Last week, Judge Autrey ruled that the Art Museum possessed sufficient Article III standing to challenge the government’s attempted forfeiture.
The museum purchased the Mask of Ka-Nefer-Nefer from an art dealer for $499,000 in 1998 after conducting an appropriate due diligence check.
The mask was excavated in 1952 by Egyptian archeologist Mohamed Zakaria Goneim from a storage room near the step pyramid of Saqarra. It and other antiquities had accompanied the mummified body of Ka-Nefer-Nefer, a noblewoman at the court of Ramses II.
The government, in its March 2011 filing, suggested the mask was stolen sometime between 1966, when it was shipped off to Cairo for an exhibit, and 1973, when the Egyptian Museum in Cairo ran an inventory and found Box number 54, in which the mask had been packed, was empty.
But the museum, its own civil suit, said it had thoroughly researched the mask’s ownership history before buying it. The suit was filed a month before the government’s claim as an attempt to pre-empt the forfeiture move, which it suspected was in the works given the growing controversy.
The museum’s research showed the mask was part of the Kaloterna private collection during the 1960s, before it was purchased in Switzerland by a Croatian collector, Zuzi Jelinek, who then sold the mask to Phoenix Ancient Art in 1995.
The government’s argument was prefaced on the assumption that the Mask of Ka-Nefer-Nefer was stolen and, thus, was forfeitable. Yet, the government failed to present compelling evidence that a theft had occurred.
Instead, the government relied on a lack of any documentation “that the Mask was sold or given to a private party during the time frame of 1966 to 1973.”
The St Louis Art Museum noted that the government did “not allege that all sales or gifts of antiquities by the Egyptian government prior to 1983 were documented or registered.”
The St. Louis Post Dispatch also reported that “U.S. Attorney Richard Callahan said his office plans to further argue its case, but is studying the ruling to determine exactly how to proceed, whether through further pleadings or an appeal.”
Given the lack of compelling evidence of theft, it would seem that the government’s best hope would likely be to challenge the ruling on Article III standing. A successful Article III challenge could prevent the St. Louis Art Museum from challenging the forfeiture. However, it is undisputed that the St. Louis Art Museum purchased the Mask in good faith and it is undisputed that the Art Museum is possessor of the Mask. Coupled with the finding of insufficient evidence that the mask was stolen, it sounds like an unlikely, and expensive, pursuit.
The St Louis Art Museum is represented by McClain Elizabeth Bryant and Patrick A. McInerney of Husch Blackwell LLP.
Excerpted from U.S. District Judge Henry Autrey’s Opinion:
The verified complaint does not provide a factual statement of theft, smuggling, or clandestine importation. Rather, the complaint merely states that the Mask was found to be “missing” from Egypt in 1973. Although the Government alleges, in a conclusory fashion, that “the register did not document that the Mask was sold or given to a private party during the time frame of 1966 to 1973,” the complaint is completely devoid of any facts showing that the Mask was “missing” because it was stolen and then smuggled out of the country. The closest the Government comes to any type of allegation of theft or smuggling is in paragraphs 19 and 20 of the complaint, which note that in 2006 “the Egyptian Supreme Council of Antiquities became aware that the Mask was accessioned by the Saint Louis Art Museum . . . and [t]o date, the Saint Louis Art Museum has refused to return the Mask.” The Government’s legal conclusion, in paragraph 22 of the verified complaint, that “[b]ecause the Mask was stolen, it could not have been lawfully exported from Egypt or lawfully imported into the United States,” misses a number of factual and logical steps, namely: (1) an assertion that the Mask was actually stolen; (2) factual circumstances relating to when the Government believes the Mask was stolen and why; (3) facts relating to the location from which the Mask was stolen; (4) facts regarding who the Government believes stole the Mask; and (5) a statement or identification of the law which the Government believes applies under which the Mask would be considered stolen and/or illegally exported. The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally. The Government is required under the pleading standards set forth in the Federal Rules of Civil Procedure to provide specific facts, or plead “with such particularity,” that the claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.
Fed.R.Civ.P.Supp.E(2)(a). As it now stands, claimant cannot even be sure of the who, what, when or where of the alleged events surrounding the alleged “stealing,” nor can the Museum ascertain if the Government is pursuing seizure of the Mask based on an alleged theft or a unlawful import/export, or both. (The Court presumes that the Government is not accusing any unnamed parties of clandestinely smuggling the Mask out of Egypt and into the United States; however, given the lack of specificity in the verified complaint, perhaps the Court should not make any assumptions on the Government’s behalf.)
Additionally, as noted previously, the Government has been completely remiss in addressing the law under which the Mask would be considered stolen. The phrase “contrary to law” under § 1595a refers to how merchandise, such as the Mask, is introduced in the United States illegally, unlawfully, or in a manner conflicting with established law. The Government has completely failed to identify, in its verified complaint, the established law that was violated when the Mask was purportedly brought illegally into the United States or purportedly stolen from Egypt or some other undisclosed party, and it has failed to provide any facts relating to the time period surrounding these supposed events. Thus, the Government’s verified complaint fails to assert specific facts supporting an inference that the Mask is subject to forfeiture.