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Manhattan Prosecutors En Garde Against Artifact Fencing

By Vaidehi Mehta, Esq. on November 24, 2021 12:11 PM

New York state has been leading the fight against a very specific kind of art theft: ancient artifacts.

gilded Egyptian sarcophagus worth $4 millionMarble sculptures stolen during Lebanon's civil warHindu and Buddhist statues taken from Cambodia; 33 relics from Afghanistan; 248 pieces from India including numerous bronze religious figures; 104 antiquities from Pakistan; over 17,000 artifacts smuggled out of Iraq after the US invasion, including a 3,500 clay tablet inscribed with the Epic of Gilgamesh.

These are only a few examples of the countless artifacts that have, thankfully, been repatriated from the US after investigations revealed their illegitimate acquisition. They had been proudly on display at some of the country's most venerable institutions, including the Metropolitan Museum of Art in Manhattan, as well as various private collections from individuals occupying coveted seats on influential museum committees and Ivy League universities.

But even once authorities found that any given artifact was looted or otherwise passed through black markets, actually punishing the people—or museums—that benefited has been another question altogether.

On the "Fence" of Civil and Criminal

The National Stolen Property Act criminalizes "fencing" (buying and reselling stolen merchandise) of goods worth $5,000 or more and similarly makes transportation of such goods illegal. The statute allows for criminal prosecution for domestic artwork transactions, but "criminal forfeiture" has a mens rea requirement that is often difficult to meet. Prosecutors must prove the defendant knew the artwork was stolen, and looters can claim ignorance of the work's origins to thwart their conviction. Some courts, such as the Second Circuit, have allowed what is essentially circumstantial evidence of this knowledge, what they call "conscious avoidance"—when the defendant should have known the artwork was procured illegally.

"Civil asset forfeiture"—which often has a lower standard of proof than its criminal counterpart, though at the expense of imparting a lighter punishment—is sometimes an easier route for prosecutors. Despite the term "civil," this process does not involve private litigation but rather law enforcement. It is not criminal because authorities seize assets without necessarily charging the owners with wrongdoing. Civil asset forfeiture is often more efficient than private litigation between the purported original owner and the purchaser, as those cases can be contested for lengthy periods. And unlike criminal forfeiture, it does not require a criminal conviction, which itself requires a difficult-to-prove scienter element that often becomes a roadblock.

State Steps In Where Feds Won't

At the federal level, accountability for stolen artifacts has not been a priority. The FBI has an Art Crime Team and a National Stolen Art File database, but these units are not led by prosecutors. Leads often go nowhere, whether due to lack of political will or legal expertise. Even when the DOJ uncovers and seizes stolen artifacts and goes so far as to return them to their home country, they will seldom charge the individuals involved with their purchase or transport.

New York has been attempting to fight the battle at the state level in the past several years, however jurisdictionally limited that might prove. The Manhattan District Attorney's relatively new Antiquities Trafficking Unit is unique both in its mission and its membership. Consisting of prosecutors and criminal investigators working alongside art specialists, the team is cracking down on Manhattan's art market—perhaps not coincidentally, one of the most robust scenes for ancient artifacts in the world.

Working under New York law, the unit has been attempting to fit these crimes into existing state statutes, which seems to be more effective than federal stolen-property law. But the unit has still been frustrated by the high evidentiary requirement for criminal accountability and finds itself compromising sentencing in exchange for the cooperating testimony of some defendants.

It remains to be seen if other states or the federal government will follow New York's lead in this overlooked undertaking—or decide they have bigger Dead Sea fish to fry.

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