Tag Archives: Patty Gerstenblith

Hobby Lobby’s Legal Expert Speaks: “I can’t rule out…they used my advice to evade the law.”

In July 2010, Steve Green, president of the Hobby Lobby chain of craft stores, travelled to the United Arab Emirates to inspect a massive hoard of ancient artifacts.

A year earlier, Green and his advisor Scott Carroll had begun building one of the world’s biggest collections of biblical relics and manuscripts. In less than 24 months, the two would acquire more than 40,000 objects, building The Green Collection into “the newest and largest private collections of rare biblical texts and artifacts in the world.”

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Steve Green and his antiquities advisor Scott Carroll (NY Times)

Those objects will form the core collection of the Museum of the Bible, a 430,000-square-foot building that Hobby Lobby is building blocks from the National Mall. When it opens in the fall of 2017, its mission is to “bring the bible to life.”

Pitching Green and Carroll that day in the UAE warehouse were two Israeli antiquities dealers and a third local dealer (all unnamed in the complaint.) They were offering some 1,500 cuneiform tablets, 500 cuneiform bricks, 3,000 clay bullae, 35 clay envelope seals, 13 extra-large cuneiform tablets and 500 stone cylinder seals, according to a federal forfeiture complaint filed last week.

Screen Shot 2017-07-10 at 5.32.28 PMThe sample of those objects made available for inspection that day bore several hallmarks of the illicit antiquities trade.

They were “displayed informally,” according to the complaint –– “spread out on the floor before him, arranged in layers on a coffee table, and packed loosely in cardboard boxes, in many instances with little or no protective material between them.”

They belonged not to any of the three dealers present but to a fourth, who claimed they had come from his “family collection” in Israel. As for their provenance, the dealers claimed the objects had been “legally acquired in the late 1960s” from “local markets.” Bizarrely, they also said the objects had been sent to Mississippi for storage in the 1970s and had most recently been in Washington DC before being shipped to the UAE for that day’s inspection.

The final red flag: the objects were being sold at a deep discount. Carroll thought the objects were worth approximately $11.8 million, but were being offered for sale that day for just $2 million.

After Green got back to Oklahoma City, where Hobby Lobby is based, the company’s in house lawyer contacted an expert in cultural property law. According to the complaint, in August 2010 that unnamed expert travelled to Oklahoma and gave a presentation to Green, Carroll and the company lawyer on the laws governing the purchase and importation of cultural property.

The presentation is cited prominently in the government’s recital of evidence leading to last week’s civil forfeiture of 5,500 ancient objects that Green bought in December 2010 for $1.6 million.

Responding to the seizure, Green released a statement saying he “did not fully appreciate the complexities of the acquisitions process.”

An interview with Green’s expert, however, suggests a different story: Green and his advisors were given detailed guidance from one of the leading legal minds on antiquities acquisitions, and then chose to ignore it.

gerstenblithI have confirmed that Green’s unnamed expert was Patty Gerstenblith, one of the country’s leading experts in cultural property law and a professor at DePaul University.

I reached Gerstenblith yesterday while she was in The Hague participating in an Expert Consultation on Policy on Cultural Property at the Office of the Prosecutor of the International Criminal Court. What follows are excerpts from our conversation about her work for Hobby Lobby, edited lightly for length and clarity.

Chasing Aphrodite: How did you start working as an advisor for the Greens?

Patty Gerstenblith: The in house counsel – I’d rather not name the person, as they’re not named in the complaint – asked if I would be willing to explain the legal issues involved in importing cultural works and antiquities, what laws would pertain. This was 7 years ago.

They were planning to build the collection. I had never heard of Hobby Lobby but saw they had recently acquired a medieval manuscript that had almost singlehandedly changed the market. I agreed to advise them.

CA: Were you hired as legal counsel?

PG: No. I was not engaged as an attorney, and I didn’t act as their attorney. I acted as an expert and consultant. They compensated me. [Gerstenblith declined to state how much she was paid for the engagement.]

CA: Can you describe the presentation you gave to Hobby Lobby executives in Oklahoma City on August 10, 2010?

PG: It was a board room or seminar room. There were between 10 and 15 people there. The in house counsel, and the advisor. Steve Green was there to my memory. I don’t know if he stayed for the entire presentation. I have no idea who the other people were.

I gave them very general information about laws that applied to importation of antiquities, the same I would do in a public lecture. I went through the National Stolen Property Act, declarations of value and country of origin….

