of Islamic and Middle
Eastern law at the University of California­Los Angeles (UCLA) Law School. Professor Abou El Fadl opined
that Law 117 was at times ambiguous and confusing. He further testified that the language of Law 117 did not
make it clear whether the law “intended to keep the antiquities inside of Egypt or actually was asserting
governmental ownership over the antiquities.” Professor Abou El Fadl asserted that “nothing in Law 117
prevents the Antiquities Authority from leaving physical possession of even an antiquity discovered after 1983
in the hands of a private finder, so long as the private finder promptly notifies the Authority of his find.”
On cross­examination, Professor Abou El Fadl stated that he had never practiced law in Egypt, nor was he
licensed to practice law in Egypt. He testified that he had never read Law 117 prior to being requested to do so
by Schultz's counsel, and that he had been unable to locate any treatises discussing Law 117.
Schultz contends that in spite of its plain language, Law 117 is not a “real” ownership law, and that Egypt does
not truly claim ownership over all antiquities, but merely seeks to restrict their export. The district court
disagreed, finding, based substantially on the testimony and other evidence presented at the hearing, that the
plain language of Law 117 accurately reflects its purpose and effect:  to vest absolute and true ownership of all
antiquities found in Egypt after 1983 in the Egyptian government. See Schultz, 178 F.Supp.2d at 448.
“Issues of foreign law are questions of law,” Fed.R.Crim.P. 26.1 (2003), and accordingly we review the district
court's findings regarding Law 117 de novo. See Curley v. AMR Corp., 153 F.3d 5, 11 (2d Cir.1998) (“[A]
court's determination of foreign law is treated as a question of law, which is subject to de novo review.” (citing
parallel rule Fed.R.Civ.P. 44.1)).
Schultz failed to present any evidence at the hearing or at trial that Law 117 is not what its plain language
indicates it is, that is, an ownership law. Professor Abou El Fadl's opinion that the law is ambiguous cannot
overcome the combination of (1) the plain text of the statute, and (2) the testimony of two Egyptian government
officials to the effect that the statute is a true ownership law and is enforced as such. Although Professor Abou
El Fadl testified that he believed it would be possible for Egyptian authorities to leave antiquities in the
possession of private individuals who discovered them, Schultz offered no evidence that the authorities ever
actually had permitted an individual to retain an antiquity found after 1983. The Egyptian government
officials testified that there was no legal way for a private individual to retain possession of an antiquity
discovered after 1983, and that all such antiquities are seized by the government.
Law 117 defines “antiquity” and prescribes the procedure to be followed by persons in possession of antiquities
at the time the Law takes effect, and by persons who discover antiquities thereafter. It sets forth serious
criminal penalties for the violation of its provisions. It provides for licensure of certain foreign archaeological
missions, and for circumstances under which antiquities may be donated by the government to foreign
museums in appreciation of those missions' work. The Law's provisions are directed at activities within Egypt
as well as export of antiquities out of Egypt. Law 117 makes it clear that the Egyptian government claims
ownership of all antiquities found in Egypt after 1983, and the government's active enforcement of its
ownership rights confirms the intent of the Law. Accordingly, we conclude that Law 117 is clear and
unambiguous, and that the antiquities that were the subject of the conspiracy in this case were owned by the
Egyptian government.
The question thus becomes whether Schultz's actions in conspiring to take antiquities owned by the Egyptian
government pursuant to Law 117 out of Egypt violate the NSPA. Schultz argues that even if Law 117 does intend
to vest true ownership of all antiquities with the Egyptian government, that sort of “ownership” should not be
recognized by the United States for purposes of prosecution under the NSPA.
Schultz urges us to adopt a narrow reading of the NSPA. However, the Supreme Court and this Court have
acknowledged that the NSPA has a “broad purpose,” McElroy v. United States, 455 U.S. 642, 655, 102 S.Ct.
1332, 71 L.Ed.2d 522 (1982), and that “the statute should be broadly construed.” United States v. Wallach, 935
F.2d 445, 469 (2d Cir.1991) (citing Moskal v. United States, 498 U.S. 103, 113, 111 S.Ct. 461, 112 L.Ed.2d 449
(1990)). We have held that the language of the NSPA “is broad enough to justify the federal courts in applying
the statute whenever they determine that the [property was] stolen in another country.” United States v. Greco,
298 F.2d 247, 251 (2d Cir.1962);  see also United States v. Parness, 503 F.2d 430, 440 n. 14 (2d Cir.1974)
(citing Greco with approval). Accordingly, there can be no doubt that if the antiquities involved in the
conspiracy were stolen in Egypt and then shipped to the United States, the NSPA would be violated.
Just as the property need not be stolen in the United States to bring the NSPA into play, the fact that the
rightful owner of the stolen property is foreign has no impact on a prosecution under the NSPA. See United
States v. Frazier, 584 F.2d 790, 794 (6th Cir.1978) (“The court ruled that even if it were conceded that the
defendants would be able to prove beyond a reasonable doubt that” the victim was a foreign company, the NSPA
would still apply. “This was clearly a correct interpretation of the statute.”). Furthermore, this Court has held
that the NSPA applies to stolen property even where the person from whom the property was stolen may not
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have been the true owner of the property, and that the validity of the victim's title in the property is sometimes
“irrelevant.” United States v. Benson, 548 F.2d 42, 46 (2d Cir.1977). 3 Accordingly, it does not matter that the
antiquities at issue here were stolen in a foreign country, or that their putative owner is a foreign entity.
Notwithstanding all of the above, Schultz insists that the antiquities are not “stolen” within the meaning of the
NSPA because they were never truly owned by the Egyptian government. The leading opinion addressing this
question was issued by the Fifth Circuit, over 25 years ago, in United States v. McClain, 545 F.2d 988 (5th
Cir.1977). The parties frame the question on appeal as whether the Second Circuit should adopt the reasoning
set forth by the Fifth Circuit in McClain.
Schultz asserts that we should reject the holding in McClain based on existing Second Circuit precedent, which
he reads as being hostile to McClain. Schultz then raises several additional arguments in support of his
position, namely:  (1) that McClain 's approach conflicts with United States policy, (2) that the enactment of the
Convention on Cultural Property Implementation Act of 1983, 19 U.S.C. §§ 2601­2613 (CPIA), “confirms that
Congress never intended [the] NSPA to reach ownership claims based upon national vesting laws when the
property has not been reduced to the possession of the foreign state,” and (3) that the common law definition of
“stolen” would not reach the property at issue here. We address each of these arguments in turn.
A. McClain in the Second Circuit
The McClain defendants were convicted of conspiring to violate the NSPA by importing artifacts from Mexico
that were covered by a Mexican law declaring all such artifacts to be owned by the Mexican government. See
id. at 992. The defendants claimed, as Schultz does here, that the NSPA did not apply to “stolen” objects that
were taken in violation of patrimony laws. See id. at 994. The Fifth Circuit concluded that the NSPA did
apply to such objects. 4 See id. at 996­97.
The McClain Court cited precedent according an expansive meaning to the term “stolen” in the NSPA, including
United States v. Handler, 142 F.2d 351, 353 (2d Cir.1944), which held that embezzled property is “stolen” within
the meaning of the NSPA. See McClain, 545 F.2d at 995 (citing cases). The McClain Court also cited United
States v. Bottone, 365 F.2d 389, 393­94 (2d Cir.1966). In Bottone, the defendants photocopied documents
detailing secret manufacturing processes, and transported the photocopies across state lines. See Bottone, 365
F.2d at 391. The original documents were taken from the rightful owner only briefly for copying, and were
never transported in interstate or foreign commerce. See id. at 393. The Court found that the transport of the
photocopies violated the NSPA, and the fact that the photocopies were “never possessed by the original owner
should be deemed immaterial.” Id. at 393­94.
The McClain Court also distinguished between mere unlawful export and actual theft, holding that “a
declaration of national ownership is necessary before illegal exportation of an article can be considered theft,
and the exported article considered ‘stolen,’ within the meaning of the [NSPA].” McClain, 545 F.2d at 1000­01.
The court engaged in a close study of the Mexican patrimony law, including its language, history and purpose,
and concluded that the Mexican government had made a declaration of national ownership satisfying this
standard. See id. at 997­1000. As discussed above, Egypt has made a clear declaration of national
ownership through Law 117, and has enforced that law accordingly.
Summarizing its decision in McClain, the Fifth Circuit stated:
This conclusion is a result of our attempt to reconcile the doctrine of strict construction of criminal statutes with
the broad significance attached to the word “stolen” in the NSPA. Were the word to be so narrowly construed as
to exclude coverage, for example, with respect to pre­Columbian artifacts illegally exported from Mexico after
the effective date of the 1972 [patrimony] law, the Mexican government would be denied protection of the
[NSPA] after it had done all it reasonably could do [to vest] itself with ownership to protect its interest in the
artifacts. This would violate the apparent objective of Congress:  the protection of owners of stolen property. If, on the other hand, an object were considered “stolen” merely because it was illegally exported, the meaning
of the term “stolen” would be stretched beyond its conventional meaning. Although “stealing” is not a term of
art, it is also not a word bereft of meaning. It should not be expanded at the government's will beyond the
connotation depriving an owner of its rights in property conventionally called to mind.
McClain, 545 F.2d at 1001­02 (footnotes omitted). We agree that the Fifth Circuit reached the proper balance
between these competing concerns in McClain.
i. Hollinshead
Although McClain is often described as the only federal appeals court case to have considered the application of
the NSPA to property deemed stolen under a foreign patrimony law, the issue was actually first encountered by
the Ninth Circuit three years before McClain in United States v. Hollinshead, 495 F.2d 1154 (9th Cir.1974). The facts of Hollinshead are very similar to those in the case at hand. “Hollinshead, a dealer in pre­
Columbian artifacts, arranged with one Alamilla, a co­conspirator, to procure such artifacts in Central
America, and to finance Alamilla in doing so.” Id. at 1155. Once the artifacts were obtained, they were
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shipped to Hollinshead in the United States. See id.
Hollinshead was convicted of conspiracy to transport stolen property in interstate and foreign commerce, in
violation of 18 U.S.C. § 2314. See id. The trial centered on a particular artifact that had been found in a
Mayan ruin in the jungle of Guatemala and eventually shipped to Hollinshead. See id. The artifact was
“stolen” as defined by the NSPA because under Guatemalan law “all such artifacts are the property of the
Republic, and may not be removed without permission of the government.” Id. As occurred in this case, the
district court had received testimony regarding the law of Guatemala as applied to such artifacts. See id.
The Ninth Circuit was not presented in Hollinshead with a direct attack on the application of the NSPA to
cases involving patrimony laws;  that was not the basis of the defendant's appeal. However, the Ninth
Circuit's discussion indicates its acceptance of the prosecution's theory in Hollinshead:  that an object is
“stolen” within the meaning of the NSPA if it is taken in violation of a patrimony law. See id. at 1156. We are
aware of no other federal appeals court that has reached this issue.
The Second Circuit has rarely addressed McClain, and has never decided whether the holding of McClain is the
law in this Circuit. See United States v. Long Cove Seafood, 582 F.2d 159, 163, 165 (2d Cir.1978) (Long Cove );
 United States v. An Antique Platter of Gold, 184 F.3d 131, 134 (2d Cir.1999) (Steinhardt ). 5 Although Schultz
asserts that these cases support his position, we disagree with his interpretation of these precedents.
ii. Long Cove
The defendants in Long Cove were charged with violating the NSPA by taking undersized clams from Long
Island Sound and selling them to area restaurants. See Long Cove, 582 F.2d at 161, 162. There was no
dispute that the practice of harvesting and selling undersized clams violated various environmental laws;  the
question was whether the transport of these clams across state lines constituted the interstate transport of
“stolen” goods under the NSPA. See id. at 162­63. The government argued that the clams were “stolen” from
the State of New York because of a New York law that provides:
The State of New York owns all fish, game, wildlife, shellfish, crustacea and protected insects in the state,
except those legally acquired and held in private ownership. Any person who kills, takes or possesses such
fish, game, wildlife, shellfish, crustacea or protected insects thereby consents that title thereto shall remain in
the state for the purpose of regulating and controlling their use and disposition.
Id. at 164 (quoting N.Y. Envtl. Conserv. Law § 11­0105).
The Court stated that the key question was “whether New York has asserted a true ownership interest in wildlife
such as the Fifth Circuit, in [McClain ], held that Mexico has done since 1972 with respect to pre­Columbian
artifacts. We think not.” Id. at 165. The Court emphasized that the New York statute stated that the purpose
of asserting ownership was only to regulate and control the use and disposition of wildlife, not to actually take
possession of it. See id. The Court further noted that while New York claimed to own the wildlife, it was not
liable for an attack by any wild animal, as a private owner of such an animal would be. See id.
The distinctions between the facts of the Long Cove case and the facts of the case at hand are clear and require a
different outcome here. First, as the testimony before the district court made clear, Egypt does assert a
possessory interest in antiquities pursuant to Law 117. While the State of New York has never attempted to
seize all wildlife found within its borders, Dr. Gaballa testified that the Egyptian government actively pursues
any person found to have obtained an antiquity and takes immediate possession of all antiquities of which it
becomes aware.
Second, both Dr. Gaballa and General El Sobky confirmed that the purpose of Law 117 is to bring all newly
discovered antiquities within the direct possession and control of the Egyptian government in order to ensure
that they are properly preserved and documented. Hundreds of antiquities police are employed by the Egyptian
government solely to effectuate this purpose. To the contrary, the purpose of the New York law is simply to
control the use and disposition of wildlife. See Long Cove, 582 F.2d at 164­65.
Third, the New York law explicitly excepts those wildlife “legally acquired and held in private ownership.” Id.
at 164. Law 117 provides for no exceptions for private ownership of antiquities discovered after the effective
date of the law. 6 It is legal under certain circumstances for a private person to obtain and dispose of wildlife in
New York, for instance, by obtaining a hunting, fishing or trapping license. See, e.g., N.Y. Envtl. Conserv. Law § 11­0701(4) (McKinney 2003) (“A fishing license entitles the holder to take fish by angling, spearing,
hooking, longbow and tipups, to take frogs by spearing, catching with the hands or by use of a club or hook,
and to take bait fish for personal use.”). When a licensed hunter or fisherman catches wildlife in New York, it
is his to keep and dispose of as he chooses.
