tyrannosaurus bat a ar dismiss
TRANSCRIPT
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TABLE OF CONTENTS
INTRODUCTION……………………………………………………………… ............1
STATEMENT OF FACTS………………………………………………………. ..........3
I. The Bataar…………………………………………………… .................3
II. Fossil Sales, Prokopi and the Preparation of the Display Piece ...............4
III. The Auction, the Media Circus, and the Seizure ......................................5
ARGUMENT ....................................................................................................................6
I. The Government Has a High Burden for Pleading a Forfeiture
Complaint .................................................................................................6
II. The Complaint Should Be Dismissed .......................................................9
A. Prokopi Was Not Given Fair Notice of Either Mongolian Law or Country of
Origin or Valuation Rules Relating to Paleontological
Objects……………………………………………………………….9
B. The Display Piece Was Not “Stolen.” ………………………............15
1 Current Mongolian Law Does Not Unambiguously Declare Mongolia
the Owner of Fossils, Much Less the Display
Piece….…………………………………………………………..15
2. The Complaint Fails to Allege that Mongolia has Ever Enforced its Laws
As Vesting
Title………………………………………………………………19
3. The Complaint Fails to Allege Particular Facts that the Display Piece ever
actually existed in Mongolia and was Taken Without Mongolia’s
Permission……………………… ...............................................20
4. The Complaint Fails to Allege Particular Facts that Prokopi Knew
the Display Piece was Stolen. .....................................................21
CONCLUSION ...............................................................................................................21
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TABLE OF AUTHORITIES
Cases
Allen v. Scholastic Inc., 739 F. Supp. 2d 642, 645 (S.D.N.Y. 2011)………… ................4
Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 801 F. Supp. 2d 383 (D.
Md. 2011), appeal docketed, No. 11-2012 (4th Cir. Sept. 21, 2011)........................13, 14
Chambers v. Time Warner, Inc., 282 F.3d 147 (2nd Cir.2002)…………………………4
County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179, 194 (2nd Cir.
2001)……………………………………………………………………………………10
Federal Communications Comm’n v. Fox Television Stations, Inc.,
132 S. Ct. 2307, 2012 U.S. LEXIS 4661 (June 21, 2012) ..............……………10, 13,14
Giannone v. Bank of America, NA, 812 F.Supp. 2d 216 (E.D.N.Y 2011)……………….4
Meisel v. Grundberg, 651 F. Supp. 2d 98 (S.D.N.Y. 2009)……………………………..4.
Peru v. Johnson, 720 F. Supp. 810 (C.D. Cal. 1989) , aff’d sub nom. Peru v. Wendt, 1991 U.S.
LEXIS 10385 (9th Cir. 1991)………………………… .........................................…….19
Schubert v. City of Rye, 775 F. Supp. 2d 689 (S.D.N.Y. 2011 .........................................4
United States v. $22,173.00 in United States Currency, No. 09 Civ. 7386(SAS), 2010 U.S. Dist.
LEXIS 33494 (S.D.N.Y. Apr. 5, 2010)……………………………………6, 7
United States v. $49,000 Currency, 330 F.3d 371 (5th Cir. 2003)………………………6
United States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976 (9th Cir.2008)……………………………………………………………………………11, 13, 14
United States v. An Antique Platter of Gold, 184 F.3d 131, 135 (2nd Cir. 1999) , cert. denied, 528U.S. 1136 (2000)…………………………………………… .......................................8, 9
United States v. Burgess, 1987 U.S. Dist. LEXIS 11227 (N.D. Ill. Dec. 1, 1987)……..11
United States v. Davis, 648 F.3d 84, 89 (2d Cir. 2011)…………………………… ........7
United States v. General Elec. Co. v. United States Environmental Protection
Agency, 53 F.3d 1324 (D.C. Cir. 1995)…………………………………………11, 13, 14
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United States v. Mask of Ka-Nefer-Nefer , No. 4:11CV504 HEA, 2012 U.S. Dist.LEXIS 47012 (E.D. Mo. Mar. 31, 2012), appeal filed, No. 12-2578 (8th Cir.March 16, 2011)………………………………………………. .....................................20
United States v. McClain, 545 F.2d 988 (5th Cir. 1977)……………………………15,16
United States v. McClain, 593 F.2d 658 (5th Cir. 1979) , cert. denied, 444 U.S. 918(1979)……………………………………………………… ...................................... 15,16
United States v. Schultz, 333 F.3d 393 (2nd Cir. 2003), cert. denied, 540 U.S. 1106
(2004)………………………………………………………………………15, 16, 18, 19
United States v. Turley, 352 U.S.407 (1957)…………………………………………….8
Constitutions, Statues and Treaties
1924 Constitution of Mongolia…………………………………………………14, 15, 17
1992 Constitution of Mongolia……………………………… ..............……12, 15, 17,18
1970 UNESCO Convention on the Means of Prohibiting and Preventing Illicit Import, Export
and Transfer of Ownership of Cultural Property……………………… ...........……13,14
2001 Mongolian Cultural Heritage Law………………………… .................…16, 17, 18
2002 Mongolian Criminal Code Art.175………………………………… .........….16, 18
North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat.
2057)………………………………………………………………………… ..........….11
18 U.S.C. § 545…………………………………………………………… ............7, 8,17
18 U.S.C. §981…………………………………………………………………….. ....7, 8
18 U.S.C. § 2314…………………………………………………………………….8, 18
18 U.S.C. § 2315…………………………………………………………………8, 18, 21
19 U.S.C. §1595a……………………………………………………………….. 7, 8,9,21
19 U.S.C. § 2601…………………………………………………………… .................14
19 U.S.C. § 2604……………………………………………………………… .............14
19 U.S.C. § 2607…………………………………………………………… .................14
Rules and Regulations
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1924 Mongolian Rules to Protect Antiquities………………………………………16, 17
19 C.F.R. 134.1(b)………………………………………………………………………12
Fed. R. Civ. P. Supp. R. G…………………………………………………………….7, 21
Other Authorities
Russ Buetter, Sale of $1 Million Dinosaur Skeleton is Halted After Origin Questioned, The New
York Times (June 19, 2012)…………………………………………………1,5
P.J. Currie, Theropods from the Cretaceous in Mongolia in The Age of Dinosaurs in Russia and
Mongolia (Michael J. Benton et al. eds. Cambridge 2003)…………………3
HSI Takes Custody of Tyrannosaurus Dinosaur Skeleton Looted From Mongolia, U.S.