CA: What was their reaction to your presentation?

PG: I can’t say they reacted one way or the other. They didn’t seem surprised or upset, which in hindsight is kind of surprising. The impression I had at the time was that they were only considering buying antiquities. I had no idea until I read the complaint [released last week] that this was already in process. They had already earlier in July, before I talked to them, looked at cuneiform tablets. You would think if I’m talking about… you have to do this and that and they’re already in negotiations, they would have had some reaction to what I said. I’m pretty mystified why they bothered to have me do this for them.

CA: Did they ask specifically about laws pertaining to Iraq or the Middle East?

PG: At the time I knew their reputation in terms of their interest in things that pertained to the bible. After my presentation, we had a little lunch. That’s possibly when I found out their interest in cuneiform tablets.

CA: The complaint says you sent a written report to Hobby Lobby on October 19, 2010. What was the purpose of that memo? Can you provide us a copy of it?

PG: When I finished the presentation, the in house counsel asked me to write up a summary. It took me a while to get to it. It summarized what I had presented, but at this point I had been aware they were thinking of acquiring things from Iraq so made sure this was included in the memo.

Gerstenblith said she could not provide a copy of her memo on the law, but the federal complaint quotes from it, in part, as follows:

I would regard the acquisition of any artifact likely from Iraq (which could be described as Mesopotamian, Assyrian, Akkadian, Sumerian, Babylonian, Parthian, Sassanian and possibly other historic or cultural terms) as carrying considerable risk. An estimated 200-500,000 objects have been looted from archaeological sites in Iraq since the early 1990s; particularly popular on the market and likely to have been looted are cylinder seals, cuneiform tablets . . . . Any object brought into the US and with Iraq declared as country of origin has a high chance of being detained by US Customs. If such an object has been brought into the US in the past few years and was not stopped by US Customs, then you need to examine the import documents to see if the country of origin was properly declared; an improper declaration of country of origin can also lead to seizure and forfeiture of the object.

The complaint continues: “The Expert’s memorandum further advised Hobby Lobby that cultural property looted from Iraq since 1990 is specifically protected by import restrictions that carry criminal penalties and fines. The Expert’s memorandum was received by In-house Counsel but was not shared with Hobby Lobby’s President, Consultant, Executive Assistant, International Department, outside customs brokers, or anyone involved in the purchase and importation of the Defendants in Rem.”

PG: They didn’t even pass my advice on. I was surprised to learn that in the complaint. Why did they both having me do this?  The memorandum I wrote was never circulated beyond in house legal counsel, and they were already in the process of acquiring these objects.

Screen Shot 2017-07-10 at 5.32.03 PMCA: Was there any follow-up? Did they ask you to review any specific cases or documents after that?

PG: My involvement as an expert for Hobby Lobby ended after I gave them the memo. There was no follow-up, no review of specific cases or documents or any specific objects pertaining to importation. I never evaluated anything for them.

CA: According to the federal complaint, they later did the very things you warned against. Do you think they used your advice to break the law rather than to follow it? In other words, do you feel used?

PG: I suppose one can’t rule that out. Which would be very upsetting to me. I can’t rule that out. My goal was to discourage them from doing the wrong thing by telling them all the wrong things they could do. I thought they would not want to do those things. I can’t rule out it was all the opposite…that they used my advice to evade the law as opposed to follow the law.”

CA: Many have asked: why were there no criminal charges in this case? As a law professor, what’s your answer?

PG: There is a lot here that does read as a red flag. Shipping boxes to various locations. Mislabeling cuneiform tablets as ceramic tiles. These have in many cases been the hallmarks of intentional violations of customs laws.

Yes it looks like there was criminal activity, but its not clear who committed the crime. The government would have to prove criminal knowledge beyond a reasonable doubt. A jury would have to find that these people knew not only what the law was but also that they were responsible for how the stuff was falsely labeled when it was imported. I have to assume the government felt it would have difficulty proving who knew what.

One difference from the Schultz case is the number of people involved. Schultz was doing it all himself. Here there were so many people involved, they’ve created plausbile deniability as to who knew what.

CA: In your view, what deterrent effect do seizures like this have without criminal prosecutions?

PG: The trend has, unfortunately, been away from prosecution. There’s a tendency to be happy with forfeiture. These cases in general have very little deterrent effect. Most collectors and dealers, having to return an object, thereby loosing the vaulue, is not really a big financial loss. In the case of Hobby Lobby, not at all. Therefore, its not a deterrent. I have come to believe that criminal prosecution is the only effective deterrent. I’m not the only person who’s made this comment.