In Egypt, on the other hand, it is impossible for a private party to get a license to obtain, possess or dispose of
antiquities. Law 117 does provide in Article 34 for “foreign missions” to receive archaeological exploration
and excavation licenses. However, Article 35 states that “[a]ll antiquities discovered by foreign archaeological
excavation missions shall be state owned.” If the Antiquities Authority determines that the foreign mission is
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“outstanding,” and has performed “important excavation and restoration work,” the Authority may reward the
mission by donating certain antiquities which “are expendable by reason of their similarity to other items
excavated from the same location.” Even then, the donated antiquities must be “thoroughly examined and
fully recorded,” and may only be donated to a museum, not to the excavators themselves.
We also note that in Long Cove we were not called upon to rule directly on the application of the NSPA to
property owned pursuant to a patrimony law, and we did not question the correctness of McClain. Long Cove
cited McClain more than once, in a positive light, which is significant in light of the considerable publicity the
Fifth Circuit's controversial holding in McClain had generated at the time. See Long Cove, 582 F.2d at 163,
165. These citations give no indication that the Court disapproved of the outcome or analysis of McClain.
iii. Steinhardt
Schultz also contends that our decision in Steinhardt indicates that we have rejected the holding of McClain. In Steinhardt, the district court had found that an Italian antiquity should be forfeited by Steinhardt, who had
imported it into the United States, because (1) Steinhardt had made material misrepresentations on a customs
form or, (2) in the alternative, the antiquity was properly owned by the Italian government pursuant to a
patrimony law and was therefore stolen property within the meaning of the NSPA and subject to forfeiture. See Steinhardt, 184 F.3d at 134. On appeal, we concluded that Steinhardt had made a material misstatement
on a customs form when he represented that the antiquity was from Switzerland, not Italy. See id. at 137. Accordingly, the Court concluded that the antiquity was subject to forfeiture. 7 See id. at 138. The Court
declined to reach the alternative ground relied on below, stating:  “We need not ․ address whether the NSPA
incorporates concepts of property such as those contained in the Italian patrimony laws.” Id. at 134.
It is irrelevant that we previously reviewed a case in which it was not necessary to reach the question now
before us. It is not at all uncommon for us to decline to reach an issue when the case before us can be resolved
on other grounds. See, e.g., Wexner v. First Manhattan Co., 902 F.2d 169, 174 (2d Cir.1990) (“[I]n light of our
determination that the district court should be affirmed on other grounds, we find it neither necessary nor
appropriate to reach this issue today.”). Our failure to address a question that is not necessary to the outcome
of a case is simply a wise exercise of our discretion. See United States v. United States Gypsum Co., 333 U.S.
364, 402, 68 S.Ct. 525, 92 L.Ed. 746 (1948) (Frankfurter, J., concurring in part) (“Deliberate dicta, I had
supposed, should be deliberately avoided. Especially should we avoid passing gratuitously on an important
issue of public law where due consideration of it has been crowded out by complicated and elaborate issues that
have to be decided.”). 8 We find Schultz's reliance on Steinhardt unpersuasive.
B. United States Policy
Schultz contends that it is United States policy not to enforce the export restrictions of foreign nations. Schultz
offers no evidence in support of this assertion, but even if his assessment of United States policy is accurate, the
outcome of this case is unaffected. We have already concluded, based on the plain language of Law 117 and
the evidence in the record, that Law 117 is an ownership law, not an export­restriction law. Two Egyptian
officials testified under oath that the law is used in Egypt to prosecute people for trafficking in antiquities within
Egypt's borders. Law 117 provides for a minimum five­year prison term and a fine of 3,000 pounds for persons
convicted of “[t]heft or concealment of a state owned antiquity.” Persons convicted of smuggling an antiquity
out of Egypt face “a prison term with hard labor and a fine of not less than 5,000 and not more than 50,000
pounds.” Clearly, theft or concealment of an antiquity within Egypt is a different offense than smuggling an
antiquity out of Egypt, and both are prohibited by Law 117. Accordingly, even if Schultz's interpretation of
American policy is accurate, it is not relevant here. While Law 117 does restrict exportation of cultural objects,
its scope is not limited to export restrictions. Law 117 is more than an export regulation­it is a true ownership
law.
C. The CPIA
Schultz contends that the adoption of the CPIA shows that Congress did not intend the NSPA to apply to objects
such as the ones he conspired to bring to the United States. The CPIA implements a United Nations
convention that was ratified by the United States in 1982, the purpose of which was to achieve “greater
international cooperation towards preserving cultural treasures that not only are of importance to the nations
whence they originate, but also to greater international understanding of our common heritage.” S.Rep. No.
97­564, at 21 (1982).
The CPIA provides a mechanism for the American government to establish import restrictions on “cultural
property” at the request of another signatory nation and after a determination by the President that (1) “the
cultural patrimony of [the requesting nation] is in jeopardy from the pillage of archaeological or ethnological
materials of [that nation],” (2) the requesting nation “has taken measures ․ to protect its cultural patrimony,”
(3) the import restrictions are necessary and would be effective in dealing with the problem, and (4) the
restrictions are in the “general interest of the international community.” 19 U.S.C. § 2602(a)(1)(A)­(D)
(2003).
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Schultz argues that the CPIA was intended to be the only mechanism by which the United States government
would deal with antiquities and other “cultural property” imported into the United States. However, nothing in
the language of the CPIA supports that interpretation, and the legislative history shows that exactly the
converse is true. As the district court correctly noted, Schultz, 178 F.Supp.2d at 449, the Senate Report on the
CPIA expressly states that the CPIA “neither pre­empts state law in any way, nor modifies any Federal or State
remedies that may pertain to articles to which [the CPIA's] provisions ․ apply.” S.Rep. No. 97­564, at 22
(1982). Furthermore, the Senate Report states that the CPIA “affects neither existing remedies available in
state or federal courts nor laws prohibiting the theft and the knowing receipt and transportation of stolen
property in interstate and foreign commerce (e.g., National Stolen Property Act, Title 18, U.S.C. Sections 2314­
15).” Id. at 33 (emphasis added).
The CPIA also bars the importation of items that have been stolen from a museum or other cultural institution
in a foreign signatory nation. See 19 U.S.C. § 2607. Schultz argues that because only those items that are
stolen from specified places are covered by the CPIA, Congress never intended in any way to limit the import of
items “stolen” only in the sense that they were taken in violation of patrimony laws. This argument is
unpersuasive. The CPIA does not state that importing objects stolen from somewhere other than a museum is
legal. If, for instance, an artifact covered by the CPIA were stolen from a private home in a signatory nation
and imported into the United States, the CPIA would not be violated, but surely the thief could be prosecuted for
transporting stolen goods in violation of the NSPA.
The CPIA is an import law, not a criminal law;  it is not codified in Title 18 (“Crimes and Criminal
Procedure”), with the NSPA, but in Title 19 (“Customs Duties”). It may be true that there are cases in which a
person will be violating both the CPIA and the NSPA when he imports an object into the United States. But it
is not inappropriate for the same conduct to result in a person being subject to both civil penalties and criminal
prosecution, and the potential overlap between the CPIA and the NSPA is no reason to limit the reach of the
NSPA. See, e.g., Hudson v. United States, 522 U.S. 93, 98­99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (holding
that a person may be subjected to civil and criminal penalties for the same conduct without violating the Double
Jeopardy Clause).
For the reasons set forth above, we conclude that the passage of the CPIA does not limit the NSPA's application
to antiquities stolen in foreign nations. 9
D. Common Law Definition of “Stolen”
Schultz argues that the Court must look to the common law definition of “stolen” to determine whether the
antiquities at issue are covered by the NSPA. 10 Schultz cites United States v. Turley, 352 U.S. 407, 77 S.Ct. 397,
1 L.Ed.2d 430 (1957), in which the Supreme Court considered the meaning of the term “stolen” in the context of
the statute that served as the precursor and model for the NSPA. See id. at 410­11, 77 S.Ct. 397. The Supreme
Court stated:  “We recognize that where a federal criminal statute uses a common­law term of established
meaning without otherwise defining it, the general practice is to give that term its common­law meaning.” Id.
at 411, 77 S.Ct. 397. Schultz contends that interpreting the NSPA to apply to items that are “stolen” in the
sense that they are possessed by a defendant in violation of a foreign patrimony law would be in derogation of
the common law. However, in Turley, the Supreme Court explicitly recognized that “ ‘stolen’ (or ‘stealing’) has
no accepted common­law meaning.” Id. If “stolen” has no common law meaning, we cannot look to the
common law to assist us in interpreting that term.
The Supreme Court also stated in Turley that the term “stolen” included “all felonious takings ․ regardless of
whether or not the theft constitutes common­law larceny.” Id. at 417, 77 S.Ct. 397. In other words, according
to the Supreme Court, the precursor to the NSPA­and by extension the NSPA­covers a broader class of crimes
than those contemplated by the common law. Accordingly, we find this argument unpersuasive.
E. Summary
In light of our own precedents and the plain language of the NSPA, we conclude that the NSPA applies to
property that is stolen in violation of a foreign patrimony law. The CPIA is not the exclusive means of dealing
with stolen artifacts and antiquities, and reading the NSPA to extend to such property does not conflict with
United States policy. We believe that, when necessary, our courts are capable of evaluating foreign patrimony
laws to determine whether their language and enforcement indicate that they are intended to assert true
ownership of certain property, or merely to restrict the export of that property. In this case, the district court
carefully evaluated the language of Law 117. The court also heard testimony from one academic expert and
two Egyptian government officials. This evidence was sufficient to inform the court of the nature of Egypt's
interest in the antiquities that were the subject of the conspiracy.
Although we recognize the concerns raised by Schultz and the amici about the risks that this holding poses to
dealers in foreign antiquities, we cannot imagine that it “creates an insurmountable barrier to the lawful
importation of cultural property into the United States.” Our holding does assuredly create a barrier to the
importation of cultural property owned by a foreign government. We see no reason that property stolen from a
foreign sovereign should be treated any differently from property stolen from a foreign museum or private home.
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The mens rea requirement of the NSPA will protect innocent art dealers who unwittingly receive stolen goods,
while our appropriately broad reading of the NSPA will protect the property of sovereign nations.
II. Defense of Mistake of United States Law
Schultz argues on appeal that the district court erred in refusing to allow him to present a defense of mistake
of law. Specifically, Schultz sought to argue to the jury that he did not know that importing antiquities owned
by the Egyptian government pursuant to Law 117 violated the NSPA. 11 The government contends that the
district court was correct to bar this defense, relying on “the venerable principle that ignorance of the law
generally is no defense to a criminal charge.” Ratzlaf v. United States, 510 U.S. 135, 149, 114 S.Ct. 655, 126
L.Ed.2d 615 (1994).
Schultz concedes that this is the general rule, but asserts that certain exceptions exist. Schultz cites three
cases in which he contends that the Supreme Court found a defense of mistake of law was proper:  Ratzlaf, 510
U.S. at 137, 114 S.Ct. 655 (“To establish that a defendant ‘willfully violat [ed]’ the antistructuring law, the
Government must prove that the defendant acted with knowledge that his conduct was unlawful.”);  Cheek v.
United States, 498 U.S. 192, 200, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (interpreting “the statutory term
‘willfully’ as used in the federal criminal tax statutes as carving out an exception to the traditional rule” that
mistake of law is no defense);  and Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 85 L.Ed.2d 434
(1985) (reading food stamp fraud provision to include a requirement that the defendant knew that his actions
were unlawful, where “to interpret the statute otherwise would be to criminalize a broad range of apparently
innocent conduct”).
In addition, Schultz cites two federal appellate decisions from other circuits. In United States v. Lizarraga­
Lizarraga, 541 F.2d 826 (9th Cir.1976), the Ninth Circuit reversed a defendant's conviction for illegal export of
ammunition to Mexico because the district court had failed to instruct the jury that the defendant could be
convicted only if he knew it was illegal to transport ammunition to Mexico. See id. at 828. Similarly, in
United States v. Grigsby, 111 F.3d 806 (11th Cir.1997), the Eleventh Circuit reversed the conviction of a
defendant for illegally importing elephant tusks because the district court had failed to instruct the jury that the
defendant could be convicted only if he knew importing the items was illegal. See id. at 821, 834. Each of the
cases relied on by Schultz is inapposite, for two reasons.
First, these decisions involve specific intent statutes. For instance, the statute at issue in Lizarraga­Lizarraga
(now repealed) made it unlawful “willfully” to export certain items to Mexico. See Lizarraga­Lizarraga, 541
F.2d at 827. The inclusion of the term “willfully,” the court found, made it clear that Congress intended to
punish only those who exported ammunition knowing it was unlawful to do so. See id. at 828. Likewise, the
statute of conviction in Grigsby specified that “[w]hoever knowingly violates section 4223 of this title” would be
subject to criminal penalties. 16 U.S.C. § 4224 (2000) (emphasis added). The tax statute at issue in Cheek
and the antistructuring statute at issue in Ratzlaf each also specified that only defendants who “willfully”
violated the law would be subject to prosecution. See 26 U.S.C. §§ 7201, 7203;  31 U.S.C. § 5322.
The NSPA does not include the term “willfully.” The section of the NSPA applicable to Schultz reads as
follows:
Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise,
securities, or money of the value of $5,000 or more ․ which have crossed a State or United States boundary after
being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or
taken ․ [s]hall be fined under this title or imprisoned not more than ten years, or both.
18 U.S.C. § 2315 (2000) (emphasis added). The only knowledge requirement in the NSPA is knowledge that
the goods were “stolen, unlawfully converted, or taken.” Id.;  see United States v. Rosa, 17 F.3d 1531, 1546 (2d
Cir.1994) (noting that the NSPA does not require knowledge that an item traveled in interstate or foreign
commerce, but “does include a mens rea element with respect to the status of the goods as having been stolen”);
 Godwin v. United States, 687 F.2d 585, 588 (2d Cir.1982) (“A violation of 18 U.S.C. § 2315 normally requires
simply the act of receiving or disposing of stolen goods of the requisite value moving in interstate commerce,
coupled with knowledge that the goods are stolen.”). A defendant charged with violating the NSPA may argue
that he did not know a certain fact that made his conduct criminal, that is, that he did not know the objects in
question were stolen. Schultz's “mistake of Egyptian law” defense goes to that issue. However, if a jury finds
that a defendant knew all of the relevant facts, the defendant cannot then escape liability by contending that he
did not know the law.