Immigration and Customs Enforcement (June 22, 2012)…………………………………6
Steppe in an Ugly Direction: A Former President is Detained Ahead of Elections, TheEconomist (April 28, 2012) ………………………………………………………………5
Thomas O. Jewett, Thomas Jefferson Paleontologist, Archiving Early America
website……………………………………………………………………………………4
Thomas Laird, The Story of Tibet: Conversations with the Dalai Lama (Grove Press
2006)………………………………………………………………………… .............…2
Tyrannosaurus Bataar is to be Delivered into Mongolia by U.S. Military Aircraft,
InfoMongolia.com (July 19, 2012) ……………………………………… ......................6
Wynne Parry, More Dinosaur-Smuggling Cases May Follow on Tyrannosaur’s Heels, LiveScience (June 28, 2012) ………………………………………….…… ..........................4
U.S. Customs and Border Protection Informed Compliance Publication, What Every Member of the Trade Community Should Know About: Works of Art, Collector’s Pieces, Antiques, and Other Cultural Property (May 2006)………………… ...........................................11, 12
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INTRODUCTION
Eric Prokopi (“Prokopi”) is a small businessman who has collected fossils since he was a
young man. He purchased several groups of fossils on the open market and spent a year of his
life and considerable expense identifying and compiling component parts of, and then restoring
and mounting, the Tyrannosaurus bataar1
fossil (the “Display Piece”) so that it could be sold at
auction. Prokopi thought he had recouped his considerable investment – primarily in his own
time and expertise—when the Display Piece sold for $1.05 million at Heritage Auctions
(“Heritage”) in New York. But then, a media campaign stirred up by academic paleontologists
prompted Mongolia’s President to demand that the Display Piece be sent to Mongolia because it
“must have been stolen from there.”2
Prokopi and Heritage had entered into negotiations with
Mongolia’s President in order to settle the dispute, when on June 18, 2012, the United States
filed a Civil Forfeiture Complaint in rem (“Complaint”) seeking forfeiture of the Display Piece.
Prokopi is now forced to not only protect his considerable investment in time, money and
expertise, but his reputation.
The Government’s action is unprecedented. Fossil collecting is well established, and has
been intertwined with paleontology for generations. At least since the fall of Communism, fossils
from China, Kazakhstan, Mongolia and Russia have been openly sold on the international
market, and have been avidly collected in the United States by both individuals and museums.
Yet, as the Government would now have it, all dinosaur fossils of presumed Mongolian origin
are stolen property and should be returned to that country.
1 The Tyrannosaurus bataar, an Asian Cousin of the North American Tyrannosaurus Rex, is more properly known asa Tarbosaurus bataar, but will be referred to as a Tyrannosaurus bataar or “Bataar” here to be consistent with theterminology in the Complaint.
2 See Russ Buetter, Sale of $1 Million Dinosaur Skeleton is Halted After Origin Questioned, The New York Times(June 19, 2012) (available at http://www.nytimes.com/2012/06/20/nyregion/dinosaurs-sale-halted-after-paleontologist-questions-its-origins.html) (last visited August 16, 2012).
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In making its demand, the Government relies on a seriously flawed Complaint that: (1)
assumes Tyrannosaurus bataar (“Bataar”) fossils are only found in Mongolia, when two of the
Government’s own experts have said otherwise; (2) assumes that the Bataar fossils in this case
were from one specimen3
and were shipped together from the United Kingdom to the United
States, when the Government’s own experts who examined the Display piece knew or should
have known that the Display piece was a composite; and (3) largely bases its “stolen property”
claim on a confiscatory 1924 Soviet-era constitution and regulations4
that were superseded by a
1992 post-Communist constitution and laws that recognize private property rights and which do
not vest ownership of all paleontological objects in the Mongolian State.
The Court should not countenance the Government’s efforts to announce a new policy on
the import of fossils through a forfeiture proceeding based primarily upon technical violations of
“country of origin” and valuation rules where no such rules have been published and upon
foreign laws that are largely unavailable to American citizens and are unclear in both their
meaning and application. Instead, Claimant Prokopi’s Motion to Dismiss should be granted, not
only to ensure that the fruits of his labor are rightly returned to him but to encourage the
3 Although not directly relevant to this Motion, the Government’s experts knew or should have known that the
Display Piece is a composite specimen based upon the bone map provided to the auction house and their ownexamination of the Display Piece (Complaint ¶ 23):
• Approximately 75% of the completed Display Piece is made up of organic, fossilized material. Of this
fossilized material, approximately 50% was from a single Bataar specimen and the balance was pieced
together from multiple specimens; • Approximately 25% of the completed Display Piece is made up of inorganic, plastic material molded from
other fossil specimens. After this litigation was commenced, Prokopi also subsequently informed counsel for the Government that
the Display Piece is in fact a composite. Prokopi notes that here as well for clarity’s sake, though his
motion does not depend on the composite nature of the Display Piece.
4 Mongolia’s 1924 constitution was promulgated after a Communist takeover that saw the confiscation of private
property and the utter destruction of its Buddhist religious tradition. See Thomas Laird, The Story of Tibet:Conversations with the Dalai Lama 284 (Grove Press 2006) (“After the 1911 revolt against the Manchu Empire, theMongols suffered even worse fate than the Tibetans had. While the Chinese, embroiled in Civil War, were unable tooccupy either Tibet or Mongolia, several Russian armies invaded the state in the 1920’s. By 1942, Stalinexterminated Buddhism in Mongolia.”).
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Government to regulate fossil collecting – if at all -- prospectively through the legislative and
regulatory process rather than retroactively through this unprecedented forfeiture action.
STATEMENT OF FACTS
I. The Bataar
The Bataar is a dinosaur from the late Cretaceous period, approximately 70 million years
ago. (Complaint ¶ 6). Although the Bataar lived well before humankind, the Government is
adamant that all their fossil remains “belong” to the modern nation state of Mongolia because
they allegedly can only be found there. In particular, the Complaint boldly proclaims that “Bataar
fossils have only been recovered from a small area of the Gobi Desert known as the Nemegt
Basin located in Mongolia.” (id. ¶¶ 8, 24) Moreover, the Government assures us that this claim is
based on expert opinion of several paleontologists who specialize in Bataars. (id. ¶ 23) Thus, the
Government specifically cites the opinion of one of those experts, Philip J. Currie, as stating
“Tarbosaurus bataar skeletons have only ever been recovered from the Nemegt basin and
adjacent regions in Mongolia, which … indicates that… [the Defendant Property] was collected
in Mongolia.” ( Id. ¶ 24; Letter of Philip J. Currie and Mark Norell to Elbegdorj Tsakhia,
President of Mongolia, Complaint, Ex. B.)