 

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Hecht’s Footprints: Haverford College Opens Up About Source of Their Greek Vases

photo by Ed Alcock/NYT

American antiquities dealer Robert Hecht died in February 2012 after six decades at the top of the trade in recently looted Classical antiquities.

I’ve recently learned that some of that infamous career will be recounted when Hecht’s memoir is privately published in the coming months. The book is based on Hecht’s handwritten memoir, seized by Italian authorities from his Paris apartment and used as evidence against him at his Italian criminal trial. (I have a copy of Hecht’s notes and can assure you that he names names!) That account will be supplemented and expanded upon by a series of interviews Hecht conducted with Geraldine Norman, a former art market correspondent for the Independent.

Hecht on trial in Rome, 2006

Hecht on trial in Rome, 2006

It’s not clear how widely available the book will be for sale, but Hecht’s account will almost certainly be incomplete. His trafficking network spread tens of thousands of looted ancient sculptures, coins and vases across museums and collectors around the world.

How should museums handle those Hecht objects in their collection today? That is the question I tackle in a forthcoming article in the alumni magazine for Haverford College, Hecht’s alma mater. Haverford’s current exhibition of Greek vases tied to Hecht serves as a good model for others museums wrestling with his sticky legacy.

The full article, which will appear in Haverford’s alumni magazine in late November, includes comments from alumni James Wright, Brian Rose, Edward L. Bleiberg, Carlos Picon (kinda), Jeremy Rutter and Patty Gerstenblith.

Here’s an excerpt:

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Jenna McKinley has spent much of her life visiting museums. But it was only recently that she began thinking about how ancient objects had ended up in those museum vitrines.

The question arose while McKinley, a Haverford class of 2015 art history major and classics minor, was researching a collection of ancient Greek vases given to Haverford more than two decades ago by George and Ernest Allen, twin brothers who graduated from the college in 1940.

The Allen brothers acquired most of the ancient vases, McKinley learned, from Robert E. Hecht, Jr. ’41, a Latin major who went on to become one of the world’s leading—and most controversial—dealers in ancient art.

Screen Shot 2014-11-03 at 6.26.24 PMOver a storied six-decade career, Hecht sold tens of thousands of pieces of ancient art to leading museums and private collectors around the globe. Throughout, he was dogged by accusations that his wares had been recently—and illegally—excavated from tombs and ruins across the Mediterranean.

In the 1960s, Hecht was thrown out of Turkey and banned for life from Italy for allegedly trafficking in looted antiquities. In the 1970s, he sold the Metropolitan Museum of Art its famous “hot pot,” the Euphronios krater, whose $1 million price tag and mysterious origins immediately sparked claims that it had been looted. In the 1980s, Hecht was part of an alleged tax-fraud scheme involving the donation of hundreds of looted antiquities to the J. Paul Getty Museum near Los Angeles. And in 2005, he was criminally charged by Italy as the mastermind of an international looting and smuggling ring.

Hecht died in 2012, weeks after that Italian criminal case ended with no verdict, because the allotted time had expired. Despite a lifetime of allegations, he was never convicted of a crime.

Screen Shot 2014-11-03 at 6.38.27 PMAs McKinley discovered in her research during the summer of 2013, the Allen collection, which became part of Magill Library’s Special Collections, was an artifact of Hecht’s long, colorful career. From the 1950s until the 1970s, George Allen worked as Hecht’s Philadelphia sales representative, publishing a biannual catalog of antiquities under the name Hesperia Art. Over the years, he arranged for his brother Ernest to purchase several vases from Hecht.

McKinley excavated this hidden history over the next year, poring through yellowing college records and dusty Hesperia catalogs and reading books about Hecht’s role in the illicit antiquities trade. Her findings, along with the 20 Greek vases that inspired them, went on display in October in the Sharpless Gallery in Magill Library. The exhibit, titled Putting the Pieces Together: Antiquities From the Allen Collection, runs through Jan. 2.

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It is rare for the history of an antiquities collection to be discussed so openly. Museums, while dedicated to education, often reveal little about where and how they obtained their ancient art, something McKinley hopes her exhibition can help change.

“We display the objects themselves regardless of their cracks,” McKinley writes in the essay that accompanies the exhibit, “but too often we try to ignore the fragmented nature of their more recent histories.”