Second, the cases cited by Schultz are inapposite because each concerns conduct that normally might not be
considered unlawful. The Lizarraga­Lizarraga Court, for instance, emphasized that in enacting the statute of
conviction, Congress “did not intend to criminally penalize innocent or negligent errors.” Lizarraga­
Lizarraga, 541 F.2d at 828. The Supreme Court's primary concern in Liparota was that the statute under
consideration in that case not be read in such a way as “to criminalize a broad range of apparently innocent
conduct.” Liparota, 471 U.S. at 426, 105 S.Ct. 2084.
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In addition, the record demonstrates that Schultz's actions were not “innocent” or merely “negligent.” This is
not a case in which the defendant believed that he was doing something lawful, and was surprised to find that
his conduct could result in criminal sanctions. To the contrary, Schultz was conspiring to smuggle antiquities
out of Egypt and into the United States. He was defrauding (or attempting to defraud) potential buyers;  the
Thomas Alcock Collection story was invented by Schultz and Parry for the sole purpose of deceiving people as to
the origin of the antiquities and when they had been taken out of Egypt. Schultz continued to do business in
this manner even after his partners, Parry and Farag, had been arrested. Furthermore, Schultz and Parry
demonstrated a keen awareness of the illegality of their actions by communicating in “code,” forging
documents, and even explicitly discussing the possibility that one or more of them might end up imprisoned.12
We conclude that the district court did not err in denying Schultz's request to present a defense of mistake of
American law. The jury did not have to find that Schultz knew what he was doing was illegal. As long as the
jury found beyond a reasonable doubt that Schultz knew the antiquities were “stolen,” the jury, following the
law, would have been required to convict Schultz even if it believed he had misunderstood American law.
III. Conscious Avoidance Jury Instruction
Prior to Schultz's trial, the government requested that the court charge the jury on the doctrine of conscious
avoidance, and submitted a proposed jury instruction on that issue. The district court included an instruction
on conscious avoidance in its charge, which was provided to the parties prior to the charge conference, but the
court's charge did not use the language suggested by the government. Schultz did not object to the use of a
conscious avoidance charge or to the specific language proposed by the district court. On appeal, Schultz
contends that the district court's instruction to the jury on the doctrine of conscious avoidance was erroneous.
A. Standard of Review
“Because defendant did not object to the charge at trial, our review is for plain error.” United States v. Bala,
236 F.3d 87, 94 (2d Cir.2000);  see also Fed.R.Civ.P. 56(b). The parties agree that this is the proper standard
of review.
To establish plain error, a court must find 1) an error, 2) that is plain, 3) that affects substantial rights․ If an
error meets these first three requirements, the Court engages in a fourth consideration:  whether or not to
exercise its discretion to correct the error. The plain error should be corrected only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
United States v. Keigue, 318 F.3d 437, 441­42 (2d Cir.2003) (internal citations and quotation marks omitted);  
see also United States v. Gore, 154 F.3d 34, 43 (2d Cir.1998) (“A ‘plain’ error is an error so egregious and
obvious as to make the trial judge and prosecutor derelict in permitting it, despite the defendant's failure to
object.”). Schultz “bears the burden of persuasion to show that the district court's charge amounts to plain
error.” United States v. Vasquez, 267 F.3d 79, 87 (2d Cir.2001).
“We do not review portions of [jury] instructions in isolation, but rather consider them in their entirety to
determine whether, on the whole, they provided the jury with an intelligible and accurate portrayal of the
applicable law.” United States v. Weintraub, 273 F.3d 139, 151 (2d Cir.2001).
B. The District Court's Instruction
The district court charged the jury as follows:
[A] defendant may not purposefully remain ignorant of either the facts or the law in order to escape the
consequences of the law. Therefore, if you find that the defendant, not by mere negligence or imprudence but
as a matter of choice, consciously avoided learning what Egyptian law provided as to the ownership of Egyptian
antiquities, you may [infer], if you wish, that he did so because he implicitly knew that there was a high
probability that the law of Egypt invested ownership of these antiquities in the Egyptian government. You may
treat such deliberate avoidance of positive knowledge as the equivalent of such knowledge, unless you find that
the defendant actually believed that the antiquities were not the property of the Egyptian government.
Schultz argues, correctly, that the Second Circuit has “repeatedly emphasized that, in giving the conscious
avoidance charge, the district judge should instruct the jury that knowledge of the existence of a particular fact
is established (1) if a person is aware of a high probability of its existence, (2) unless he actually believes that it
does not exist.” United States v. Feroz, 848 F.2d 359, 360 (2d Cir.1988) (per curiam). In Schultz's
estimation, the charge given by the district court failed to convey these essential points to the jury. The
government concedes that the language of the charge did not precisely mirror the language set out in prior
Second Circuit cases, but contends that the charge as given was sufficiently clear and contained all of the
necessary elements.
We have stated before that “no jury instruction is ever perfect.” United States v. Joyner, 313 F.3d 40, 47 (2d
Cir.2002). We do not review a jury instruction to determine whether it precisely quotes language suggested by
Supreme or Appellate Court precedent. Instead, we review the court's instructions to determine whether
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“considered as a whole, [the instructions] adequately communicated [the essential] ideas to the jury.” United
States v. Velez­Vasquez, 116 F.3d 58, 61 (2d Cir.1997). “We cannot place the talismanic weight urged by [the
defendant] on [the] exact wording [of a controlling opinion] and do not believe the district court needed to echo
the opinion paragraph by paragraph to convey adequately its import to the jury.” United States v. Schatzle, 901
F.2d 252, 255 (2d Cir.1990);  see also United States v. Beech­Nut Nutrition Corp., 871 F.2d 1181, 1196 (2d
Cir.1989) (finding no error in conscious avoidance charge even though it “arguably” could have led the jury to
draw an “unwarranted inference”);  United States v. McBride, 786 F.2d 45, 51 (2d Cir.1986) (finding no error in
conscious avoidance charge because “[t]he charge made reference to purposeful avoidance of the truth,
awareness of a high probability of the fact at issue, and the absence of the defendant's actual belief in the
nonexistence of the crucial fact”);  cf. DeFalco v. Bernas, 244 F.3d 286, 312 n. 16 (2d Cir.2001) (finding no
plain error where, “[a]lthough the language of the jury instruction [was] not ideal,” the charge as a whole did
not reveal “an error ‘so serious and flagrant that it goes to the very integrity of the trial,’ or one that ‘deprived the
jury of adequate legal guidance to reach a rational decision’ ”);  Owen v. Thermatool Corp., 155 F.3d 137, 139
(2d Cir.1998) (finding no error in jury charge that failed to use the “more precise and more typical” phrasing set
forth in precedent, because charge “adequately stated the law”).
Here, the charge given by the district court adequately stated the law of conscious avoidance. The court set
forth both essentials required by Feroz. The charge informed the jury that it could find conscious avoidance
only if it found both (1) that Schultz avoided gaining actual knowledge “because he implicitly knew that there
was a high probability that the law of Egypt invested ownership of these antiquities in the Egyptian
government” and (2) that Schultz did not “actually believe[ ] that the antiquities were not the property of the
Egyptian government.” The court also gave a “good faith” instruction and reiterated, immediately after giving
the conscious avoidance charge, that Schultz could be found guilty only if the jury found that he had
participated in the conspiracy “knowing that it contemplated the acquisition and/or sale of antiquities that had
been stolen from Egypt.” (emphasis added).
It is true that the district court's instructions on this point could “have been more precise.” United States v.
Bonito, 57 F.3d 167, 174 (2d Cir.1995). “At trial, had objection been lodged to the imprecision, the judge would
have been well advised to correct it. But on appeal, and in light of the charge as a whole, we see no error so
obvious and seriously prejudicial to [the defendant's] substantial rights as to constitute plain error.” Id. The
instruction as given was sufficient to inform the jury of the law of conscious avoidance, and did not constitute
plain error. 13
IV. Admission of Testimony of Witnesses Other than Schultz Regarding Their Personal Knowledge of Law
117
Schultz contends that the district court erred in permitting the government to elicit testimony from five
witnesses­James Romano and Edna Russman, curators of the Brooklyn Museum of Art;  Edmund Pillsbury,
head of the Kimbell Museum;  Blake Woodruff, a former employee of Schultz;  and Betsy Bryan, a professor of
Egyptology­regarding those witnesses' personal knowledge of Law 117. Schultz objected to this testimony in
the district court;  it appears that the basis for the objection was that the testimony was irrelevant. “The
standard of review applicable to the evidentiary rulings of the district court is abuse of discretion.” Old Chief v.
United States, 519 U.S. 172, 174 n. 1, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). “Unless a district court's
determination of relevance is arbitrary or irrational, it will not be overturned.” Conway v. Icahn & Co., 16 F.3d
504, 511 (2d Cir.1994).
“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be without the
evidence.” Fed.R.Evid. 401 (2002). There is no dispute that the fact of Schultz's knowledge of Law 117 “is of
consequence to the determination of the action” at hand. Id. The only question is whether the district court
abused its discretion in determining that this testimony had “any tendency” to make that fact “more probable or
less probable.”
The government contends that this testimony was relevant to the question whether Schultz was aware of Law
117 because evidence that the Law was widely known among those in Schultz's field tended to make it more
probable that Schultz, who had worked in the field for decades, also knew about it. Furthermore, as the
government emphasizes, each of the witnesses that was asked about his or her own knowledge of Law 117 had
dealt directly with Schultz. Schultz had offered to sell “George” and the Amenhotep sculpture to James
Romano and Edmund Pillsbury, respectively, using the Thomas Alcock Collection story. Schultz provided
false information about the Amenhotep sculpture to Betsy Bryan, and showed “George” to Edna Russman,
telling her it came from an old collection. Blake Woodruff had been employed by Schultz at Schultz's art
gallery. The district court concluded that these witnesses' testimony tended to show that “even an ignoramus
in this field would know at least about patrimony laws.”
Schultz relies on United States v. Patrisso, 262 F.2d 194 (2d Cir.1958). 14 In Patrisso, one of the defendants,
Mankes, was convicted of knowingly possessing stolen property, in part on the strength of evidence that the
person who sold the goods to Mankes knew the goods were stolen. See id. at 195, 197. The Court reversed
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the conviction, finding that the evidence admitted regarding Mankes' co­defendants' knowledge that the
property was stolen was prejudicial to Mankes. See id. at 198. Patrisso is not on point, for at least three
reasons.
First, Patrisso is not a relevance case. The Court never held that the evidence admitted was irrelevant as to
Mankes, only that it was so prejudicial to him as to be inadmissible. See id. at 197. Here, the defendant has
argued that the evidence was not admissible because it was irrelevant, not because it was prejudicial.
Second, the factual circumstances of the Patrisso case differed materially from those present here. In Patrisso,
the Court noted that Mankes' behavior was not consistent with consciousness of guilt;  he made no effort to
conceal the stolen property. See id. at 198. As noted above, Schultz's behavior indicated a consciousness
that his actions were illegal in some way. Mankes, however, was at least four steps removed from the actual
theft:  Patrisso obtained the property from the person who stole it and sold the property to Ellis;  Ellis sold the
property to Postrel;  Postrel sold the property to Mankes. See id. at 196. Schultz, on the other hand, was
actively involved in obtaining the antiquities, smuggling them out of Egypt, and disguising their true origins. The nature of the property at issue in Patrisso­television tubes­was not such that a person would naturally
inquire about its source, whereas the evidence in this case established that persons considering purchasing
Egyptian antiquities make extensive inquiries into the provenance of the antiquities.
Third, and most important, the type of knowledge at issue in Patrisso is materially different than the type of
knowledge at issue here. Schultz was an acknowledged expert in the field of Egyptian antiquities, with many
years of experience. It would have been natural for Schultz to know about Law 117. To the contrary, it would
not have been natural for Mankes' co­defendants to tell him that the goods he was buying were stolen, and
there was no other possible way for Mankes to have obtained that knowledge. Knowledge of a duly adopted,
widely publicized, and vigorously enforced law such as Law 117 is quite different from knowledge of the specific
theft of a specific product in Patrisso. Testimony from colleagues who worked with Schultz as to their own
understanding of Egyptian law “was relevant both to explain the practice of the industry in which this
prosecution arose and to establish what someone with [the defendant's] extended background in the industry
probably would know.” United States v. Leo, 941 F.2d 181, 197 (3d Cir.1991).
“Evidence need not be conclusive in order to be relevant.” Contemporary Mission v. Famous Music Corp.,
557 F.2d 918, 927 (2d Cir.1977). “Nonconclusive evidence should still be admitted if it makes a proposition
more probable than not;  factors which make evidence less than conclusive affect only weight, not
admissibility.” S.E.C. v. Singer, 786 F.Supp. 1158, 1166 (S.D.N.Y.1992). Schultz's defense at trial was that he
was unaware of the existence of Law 117. Evidence that those with whom Schultz dealt in the antiquities
profession knew of Law 117, and particularly that Schultz's own employee knew of the Law, goes directly to the
plausibility of Schultz's defense. “Determinations of relevance are entrusted to the sound discretion of the trial
judge.” United States v. Quiroz, 13 F.3d 505, 514 (2d Cir.1993). Here, we see no abuse of that discretion.
CONCLUSION
We conclude that the NSPA applies to property that is stolen from a foreign government, where that
government asserts actual ownership of the property pursuant to a valid patrimony law. We find the
remainder of Schultz's claims to be without merit. Accordingly, the judgment of the district court is hereby
affirmed.
FOOTNOTES
1. A “bran tub” is a British term for a sort of “grab bag” selection of items.
2. Rule 26.1 reads, in pertinent part, as follows:  “Issues of foreign law are questions of law, but in deciding
such issues a court may consider any relevant material or source­including testimony­without regard to the
Federal Rules of Evidence.” Fed.R.Crim.P. 26.1 (2003). The Advisory Committee Note to this Rule
specifically acknowledges that the Rule may be applicable where “[t]he content of foreign law may ․ be relevant
in proceedings arising under 18 U.S.C. §§ 1201, 2312 to 2317.” Fed.R.Crim.P. 26.1 advisory committee's note.
3. Benson involved a prosecution under a different section of the NSPA, 18 U.S.C. § 2314, which prohibits
the transport of stolen property, as opposed to the receipt of stolen property, which is prohibited by § 2315. Our precedent interpreting § 2314 is persuasive in considering § 2315, as the two sections merely address
different aspects of the same type of criminal behavior, namely dealing in stolen property, and both are part of
the same legislative scheme.