However, this critical assumption is contradicted in the fine print of one of the expert
reports appended to the Complaint, as well as in a book written by Currie long before this
litigation was commenced. In particular, a representative from the Mongolian Academy of
Sciences admits in her appended report that “fragmentary remains of large tyrannosaurids have
been found in China and Kazakhstan…” Letter from Bolortseteg Minjin, Institute for Study of
Mongolian Dinosaurs. (id.) Moreover, Mr. Currie himself has previously written about the
recovery of Bataar fossils in Kazakhstan, Russia and China. P.J. Currie, Theropods from the
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Cretaceous in Mongolia in The Age of Dinosaurs in Russia and Mongolia 443, 448 (Michael J.
Benton et al. eds. Cambridge 2003) (relevant pages attached to Declaration of Peter K. Tompa in
Support of Motion to Dismiss (“Tompa Decl.” Exhibit (“Ex.”) A.).5 Finally, despite media
reports that bataar fossils are rare, Currie has also previously stated that such fossils are common
enough that paleontologists sometimes leave them in situ once found. ( Id.)
II. Fossil Sales, Prokopi and the Preparation of the Display Piece
Fossil collecting is well established, and has been intertwined with paleontology in the
United States at least since Thomas Jefferson converted the entry room of his home at
Monticello into a natural history museum. Thomas O. Jewett, Thomas Jefferson Paleontologist,
Archiving Early America website (available at
http://www.earlyamerica.com/review/2000_fall/jefferson_paleon.html) (last visited Aug. 16,
2012). At least since the fall of Communism, fossils from the China, Kazakhstan, Mongolia and
Russia have been openly sold on the international markets, and have been avidly collected both
here and abroad by both individuals and museums. See Wynne Parry, More Dinosaur-
Smuggling Cases May Follow on Tyrannosaur’s Heels, Live Science (June 28, 2012) (available
at http://www.livescience.com/21263-mongolian-fossils-easily-bought.html) (last visited August
16, 2012).
Prokopi is a commercial paleontologist who runs a small business in Gainesville, Florida.
(Complaint ¶ 17). He purchased several groups of fossils on the open market and spent a year of
his life and considerable expense identifying and compiling component parts of, and then
5 In assessing a Motion to Dismiss, the Court may properly consider documentary evidence plaintiff had possession
of, had knowledge of, or otherwise relied upon when framing a complaint. Chambers v. Time Warner, Inc., 282F.3d 147, 153 (2nd Cir. 2002); Giannone v. Bank of America, NA, 812 F.Supp. 2d 216, 219 (E.D.N.Y 2011); Meiselv. Grundberg, 651 F. Supp. 2d 98, 107 (S.D.N.Y. 2009). Moreover, the Court may also take judicial notice of publicly reported facts, such as existence of press coverage or the contents of books. Schubert v. City of Rye, 775 F.Supp. 2d 689, 711 n. 20 (S.D.N.Y. 2011); Allen v. Scholastic Inc., 739 F. Supp. 2d 642, 645 (S.D.N.Y. 2011).
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restoring and mounting, the Display Piece so that it could be sold at auction. See Claim of
Interest in Defendant in Rem (July 27, 2012) (Dkt. No. 8).
III. The Auction, the Media Circus, and the Seizure
Consistent with the open sale of fossils both in the United States and abroad, Prokopi
completed his work on the Display Piece and consigned it to Heritage for placement in their May
2012 “Natural History and Fine Arts Auction” in New York as lot 49315. (Complaint ¶ 22).
After describing the body as “75% complete and the skull 80%,” the lot description also stated,
“[b]one map and restoration details available on request.” (See Heritage Lot Description
available at http://fineart.ha.com/c/item.zx?saleNo=6068&lotNo=49315.) (last visited August
16, 2012).
A New York Times report aptly summarized the “whirlwind tale” of what happened next
after Mark Norell, one of the Government’s experts who excavates in Mongolia at the sufferance
of its government, saw the Display Piece in the Heritage catalogue: (1) Norell composed an
“open letter” condemning the auction of the Display Piece by claiming that Bataars are “only”
found in Mongolia; (2) the letter went “viral,” ending up on the desk of Mongolia’s President,
Tsakhia Elegdorj;6(3) President Elegdorj engaged the services of a Houston lawyer to try to stop
the auction; (4) the Houston lawyer procured a Texas State Court TRO, despite that court’s lack
of in rem jurisdiction over the Display Piece; (5) the auction nonetheless proceeded in New
York; (6) the lot sold for $1,052,500 to an anonymous buyer despite the controversy; (7) Prokopi
and Heritage nonetheless agreed to halt the sale pending an investigation; and (8) the U.S.
Government filed the Complaint. Russ Buetther, Sale of $1 Million Dinosaur Skeleton is Halted
After Origin Questioned, The New York Times (June 19, 2012) (“NY Times Report”) (available
6 Elegdorj is himself embroiled in controversy at home over his harsh treatment of Mongolia’s immediate pastpresident. See Steppe in an Ugly Direction: A Former President is Detained Ahead of Elections, The Economist(April 28, 2012) (available at http://www.economist.com/node/21553503) (last visited August 16, 2012).
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at http://www.nytimes.com/2012/06/20/nyregion/dinosaurs-sale-halted-after-paleontologist-
questions-its-origins.html) (last visited August 16, 2012).
Other media and internet reporting of this matter has been far less accurate, and far more
damaging to Prokopi’s reputation.7
For example, U.S. Customs and Border Protection (“CBP”)
inaccurately suggested in a press release that the Display Piece had already been “forfeited.”
HSI Takes Custody of Tyrannosaurus Dinosaur Skeleton Looted From Mongolia, U.S.
Immigration and Customs Enforcement (June 22, 2012) (available at
http://content.govdelivery.com/bulletins/gd/USDHSICE-45e63d) (last visited August 16, 2012).
