WYWH: Review of “Successes and Challenges Facing the Return of Stolen Art and Cultural Heritage Property”
By Mia Tomijima
On April 21st, New York Law School’s Center for International Law presented the Otto L. Walter Lecture entitled “Successes and Challenges Facing the Return of Stolen Art and Cultural Heritage Property.” The guest speaker for the evening was Sharon Cohen Levin, Chief of the Money Laundering and Asset Forfeiture Unit in the Criminal Division of the United States Attorney’s Office for the Southern District of New York. According to the U.S. Attorney’s Office website, Levin and her Asset Forfeiture Unit “pioneered the use of federal forfeiture laws to recover and return stolen art and cultural heritage property.” The event was well-attended and received by approximately 50 people, who came to hear Ms. Levin discuss the many famous art law cases that her office has handled over the past two decades, and the investigatory and legal strategies used for each one. A week later, on Monday, April 27, the New York Times broke the news that Levin is leaving the forfeiture unit and the Attorney’s Office after 29-years of tenure to join a private law firm, WilmerHale.
In her opening remarks, Levin talked about her unit that uses forfeiture laws to locate and seize proceeds derived from criminal activities and then distributes them back to victims and appropriate law enforcement agencies. She provided an overview of the relevant forfeiture laws that she uses in her work, including 18 U.S.C. §981 (Civil forfeiture) and 18 U.S.C. §542 (Entry of goods by means of a false statement), among others. Levin described how it is illegal to “knowingly” move stolen property, and how her office is able to show intent through false customs statements and declarations. It is through this inventive use of preexisting law that her office was able to return over 100 items, ranging from fine art by Basquiat and Rembrandt, to ancient gold platters, and even a complete dinosaur skeleton.
The audience listened intently as Levin talked about a number of the cases that her office has handled. The survey started with U.S. v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999), a case involving a gold phiale that was improperly excavated in Italy and smuggled into Switzerland. Thereafter, the phiale was flown to a buyer in the US. Levin explained that under Article 44 of Italy’s patrimony law, antiquities found and removed from Italian ground after 1902 belongs to the nation, a law that provided the basis for the U.S. government to bring an action on behalf of Italy. The 1999 decision was groundbreaking (no pun intended) because it set precedent that false statements on a customs documents serve as a basis for forfeiture. After the court ordered the forfeiture of the phiale, a twin phiale in the Metropolitan Museum of Art was also returned to Italy.
Next, Levin discussed her work on the case U.S. v. a 10th Century Cambodian Sandstone Sculpture, 12 Civ. 2600 (GBD) (S.D.N.Y. 2013). This action sought the forfeiture of the Duryodhana statue, which was removed from the Prasat Chen Temple at Koh Ker in Cambodia in 1972 and was being auctioned at Sotheby’s in 2013. Like the Antique Platter of Gold case, the U.S. Government in the Koh Ker statue case was able to bring a forfeiture action on behalf of the Kingdom of Cambodia under Cambodian national ownership laws. The invoice and customs declaration form from 2010 misleadingly listed the statue as “Koh Ker style,” while Sotheby’s knew the statue had been taken directly from Koh Ker. While the auction houses in this case vehemently defended the interests of its consignor to sell the work, the lucky break in Levin’s investigation was finding records from the now-defunct UK auction house Spink that provided clear information on how the Duryodhana was transported from Cambodia via Thailand, to Belgium and then to the United Kingdom. The fact that the statue had missing feet and that the feet were still in situ at the temple only underscored its illicit removal. Levin said she even traveled to Cambodia to interview one of the looters involved in the actual removal of the item from the temple back in the 70’s, and she described his remorse in desecrating the Temple. The Duryodhana, along with two similar statues at the Met and one at the Norton Simon Museum, were all returned to Cambodia with ceremony in 2013 and 2014.
Levin briefly described her work on the case involving the forfeiture of a full Tyrannosaurus Bataar skeleton. In U.S. v. Tyrannosaurus Bataar Skeleton, 12 Civ. 4760 (PKC) (S.D.N.Y. 2012), the U.S. Attorney’s office used Mongolian cultural heritage laws to bring an action on its behalf. In this case, Eric Prokopi, a commercial paleontologist, excavated the dinosaur remains, reconstructed parts of the skeleton and put it up for auction in New York, where the skeleton was seized. As with all of the cultural heritage forfeitures, the crux of the investigation was to develop a record to show that this item originated in the country demanding its return. For the Tyrannosaurus Bataar, Levin built this proof of origin with affidavits provided by helpful paleontology experts.