4. The McClain Court reversed the convictions on other grounds. See id. at 1003.
5. We also cited to McClain, without discussion, in United States v. Bennett, 665 F.2d 16, 22 (2d Cir.1981).
6. Law 117 does provide an exception for antiquities “whose ownership or possession was already
established at the time th[e] law came into effect.” Schultz argues that this provision renders Law 117
ambiguous, because it suggests that the Egyptian government does not truly intend to own all antiquities;  we
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cannot agree. Schultz's expert, Professor Abou El Fadl, testified that Egypt has a constitutional provision
which, like the United States Constitution, prohibits the taking of private property by the government without
compensation. Providing an exception to the general rule of government ownership for those who already had
legal possession of antiquities prior to the adoption of Law 117 avoids the problem of having to pay
compensation to those private owners. Viewed in this light, the exception actually supports the government's
position that Law 117 represents an effort to obtain true ownership and actual possession of all antiquities;  if
Law 117 were merely an export law, there would be no need to exempt existing owners, as their property rights
would not be affected as long as they made no attempt to export their antiquities.
7. Steinhardt involved the application of 18 U.S.C. § 545. As we explained:Section 545 prohibits the
importation of merchandise into the United States “contrary to law” and states that material imported in such a
manner “shall be forfeited.” 18 U.S.C. § 545. The government claims that the importation of [the Italian
antiquity] was illegal because it violated 18 U.S.C. § 542, which prohibits the making of false statements in the
course of importing merchandise into the United States.Steinhardt, 184 F.3d at 134­35 (internal footnote
omitted).
8. The dangers inherent in a court's reaching out to decide issues not essential to the outcome of the case
before it were perhaps most colorfully described by the 19th century English jurist Lord Justice Bowen, who has
been quoted by our Supreme Court as saying:I am extremely reluctant to decide anything except what is
necessary for the special case, because I believe by long experience that judgments come with far more weight
and gravity when they come upon points which the Judges are bound to decide, and I believe that obiter dicta,
like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the
Judges who have uttered them, and are a great source of embarrassment in future cases.Darr v. Burford, 339
U.S. 200, 214, 70 S.Ct. 587, 94 L.Ed. 761 (1950), overruled in part on other grounds by Fay v. Noia, 372 U.S.
391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
9. Schultz notes that Senator Moynihan stated, after the adoption of the CPIA, that part of the compromise
reached in passing that law included an agreement to later amend the NSPA to overrule McClain. See 131
Cong. Rec. S2598­03 (Mar. 6, 1985). Senator Moynihan introduced legislation on two occasions which
would have done just that;  however, neither bill passed. Accordingly, although it may have been Senator
Moynihan's belief that the Congress intended to overrule McClain in separate legislation after the adoption of
the CPIA, that never actually happened. We note that this history further supports our holding that the CPIA
itself did nothing to overrule McClain or alter the effect of the NSPA with regard to foreign antiquities.
10. Schultz also argues that because a thing can only be “stolen” if it is already owned, then the term
“ownership” is implied in the NSPA (although that word never appears anywhere in the text of the NSPA), and
accordingly, we must determine the common law meaning of “ownership.” We decline to accept this
invitation to delve into the meaning of a term that is not even present in an unambiguous statute.
11. This argument is referred to by the parties as the “mistake of American law defense.” Schultz was
permitted to present a “mistake of Egyptian law defense” to the jury.
12. The jury heard substantial evidence indicating that Schultz was actually aware that the NSPA had been
applied to objects stolen in violation of a patrimony law. Specifically, it appears that Schultz was aware of the
McClain decision.In 1994, Schultz was contacted by the Turkish government. The Turkish government
requested that Schultz detail the provenance of several items in his gallery that the Turkish authorities believed
to be of Turkish origin. In this correspondence, the Turkish government noted that all antiquities found in
Turkey are the property of the Turkish government under a patrimony law. Schultz, acting through counsel,
refused to cooperate with Turkey in this inquiry, claimed that Schultz had no knowledge that any Turkish
artifacts in his possession were stolen, and referred to the McClain case.Schultz concedes in his appellate brief
that the McClain decision was “well publicized.” Schultz was an owner of a gallery dealing in antiquities, and
was once the president of the National Association of Dealers in Ancient, Oriental and Primitive Art,
suggesting that he would be aware of all significant developments in the field.Accordingly, even if Schultz had
been permitted to present this defense, it is unlikely that the jury would have credited it.
13. Even if the instruction were plain error, it is not at all clear that Schultz could meet his weighty burden of
establishing that the error affected the outcome of the trial, in light of the sufficient evidence introduced to
permit a rational jury to infer that Schultz had actual knowledge of Law 117. Furthermore, permitting
Schultz's conviction to stand would not seriously affect the fairness or integrity of judicial proceedings.
14. Schultz also relies on Cheek and Liparota, contending that because the Supreme Court never suggested
that it would have been possible for the government to call witnesses to testify to their own knowledge of the
facts at issue, such testimony is not permissible. This argument is without merit.
MESKILL, Circuit Judge.
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Published on OpenJurist (http://openjurist.org)
Home > Printer­friendly > Printer­friendly
545 F2d 988 United States v. McClain M
545 F2d 988 United States v. McClain M
545 F.2d 988
UNITED STATES of America, Plaintiff­Appellee,
v.
Patty McCLAIN, Joseph M. Rodriguez, Ada Eveleigh Simpson,
William Clark Simpson and Mike Bradshaw,
Defendants­Appellants.
No. 75­3368.
United States Court of Appeals,
Fifth Circuit.
Jan. 24, 1977.
Charles E. Biery Court­appointed), San Antonio, Tex., for McClain.
Thomas H. Sharp, Jr. (Court­appointed), San Antonio, Tex., for Rodriguez.
J. Michael Myers (Court­appointed Co­Counsel), O'Neal Munn, Gerry L. Saum, San Antonio,
Tex., for Ada Simpson.
James R. Gillespie, San Antonio, Tex., for M. Bradshaw and Wm. C. Simpson.
Edward E. DeWees, Jr., San Antonio, Tex., for Wm. C. Simpson.
John E. Clark, U. S. Atty., W. Ray Jahn, Le Roy Morgan Jahn, Asst. U. S. Attys., San
Antonio, Tex., for plaintiff­appellee.
James R. McAlee, Rosalind C. Cohen, Patrick F. J. Macrory, Attys., Washington, D. C., for
amicus curiae Assoc. of Dealers in Ancient, etc., Art.
Appeals from the United States District Court for the Western District of Texas.
Before WISDOM and INGRAHAM, Circuit Judges, and GROOMS,* District Judge.
WISDOM, Circuit Judge:
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1
Museum directors, art dealers, and innumerable private collectors throughout this country
must have been in a state of shock when they read the news if they did of the convictions of
the five defendants in this case.1 The defendants were indicted under the National Stolen
Property Act,18 U.S.C. §§ 2314, 2315, and were convicted of conspiring to transport and
receiving through interstate commerce certain pre­Columbian artifacts (terra cotta figures and
pottery, beads, and a few stucco pieces) knowing these artifacts to have been stolen. These
articles had not been registered with the Public Register of Archaeological and Historical
Zones and Monuments of the Republic of Mexico, or with any government register, and were
exported without a license or a permit from Mexico into the United States. The district court
instructed the jury that "since 1897 Mexican law has declared pre­Columbian artifacts . . . to
be the property of the Republic of Mexico, except in instances where the Government" has
issued a license or permit to private persons to possess, transfer, or export the artifacts. This
instruction casts a cloud on the title of almost every pre­Columbian object in the United
States. This Court, of course, recognizes the sovereign right of Mexico to declare, by
legislative fiat, that it is the owner of its art, archaeological, or historic national treasures, or of
whatever is within its jurisdiction; possession is but a frequent incident, not the sine qua non
of ownership, in the common law or the civil law. The district court's instruction was
erroneous. Not until 1972 did Mexico enact a law declaring all archaeological objects within
its jurisdiction, movables and immovables, to be the property of the Nation. We reverse and
remand.
I.
2
The National Stolen Property Act (NSPA) prohibits the transportation "in interstate or foreign
commerce (of) any goods, . . . of the value of $5,000 or more", with knowledge that such
goods were "stolen, converted or taken by fraud". 18 U.S.C. § 2314. The Act also subjects to
criminal liability "whoever receives, conceals, stores, barters, sells, or disposes of any goods
. . . of the value of $5,000 or more . . . moving as, or which are part of, or which constitute
interstate or foreign commerce, knowing the same to have been stolen, unlawfully converted,
or taken . . . ". 18 U.S.C. § 2315. The case turns on whether the pre­Columbian antiquities in
question, exported from Mexico in contravention of that country's law, were knowingly
"stolen" within the meaning of the National Stolen Property Act.
3
Patty McClain, Joseph M. Rodriguez, Ada Eveleigh Simpson, William Clark Simpson, and
Mike Bradshaw, the defendants­appellants, were all convicted by a jury of conspiring to
transport, receive, and sell assorted stolen pre­Columbian artifacts in interstate commerce, in
violation of 18 U.S.C. §§ 2314, 2315, and 371. The appellants were also convicted of
receiving, concealing, bartering, and selling these items in violation of § 2315. Additionally,
Rodriguez was convicted of the transportation of the items in interstate commerce (from
Calexico, California to San Antonio, Texas) in violation of § 2314.
4
Many of the relevant facts are not in serious dispute. The evidence showed that all of the
defendants except Rodriguez were involved in negotiations leading to the sale of various pre­
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Columbian artifacts to prosecution witness John McGauley, an undercover agent of the
Federal Bureau of Investigation.
5
The government presented no evidence as to how and when the artifacts were acquired in
Mexico, nor as to when the pieces were exported.
6
Mrs. Adalina Diaz Zambrano, an employee of the Mexican Cultural Institute in San Antonio,
Texas, testified that Rodriguez had approached Albert Mijangos, the Director of the Institute,
with a proposal to sell various artifacts. The Institute was an official arm of the Mexican
government, a fact unknown to Rodriguez. Mrs. Zambrano identified, from photographs,
artifacts later seized by the government from the other appellants as some of the artifacts
shown to her and Mijangos by Rodriguez. In Rodriguez's attempt to sell artifacts to the
Institute and in the other defendants' attempt to sell artifacts to McGauley and an informer,
some of the defendants made statements showing that they were aware that Mexican law
forbade the exportation of artifacts without permits from the Mexican government. After
agreeing to a purchase price of $115,000 for the artifacts held in San Antonio, defendants
Simpson and Bradshaw brought McGauley to Los Angeles to view other pre­Columbian
artifacts. Bradshaw and Simpson told McGauley that they expected to realize about $850,000
for the Los Angeles artifacts. Before a final price was agreed upon they were arrested. The
other defendants were arrested in San Antonio.
7
The defendants do not dispute that the artifacts involved in this case were illegally exported
from Mexico. The government contends that the pre­Columbian artifacts were stolen from the
Republic of Mexico; that Mexico owned these objects despite the probability or possibility that
the defendants, or their vendors, acquired them from private individuals or "found" them e. g.,
by accident in overturning the soil or digging at archaeological sites on private property in
Mexico.
8
The primary evidence as to the ownership of the artifacts under Mexican law was the
testimony of Dr. Alejandro Gertz, a deputy attorney general of Mexico. He was qualified as an
expert on Mexican law without objection. Dr. Gertz had been instrumental in revising Mexican
laws dealing with protection of the Mexican cultural heritage and, at the time of trial, his
official duties included enforcing that law. Gertz testified that Mexico has had laws protecting
its cultural heritage since 1897 and that the most recent modification of those laws was a
1972 statute. Gertz testified that the ownership of pre­Columbian artifacts has been vested
by law in the Mexican government since 1897,2 despite the fact that private individuals have
been allowed to possess such items. Since 1934, individuals possessing pre­Columbian
artifacts have been required to register them with the government. Export permits have been
required since 1934, although since then only 50 to 70 permits have been issued. A check by
Gertz of the records of the National Institute of Anthropology and History showed that the
defendants had neither registered nor received permission to export the artifacts found in
their possession in the United States. Finally, he testified that under Mexican law pre­
Columbian artifacts which are removed from Mexico without permit are considered stolen.
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9
Dr. Richard E. Adams, a Professor of Anthropology and Dean of Humanities and Social
Studies at the University of Texas in San Antonio, Texas, testified as the other government
expert on pre­Columbian artifacts. He testified that Mexican law with respect to pre­
Columbian artifacts had not changed in two generations. As will be seen in Section III of this
opinion, this belief was erroneous. He testified that some of the artifacts in question were
from Guatemala, Honduras, Panama, and Costa Rica, and some were fakes.
10
The trial court declined to appoint an expert and also an interpreter, as requested by the
defendant Rodriguez.
11
The trial judge instructed the jury that, before it could find any defendant guilty, it had to find
beyond a reasonable doubt that the property described in the indictment was "stolen". The
judge informed the jury that
12
stolen means acquired or possessed as a result of some wrongful or dishonest act of taking,
whereby a person willfully obtains or retains possession of property which belongs to
another, without or beyond any permission given, and with the intent to deprive the benefits
of ownership and use.
13
Basing his charge on Mexican law as explained by Dr. Gertz, the trial judge instructed the
jury that
14
since 1897 Mexican law has declared pre­Columbian artifacts recovered from the Republic of
Mexico within its borders to be the property of the Republic of Mexico, except in instances
where the Government of the Republic of Mexico has, by way of license or permit, granted
permission to private persons or parties or others to receive and export in their possession
such artifacts to other places or other countries.
15
This erroneous instruction is discussed in Section III of this opinion.
II.
16
The apparent purpose of Congress in enacting stolen property statutes was to discourage
both the receiving of stolen goods and the initial taking. See United States v. Gardner, 7 Cir.
1975, 516 F.2d 334, 349, cert. denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89; United
States v. Bolin, 9 Cir. 1970, 423 F.2d 834, 838, cert. denied, 398 U.S. 954, 90 S.Ct. 1882, 26
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L.Ed.2d 297. Such discouragement was, of course, intended to aid the states, which,
because of jurisdictional limitations, could not prosecute the receivers or thieves of stolen
property after that property moved across state lines. See United States v. Sheridan, 1946,
329 U.S. 379, 384, 67 S.Ct. 332, 91 L.Ed. 359; United States v. Patten, D.P.R.1972, 345
F.Supp. 967, 968. The ultimate beneficiary of the law, of course, is the property owner who
thereby enjoys greater governmental protection of property rights.