And more recently, the Mongolian President’s lawyer has been quoted (inaccurately one hopes)
as stating that the Display Piece is to be delivered to Mongolia in “1-2 months” by U.S. Military
aircraft and that Prokopi “had repeatedly committed crimes as such and had repeatedly had
illegal assets confiscated on an attempt to enter an auction.” Tyrannosaurus Bataar is to be
Delivered into Mongolia by U.S. Military Aircraft, InfoMongolia.com (July 19, 2012) (available
at http://www.infomongolia.com/ct/ci/4563) (last visited August 16, 2012).
ARGUMENT
I. The Government Has a High Burden for Pleading a Forfeiture Complaint.
Given the impact of forfeiture on property rights, forfeiture complaints are subject to
rigorous review. To survive, the Complaint must “state sufficiently detailed facts to support a
reasonable belief that the Government will be able to meet its burden of proof at trial.” Fed. R.
Civ. P. Supp. R. (“Supp. Rule”)G(2)(f) (emphasis added); see United States v. $22,173.00 in
United States Currency, No. 09 Civ. 7386(SAS), 2010 U.S. Dist. LEXIS 33494 *2 (S.D.N.Y.
Apr. 5, 2010); see also United States v. $49,000 Currency, 330 F.3d 371, 375 n.8 (5th Cir. 2003).
This pleading standard is “more stringent than the general pleading requirements [as] an implicit
7 On August 16, 2012, a Google search of the words “Mongolia, dinosaur and Prokopi” generated 8,140 results.
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accommodation to the drastic nature of the civil forfeiture remedy.” $22,173.00 in U.S.
Currency, 2010 U.S. Dist. LEXIS 33494, at *5. “The particularity-of-pleading requirements in
forfeiture cases provide a ‘way of ensuring that the government does not seize and hold, for a
substantial period of time, property to which, in reality, it has no legitimate claim.’” United
States v. Daccarett , 6 F.3d 37, 47 (2d Cir. 1993) (citation omitted).
The Complaint identifies three major statutory bases for its forfeiture claims: 18 U.S.C.
§§ 545 and 981(a)(1)(C), and 19 U.S.C. § 1595a(c). (Complaint ¶¶ 1, 26-38.) The three statutes
require proof that the Display Piece was either (1) introduced into commerce by means of false
statements
8
and/or (2) transported in foreign or interstate commerce knowing it to be stolen or
converted9:
• Section 1595a(c) authorizes forfeiture of property that is both “introduced into theUnited States contrary to law” and “stolen.” Id. at 1595a(c)(1)(A). “Contrary to law”means “illegally, unlawfully, or in a manner conflicting with established law,” United States v. Davis, 648 F.3d 84, 89 (2d Cir. 2011). The Complaint alleges there is probablecause to believe that the Display Piece was stolen from Mongolia and introduced into theUnited States contrary to law, in that it was (1) introduced into commerce of the UnitedStates by means of false statements and/or (2) transported in foreign commerce knowingit was stolen or converted. (Complaint ¶ 36.)
• Section 545 provides for the forfeiture of “merchandise” that is “knowingly import[ed]...contrary to law.” The Complaint alleges that there is probable cause to believe that theDisplay Piece is merchandise that was introduced into the United States (1) by means of false statements in violation of 18 U.S.C. § 542 (“merchandise” introduced “by means of any fraudulent or false invoice…or by means of any false statement…as to any mattermaterial thereto without reasonable cause to believe in the truth of such statement…”)and/or (2) imported into the United States knowing it was stolen or converted. ( Id. ¶ 37.)
• Section 981 (a) (1) (C) authorizes forfeiture of property that constitutes or is derived from
a violation of certain criminal laws. The Complaint alleges that there is probable cause tobelieve that the Display Piece is property, real or personal, that is derived from a
8 The Cause of Action in ¶ 36 of the Complaint fails to state a statutory basis for the Government’s first theory inviolation of §1595a(c).
9 The Cause of Action in ¶ 37 of the Complaint fails to state a statutory basis for the Government’s second theory inviolation of §545.
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violation of 18 U.S.C. § 2314 (“transport…in interstate or foreign commerce any …merchandise …knowing the same to have been stolen… ) and/or 18 U.S.C. § 2315(“receives, possesses, conceals, barters, sells, or disposes of any… merchandise…whichhave crossed a State or United States boundary after being stolen, unlawfully converted,or taken, knowing the same to have been stolen, unlawfully converted, or taken…” ). ( Id.
¶ 38.)
An object is “stolen” if it is taken from its owner, without consent, and with the intent to
deprive the owner of the rights and benefits of ownership. See United States v. Turley, 352 U.S.
407, 408 (1957); United States v. Schultz, 333 F.3d 393, 399 (2d Cir. 2003) , cert denied, 540
U.S. 1106 (2004). Thus, to establish that the Display Piece was stolen, the Government would
need to prove that Mongolia owned it; and that it was taken from Mongolia without permission
and with the intent to deprive Mongolia of its property.10
All three causes of action require proof that Prokopi had culpable knowledge, but there
are slight differences as to when that culpable knowledge must have arisen. The Government’s
theories under Section 1595a, Section 545 and Section 981 that rely upon a knowing violation of
Section 542 and/or Sections 2314 require proof that Prokopi knew at the time of import that the
Display Piece was stolen. The Government’s theories under Section 1595a, Section 545 and
Section 981 that rely upon a knowing violation of Section 2315 require proof that Prokopi knew
that the Display Piece was stolen when Prokopi possessed it in the United States.
Furthermore, the Government’s theories under Section 1595a and Section 545 rely on a
violation of Section 542 require the Government to show that the violation of Section 542 was
material. United States v. An Antique Platter of Gold, 184 F.3d 131, 135 (2nd Cir. 1999) , cert.
denied, 528 U.S. 1136 (2000). Under that standard, the Court asks whether the false statements
would have a natural tendency to influence customs officials, i.e., whether a reasonable customs
10 Even if Prokopi does not prevail on this Motion to Dismiss, the Government will have to prove each portion of the Display Piece is subject to forfeiture in order to forfeit the whole. Of course, the Government can have no claimto the 25% of the Display Pierce that is made of molded plastic material.
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officer would consider the statements significant to the exercise of his or her official duties. Id.
at 135-36.
