Not as Clear as it May Seem

Actor Nicholas Cage has agreed to repatriate another Bataar skull back to Mongolia.  So, the goverment has won by default again, despite the fact that the government's case may not be as strong as it seems from press reports. Meanwhile, CPO has heard a rumor that Mongolia has quietly sold another repatriated Bataar to a wealthy individual in the Middle East.  If true, it would further undercut claims that have been made in the past to Courts and the public that Bataar Fossils have not been made available for sale.

Another Bataar Skull to Be Repatriated, but Was it "Stolen?"

The Feds have made another fossil dealer an offer he could not refuse--  give us your Tyrannosaurs Bataar Skull, plead guilty to smuggling, pay a fine and almost all will be forgiven.  The problem with all of this is that serious questions remain about claims that such fossils are "stolen" from Mongolia, i.e., does Mongolia have a law that vests absolute title of all such fossils in the Mongolian state that is actively enforced at home?

Supreme Court to Take on Controversial Practice

The Supreme Court will be reviewing a controversial practice that has made it difficult to mount a defense to criminal forfeiture actions relating to cultural goods and fossils.  This practice certainly made it exceedingly difficult for Eric Prokopi to defend his claim to the Bataar skeleton he spent a year creating out of a pile of old fossilized bones.

Here is an article about the Supreme Court case from Sunday's online Wall Street Journal.

 How Prosecutors Rig Trials by Freezing Assets; Is it fair to seize all a defendant owns without showing its criminal source? The Supreme Court will rule.

By Harvey Silvergate,  Wall Street Journal (Online) [New York, N.Y] 06 Oct 2013

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?

Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.

What crimes are the Kaleys charged with? Kerri Kaley was a sales representative for a subsidiary of Johnson & Johnson. Beginning in 2005, the feds in Florida investigated her, her husband Brian, and other sales reps for reselling medical devices given to them by hospitals. The hospitals had previously bought and stocked the devices but no longer needed or wanted the overstock since the company was offering new products. Knowing that the J&J subsidiary had already been paid for the now-obsolete products and was focused instead on selling new models, the sales reps resold the old devices and kept the proceeds.

The feds had various theories for why this "gray market" activity was a crime, even though prosecutors could not agree on who owned the overstocked devices and, by extension, who were the supposed victims of the Kaleys' alleged thefts. The J&J subsidiary never claimed to be a victim.

The Kaleys were confident that they would prevail at trial if they could retain their preferred lawyers. A third defendant did go to trial with her counsel of choice and was acquitted. But the Justice Department made it impossible for the Kaleys to pay their chosen lawyers for trial.

The government insisted that as long as the Kaleys' assets--including bank accounts and their home--could be traced to the sale of the medical devices, all of those assets could be frozen. The Kaleys were not allowed to go a step further and show that their activities were in no way criminal, since this would be determined by a trial. But the Kaleys insisted that if the government wanted to freeze their funds, the court had to hold a pretrial hearing on the question of the legality of how the funds were earned.

The Kaleys complained that the asset freeze effectively deprived them of their Sixth Amendment right to the counsel of their choice--the couple couldn't afford to hire the defense that they wanted. Prosecutors and the trial judge responded that the Kaleys could proceed with a public defender. This wouldn't have been an encouraging prospect for them, for while public counsel is often quite skilled, such legal aid wouldn't meet the requirements the Kaleys believed they needed for this complex defense. Choice of counsel in a free society, one would think, lies with the defendant, not with the prosecutor or the judge. (The Kaleys' chosen trial lawyers have agreed to stick with the case during the pretrial tussling over the asset-freeze question, but trying the case before a jury would be much more expensive and would require the frozen funds.)

Federal asset-forfeiture statutes like the one the Kaleys are fighting are actually a relatively recent invention. Before 1970, when Congress adopted the first provisions seeking to strip organized-crime figures of ill-gotten racketeering gains, there were no such laws (with the exception of the Civil War-era Confiscation Acts providing for the forfeiture of property of Confederate soldiers).