17
Sections 2314 and 2315 refer not only to interstate commerce, but to foreign commerce as
well. It is no surprise, then, that the NSPA has been applied to thefts in foreign countries and
subsequent transportations into the United States. See United States v. Rabin, 7 Cir. 1963,
316 F.2d 564, cert. denied, 375 U.S. 315, 84 S.Ct. 48, 11 L.Ed.2d 50; United States v. Greco,
2 Cir. 1962, 298 F.2d 247, cert. denied, 369 U.S. 820, 82 S.Ct. 831, 7 L.Ed.2d 785; United
States v. Hollinshead, 9 Cir. 1974, 495 F.2d 1154. The Republic of Mexico, when stolen
property has moved across the Mexican border, is in a similar position to any state of the
United States in which a theft occurs and the property is moved across state boundaries.
18
First, the appellants contend that application of the National Stolen Property Act to cases of
mere illegal exportation constitutes unwarranted federal enforcement of foreign law. They
argue that the word "stolen" cannot include the pre­Columbian artifacts seized in this case,
for there was no evidence showing that the artifacts had been taken without consent from
private individuals or that the artifacts had been in the possession of the Republic of Mexico.
Mexican legislative declarations of "ownership" of pre­Columbian artifacts are, the appellants
say, not enough to bring the objects within the protection of the NSPA; "possession is the
beginning of ownership".3 This United States statute, the appellants argue, employs the term
"stolen" to cover only acts which result in the wrongful deprivation of rights of "ownership" as
that term is understood at common law.
19
Second, the appellants contend that, even if a legislative declaration of ownership would, with
export restrictions, invoke the protection of the NSPA, the trial court erred in instructing the
jury that Mexico had, since 1897, vested itself with ownership of all pre­Columbian artifacts.
20
Our consideration of the meaning of the term "stolen" best begins with United States v.
Turley, 1957, 352 U.S. 407, 411, 77 S.Ct. 397, 1 L.Ed.2d 430. There the Supreme Court was
called upon to determine the meaning of that term as used in the Motor Vehicle Theft Act,4
which prohibits the interstate transportation of "stolen" vehicles. The Court, pointing out that
the word "stolen" has no accepted common law meaning and is not a term of art,5 concluded
that "stolen" does not refer exclusively to larcenously taken automobiles; instead, a vehicle
that had been rightfully acquired but wrongfully converted by a bailee was held to be "stolen"
within the meaning of the Act.
21
The Turley Court cited with approval two National Stolen Property Act cases that had also
given the word "stolen" broad scope. See Crabb v. Zerbst, 5 Cir. 1939, 99 F.2d 562, 565;
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United States v. Handler, 2 Cir. 1944, 142 F.2d 351, cert. denied, 323 U.S. 741, 65 S.Ct. 40,
89 L.Ed. 594.6 Both cases held that embezzled property was stolen within the meaning of the
Act. In Crabb, we observed that "stealing" is commonly used to denote any dishonest
transaction whereby one person obtains that which rightfully belongs to another and deprives
the owner of the rights and benefits of ownership. Post­Turley cases have continued to give
the term "stolen" a wide­ranging meaning. See, e. g., United States v. Bottone, 2 Cir. 1966,
365 F.2d 389, cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437;7 United States v.
Vicars, 6 Cir. 1972, 465 F.2d 720;8 Lake v. United States, 10 Cir. 1964, 338 F.2d 787.9
22
Thus, on one side of the argument we have a federal criminal statute that has been given an
expansive scope. On the other side of that argument rests a doctrine of construction
fundamental to a society in which governmental interest must be balanced against regard for
individual liberty. It is not yet too ritualistic a practice to observe that, throughout our
jurisprudence, the courts have considered that "ambiguity concerning the ambit of criminal
statutes should be resolved in favor of lenity". Rewis v. United States, 1971, 401 U.S. 808, 91
S.Ct. 1056, 28 L.Ed.2d 493.
23
The rule that penal laws are to be construed strictly, is, perhaps, not much less old than
construction itself. It is founded on the tenderness of the law for the rights of individuals.
24
United States v. Boston and M. R. R., 1965, 380 U.S. 157, 160, 85 S.Ct. 868, 13 L.Ed.2d
728, quoting United States v. Wiltberger, 1820, 18 U.S. (5 Wheat.) 76, 5 L.Ed. 37. This
ancient precept has continued vitality. See, e. g., United States v. Bridges, 5 Cir. 1974, 493
F.2d 918;10 Merrill v. United States, 5 Cir. 1964, 338 F.2d 763.11
25
Of course, the doctrine of strict construction is not absolute. "(T)he intention of the law­maker
must govern in the construction of penal, as well (as) other statutes". Id. See also Garrett v.
United States, 5 Cir. 1968, 396 F.2d 489, 491, cert. denied, 393 U.S. 952, 89 S.Ct. 374, 21
L.Ed.2d 364; United States v. Mikelberg, 5 Cir. 1975, 517 F.2d 246, 252. We cannot accept,
therefore, the appellants' initial argument by referring to the doctrine.
26
Nor can the issue in this case be resolved by suggesting that an affirmance condones
unwarranted federal enforcement of foreign law. Congress chose to protect property owners
living in states or countries hampered by their borders from effectively providing their own
protection. The question posed, then, is not whether the federal government will enforce a
foreign nation's export law,12 or whether property brought into this country in violation of
another country's exportation law is stolen property. The question is whether this country's
own statute, the NSPA, covers property of a very special kind purportedly government
owned, yet potentially capable of being privately possessed when acquired by purchase or
discovery. Our examination of Mexican law leads us to reject the appellants' argument that
the NSPA cannot apply to illegal exportation of artifacts declared by Mexican law to be the
property of the Nation.
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27
We do not base this conclusion on illegal exportation of the antiquities. Professor Bator
correctly states the law applicable to violations of export laws:
28
The general rule today in the United States, and I think in almost all other art­importing
countries, is that it is not a violation of law to import simply because an item has been illegally
exported from another country. This is a fundamental general rule today with respect to art
importation. . . . This means that a person who imports a work of art which has been illegally
exported is not for that reason alone actionable, and the possession of that work cannot for
that reason alone be disturbed in the United States.13
29
This general rule has been qualified by congressional statute and by treaties.14 But we
cannot say that the intent of any statute, treaty, or general policy of encouraging the
importation of art more than 100 years old was to narrow the National Stolen Property Act so
as to make it inapplicable to art objects or artifacts declared to be the property of another
country and illegally imported into this country.
III.
30
The government's expert on Mexican law testified, and the trial court instructed the jury, that
Mexico has, since 1897, vested itself with ownership of pre­Columbian artifacts. This
testimony and the subsequent instruction, as we pointed out, were in error. Mexican law has
been concerned with the preservation and regulation of pre­Columbian artifacts since 1897,
but ownership of all pre­Columbian objects by legislative fiat, did not come until much later.
When it did come, it came, not at once, but in stages.15
31
Article 1 of the Law on Archaeological Monuments, May 11, 1897,16 did indeed declare that
"archaeological monuments" were "the property of the Nation" and that no one could "remove
them . . . without express authorization of the Executive of the Union". Archaeological
monuments were defined to mean "ruins of cities, Big Houses (Casas Grandes), troglodytic
dwellings, fortifications, palaces, temples, pyramids, sculpted rocks or those with inscriptions,
and in general all the edifices that in any aspect may be interesting for the study of civilization
and the history of the ancient settlors of Mexico". The class of objects involved in this case
was covered by Article 6, which provided that
32
Mexican antiquities, codices, idols, amulets and other objects or movable things that the
Federal Executive deems interesting for the study of the civilization and history of the
aboriginals and ancient settlers of America and especially of Mexico, cannot be exported
without legal authorization.
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Nothing in this article constitutes a declaration of ownership. The 1897 law distinguishes
between "antiquities . . . or movable things", which are subject to export restrictions, and
archaeological monuments. Moreover, even with respect to movable artifacts ("antiquities,
codices, idols, amulets and other objects or movable things"), the Federal Executive was
obliged first to declare those objects "interesting" for studies of Mexican civilization and
history for these objects to be subject to the export regulation under Article 6. We note too
that the antiquities were not considered "immovables by destination", a category familiar to
civilians.
34
The next major Mexican law pertaining to pre­Columbian artifacts was the Law on the
Protection and Conservation of Monuments and Natural Beauty, January 31, 1930.17 This
law set up a more complicated system of controlling objects of "artistic, archaeological, or
historical value". These objects, both movable and immovable, "whose protection and
conservation may be of public interest" because of such value, were declared "monuments".
Art. 1. For an object to acquire status as a "monument", however, the object either would
have to come into the care of the Secretariat of Public Education or be declared a
"monument" by the Department of Artistic, Archaeological and Historical Monuments, which
was instructed to make the declaration "with precision". Art. 6. But the 1930 law implicitly
recognized the right to private ownership of monuments and expressly allowed monuments
to be freely alienated, subject to the government's right of first refusal.18 Art. 16. Most
significantly, ownership was not among the rights the government declared for itself in
monuments. The 1930 law was the first to place export restrictions on all objects of the type
here involved. The law prohibited the exportation of movables and immovables by destination
which had been officially designated as "archaeological monuments", but permitted the
exportation of other objects of archaeological value with official permission. Art. 19, 20. This
law, therefore, is very different from the law of 1897.
35
The next relevant enactment came in the Law for the Protection and Preservation of
Archaeological and Historic Monuments, Typical Towns and Places of Scenic Beauty,
January 19, 1934.19 Again, "monuments" were regulated and were defined as objects "of
archaeological origin and . . . whose protection and preservation are in the public interest,
owning to . . . historical value". Art. 1. The 1930 definition of monuments was significantly
expanded, however, for the law declared that "all vestiges of the aboriginal civilization dating
from before the completion of the Conquest shall be considered as archaeological
monuments". Art. 3. The law then declared that
36
(a)ll immovable archaeological monuments belong to the nation. Objects which are found (in
or on) immovable archaeological monuments are considered as immovable property, and
they therefore belong to the Nation.
Art. 4 (emphasis added).20
37
It is still clear that not all pre­Columbian artifacts were declared "owned" by the Mexican
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government. The 1934 law specifically recognized private ownership of archaeological
movables. Article 9 required the "Register of Private Archaeological Property" to maintain a
record of movable artifacts "that are the property of private individuals at the time of this law's
entry into force and for those which they may legally acquire in the future". No records were
maintained, therefore, before 1934. Article 10 recognized that "transfers of ownership:
("propiedad") may be made by the owners of registered objects, but required the transfers to
be recorded. The artifacts found in or on immovable monuments form a subset of the set of
all pre­Columbian artifacts; those artifacts not in the subclass were not owned by Mexico.
38
The next Mexican law in this area was the Federal Law Concerning Cultural Patrimony of the
Nation, December 16, 1970.21 This law again declared pre­Columbian archaeological
immovables and movables found in or on22 immovable archaeological objects to be the
Cultural Patrimony of the Nation. Art. 52. Such objects could not be permanently exported.
Art. 96. The law recognized private ownership of other movable artifacts, while continuing the
scheme of registration established by the 1934 Act. Art. 54; Transitory Art. Fifth. Article 54
declares that movable artifacts which are not "unique, rare specimens or of exceptional value
for their esthetic quality or for their other cultural qualities . . . can be the object of transfer of
ownership". Article 55 creates a presumption that the unregistered movable archaeological
objects are "the property of the Nation".
39
The statutory law shows, therefore, that Mexico did not assert ownership of all pre­Columbian
artifacts in 1934. The same situation existed in 1970, when the next law was enacted. Even
ethnological, anthropological, and paleontological pieces, which were defined as "articles of
cultural value", Art. 3, and were ascribed to the "Cultural Patrimony of the Nation" were
capable of being privately owned. See Arts. 17, 37.23
40
Finally, we come to the Federal Law on Archaeological, Artistic and Historic Monuments and
Zones, May 6, 1972.24 Article 27 provides that "(a) rchaeological monuments, movables and
immovables, are the inalienable and imprescriptible property of the Nation". Article 28 then
establishes that
41
(m)ovable and immovable objects, product of the cultures prior to the establishment of the
Spanish culture in the National Territory, . . . are archaeological monuments.
42
This law unequivocally establishes for the first time what Dr. Gertz testified had been the
case since 1897. Only after the effective date of the 1972 law would the Republic of Mexico
necessarily have ownership of the objects such as the artifacts involved in this case. This
legislation "extended national ownership of the cultural patrimony to private collections and
forbade absolutely the export of pre­Columbian items".25 The law was adopted only after "a
bitter constitutional debate" over the extension of public control over private property.26 A
grandfather clause protected pre­existing private ownership rights. Transitory Article Fourth.
Moreover, Article 22 requires individuals to register monuments "of their ownership".
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43
The Amicus states that this view is confirmed by the formal opinion of the Mexican Bar, which
reviewed the 1972 statute prior to its enactment. See opinion de la Barra Mexicana Sobre La
Iniciativa de Ley Federal Sobre Monumentos Arqueologicos, artisticos, Historicos y Zonas
Monumentales (Opinion of the Mexican Bar on the Proposed Federal Law on Archaeological,
Artistic, and Historical Monuments and Monument Zones), 5 El Foro No. 26 (Organo de la
Barra Mexicana, Colegio de Abogados) 121, 124­25 (abril­junio, 1972): ". . . the Laws (prior
to 1972) . . . established public ownership or general use only over archaeological immovable
monuments and . . . movables found on them . . . . (I)t is of major relevance to point out that
all this legislation permitted, recognized and protected private ownership over movable
archeological monuments . . . ." (Translation from the Spanish, emphasis supplied.)27
44
We find as a matter of law that the district court erred by instructing the jury in accordance
with Dr. Gertz's testimony. See Fed.R.Crim.P. 26.1 (Determination of Foreign Law); cf. First
National City Bank v. Campania de Aguaceras, S. A., 5 Cir. 1968, 398 F.2d 779, 781­82.
45
The court's instruction that the Mexican government had owned the artifacts for over seventy­
five years was highly prejudicial to the defendants. It could have been the decisive factor in
the jury's inferring that the defendants must have known that the artifacts in question were
stolen.