II. The Complaint Should Be Dismissed
The Government’s forfeiture Complaint is predicated on the Display Piece being either
“stolen” under Mongolian law or fraudulently imported into the United States.11
But Prokopi
never received fair notice of either Mongolian law or the country of origin or valuation criteria
for importing dinosaur fossils. Even assuming Prokopi did received fair notice, the
Government’s “stolen property” claims fail as a matter of law: Second Circuit precedent requires
that Mongolia had enacted a statute vesting title in the State and that Mongolia has asserted its
rights as an owner by actively enforcing the statute within its own borders against Mongolian
citizens and foreign nationals by a large, well-organized police force. For these reasons, the
Complaint should be dismissed.
A. Prokopi Was Not Given Fair Notice of Either Mongolian Law or Country of
Origin or Valuation Rules Relating to Paleontological Objects.
The Court should not countenance the Government’s efforts to announce a new policy on
the import of fossils through a forfeiture proceeding based primarily upon technical violations of
“country of origin” and valuation rules where no such rules have been published, and upon
foreign laws that are largely unavailable to American citizens and are unclear in both their
meaning and application. Indeed, Prokopi’s Motion to Dismiss should be granted, not only to
ensure that the fruits of his labor are rightly returned to him, but to encourage the Government to
regulate fossil collecting – if at all-- prospectively through the legislative and regulatory process
rather than retroactively through this forfeiture proceeding.
11 The Government’s claim under 19 U.S.C. §1595a(c) for “false statement” must fail because “false statements”
alone are not on the list of “introduct[ions]…contrary to law” listed in Section 1595a(c). The Government’s claimunder §1595a can only proceed if there is probable cause to believe the Display Piece is “stolen, smuggled, orclandestinely imported or introduced” under §1595a(c)(1).
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The U.S. Supreme Court recently held in Federal Communications Comm’n v. Fox
Television Stations, Inc., 132 S. Ct. 2307, 2012 U.S. LEXIS 4661 (June 21, 2012), that due
process requires “fair notice” of applicable regulations. In that case, the Supreme Court held that
because the FCC failed to give Fox Television Stations or ABC, Inc. fair notice that fleeting
expletives and momentary nudity could be found to be actionably indecent, the FCC’s standards
as applied to these broadcasts were vague. Id. In so doing, the Court observed,
A fundamental principle in our legal system is that laws which regulate persons orentities must give fair notice of conduct that is forbidden or required. See Connally v.General Constr. Co., 269 U. S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926) ("[A]statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to itsapplication, violates the first essential of due process of law"); Papachristou v. Jacksonville, 405 U. S. 156, 162, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972) ("Living undera rule of law entails various suppositions, one of which is that '[all persons] are entitledto be informed as to what the State commands or forbids'" (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453, 453 S. Ct. 618, 83 L. Ed. 888 (1939) (alteration in original))).This requirement of clarity in regulation is essential to the protections provided by theDue Process Clause of the Fifth Amendment. See United States v.Williams, 553 U. S.285, 304, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). It requires the invalidation of lawsthat are impermissibly vague. A conviction or punishment fails to comply with dueprocess if the statute or regulation under which it is obtained "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that itauthorizes or encourages seriously discriminatory enforcement." Ibid. As this Court hasexplained, a regulation is not vague because it may at times be difficult to prove anincriminating fact but rather because it is unclear as to what fact must be proved. See id., at 306, 128 S. Ct. 1830, 170 L. Ed. 2d 650.
Even when speech is not at issue, the void for vagueness doctrine addresses at least twoconnected but discrete due process concerns: first, that regulated parties should knowwhat is required of them so they may act accordingly; second, precision and guidance arenecessary so that those enforcing the law do not act in an arbitrary or discriminatoryway. See Grayned v. City of Rockford , 408 U. S. 104, 108-109, 92 S. Ct. 2294, 33 L.Ed. 2d 222 (1972).
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132 S. Ct. at 2317-1812 Accord County of Suffolk v. First American Real Estate Solutions, 261
F.3d 179, 194 (2nd Cir. 2001) (“Due process requires that before a criminal sanction of
significant civil or administrative penalty attaches, and individual must have fair warning of the
conduct prohibited by the statute or the regulation that makes such a sanction possible.”); United
States v. Approximately 64,695 Pounds of Shark Fins, 520 F.3d 976 (9th Cir. 2008) (Government
seizure of shark fins improper because neither applicable statute nor regulations provided notice
to Defendant that shark fins could be seized from a vessel because it would be considered a
fishing boat); United States v. General Elec. Co. v. United States Environmental Protection
Agency, 53 F.3d 1324, 1328 (D.C. Cir. 1995) (case relates to environmental regulations
concerning the disposal of PCB’s; court observes that “fair notice” requirement has now been
thoroughly incorporated into administrative as well as criminal law); United States v. Burgess,
1987 U.S. Dist. LEXIS 11227 (N.D. Ill. Dec. 1, 1987) (historical discussion of “fair notice”
requirement back to Blackstone’s criticism of Caligula “who (according to Dio Cassius) wrote
his laws in a very small character, and hung them up on high pillars, the more effectively to
ensnare the people.”).
Here, Prokopi could have no fair notice of the “country of origin” or valuation rules for
fossils because none exist. Title VI of the North American Free Trade Agreement
Implementation Act (Pub. L. 103-182, 107 Stat. 2057), also known as the “Customs
Modernization Act,” requires CBP to provide the public with adequate information concerning
the trade community's rights and responsibilities under customs regulations and related laws.13
12 It is worth noting that the Supreme Court took into account the inevitable reputational injury that came from theGovernment’s unjustified action in its ruling. See Fox Television Stations, Inc., 132 S. Ct. at 2318-19. Here, thecontinuing media campaign to send the Display Piece to Mongolia has already damaged Prokopi’s reputation. 13 See North American Free Trade Agreement Implementation Act , Section 625.(e) PUBLIC INFORMATION.“The Secretary may make available in writing or through electronic media, in an efficient, comprehensive andtimely manner, all information, including directives, memoranda, electronic messages and telexes which contain
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In May of 2006, CBP issued a revised Informed Compliance Publication which included
guidance on the proper tariff classification of fossils,14
but failed to issue guidance on how to
determine the country of origin or value of fossils or even of archaeological objects. In fact, the
CBP regulations only state a general definition of the country of origin of imported merchandise:
‘Country of origin’ means the country of manufacture, production, or growth of anyarticle of foreign origin entering the United States. Further work or material added to anarticle in another country must effect a substantial transformation in order to render suchother country the ‘country of origin’ within the meaning of this part…15
Since no regulatory guidance exists on how to apply this definition, there is no way for an
importer of fossils to know how to proceed. In fact, an importer would be hard-pressed to
respond to a customs broker’s inquiry about the country of origin of a dinosaur fossil that existed
millions of years before the emergence of Homo sapiens and even longer before the concept of a
“country” was established.
