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Enforcement Edge
November 1, 2023

Cleveland Art Museum Initiates Rare Legal Challenge to Antiquities Seizure by Manhattan DA

Enforcement Edge: Shining Light on Government Enforcement

Last month, the Cleveland Museum of Art (the Museum) mounted a rare legal challenge to an attempt by the New York County District Attorney’s Office (DANY) to seize and repatriate a centuries-old headless bronze sculpture, said to originate from Turkey. DANY’s latest antiquities seizure is part of an ongoing and apparently expanding effort by its Antiquities Trafficking Unit to investigate and prosecute alleged antiquities theft. DANY’s activities, which raise complex legal questions, are not often met with resistance, making the Museum’s lawsuit particularly noteworthy.

The legal battle centers around a headless bronze sculpture valued by investigators at US$20 million. DANY alleges that the sculpture was looted from the ancient region of Bubon in southwestern Turkey, trafficked through Manhattan, and ultimately purchased by the Museum from a New York art gallery in 1986. DANY contends that the sculpture dates back to 180-200 CE and depicts Roman emperor Marcus Aurelius. On August 14, upon application by DANY, a New York Supreme Court judge signed a warrant to seize the sculpture based on “reasonable cause” to believe the sculpture was stolen property pursuant to New York Penal Law Sections 165.54 and 105.10(1). Since then, the sculpture has been “seized in place” at the Museum, meaning it will remain at the Museum until the legal dispute is resolved.

Following the sculpture’s seizure, on October 19, the Museum filed a complaint for declaratory and injunctive relief in the U.S. District Court for the Northern District of Ohio. The complaint challenges the origin story told by DANY: the Museum asserts that the sculpture, which it calls “the Philosopher,” could represent Sophocles, Lucius Verus, or Marcus Aurelius and, given the “complete absence of scientific evidence” linking the sculpture to Bubon, there is substantial uncertainty surrounding its identification and origins. The Museum maintains that it purchased the sculpture legally based on representations made by the seller and asks the court to declare that it is the rightful owner of the Philosopher — a significant challenge given the sculpture’s purported age, potentially missing or incomplete records, and conflicting expert opinions from both the Museum and DANY.

Established in 2017, DANY’s Antiquities Trafficking Unit vigorously investigates and prosecutes alleged antiquities theft, resulting in thousands of objects being repatriated to countries such as Turkey, Greece, Israel, and Italy. Just this April, DANY announced that it repatriated 12 antiquities, valued at over US$33 million, to Turkey.

In fact, some of DANY’s recent repatriations have come from the Museum itself. According to the Museum’s complaint, in the past, the Museum has been “persuaded” by DANY to “stipulate that [the Museum] has no claim, resulting in the transfer to a foreign country of antiquities from the Museum’s collection.” The Museum also has voluntarily transferred antiquities to their country of origin without DANY’s intervention. Now, in challenging DANY’s seizure of the Philosopher, the Museum’s complaint appears to criticize the unit. While noting, pointedly, that DANY “sometimes gets it right,” the Museum states that antiquities are often repatriated “without an announced criminal prosecution,” and “[i]n most cases, [DANY] persuades the possessor of the antiquity in question to stipulate that the possessor has no claim to the antiquity and will not object to the disposition of the antiquity.” The Museum adds that “[r]epatriation is typically accomplished in elaborate ceremonies open to the press and attended by the New York District Attorney and his staff, federal agents with the Department of Homeland Security, and diplomatic representatives from the countries at issue.”

Indeed, DANY’s efforts to repatriate allegedly looted artifacts often go unchallenged, no doubt in part out of a concern that fighting back will lead to a costly and disruptive criminal investigation, even where one may not be warranted. The Museum’s complaint cites “only two other cases of which [the Museum] is aware” in which a person or entity opposed DANY’s efforts through legal challenge.

In one of the cases cited by the Museum, In the Matter of Persian Guard Relief (Persian Guard Relief), a New York Supreme Court judge halted DANY’s attempted repatriation of an Iranian antiquity due to jurisdictional issues. There, the court noted that there was no criminal prosecution pending against the antiquities dealers in possession of the artifact, nor did one appear to be forthcoming, and therefore the court lacked jurisdiction to determine the issue of ownership. According to the court, ownership needed to be determined before the court released the artifact to DANY for repatriation and a court of civil jurisdiction was a more appropriate forum for such a determination. After further negotiations with DANY, the antiquities dealers agreed to surrender the artifact, which was returned to Iran in 2018.

The lack of resistance to DANY’s activities is likely attributable in part to the legal complexities alluded to in Persian Guard Relief. DANY often relies on civil and criminal forfeiture laws to obtain search and seizure warrants purportedly based on reasonable cause that the artifacts are stolen property. Once seized, DANY repatriates the antiquities to the purported “lawful” owner pursuant to New York Penal Law Section 450.10, which mandates the return of stolen property in connection with a criminal proceeding. Oftentimes, however, DANY’s seizure and subsequent repatriation is not accompanied by a criminal prosecution, as would be expected under the statute and would require the government to meet a higher standard. As such, DANY’s practices raise complex questions about the appropriate use of criminal search statutes, due process rights, jurisdiction, venue, and proof of ownership; until now, those questions have largely gone unanswered.

We will be following this case, along with other actions taken by DANY’s Antiquities Trafficking Unit, here on Enforcement Edge. If you have questions, reach out to any of the authors or any of their colleagues in Arnold & Porter’s White Collar Defense & Investigations practice group.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.