IV.
46
This review of the relevant Mexican statutes demonstrates that the Mexican government has,
since 1897, been staking out for itself greater and greater rights in pre­Columbian artifacts.
Only in 1972, however, did the government declare that all pre­Columbian artifacts were
owned by the Republic. We hold that a declaration of national ownership is necessary before
illegal exportation of an article can be considered theft, and the exported article considered
"stolen", within the meaning of the National Stolen Property Act.28 Such a declaration
combined with a restriction on exportation without consent of the owner (Mexico) is sufficient
to bring the NSPA into play.29
47
This conclusion is a result of our attempt to reconcile the doctrine of strict construction of
criminal statutes with the broad significance attached to the word "stolen" in the NSPA. Were
the word to be so narrowly construed as to exclude coverage, for example, with respect to
pre­Columbian artifacts illegally exported from Mexico after the effective date of the 1972 law,
the Mexican government would be denied protection of the Act after it had done all it
reasonably could do vested itself with ownership to protect its interest in the artifacts. This
would violate the apparent objective of Congress: the protection of owners of stolen
property.30 If, on the other hand, an object were considered "stolen" merely because it was
illegally exported, the meaning of the term "stolen" would be stretched beyond its
conventional meaning. Although "stealing" is not a term of art, it is also not a word bereft of
meaning. It should not be expanded at the government's will beyond the connotation
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depriving an owner of its rights in property conventionally called to mind.31
48
We distinguish, therefore, between varying types of governmental control over property within
the borders of a state. All property is presumably within a state's police power: a state may
prohibit the sale of firearms to convicted felons; it may regulate the price charged for electric
power; it may prohibit the use of a privately owed manufacturing plant in a racially
discriminatory manner; it may require some private parties to sell their railroads to other
private parties. But the state's power to regulate is not ownership. Nor does the fact that a
state has regulated an object in and of itself constitute ownership.
49
To be sure, the pre­Columbian artifacts regulated by Mexico seem to be in a different position
from firearms, electric power, manufacturing plant, and railroads. Because the artifacts
cannot lawfully be taken from the country, without an export license they appear more
"owned" than the other types of property. This appearance reflects the confusion of
ownership with possession. Separating a piece of property from a country is analogous to
depriving that country of possession over the property, because it deprives the country of
jurisdiction over the property. Exportation restrictions guard that jurisdiction and power. But,
except for this effect on jurisdiction, restrictions on exportation are just like any other police
power restrictions. They do not create "ownership" in the state. The state comes to own
property only when it acquires such property in the general manner by which private persons
come to own property, or when it declares itself the owner;32 the declaration is an attribute of
sovereignty.
50
We summarize, then, how these conclusions square with Mexican law as we understand it. In
order to say whether any of the pre­Columbian movable artifacts were "stolen", it is
necessary to know first when that artifact was exported from Mexico.33 If the exportation
occurred after the effective date of the 1972 law, the artifact may have been stolen but only if
it were not legitimately in the seller's hands as a result of prior law. (Transitory Article Fourth).
If the exportation occurred before 1972, but after the effective date of the 1934 law, it would
be necessary to show that the artifact was found on or in an immovable archaeological
monument. If the exportation occurred before the effective date of the 1934 law, it could not
have been owned by the Mexican government, and illegal exportation would not, therefore,
subject the receiver of the article to the strictures of the National Stolen Property Act.
Because the jury was not told that it had to determine when the pre­Columbian artifacts had
been exported from Mexico and to apply the applicable Mexican law to that exportation,
convictions of all the appellants must be reversed.
51
The government argues, however, that, even if the 1972 law was the first to make every pre­
Columbian artifact in Mexico the property of the nation, the error in the trial court's jury
instruction amounts merely to harmless error. The appellee points to the fact that the
effective date of the 1972 law appears to have been June 5, 1972 (see Transitory Article
First) whereas the pre­Columbian artifacts are known to have been in the United States in
May 1973. The government suggests, then, that the "evidence . . . compelled the inference of
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recent exportation", (Br. at 27) i. e. exportation after June 5, 1972.
52
When the jury is not given an opportunity to decide a relevant factual question, it is not
sufficient "to urge that the record contains evidence that would support a finding of guilt even
under a correct view of the law". United States v. Casale Car Leasing Inc., 2 Cir. 1967, 385
F.2d 707, 712. The jury here was the only body that could have properly made the inference
of "recent exportation" and a holding by us to the contrary would, by supplanting our
determination for the jury's verdict, deprive the defendants of their right to a jury trial. Under a
proper view of the law, it is extremely important to the issue of guilt or innocence for the jury
to know or to make a fair inference as to just when the artifacts were exported. Accepting the
government's argument would be tantamount to affirming a conviction in which the trial court
had instructed the jury that "the artifacts were obviously recently exported". This, however, is
the kind of judicial error that cannot be found harmless notwithstanding the strength of the
evidence against the defendants. See Roe v. United States, 5 Cir. 1961, 287 F.2d 435, 438,
cert. denied, 368 U.S. 824, 82 S.Ct. 43, 7 L.Ed.2d 29; Carothers v. United States, 5 Cir.
1947, 161 F.2d 718, 722.
53
As the Court of Appeals for the Seventh Circuit said in United States v. England, 7 Cir. 1965,
347 F.2d 425, 430:
54
the defendant has an absolute right to a jury determination upon all essential elements of the
offense. This right, emanating from the criminal defendant's constitutional right to trial by jury,
is neither depleted nor diminished by what otherwise might be considered the conclusive or
compelling nature of the evidence against him.
55
See also United States v. O'Dell, 6 Cir. 1972, 462 F.2d 224; United States v. Hayward, 1969,
136 U.S.App.D.C. 300, 420 F.2d 142, 144; United States v. Fueston, 9 Cir. 1970, 426 F.2d
785; United States v. Manuszak, 3 Cir. 1956, 234 F.2d 421.34
V.
56
There is one issue raised that is not necessary for us to reach but which may arise in the
context of a retrial.
57
The appellants contend that the value of the artifacts could not be proved except by evidence
showing value at the time and place of theft, citing Herman v. United States, 5 Cir. 1961, 289
F.2d 362, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93. The government's evidence
tended to show the value of the artifacts after exportation, i. e. while sales were being
negotiated to undercover agents. As we have already observed, it is not clear how much time
elapsed between exportation and the appearance of the artifacts in San Antonio and Los
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Angeles.
58
In Herman, the question the Court faced was whether it was proper, in computing the value
of stolen goods, to include a mark­up to retail value. This question was answered
affirmatively. It is true, we observed that
59
(t)he standard test for determining market value of stolen property is the price a willing buyer
would pay a willing seller at the time and place the property was stolen.
60
Id. at 366. We now emphasize that the willing buyer­willing seller formula need not always be
confined to the time and place of theft.35 Instead, as we have once before observed, value
may be determined at any time during the receipt or concealment of stolen property. See
United States v. Nall, 5 Cir. 1971, 437 F.2d 1177, 1187; accord, United States v. Riso, 7 Cir.
1968, 405 F.2d 134, 137, cert. denied, 394 U.S. 959, 89 S.Ct. 1306, 22 L.Ed.2d 560; United
States v. Gardner, 7 Cir. 1975, 516 F.2d 334, 349, cert. denied, 423 U.S. 861, 96 S.Ct. 118,
46 L.Ed.2d 89; United States v. Tauro, W.D.Pa.1973, 362 F.Supp. 688, 691­92, aff'd, 3 Cir.
1974, 493 F.2d 1402.
61
The convictions are reversed. The cases are remanded for further proceedings not
inconsistent with this opinion.36
62
REVERSED AND REMANDED.
*
Senior District Judge for the Northern District of Alabama, sitting by designation
1
The American Association of Dealers in Ancient, Oriental, and Primitive Art filed an amicus
curiae brief under Rule 29, F.R.A.P., with the consent of all parties to the case. The amicus
asserts in its brief:
. . . In essence, the decision below has the extraordinary effect of converting the importation
into the United States of art works exported without authorization from another country an act
never before regarded as culpable under the law of the United States into a criminal violation
of a federal statute.
. . . The livelihood of the members of the association will be drastically affected if the
convictions are upheld. Merely by dealing in art work that have originated albeit many years
earlier in countries whose laws include broad declarations of national ownership in art, they
will be open to charges of receiving and transporting stolen property in violation of federal
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criminal law.
The case also has broad significance for the public at large. The art institutions of the United
States have been able to assemble and exhibit ancient, oriental and primitive art only
because it has been entirely lawful under United States law to collect such material, whether
or not it was exported from another country in compliance with that country's export
restrictions. Indeed, almost all nations which are the source of such art have traditionally
attempted to curb the outflow of art by rigid export restrictions, coupled in many cases with
broad claims of dominion or ownership of all such art within their territories. Thus far, the
United States has refused to accede to the pressure from these art­exporting nations to make
it illegal to bring into the United States all art objects exported in violation of their laws. While
the United States has been willing to take steps through treaty and statute to discourage the
importation of ancient art in select crisis situations, it has not been willing to deprive its
museum­going public of the enjoyment of a wide range of ancient, oriental and primitive art
on the basis of the policies of other governments.
This long­standing policy of the United States would be reversed by a decision upholding the
convictions below. The importation of ancient, oriental and primitive art into the United States
would be halted and the flow of such art deflected to other art­importing nations such as West
Germany, Switzerland, France and Japan. Even worse, insofar as the decision purports to
give effect to Mexican law since 1897, objects of art would now be treated as "stolen"
notwithstanding the fact that such a novel interpretation did not obtain when they were
originally introduced into the United States. Thus, the lower court's decision would undermine
a consistent and long­standing policy of the United States not only for the future, but also
retroactively. Museums which have painstakingly assembled extensive collections of ancient,
oriental and primitive art for the benefit of the public of the United States would now stand
branded as receivers of stolen property. The great concern of the museum community over
the implications of the decision below is illustrated by a Statement of Concern unanimously
adopted on January 6, 1976, by the Council of the American Association of Museums, an
organization representing 1,248 individual institutions. The statement concludes that aside
from its deleterious effect upon the functioning and staffing of museums, the interpretation of
the National Stolen Property Act adopted by the lower court will, if upheld, actually
discourage the growing cooperative efforts in international circles to find ways of regulating
illegal traffic in cultural property.
2
Ley Sobre Monumentos Arqueologicos, Diario Oficial de Mayo de 1897
3
Missouri v. Holland, 1920, 252 U.S. 416, 434, 40 S.Ct. 382, 384, 64 L.Ed. 641, 648
4
18 U.S.C. § 2312 (Dyer Act) prohibits the interstate transportation of stolen vehicles
5
The Court observed that " '(s)teal' (originally 'stale') at first denoted in general usage a taking
through secrecy, as implied in 'stealth,' or through strategem, according to the Oxford English
Dictionary. Expanded through the years, it became the generic designation for dishonest
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acquisition, but it never lost its initial connotation". 352 U.S. at 412, 77 S.Ct. at 399, quoting
Boone v. United States, 4 Cir. 1956, 235 F.2d 939, 940
6
See also Lyda v. United States, 5 Cir. 1960, 279 F.2d 461, in which we observed that § 2314
reflects a congressional purpose to reach all ways by which an owner is wrongfully deprived
of the use or benefit of the use of his property
7
Copies illicitly made of documents revealing a manufacturing process were "stolen" even
though the actual documents were not removed from the possession of the owner
8
Defendant was held to have "stolen" an airplane by trading for it an airplane that was not
airworthy and that was encumbered contrary to the defendant's representations
9
A defendant who obtained his automobile rightfully but failed to abide by his promise to pay
off a finance company was held to have "stolen" the vehicle for the purposes of the Motor
Vehicle Theft Act
10
There we applied the rule of strict construction to 18 U.S.C. § 1955. The statute prohibits the
operation of an illegal gambling business that "involves five or more persons" and "has been
or remains in substantially continuous operation for a period in excess of thirty days". Bridges
held that the statute prohibited only those gambling businesses in which five persons
participated for thirty days, and not those businesses in which five persons participated at
some time and the business itself existed for thirty days
11
We held that another portion of 18 U.S.C. § 2314, prohibiting the interstate transportation of a
"thing" used in falsely making or forging a "security", did not apply to a fraudulent credit card
transaction. Observing that ambiguities in criminal statutes are not to be resolved by
interpretations embracing offenses not clearly within the law, we held that the term "security"
was used in its usual commercial sense to refer to an instrument that in itself is valuable to a
thief. A credit sale invoice was not a "security", because it was not inherently valuable. Nor
was a credit card, therefore, a "thing" used in falsely making a security. We also observed
that Congress could have expressly provided for criminal liability in this area had it so
desired; the courts, however, would not search for an intention that the words themselves did
not suggest. This is consistent with the statement in Wiltberger
that the power of punishment is vested in the legislative, not in the judicial department. It is
the legislature, not the court, which is to define a crime, and ordain its punishment.
18 U.S. (5 Wheat.) at 95, 5 L.Ed. 37.
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12
We do not mean to imply that there is no possibility that a due process argument in defense
could prevail even if, for example, a defendant were prosecuted for removing his own
property to this country as a result of a foreign country's national declaration of ownership
that did not provide for just compensation or did not comply with other American notions of
fundamental fairness. This type of defense was not raised here and we do not, therefore,
face the issue
13
Bator, International Trade in National Art Treasures: Regulation and Deregulation, in DuBoff,
Art Law, Domestic and International 295, 300 (1975)
14
In 1972 Congress adopted a statute prohibiting the importation into the United States of
"stone carvings and wall art which are pre­Columbian monumental or architectural sculpture
or murals" from Mexico, Central America, and South America, unless the country of origin
certifies the exportation. 19 U.S.C. §§ 2091­2095. The limitation of the statute to "an
immovable monument or architectural structure" or a part thereof suggests to the amicus that
the national policy is to protect from pillage and mutilation pre­Columbian ceremonial centers
and architectural complexes a narrow class of archaeological objects that would not include
the artifacts the defendants here are accused of stealing. Importation of Pre­Columbian
Sculpture and Murals; Customs Port Security; Judicial Review in Countervailing Duty Cases,
S.Rep.No.92­1221, 92d Cong., 2d Sess. 3 (1972). See also Importation of Pre­Columbian
Sculpture and Murals, H.R.Rep.No.92­824, 92d Cong., 2d Sess. 3 (1972)
It is also true that the United States has resisted pressure to broaden restrictions on the
importation of art from foreign countries. Thus, in 1969, the General Conference of UNESCO
produced a draft Convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property. Under that draft, signatory nations
would have committed themselves to make it illegal under their own law to import all art
works exported without an export certificate from the territory of another party to the
Convention. This draft was "resisted vehemently" by the United States. The United States
finally succeeded in deleting the provisions calling for compulsory import provisions and
substituting a provision calling for concerted international action, including import controls,
only when needed in "crisis" situations. As thus revised, the Senate approved the Convention
subject to a number of reservations. Rogers & Cohen, Art Pillage­International Solutions, in
DuBoff Art Law 315, 317­18 (1975); Note, The Legal Response to the Illicit Movement of
Cultural Property, 5 Law & Pol. in Int'l Bus., 932, 958­63 (1973); 118 Cong.Rec. 27924­26
(1972); see UNESCO Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Cultural Property, 10 Int'l Leg. Mat'ls 289 (1961). See also
footnote 29.