Moreover, Prokopi could have no fair notice of Mongolia’s laws cited in the Complaint16
—the basis for the Government’s “stolen property claim” --- because they are not readily
instructions, requirements, methods or advice necessary for importers and exporters to comply with the Customslaws and regulations.”14 See U.S. Customs and Border Protection Informed Compliance Publication, What Every Member of the TradeCommunity Should Know About: Works of Art, Collector’s Pieces, Antiques, and Other Cultural Property, 13 (May2006) (“In addition to collections and collector’s pieces of numismatic interest, collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archeological, palaeontological, or ethnographic interestare also classified under heading 9705, specifically subheading 9705.00.00.90. This subheading includes, forexample:......♦ Geological specimens for the study of fossils (extinct organisms which have left their remains or imprints ingeological strata), whether animal or vegetable.”)
See http://www.cbp.gov/linkhandler/cgov/trade/legal/informed_compliance_pubs/icp061.ctt/icp061.pdf (last visitedAugust 16, 2012).
15 19 C.F.R. 134.1(b).
16 The website of the Embassy of Mongolia does link to Mongolia’s 1992 Constitution, which presumablysuperseded the Communist era 1924 Constitution cited in the Complaint ¶¶ 9-11, 14. Seehttp://www.mongolianembassy.us/government_and_policy/the_constitution_of_mongolia.php (last visited August16, 2012). How the 1992 Constitution differs from the 1924 Constitution in several critical respects will bediscussed more fully below.
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available to the general public, much less to attorneys who practice in the “cultural property”
field. (See Tompa Decl., attached.)
Indeed, the utter lack of available regulatory guidance on these issues raises far more
serious due process concerns than those which resulted in judgment for the Defendant in each of
the above mentioned cases that also arose in a regulatory context: Fox Television Stations, Inc.,
General Elec. Co. and 64,695 Pounds of Shark Fins. In each of those cases, there was at least a
regulatory scheme that provided some basis for the disputed Government action. Here, in
contrast, Congress has affirmatively decided not to regulate the import of fossils from foreign
lands, as described below. Yet, the Government has nonetheless seized Prokopi’s property based
on disparate statutes that assume wrongdoing where no clear standards outlining such alleged
wrongdoing exist.
It is true that both Mongolia and the United States are signatories to the 1970 UNESCO
Convention on the Means of Prohibiting and Preventing the Illicit Import and Transfer of
Ownership of Cultural Property (“the 1970 UNESCO Convention”). (See Complaint ¶ 16
(noting that Mongolia became a signatory in 1991)). It is also true that the 1970 UNESCO
Conventions designates “objects of paleontological interest” as “cultural property” of a state
party. 1970 UNESCO Convention, Art. 1 (a) (available at
http://exchanges.state.gov/heritage/culprop.html) (last visited August 16, 2012). However, the
United States Senate only gave its advice and consent to the 1970 UNECO Convention subject to
six “understandings,” one of which was that the “provisions of the Convention [are] to be neither
self-executing nor retroactive,” and, as a result, the provisions of the Convention were only
partly enacted into U.S. law with the passage of the 1983 Convention on Cultural Property
Implementation Act. 19 U.S.C. § 2601 et seq. (“CPIA”). Ancient Coin Collectors Guild v. U.S.
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Customs and Border Protection, 801 F. Supp. 2d 383, 388 (D. Md. 2011), appeal docketed, No.
11-2012 (4th Cir. Sept. 21, 2011). The CPIA only governs the import of archaeological and
ethnological artifacts pursuant to Article 9 of the 1970 UNESCO Convention and only such other
“cultural property” “stolen from the inventory of a museum or a secular or public monument”
pursuant to Article 7 of the 1970 UNESCO Convention. See 19 U.S.C. §§ 2601, 2604, 2607.
Congress decided not to regulate the import of undocumented paleontological objects
when it passed the CPIA. In addition, there is no U.S. regulatory guidance in the form of
Informed Compliance Publications, Directives or Bulletins issued by CBP on how to determine
the “country of origin” or valuation of fossils. Likewise, there is no U.S. statue or regulation
stating what constitutes a “stolen” paleontological object unless they are “stolen” from the
inventory of a museum or like institution. Fossils – including those from China, Kazakhstan,
Mongolia and Russia—are widely and openly available on the domestic and international
markets. The cited Mongolian law, even if applicable, is simply unavailable to American
citizens. Under the circumstances, Prokopi, even more so than the claimants in Fox Television
Stations, Inc., General Elec. Co. and 64,695 Pounds of Shark Fins, had no fair notice of “what
the State commands or forbids.” Accordingly, the Complaint should be dismissed, so that the
Government will be encouraged instead to regulate the import of fossils—if at all—through the
legislative and regulatory process on a prospective basis, and not through an ad hoc enforcement
action aimed at depriving Prokopi of his substantial work and financial investment in the Display
Piece.
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B. The Display Piece Was Not “Stolen.”
The backbone of the Complaint is that the Display Piece was “stolen” under laws dating
back to Mongolia’s 1924 Soviet constitution.17 Even assuming for the sake of argument that
Prokopi had fair notice of Mongolian law, the Government’s argument fails because (1) a 1992
constitution superseded the 1924 Mongolian Communist era constitution; (2) that 1992
constitution (and the other post-communist law cited in the Complaint) fail to vest clear title to
fossils in the State; and (3) the Government has not- because it cannot - allege that Mongolia has
asserted its rights as an owner by actively enforcing the statute within its own borders against
Mongolian citizens and foreign nationals by a large, well-organized police force.
1. Current Mongolian Law Does Not Unambiguously Declare Mongolia the
Owner of Fossils, Much Less the Display Piece.