Since 1970, however, such federal statutes have expanded to cover a breathtaking number of crimes, from the sale of fraudulent passports and contraband cigarettes right up to murder and drug trafficking. An authoritative treatise, the 4th edition of the encyclopedia "Federal Practice & Procedure," asserts that federal forfeiture is now available "for almost every crime." In January, the New York Times quoted Manhattan U.S. Attorney Preet Bharara as saying that asset forfeiture is "an important part of the culture" and "an example of the government being efficient and bringing home the bacon." In 2012 alone, federal prosecutors seized more than $4 billion in assets. The Justice Department is allowed by law to put that bacon to use however prosecutors wish--to pay informants, provide snazzy cars to cooperating witnesses, whatever.

The Kaleys are hardly alone. The recently completed prosecution of Conrad Black indicates starkly how such seizures can torpedo a defendant's chance of getting a fair trial. In his 2007 high-profile case, Mr. Black, a former newspaper publisher indicted for alleged fraud and related crimes in the sale of Hollinger International, endured a federal freeze of his major unencumbered asset, the cash proceeds from the sale of his New York City apartment. That freeze prevented him from being able to retain the legal counsel upon whom he had relied before the asset freeze.

Mr. Black ultimately was convicted on two counts, winning on all the others in a shifting array of counts that numbered more than a dozen. Last year, having served his 42-month prison sentence, he filed a petition in federal court seeking to vacate his convictions on the ground that the government's asset-forfeiture tactics had deprived him of his counsel of choice. That effort foundered when the judge concluded that Mr. Black's trial counsel--not his counsel of choice, it must be noted, but rather the counsel he could afford after the asset freeze--had failed to properly raise and hence preserve the issue for later appellate review.

The Supreme Court has now threatened to upset the game that is so lucrative for the government and disabling for defendants. On March 18, the court agreed to consider the Kaleys' claim that the asset freeze without a hearing on the merits of the underlying criminal charge violated their constitutional rights. At oral argument in mid-October, the broader question will be whether, after four decades of federal asset seizures, the high court will put a freeze on the Justice Department.

Mr. Silverglate, a Boston criminal defense and civil liberties lawyer, is the author, most recently, of "Three Felonies a Day: How the Feds Target the Innocent" (Encounter Books, updated second edition 2011).

ICE and CBP Return Fossils to China

U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) have repatriated a group of fossils valued at some $30,000 to China. See: http://www.cnn.com/2009/TECH/science/09/14/china.fossils.returned/index.html?eref=igoogle_cnn See also: http://www.ice.gov/pi/nr/0909/090914washington.htm

The basis for the return is unclear. CNN quotes John Morton, an ICE official, as stating,

The attempt to remove them from China ran up against a network of national and international customs laws that are in place to protect against the theft of cultural property.

Nevertheless, I suspect that Customs may have detained the artifacts for failure to declare them properly and that the importers then abandoned them rather than fight the seizure.

This would be typical. I understand most artifacts that are repatriated are abandoned without a decision from a neutral fact finder. Contesting a customs forfeiture takes substantial time and money. Even an importer with a strong case may not consider it worth pursuing. For instance, while the fossils' estimated value of $30,000 may sound significant, that amount must be balanced against the costs of retaining a lawyer (which could easily exceed that amount), the time and effort involved, and the fear that civil customs liability may possibly lead to criminal charges. Indeed, when faced with such realities, most will consider abandonment to be the only rational option.

This all seems quite unfair to me. From my perspective, it all seems tilted too heavily in favor of the government and against the rights of an individual. Though the system offers due process, such process carries little practical meaning if the costs of exercising it are too great.

Certainly, government press releases tell only one side of the story. The importers that know the other side remain silent for fear of liability. Meanwhile, is it possible that fossils like those repatriated here are as openly available in China itself as is ancient art? See http://www.time.com/time/world/article/0,8599,1656527,00.html If so, what interests do their repatriation actually serve?