A number of leading museums have adopted a voluntary policy of purchasing no art or
archaeological objects unless they are accompanied by a pedigree: the University of
Pennsylvania (1970), Harvard University (with the help of Professor Bator of Harvard Law
School, who had participated in the re­drafting of the UNESCO Convention in Paris in 1970);
the Field Museum of Natural History in Chicago, the University of California Museum in
Berkeley, the Brooklyn Museum, the Arizona State Museum, and the Smithsonian Institution.
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See generally, DuBoff, previously cited; see particularly Hamilton, Museum Antiquities: The
Case for Self­Regulation, DuBoff, p. 347, 357.
15
Spanish and English versions of the relevant statutory material are presented to this Court in
Appendix A of the main brief of the Amicus. Counsel for the Amicus contend that they
attempted in vain to secure translations from these other sources the Library of Congress,
the Mexican Embassy, the Organization of American States, the Inter­American
Development Bank, the International Congress of Museums, and the American Society of
International Law. The translations were finally prepared by counsel for the Amicus, with the
help of Tila Maria Hormazabal de Hancock, an attorney fluent in both English and Spanish
and trained in both the civil and common law. Hormazabal de Hancock filed an affidavit with
the Court stating that "the translations in Appendix A . . . are complete and accurate
translations of those articles and sections of the Mexican statutes to which they pertain . . .
and no other articles or sections of these laws are involved in the matters pertinent to this
appeal"
The government does not contend that any relevant material has been omitted from the
Amicus's selections from the statutes. Nor does the government dispute (with one exception
discussed in note 20) the accuracy of the translations.
16
Diario Oficial de 11 de mayo de 1897. See XIV Anuario de Legislacion y Jurisprudencia
(1897)
17
58 Diario Oficial 7, 31 de enero de 1930
18
Article 16 provided, in part:
Monuments of ownership or in the control of individuals may be alienated freely, but both the
acquirer and the alienator will be obligated to notify the Secretariat of Public Education of the
operation and terms on which this was effects, within fifteen days following its execution.
The Federal Government will have the power to acquire a monument at the same price and
subject to the same conditions of the alienation contract, but must exercise this right within
thirty days from the time it receives the notice stated in the first paragraph of the article.
19
82 Diario Oficial 152, 19 de enero de 1934
20
The law in Spanish reads:
Son del dominio de la Nacion todos los monumentos arqueologicos inmuebles. Se
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consideran inmuebles, y por consiguiente pertencen a la Nacion, los objetos que se
encuentren en monumentos inmuebles arqueologicos.
(Emphasis corresponds to that in text.) The translations provided by the Amicus gives "in" for
the Spanish "en". In its translation of the 1970 law, however, the word "on" is given for "en" in
the following similar Spanish phrase in Article 52:
Los bienes arqueologicos inmuebles y los muebles que en ellos se encuentren, son
propiedad de la nacion . . . .
Much is made over this discrepancy by the government, which, with the aid of Cassell's
Spanish Dictionary (6th ed. 1968), contends that "in" is correct. See also Note, The Legal
Response to the Illicit Movement of Cultural Property, 5 Law & Policy. in Int'l Bus. 932, 944­
45 (1973). The argument is advanced primarily because Dr. Gertz testified that items
involved in the instant prosecution are the type usually found in tombs, and because tombs
are presumably "immovable archaeological monuments" with the meaning of the statutes.
Rogers, The Legal Response to the Illicit Movement of Cultural Property, 5 Law & Policy in
Int'l Bus. 932, 937 (1973).
Here, we find it unnecessary to decide whether "on" or "in" is correct. Indeed, it appears that
"en" should be used in this context to include both concepts. But in light of our holding that
the jury must be asked to find when the artifacts in question were exported, a new trial will be
necessary if the government wishes to continue prosecution. On remand, expert testimony
about the meaning of the statute will, we hope, throw more light on the matter.
Objects found in or on a monument might have been, but were not, defined as immovables
by destination; presumably, these articles were intended to remain indefinitely in or on the
monument. It would be playing fast and loose with words, however, to say that certain objects
are found in or on monuments, when, for example, the artifacts are found in cenotes,
unornamented graves, or on the ground but covered by vegetation; even stelae were usually
erected in front of pyramids and temples (although stelae might qualify as monuments or
stone carvings).
The movable pre­Columbian artifacts involved in this case could have belonged to the
Republic of Mexico had they either actually been found in immovable monuments. There was
no testimony on this question.
21
303 Diario Oficial 8, 16 de diciembre de 1970
22
See note 20 supra
23
Article 17 provided in part that "private natural persons or corporations, whose objects may
be ascribed to the Cultural Patrimony of the Nation, shall retain property rights without
limitations other than those established in this Law". Article 37 referred to "(c)ultural objects
of private ownership"
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24
312 Diario Oficial 16, 6 de mayo de 1972
25
Rogers, The Legal Response to the Illicit Movement of Cultural Property, 5 Law Policy in Int'l
Bus. 932, 945 (1973); Nafziger, Controlling the Northward Flow of Mexican Antiquities, 7
Lawyer of the Americas, 68, 71 (1975)
26
Nafziger, Controlling the Northward Flow of Mexican Antiquities, 7 Lawyer of the Americas,
68, 71 (1975). "The law's effect is to foreclose the legitimate export of Mexican cultural
property and to encourage a black market". Id. at 71. "Mexico has taken a giant step
backward, reentrenching regulatory methods which have long been discredited". Rogers and
Cohen, Art Pillage International in DuBoff, Law and the Visual Arts, 281, 287 (1974). We
quote these statements only to show that experts on the subject recognized that the 1972 law
was completely different from all previous Mexican laws on the subject
27
Amicus Brief, p. 31, 32
28
United States v. Hollinshead, 9 Cir. 1974, 495 F.2d 1154, is cited by the appellees as the
case most on point supporting the instant convictions. There the defendant was successfully
prosecuted for transporting into the United States a famous pre­Columbian stela. Stelae,
arguably, are covered by the 1897 law. The stela, known as Machaquila Stela 2, was taken
from Guatemala. The stela was shaved ("thinned") to reduce its weight and was cut into 19
pieces for convenience in handling. Anyone would have known that it was stolen. The court
observed that "all such artifacts are the property of the Republic". Whether the court was
correct in its observation is immaterial here, because our independent examination of
Mexican law does not allow us to make the same observation without knowing when the
artifacts in this case were exported. Hollinshead does, however, support our conclusion that
a declaration of national ownership suffices to render an illegally exported item "stolen". See
Merryman, The Protection of Artistic National Patrimony Against Pillaging and Theft, in
DuBoff, Art Law, Domestic and International 245 (1975)
29
Our conclusions with respect to the applicability of the NSPA to illegally exported artifacts are
supported by the comments of the United States Department of State to the United Nations
Educational, Scientific, and Cultural Organization's (UNESCO) Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural
Property, Nov. 14, 1970, 10 Int'l Legal Materials 289 (1971). See generally Comment, The
UNESCO Convention on the Illicit Movement of Art Treasures, 2 Harv. Int'l J. 537 (1971).
Countries were to provide importation restrictions for property "stolen from a museum or a
religious or secular public monument or similar institution", UNESCO Convention, art. 7(b)(i),
and penal or administrative sanctions were to be provided against violators of such
restrictions, id. art. 8. The State Department responded that
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(t)he laws of the United States, and presumably the laws of most states, prohibit the theft and
the receipt and transportation of stolen property. . . . See title 18, U.S.Code, secs. 2314­15.
S.Exec.Rep. No. 29, 92nd Cong., 2d Sess. 17, at 21 (1972). The Senate adopted the
Convention on August 11, 1972, by a vote of 79 to 0. 118 Cong.Rec. 13, 378­79 (daily ed.).
For a comprehensive discussion of the Convention and other efforts in the international
community to deal with the problem of preserving national patrimony, see Note, supra note
18.
30
The appellants cite Jerome v. United States, 1943, 318 U.S. 101, 104, 63 S.Ct. 483, 87 L.Ed.
640, which established that federal criminal statutes should not, in the absence of express
legislative authorization, be interpreted according to diverse state laws. By analogy, then, it is
asserted that "the meaning of 'stolen' cannot be permitted to rest upon the far more diverse
and less understandable laws of foreign nations"
This ingenious argument misses the mark. In Jerome, the federal statute, 12 U.S.C. § 588d,
amended eff. Sep. 1, 1948, 62 Stat. 862 now codified at 18 U.S.C. § 2113 made it a crime to
"enter any bank, . . . with intent to commit in such bank . . . any felony or larceny". The
defendant was convicted of entering a Vermont bank with the intent of uttering a forged
promissory note; false uttering was a Vermont felony but not a federal felony. The Court
rejected the government's argument that the statute could be construed to refer to state­
defined felonies. The statute was to have nationwide application, and it was desirable that the
statute be uniformly construed.
The reasoning of Jerome does not support the appellants' position here. We suggest that the
key to Jerome is that behavior punishable in one state would not be punishable in another
state. Here, our decision to refer to foreign declarations of ownership does not create the
state­by­state divergence avoided in Jerome. It poses the possibility, of course, that similar
exportations from different countries might lead to different results in the United States. But
the National Stolen Property Act has a specific scienter requirement knowledge that stolen
goods are stolen that protects a defendant who might otherwise be trapped by such
differences.
The appellants also argue that a reference to foreign law for the purposes of determining
what is or is not "stolen" "would inject an unacceptable degree of uncertainty into the
administration" of the National Stolen Property Act. This appears to be an argument that the
application of the NSPA to foreign exportations makes the NSPA void for vagueness. We
reject this argument. Again, the specific scienter requirement eliminates the possibility that a
defendant is convicted for an offense he could not have understood to exist. Cf. Boyce Motor
Lines v. United States, 1952, 342 U.S. 337, 340, 72 S.Ct. 329, 331, 96 L.Ed. 367 (it is not
"unfair to require that one who deliberately goes perilously close to an area of proscribed
conduct shall take the risk that he may cross the line"). Moreover, the broad remedial
purposes of the stolen property acts require, as we have shown in text, that the word "stolen"
be broadly construed. It would have been impossible for the statutes to have explicitly
described every type of theft that might fall within their purview.
Finally, the appellants argue that an asserted national policy of encouraging the importation
of works of art precludes the application of the National Stolen Property Act in this area.
Assuming that there is such a national policy, we note that there is also a national policy to
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penalize those who trade in stolen merchandise. It is within the power accorded to the
executive branch of government to say when the policy embodied in the criminal statute
should prevail and prosecution be instituted. See United States v. Cox, 5 Cir. 1965, 342 F.2d
167 (en banc), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700.
31
We reject the government's argument that reasoning in United States v. Plott, S.D.N.Y.1972,
345 F.Supp. 1229, 1232, requires affirmance of the instant convictions. In Plott, the
defendant was charged with violating § 2314 by transporting from Alabama to New York
alligators that were poached in contravention of Alabama law. The court rejected the
defendant's argument, in his motion to dismiss the charges for failure to state an offense, that
poaching was not "stealing" within the meaning of the statute. The basis of this rejection was
two­fold. First, Geer v. Connecticut, 1896, 161 U.S. 519, 529, 16 S.Ct. 600, 40 L.Ed. 793,
was cited for the proposition that a state does own wildlife in its sovereign capacity. Second,
the defendant's argument was unpersuasive in that "the act of stealing is as much defined by
the taker's intent to keep property to which he has no right as it is by esoteric questions of
legal title in others. 345 F.Supp. at 1232. Only this second theory pertains to our case. But as
the court itself pointed out, this reasoning amounted merely to "semantic analysis". The court
refused to rest on such semantic analysis, and its reasoning, therefore, is merely dictum.
Finally, we suggest that the reasoning is not persuasive
32
The discussion of Italian law in Merryman, note 28 at 239­41, 244 supports our conclusion
that exportation restrictions in and of themselves do not create national ownership in artifacts.
See also Comment, note 29 at 540­41. Moreover, the Act to Prevent Importation of Pre­
Columbian Sculpture and Murals, Act of Oct. 27, 1972, Pub.L. No. 92­587, tit. II, 86 Stat.
1297, codified at 19 U.S.C. §§ 2091­95, suggest Congressional awareness of this distinction.
The Act makes illegal importation of pre­Columbian monumental or architectural sculpture
unlawfully exported from a country of origin. See Note, supra note at 939­42. If all illegally
exported artifacts were "stolen", the NSPA would, of itself have proscribed such importation,
and, except for portions of the 1972 statute that provide for seizure, storage, and return of
contraband, the statute would have been superfluous
33
The date of exportation is focused on because illegal exportation constitutes a sufficient act
of conversion to be deemed a theft. Of course, owned property may have been illegally taken
or converted before exportation, e. g., by discovering and failing to register an artifact or by
an unlawful transfer. If so, such property might be subject to the NSPA even if there were no
exportation restrictions and it is immaterial to determine whether the artifacts could have
been deemed "stolen" before they left Mexico. If the artifacts were stolen before exportation,
they still constituted stolen goods after exportation. If Mexican law became more stringent
after artifacts were illegally concealed within Mexico but before exportation, the illegal
exportation is the act, if any, that renders them stolen
34
See also Bollenbach v. United States, 1946, 326 U.S. 607, 614, 66 S.Ct. 402, 90 L.Ed. 350,
in which the Supreme Court stated that "the question is not whether guilt may be spelt out of
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a record, but whether guilt has been found by a jury according to the procedures and
standards appropriate for criminal trials in the federal courts". (Emphasis added.)