Foreign countries have adopted a wide variety of laws and regulations aimed at
protecting and preserving cultural patrimony. These range from outright declarations of national
ownership at one extreme, down to far more modest controls—such as export limits, reporting
statutes, rights of first refusal, classification systems, limits on transfer, limits on excavation, and
the like. Our research could locate no reported decision concerning the alleged illegal removal of
paleontological specimens abroad triggering a foreign stolen property claim. However, there are
three Court of Appeals decisions addressing whether an antiquity removed from a foreign
country in violation of its patrimony laws constitutes stolen property within the meaning of
United States law. All three decisions, United States v. McClain, 545 F.2d 988, 1002 (5th Cir.
1977) (“ McClain I ”), United States v. McClain, 593 F.2d 658, 670 (5th Cir. 1979) (“ McClain
II ”) , cert. denied, 444 U.S. 918 (1979); and United States v. Schultz, 333 F.3d at 410, have
reached the same general conclusion: the removal renders the property stolen under United
17 Prokopi acknowledges and appreciates the courtesy of the Government’s counsel in supplying hiscounsel with copies of translated copies of the Mongolian laws cited in the Complaint.
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States law only if the foreign law clearly and unambiguously declares the foreign state the owner
of the object.
These decisions reach this conclusion because ownership is a prerequisite of theft, and
preservation laws, transfer restrictions, registration requirements, and export controls “do not
create ‘ownership’ in the state. The state comes to own property only when it acquires such
property in the general manner by which private persons come to own property, or when it
declares itself the owner.” McClain I , 545 F.2d at 1002. See also United States v. Schultz, 333
F.2d at 410 (distinguishing between laws “intended to assert true ownership of certain property”
and those that “merely ... restrict the export of that property”).
This declaration of ownership must be “clear and unequivocal.” McClain II, 593 F.2d at
670; see also Schultz, 333 F.3d at 402 (“clear and unambiguous”). Moreover, due process
requires that a foreign ownership law be drafted “with sufficient clarity to survive translation into
terms understandable by and binding upon American citizens” and the criminal laws (on which
the Government here bases its forfeiture claims) “cannot properly be applied to items deemed
stolen only on the basis of unclear pronouncements by a foreign legislature.” McClain II , 593
F.2d at 670-71. Thus, if the foreign law does not unambiguously declare state ownership, that is
the end of the analysis, and no expert testimony purporting to clarify or amplify that law can
change the result. See id. (“emphatic” expert testimony from multiple witnesses “that Mexico has
considered itself the owner of all pre-Columbian artifacts for almost 100 years” is insufficient,
where written law was ambiguous prior to 1972). Any other result would put auctioneers,
dealers, collectors and museums in the untenable position of having to look beyond the plain
language of foreign laws, and attempt to assess and predict the risk that foreign officials or
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purported experts might later claim that the laws mean something other than what they say in the
context of litigation.
Here, the Government relies upon one constitution, two statutes and a regulation to
support its claim that Mongolia owns the Display Piece: a 1924 Soviet-era constitution; a 1924
Soviet-era regulation; a 2001 heritage law; and a 2002 criminal law. (Complaint ¶¶ 9-15.)
However, the Soviet-era constitution and regulations have been superseded by other laws that
recognize private property and the wording of the later laws fall short of what is required to
establish state ownership under applicable case law.
While the Complaint relies upon a 1924 Soviet era constitution to establish state
ownership over fossils, it fails to mention that this constitution and its communist era
successors18 were superseded in 1992 by another constitution that recognizes private property
rights and which sees the State as a protector—not sole owner—of cultural objects19
. In
particular, the Government cites Article Three, Section One of the First Mongolian constitution,
enacted in 1924 for the proposition that “all assets and resources…shall be under the possession
of the people, thus making private property of them prohibited.” (Complaint ¶ 10.) On the other
hand, Article Sixteen, Section Three of Mongolia’s post-communist 1992 constitution explicitly
protects “[r]ight to fair acquisition, possession and inheritance of movable and immovable
property.” 1992 Constitution Art. 16 (3), Tompa Decl.Ex. B. And while “mineral wealth” shall
be the “property of the state” nothing is said of paleontological objects found on or in the soil.
18 The 1924 Constitution was supersceded by a 1940 Constitution, then by a 1957 Constitution, then by a 1960Constitution, and finally by a 1992 Consitution.
19 As set forth in the Tompa Decl., the 1992 Constitution is posted on the website of the Mongolian Embassy in theUnited States. See http://www.mongolianembassy.us/government_and_policy/the_constitution_of_mongolia.php (last visited August 16, 2012). It is unclear when that document was uploaded onto the Mongolian Embassy’swebsite.
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Id. Art. 6 (1)-(2). Indeed, we are only told that “Historical cultural, scientific and intellectual
heritages of the Mongolian people shall be under State protection.” Id. Art. 7 (1).
The cited statutes also fail to establish that the Mongolian state clearly and
unambiguously owns fossil resources found in the country in the post-communist period. The
Government has alleged that a 1924 Soviet era regulation vests title in the state. (Complaint ¶
11.) However, the current statutory scheme suggests that Mongolia has departed from its
Communist past. The Government cites Article Thirteen, Section One of the 2001 Mongolian
cultural heritage law that states, ‘[t]he territory and land bowels where historically, culturally and
scientifically significant objects exist shall be under state protection and any such findings shall
be state property.” (Complaint ¶ 12.) On the other hand, different provisions of that same statute
make clear that fossils can be privately owned. See Law of Mongolia, on Protection of Cultural
Heritage, Art. 3.1 (suggesting private ownership); Art. 3.1.8 (“imprints of ancient animals); Art.
5 (grading and evaluation of cultural objects); Art. 8.2 (registration of privately owned historical
and cultural objects); Art.14.1.2 (right to exhibit objects and receive income); Art.15.1.3 (right to
acquire and collect); Art. 16 (right to sell to the State or transfer to other Mongolians), attached
to Tompa Decl. Ex. C.20 Moreover, Mongolia’s post-Communist export control laws do not
constitute in and of themselves vesting statutes: Art. 175.2 of the 2002 Criminal Code again only
allows for seizure for artifacts if they are smuggled. (See Complaint ¶ 15; Tompa Decl. Ex. D.)
In short, the current 1992 Mongolian constitution and related statutes recognize private
ownership of fossils, and do not transfer title to the State, much less do so clearly and
unequivocally. Because current Mongolian law does not clearly and unambiguously declare that
Mongolia owns all fossils, as a matter of law any removal of the Display Piece’s constituent
20 It should be noted that the translation provided indicates the statue has been amended. The impact of these
amendments is unclear.