Levin also described her office’s work in returning looted objects from currently war-torn countries, such as Iraq and Syria, which included her work on the case of U.S. v. One Iraqi Assyrian Head, 13 C.V. 5015. In the Q&A session following the lecture, Levin explained that in order for her office to return objects, the U.S. government must have diplomatic relations with the source country. As an example, her office is holding onto forfeited objects from Iran, until the day when diplomatic channels are bridged and the cultural valuables can be returned.
In conclusion, Levin talked about U.S. v. Portrait of Wally, 663 F. Supp.2d 232 (S.D.N.Y. 2009), a landmark case that broke open the floodgates for other art restitution cases involving Nazis-era looted art. (Please see here for a more complete description of this case). Levin noted that the critical evidence in the case was the detailed letters between the original owner of the Schiele portrait, Jewish art dealer and collector Lea Bondi Jaray, and Rudolph Leopold, the Austrian collector who insisted that he was the rightful owner of the portrait, that documented their relationship and interactions. Additional evidence was developed from the trial testimony of Leopold himself. The case that lasted more than a decade was settled for the reported amount of $19 million dollars and a promise to display “Portrait of Wally” with an explicit wall label describing the civil forfeiture proceeding. Levin joked that this may be the only time a piece of art uses the word “forfeiture” in its description.
Less than a week after her lecture ended, the New York Times ran a story about Sharon Levin leaving the U.S. Attorney’s office to join a private law practice at the firm of WilmerHale. On Monday, April 27th, WilmerHale announced that it has hired Levin as a partner in the Financial Institutions Practice of its New York office. Accompanying the announcement, Ms. Levin told the New York Times “I had bigger cases that involved more complex issues, but ‘Portrait of Wally’ was special. [It] enabled me to use today’s forfeiture laws to correct a historical injustice.” With the Levin era at its end, art and cultural heritage restitution advocates wonder whether her successor will be as interested in and dedicated to the pursuit of art and cultural heritage matters. The helpful precedent and the ongoing need remain.
- United States Attorney’s Office Southern District of New York, Criminal Divisions http://www.justice.gov/usao/nys/criminal.html (last visited Apr. 30, 2015).
- Ben Prontess, Sharon Levin to Leave U.S. Attorney’s Office for WilmerHale, Joining Other Ex-Prosecutors, New York Times (Apr. 26, 2015), http://www.nytimes.com/2015/04/27/business/dealbook/sharon-levin-to-leave-us-attorneys-office-for-wilmerhale-joining-other-ex-prosecutors.html?_r=0
- U.S. v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999).
- U.S. v. A 10th Century Cambodian Sandstone Sculpture, 12 Civ. 2600 (GBD) (S.D.N.Y. 2013).
- Tom Mashberg and Ralph Blumenthal, The Met Will Return a Pair of Statutes to Cambodia, New York Times (May 3, 2013), http://www.nytimes.com/2013/05/04/arts/design/the-met-to-return-statues-to-cambodia.html?_r=0
- Stolen 10th-century statue to be returned to Cambodia, The Guardian (May 8, 2014), http://www.theguardian.com/world/2014/may/08/stolen-statue-cambodia-duryodhana-bondissant
- U.S. v. Tyrannosaurus Bataar Skeleton, 12 Civ. 4760 (PKC) (S.D.N.Y. 2012)
- Peninah Petruck, Dinosaur Skeleton Returns to Mongolia (June 14, 2014) http://itsartlaw.com/2013/06/14/dinosaur-skeleton-returns-to-mongolia/
- U.S. v. One Iraqi Assyrian Head, 13 C.V. 5015 (S.D.N.Y. 2013).
- Rick St. Hilaire, Seized Assyrian Head Named in Forfeiture Complaint – Smuggling Allegations Raised, Cultural Heritage Lawyer (July 24, 2013), http://culturalheritagelawyer.blogspot.com/2013/07/seized-assyrian-head-named-in.html.
- U.S. v. Portrait of Wally, 663 F. Supp.2d 232 (S.D.N.Y. 2009).
*About the Author: Mia Tomijima is a recent graduate of Brooklyn Law School, where she received a certificate in intellectual property and served as Chair of the Art Law Association. She received a bachelor’s degree in art history from UCLA, and has worked with museums, auction houses, and law firms on both coasts. Mia is a post-graduate fellow with Center for Art Law.
Disclaimer: This and all articles are intended as general information, not legal advice, and offer no substitution for seeking representation.