35
We have applied this principle to 18 U.S.C. § 641, which prohibits theft from, and receipt of
property stolen from, the United States, and which allows a much more severe penalty than
otherwise when the value of the property is more than $100. See United States v. Kramer, 2
Cir. 1961, 289 F.2d 909, 921; Jalbert v. United States, 5 Cir. 1967, 375 F.2d 125, 126, cert.
denied, 389 U.S. 899, 88 S.Ct. 225, 19 L.Ed.2d 221; United States v. Tyler, 9 Cir. 1972, 466
F.2d 920, 921, cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497. In Kramer, Judge
Friendly declared that
(i)t is not essential that the stolen property be worth $100 at the moment of receipt; it is
enough if there is evidence that the property had that value at some time when there
occurred an offense defined in the statute, charged in the indictment, and proved by the
evidence.
36
The appellants raised many other points of error that we do not deal with in this opinion, for
example, the lack of evidence of a conspiracy. They also argued that the district court erred
in failing timely to supply a copy of the Mexican statute or statutes on which the government
intended to rely, in refusing to grant an eve­of­trial continuance to the defendants when the
prosecution failed to produce copies of the pre­1970 Mexican laws, in failing to appoint an
interpreter for Rodriguez for the purpose of translating Mexican statutes into English, and in
refusing to appoint an expert in Mexican law and pre­Columbian artifacts. The question of the
need for a continuance is, of course, no longer an issue in light of our reversal of the
convictions. The need for experts and interpreters at a new trial will be governed by different
factors from those that existed at the first trial. We consider it inappropriate to comment
prospectively on matters substantially within the discretion of the trial court. We consider it
appropriate, however, to observe that Dr. Gertz, because of his official position with the
Mexican government, was necessarily a biased witness. Another and more objective expert
would have lightened the task of the district court and of this Court. As it was, we had to rely
to a great extent on the helpful brief of counsel for the amicus, who was, however, at least as
much a friend of dealers in pre­Columbian objects as a friend of the court
Source URL: http://openjurist.org/545/f2d/988
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720 F.Supp. 810 (1989)
GOVERNMENT OF PERU, Plaintiff,
v.
Benjamin JOHNSON, Lawrence Wendt, David Swetnam, Jacqueline Swetnam, George
Gelsebach, Oman Gaspar, Ronald Stanman and 352 Peruvian Artifacts, Defendants.
No. CV 88-6990-WPG.
United States District Court, C.D. California.
June 29, 1989.
811
*811 W. Noel Keyes, Corona Del Mar, Cal., George H. Wu, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff.
Terry W. Bird, Ronald J. Nessim, Bird, Marella, Boxer, Wolpert & Matz, Los Angeles, Cal., James F. Fitzpatrick, Edward L.
Wolf, Arnold & Porter, Washington, D.C., for defendants.
MEMORANDUM OF DECISION
GRAY, District Judge.
The Government of Peru, plaintiff in this action, contends that it is the legal owner of eighty-nine artifacts that have been
seized by the United States Customs Service from defendant Benjamin Johnson. The plaintiff charges the defendant
with conversion of these articles and seeks an order for their return. Judgment will be rendered for the defendant.
812
Irrespective of the decision in this matter, the court has considerable sympathy for Peru with respect to the problems
that it confronts as manifested by this litigation. It is evident that many priceless and beautiful Pre-Columbian artifacts
excavated from historical monuments in that country have been and are being smuggled abroad and sold to museums
and other collectors of art. Such conduct is destructive of a major segment of the cultural heritage of Peru, and the
plaintiff is entitled to the support of the courts of the *812 United States in its determination to prevent further looting of
its patrimony.
However, there is substantial evidence that Mr. Johnson purchased the subject items in good faith over the years, and
the plaintiff must overcome legal and factual burdens that are heavy indeed before the court can justly order the subject
items to be removed from the defendant's possession and turned over to the plaintiff. The trial of this action has shown
that the plaintiff simply cannot meet these burdens.
1. The Plaintiff Cannot Establish That The Subject Artifacts Were Excavated
In Modern Day Peru.
The plaintiff has no direct evidence that any of the subject items came from Peru. It alleges, on information and belief,
that they were taken from Peru or excavated from archeological sites in that country. The plaintiff's principal witness was
Dr. Francisco Iriarte, who, according to the plaintiff's counsel, is Peru's foremost archeologist in Pre-Columbian
artifacts. Dr. Iriarte examined each of the eighty-nine artifacts and in almost every instance asserted that he recognized it
as an item of Peruvian style and culture, and he usually asserted the belief that it came from a particular excavation site
or specific area in Peru. I have no doubt that Dr. Iriarte has seen artifacts taken from those respective locations that are
very similar to the items that he was examining in court. However, Dr. Iriarte admitted that Peruvian Pre-Columbian
culture spanned not only modern day Peru, but also areas that now are within the borders of Bolivia and Ecuador, and
many of the population centers that were part of the Peruvian Pre-Columbian civilization, and from which artifacts have
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been taken, are within those countries. The fact that the subject items are identifiable with excavation sites in modern
Peru does not exclude the possibility that they are equally similar to artifacts found in archeological monuments in
Bolivia and Ecuador. Indeed, the evidence shows that at least one of the subject items is very similar to a figure
depicted in a photograph that appears in an article concerning the cultural anthropology of Ecuador.
Moreover, Columbia also borders Peru, and customs documents that appear to pertain to some of the subject items
assert Columbia to be the country of origin. Such an assertion is, of course, hearsay and, even though the documents
may be business records kept in ordinary course, they should not be given great weight. However, they do further point
up the difficulty that the court has in concluding that any specific one of the items concerned in this action originated
within the present boundaries of Peru.
I was impressed by Dr. Iriarte's testimony. He doubtless is knowledgeable in his field and honest in his beliefs. He also
has a genuine interest in helping his country recover artifacts that are such an important part of its patrimony, and this
desire necessarily plays a part in his conclusions as to the origins of the objects at issue. In some instances, he
admitted that an item may have come from Ecuador or Columbia or Mexico or even Polynesia, but nonetheless retained
the opinion that it had been found in a particular area of Peru, due to its similarity to other objects taken from that site.
Because of the many other possibilities, this court cannot base a finding of ownership upon such subjective
conclusions. We are far from certain as to the country of origin of any of the artifacts here concerned. This unfortunate
circumstance precludes an adjudication that they came from Peru.
2. The Plaintiff Cannot Establish Its Ownership At The Time Of Exportation.
Even if it were to be assumed that the artifacts came from Peru, in order for the plaintiff to recover them, it must prove
that the Government of Peru was the legal owner at the time of their removal from that country. Such ownership
depends upon the laws of Peru, which are far from precise and have changed several times over the years.
813
(a) 1822—1929. The plaintiff, in its Second Post Trial Brief, submitted for the first time copies of the statutes upon which
it relies to establish that, from 1822 to the present time, Peru owned the artifacts located *813 in that country. However,
in its pleadings, its responses to discovery requests, and its pretrial memoranda, the plaintiff identified Law No. 6634 of
June 13, 1929, as the earliest enactment that formed the legal basis for its ownership claims. Federal Rule of Civil
Procedure 44.1 provides that "[a] party who intends to raise an issue concerning the law of a foreign country shall give
notice by pleadings or other reasonable written notice." I find that initial presentation of these purported pre-1929
enactments after the case has been tried cannot constitute "reasonable notice", and I decline to consider them in
rendering this decision.
In any event, the plaintiff's present reliance upon pre-1929 law is sustantially undercut by the trial testimony of its expert
witness on Peruvian law, Roberto MacLean, a former Chief Justice of the Supreme Court of that country. In response to
a question regarding Peru's statutes concerning government ownership of Pre-Columbian artifacts, he said: "even
though there are several rules which have some academic importance but for all practical purposes the first law is from
1929; if I recall correctly from 13 of June of 1929."
The defendant's expert, Professor Alan Sawyer, whose qualifications concerning artifacts are comparable to those of
Dr. Iriarte, testified that it is impossible to determine from examination of the items here concerned when they were
excavated or left the country of origin, and that many Peruvian artifacts were brought into the United States before 1929.
It follows that if any of the subject items left Peru before 1929, the plaintiff cannot claim ownership of them.
(b) 1929-1985. A written opinion by Professor MacLean asserts that what Law No. 6634 means "is that if a person
found an archeological object before June of 1929 this object belongs to him; but if that person found the object after
June 1929 it belongs to the State." Article 11 of Law No. 6634 provides that privately owned Pre-Columbian artifacts
must be registered in a special book "which shall be opened at the National Museum of History", and that any "[o]bjects
which, after one year beginning on the day the book is opened, have not been registered, shall be considered the
property of the State."
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Government of Peru v. Johnson, 720 F. Supp. 810 - Dist. Court, CD California 1989 - Google Scholar
From the record at the trial, I cannot determine when the "special book" called for by Article 11 was opened or whether it
ever has been opened. Interrogatory No. 9, propounded to the plaintiff by the defendant, asks for the date or
approximate date upon which the special book was "opened"; the response was that "[t]his date is unknown." The
plaintiff submitted a supplemental answer which said that the "so called `book' is a card registry" that has been
"adequately ordered since 1969 to date." The response further states that "[u]p to the year 1972 the books are found at
the National Museum of Anthropology and Archeology, since 1972 to date, the books are found at the `Museum of the
Nation'." The record does not show whether either of these named institutions is the same as the National Museum of
History, where the special book was to be opened.
On January 5, 1985, Law No. 6634 was repealed and replaced by Law No. 24047. According to Professor MacLean's
written opinion, "[a]fter that date there is also the obligation for private persons to register their archeological objects
and if they do not comply with this obligation that could mean that the objects belong to the State." (Emphasis added.)
In undertaking to evaluate Peru's ownership claims in this confusing situation, I am assuming that none of the artifacts
have been duly registered. However, I do not know whether the repeal of Law No. 6634 nullifies the registration
requirement therein contained. If it does, a private owner could have retained an unregistered item through January
1985 without losing his title. In any event, if the private owner caused his unregistered artifact to be removed from Peru
within one year following the opening of the "special book" (whenever that may have occurred), title would not have been
transferred from such person to the plaintiff.
814
*814 (c) From January 1985 To The Present. As is mentioned above, on January 5, 1985, the 1929 law was repealed
and replaced by Law No. 24047. Professor MacLean's written opinion states that under the latter statute "if a person
finds after 5th January of 1985 an archeological object it can belong to him." The next relevant official document is a
Supreme Decree of the President of Peru, dated February 27, 1985, which proclaims that Pre-Hispanic artistic objects
"belonging to the nation's cultural wealth are untouchable," and that their removal from the country is categorically
forbidden. This Decree does not clearly establish state ownership of any such art objects. However, on June 22, 1985,
a new statute provided specifically that all archeological sites belong to the state. "So if a private person digs a site and
excavates its objects [he] is taking somebody else's property", according to Professor MacLean's written opinion. Thus,
it would appear that if any artifacts here concerned were privately excavated between January 5 and June 22, 1985, they
would constitute private property, rather than being owned by Peru.
3. Michael Kelly's Testimony Does Not Establish Peru's Ownership.
Mr. Michael Kelly testified that in August 1987 he brought to Mr. Johnson's home in California certain artifacts that he
believed to have come from Peru. But all of his information as to the country of origin of these items was strictly hearsay.
I am also skeptical of Mr. Kelly's ability to identify any of the specific objects here concerned as having been part of the
1987 shipment. Some of the subject items doubtless were in Mr. Johnson's home when Mr. Kelly was present, and he
well may have seen them. However, Mr. Johnson submitted documents that quite clearly established his having
purchased many of them in the United States well before 1987.
Despite Mr. Kelly's testimony, which was designed to show that Mr. Johnson was implicated in, or at least was aware
of, the smuggling activities of Mr. Kelly and Mr. Swetnam, I am not satisfied that Mr. Johnson received any of the items
here concerned with the knowledge that they were illegally removed from Peru.
4. The Uncertainty Of The Domestic Application Of Peru's Ownership Laws.
Official documents of Peru long have asserted, in one way or another, the interest of the state in preserving its artistic
objects as "part of the national cultural wealth," that they are "untouchable, inalienable and inprescriptable," and that
their removal from the country is "categorically forbidden." See, e.g., Supreme Decree of February 27, 1985. Such
declarations are concerned with protection and do not imply ownership. However, the law of June 13, 1929, does
proclaim that artifacts in historical monuments are "the property of the State" and that unregistered artifacts "shall be
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Government of Peru v. Johnson, 720 F. Supp. 810 - Dist. Court, CD California 1989 - Google Scholar
considered to be the property of the State." Nonetheless, the domestic effect of such a pronouncement appears to be
extremely limited. Possession of the artifacts is allowed to remain in private hands, and such objects may be
transferred by gift or bequest or intestate succession. There is no indication in the record that Peru ever has sought to
exercise its ownership rights in such property, so long as there is no removal from that country. The laws of Peru
concerning its artifacts could reasonably be considered to have no more effect than export restrictions, and, as was
pointed out in United States v. McClain, 545 F.2d 988, 1002 (5th Cir.1977), export restrictions constitute an exercise of
the police power of a state; "[t]hey do not create `ownership' in the state. The state comes to own property only when it
acquires such property in the general manner by which private persons come to own property, or when it declares itself
the owner."
815
The second time that the case of United States v. McClain came before the Fifth Circuit, the opinion stated: "It may well
be, as testified so emphatically by most of the Mexican witnesses, that Mexico has considered itself the owner of all preColumbian artifacts for almost 100 years. If so, however, it has not expressed that view with sufficient clarity to survive
translation *815 into terms understandable by and binding upon American citizens." 593 F.2d 658, 670 (5th Cir.1979).
Under all of the above discussed circumstances, I find the same comment to be applicable here.
5. Conclusion.
Peru may not prevail in this action to recover the artifacts here concerned because:
(a) We do not know in what country they were found and from which they were exported.
(b) If they were found in Peru, we do not know when.
(c) We do not know if they were in private possession in Peru more than one year after the official registry book was
opened.
(d) The extent of Peru's claim of ownership as part of its domestic law is uncertain.
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