Terry Snyder, the librarian of the college, conceived of the project in the fall of 2012 during conversations with Associate Professor of Classics Bret Mulligan. Both recognized that revealing the history of the vases could invite a claim for their return by Italy, where they were likely found. But the opportunity for a valuable educational experience outweighed the risk, Snyder and Mulligan concluded.

“If you collect things and hide them away, the world loses,” says Snyder, who tapped McKinley to research and curate the exhibit. “These questions about the vases and other antiquities are big ones that really create an opportunity for learning. Each item has its own biography. What can these materials teach us? This exhibit is a great opportunity for our students to delve into these issues, to raise questions about cultural patrimony, and to see where they lead. Haverford students are not afraid of hard questions. That goes back to the College’s Quaker values and our educational values.”

The Allen exhibit puts Haverford squarely in the middle of an international conversation about the role that museums and universities have played in the illicit antiquities trade, a global black market supplied by looters and smugglers and stoked by the art market’s demand for ancient relics.

As McKinley learned, the story of how ancient objects came to sit on the shelves has, until recently, been largely hidden. Over the past decade, however, those stories have begun to come to light, thanks to criminal investigations, probing journalists, and growing demands from foreign countries that their cultural relics be returned.

The ensuing controversy has shaken this corner of the art world to its roots.

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The Antiquities Trade as Organized Crime: Glasgow Team Digs Deep into the Market For Ancient Art

An exciting new research effort has been launched by some of the most prominent researchers of the illicit antiquities trade.

Simon Mackenzie, Neil BrodieSuzie Thomas and Donna Yates* at the University of Glasgow have received £1 million over four years from the European Research Council to pursue new research of the illicit trade in ancient art.

The program, called “Global Traffic in Cultural Objects,” will be based at Glasgow’s Scottish Centre for Crime and Justice Research. Here’s how the team describes their goal:

“National and international laws intended to regulate or suppress the trade have been only partially successful, and the illicit trade has been linked to further criminal problems such as corruption and physical violence…By developing new empirical approaches and drawing upon criminological theory, this project will work towards a regulatory regime that goes beyond straightforward law enforcement, allowing the legitimate exchange of cultural objects while suppressing the illicit market.”

The project’s four main endeavors are:

1. Mapping and measurement. Through a series of case studies, the project will examine publicly available sales data to establish whether they can be used to estimate flows of illicit material through the market, and therefore to assess the effectiveness of any implemented regulation.

2. Qualitative data-gathering and analysis. Through ethnographic interviews of market agents such as dealers, collectors, museum curators and university academics, the project will gather information about the trade in licit and illicit cultural objects, and opinions about suitable regulation and opportunities for novel regulatory interventions. It will also, by means of a major case study, trace the path taken by a defined category of illicit material from ground to market, thereby offering greater depth to the analysis.

3. Regulation theory and practice. There will be a comprehensive review of the academic and policy literature as regards comparable transnational criminal markets and their regulation. Regulatory successes and failures will be identified, and considered in relation to the traffic in cultural objects, utilizing information obtained through themes 1 and 2. The project will also consider whether the traffic in cultural objects is ‘knotted’ together with other criminal activities in such a way as to render it insoluble as an isolated problem.

4. Knowledge mobilization. The project will establish a website that will make available project outputs and data, and that will also contain an ‘encyclopedia’ of material relevant to the project and to the traffic in cultural objects more generally.

Simon Mackenzie

We recently interviewed Simon Mackenzie, a criminologist who has been studying the antiquities trade since 2002, about his perspective on the illicit antiquities trade. (We’ve edited a bit for clarity and length.)

Chasing Aphrodite: What is known and not known about the illicit antiquities trade? How does our knowledge of it compare with our knowledge of other types of crime?

Simon Mackenzie: Compared to the trade in narcotics, we know virtually nothing. The narcotics trade has been heavily researched. There are specialist areas within the fields — country experts, modes of regulation. There’s been all sorts of research into the people producing drugs, the mechanisms for supply and demand. For people studying cultural heritage traffic, its a good place to start. The trade wild life is more comparable to the antiquities trade in terms of the state of research. There is some research and lots of policy activity. We see a remarkably high level of NGO involvement in awareness raising around wild life trafficking.