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parts from Mongolia did not render it “stolen property” within the meaning of 18 U.S.C. §§ 2314
and 2315, the criminal statutes on which the Government’s major forfeiture theory is based. See
McClain II , 593 F.2d at 671; Schultz, 333 F.3d at 402. Accordingly, the Government’s “stolen
property” claims should be dismissed.
2. The Complaint Fails to Allege that Mongolia has Ever Enforced its Laws As Vesting
Title.
While facial clarity is necessary, it alone is not sufficient. Even an apparently clear
foreign law does not vest ownership if the foreign state has not actually enforced its own law as
granting it title. For example, in Peru v. Johnson, 720 F. Supp. 810 (C.D. Cal. 1989), aff’d sub
nom Peru v. Wendt, 1991 U.S. LEXIS 10385 (9th Cir. 1991), Peru sought to reclaim antiquities,
relying on a law declaring that “artifacts in historical monuments are ‘the property of the State’
and that unregistered artifacts ‘shall be considered to be the property of the State.’” Id. at 814.
Finding that “[t]here is no indication in the record that Peru ever has sought to exercise its
ownership rights in such property, so long as there is no removal from that country,” the Court
concluded that the Peruvian laws did not vest title in the state, and dismissed Peru’s claims. Id ;
cf. Schultz, 333 F.3d at 402 (stressing the Egyptian government’s “active enforcement” in
concluding that its laws did vest title). This rule prevents a country unwilling to take the
politically unpopular step of seizing antiquities from its own people from asking the United
States to do so on its behalf. It also prevents a country from “rediscovering” laws that have
previously not been enforced, thereby unsettling the reasonable expectations that have developed
about the meaning of those laws.
Nothing in the Complaint provides the required reasonable belief that the Government
will be able to present enforcement evidence here. The Complaint is silent on whether Mongolia
has ever before, in any context, enforced its laws granting the state ownership of paleontological
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objects. The failure to allege prior enforcement provides an additional reason the Complaint fails
to adequately allege that the Display Piece is stolen.
3. The Complaint Fails to Allege Particular Facts that the Display Piece ever actually
existed in Mongolia and was Taken Without Mongolia’s Permission.
An essential element in proving that the Display Piece is stolen is establishing that it
actually existed in Mongolia and was removed without the permission of appropriate government
authorities. The Government has not met its burden of pleading particular facts showing that the
Display Piece existed in Mongolia or that it was removed without permission.
A district court’s recent decision in United States v. Mask of Ka-Nefer-Nefer , No.
4:11CV504 HEA, 2012 U.S. Dist. LEXIS 47012 (E.D. Mo. Mar. 31, 2012), appeal filed, No. 12-
2578 (8th Cir. March 16, 2011), is instructive. There, the Government’s evidence showed that an
Egyptian mask had been in storage at an Egyptian government facility in the 1960s and had
disappeared by the early 1970s before turning up in the global market in 1998, and that there was
no record that the mask had been sold or given to a private party in the intervening years.
Nonetheless, the Court dismissed the Government’s forfeiture complaint for failing to allege
adequately that the mask was stolen, holding that “[t]he 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.” 2012 U.S.
Dist. LEXIS 47012, at *8-9.
In Ka-Nefer-Nefer, the Government at least had evidence that the mummy mask at issue
was at one time in the foreign state’s actual possession and that there was no record of a
subsequent sale or gift. Here, an appended report of one of the Government’s experts
acknowledges that “fragmentary remains of large tyrannosaurids have been found in China and
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Kazakhstan…,” and another at most “supposes” that the Bataar’s fossilized remains were
unearthed in Mongolia sometime between 1995-2005 or possibly before the 2001 and 2002
Mongolian legislation cited in the Complaint was even promulgated.(Letter from Bolortseteg
Minjin, Institute for Study of Mongolian Dinosaurs (June 6, 2012); Khishigjav Tsogtbataar,
Statement of Fossil Bones (June 6, 2012), Complaint Ex. B.) Accordingly, the Government has
not alleged that the Display Piece was ever in the actual possession of the Mongolian
government, and the Government makes no allegation of the absence of gift or sale records. If
the inference of theft was unavailable to the Government with regard to a mask that disappeared
from the Egyptian government’s storeroom at some unknown point within a single decade, such
an inference surely is unavailable here. Absent allegations sufficient to support a reasonable
belief that the Government will be able to prove theft of the Display Piece, the Complaint must
be dismissed.
4. The Complaint Fails to Allege Particular Facts that Prokopi Knew the
Display Piece was Stolen.
The Government bears the burden of alleging sufficient facts to support a reasonable
belief that it will be able to prove at trial Prokopi knew that the Display Piece’s constituent parts
were stolen. See Supp. Rule G(2)(f); 18 U.S.C. §§ 545, 2314, 2315; 19 U.S.C.1595a(c). The
Complaint makes no such allegations against Prokopi. Accordingly, the Government’s stolen
property claims must be dismissed on that basis as well.
CONCLUSION
It may or may not be time to regulate fossil collecting like antiquities collecting, but
surely any such regulatory effort should only be accomplished prospectively through the
legislative or administrative process rather than retroactively through a forfeiture action
prompted by a media frenzy and foreign politics. The Government should not be allowed to seize
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property based upon obscure foreign laws or unwritten interpretations of “country of origin” or
valuation rules for fossils. Moreover, the Government has not alleged sufficient facts to establish
a reasonable basis to believe that it could meet its burden to prove that the Display Piece was
“stolen.” For all these reasons, the Complaint should be dismissed.
Dated: August 17, 2012 Respectfully submitted,
/s/ Michael McCullough___________________________________Michael McCulloughMichael McCullough LLC
155 Water St, 3rd FloorBrooklyn, NY 11201T: 646.262.7630F: [email protected]
/s/ Peter K. Tompa_____________________________________Peter K. TompaBAILEY & EHRENBERG PLLC
1015 18th Street, N.W.Suite 204Washington, D.C. 20036Tel: (202) 331-4209Fax: (202) [email protected]
Attorneys for Eric Prokopi
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CERTIFICATE OF SERVICE
The undersigned certifies that this 17th day of August 2012, he served the foregoing via
electronic filing and email on plaintiff’s counsel, pursuant to Civil Rule 5.2 of the Local Rules of
the United States District Court for the Southern District of New York.
/s/ Peter K. Tompa________________________Peter K. Tompa
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