People are always talking about the illicit antiquities trade as something that is under-researched, with a small number of people working in the field. But when you think about it, it’s not too bad. Clemency Coggins really started the field in the 1960s. The last 40 years, from UNESCO onwards, has been a period of relatively high activity compared to other criminal problems – quite a lot has happened. There’s been increasing regulation of museums and ethical codes adopted. Once you start looking into the literature — for example, ethnographic studies of markets by Morag Kersel , the work of Christopher Chippindale  and David Gill, Ricardo Elia, Patty Gerstenblith. It has been a small field, but there are a good spread of methodological approaches, with respectable and reliable researchers.

Neil Brodie (left)

CA: Estimates of the size of illicit trade range from tens of millions to as much as $2 billion annually. Why?

SM: It’s amusing, or depressing, or tragic. I teach a course on transnational criminal markets — human organ, radiological material, etc. The first largest international market is drugs. The second is arms. Third is everything else — wild life says it’s the third largest, antiquities says it’s the third largest, several others also claim to be the third largest. The evidence disappears and nobody has any idea how big it is. Part of our project is to create more accurate sizing statistics.
I don’t want to say it doesn’t matter, but we know there is a lot of looting going on and we have first hand accounts of widespread looting. We see regular occurrences of looted objects in Western markets, in prestigious institutions and auction houses. We know we have a serious problem here and something needs to be done about it, whether it’s $6 billion of $50 million.

CA: Is organized crime involved in antiquities trade?

SM: There is clearly organized crime in the antiquities market, as we conventionally conceive of organized crime. The more interesting question is whether antiquities trafficking is in itself an organized crime. It’s not what we would think of as organized crime on its face because the actors are often quite respectable figures. It seems counter-intuitive to say that museums and auction houses are organized crime. But look at the definition of organized crime: three or more people operating over a sustained period of time in a serious criminal way. Antiquities trafficking meets that definition. So you can make a technical argument quite easily.

The more interesting question to ask is: why do we care whether it’s organized crime? The policy response to organized crime, the regulatory response, is much greater, more of an international threat. So the distinction can be quite important on a policy basis.

The reason why organized criminals are involved in the antiquities trade is because it’s under-regulated. But you can take the organized criminal out of the antiquities trade and you’ll still have looting. It’s a story of supply and demand on an international basis. The trade attracts organized criminals, but they don’t define the shape of it because it is created and sustained by more conventional trade actors.

Suzie Thomas

CA: The trade in illicit antiquities is often seen, especially in the United States, as a victimless crime. The public sometimes has trouble grasping the harm. Your thoughts?

SM: It’s difficult. The general public is not particularly interested in the context of any particular object dug up in a far flung corner of the world. And yet, museums and cultural debates are a strong current full of voices who feel very strongly about people’s culture and human rights. So in one sense, it’s certainly true that sometimes people don’t get that broken old pots are important to mankind. But when you elevate that to a greater concern with history and culture and knowledge and civilization, what that means and how we might find our way forward, people do care quite deeply about that. These are fundamentals.

CA: What do you think of the current regulatory regimes for the antiquities trade? Your thoughts on de-criminalization?

SM: Most criminologists agree that supply-side interventions are going to be problematic, particularly on their own. The drug trade and prohibition are  pretty good examples of trying to control something where there’s a high level of demand in a globalized economy. None of these have particularly good records of success. Most of the current ideas seems to be about reducing demand or, alternatively, taking an end-to-end type solution — take both ends seriously and start to unwind the economic cultural and social forces underpinning the market. Once you see that, strict legal responses begin to look problematic. It’s very difficult for the law to seriously engage with an entrenched, large-scale global trade. The nature of regulatory intervention in the cultural heritage market has largely been legal. Mostly its been about UNESCO, passing laws in source countries, prohibition of theft, and passing laws in market countries to prevent purchase. The interesting question for regulation is how do we build up systems around these laws we have.

Donna Yates

Some scholars, such as Paul Bator, have argued that increasing regulation produces the black-markets — that regulators are culpable for the illicit trade. I’ve never really bought into that. It’s a dead end: if you believe that, what do you do, stand back? You can talk about decriminalizing cannabis use, where the moral limitations are so widely disputed so there’s a general debate about whether it should be a crime. But not many people would seriously argue that knowingly steeling cultural property is ok. It’s reasonably clear that all sides say it’s wrong. Therefore the idea that we should decriminalize it doesn’t seem to do much except legitimate illicit stuff. It wouldn’t stop the illicit trade. It might make it worse.

*UPDATE: We’ve added Donna Yates, who recently joined the Glasgow team fresh from her PhD work at Cambridge.