Art, Contracts

On Remand: Stolen Art Disappears Into The Starry Night And A Lawyer Goes To Prison

If you think lawyers would make bad criminals, you're probably right.

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As Mardirosian quickly discovered, profiting from stolen art is not easy. Instead of selling it, thieves (or their bosses) often use valuable pieces as collateral in drug deals or hold the art in hopes of creating leverage if (or more likely, when) they are charged with other crimes. Mardirosian, who was experienced in criminal defense but not criminal fencing, sat on the paintings for twenty years.

Finally, in 1999, Mardirosian, perhaps bored with his still life, tried selling the Cézanne. To remain anonymous, he set up a shell corporation and hired an intermediary in London. But when the intermediary sought insurance to ship the painting, the insurer contacted the Art Loss Register, a private organization that maintains a database of stolen paintings. The ALR effortlessly identified the art as the Cézanne stolen from the Bakwin home and notified British and American authorities. Seeing an opportunity for itself as well, the ALR reached an agreement with Bakwin to recover the seven stolen paintings for a commission. The investigation, which had virtually stopped at Colvin’s death, was back on.

Meanwhile, Mardirosian blundered on, demanding $15 million from Bakwin for the return of the art. Bakwin initially refused, but then had a change of heart. To save the Cézanne, he sacrificed the other six paintings (together worth about $1 million), agreeing to convey those to the still-anonymous Mardirosian. Mardirosian, now represented by a new intermediary who was (of course) also a lawyer, agreed. Mardirosian’s attorney Bernard Vischer met with Julian Radcliffe, the founder and chairman of the Art Loss Register, in Geneva to execute the agreement. They were accompanied by experts from Sotheby’s to verify the painting’s authenticity.

As recounted in the First Circuit’s later opinion:

Vischer spoke with someone on his cell phone, and then announced that he would retrieve the Cézanne and bring it to the boardroom. He left the room and headed to the front of the building, with Radcliffe and others in tow. Once outside, Vischer walked to a nearby corner. A white car pulled up beside him, and the back passenger window lowered. A passenger in the backseat, his face shrouded from view, handed Vischer a black trash bag. The car sped away. Vischer returned to the boardroom and handed the trash bag to the experts from Sotheby’s, who carefully opened it to reveal the stolen Cézanne.

With his part of the 1999 Agreement satisfied, Mardirosian received a bill of sale purportedly transferring title in the other six paintings. He also agreed to sign an affidavit — using his real name — swearing that he was not involved in the original theft. The affidavit was sealed and sent to the London-based law firm Herbert Smith for safekeeping.

Mardirosian continued to work on selling the remaining six paintings. After Bakwin refused to pay $1 million for them, in 2005, working through a new intermediary (a real estate developer this time), Mardirosian offered the pieces to Sotheby’s. Sotheby’s, predictably, called the Art Loss Register to check the arts’ provenance. The ALR identified the paintings as those stolen from Bakwin, but seeing an opportunity to collect on its commission, the ALR instead told Sotheby’s that title was clear. When the paintings arrived in London, Bakwin sued to stop the sale. In the course of the case, the affidavit was unsealed, revealing Mardirosian as the seller.

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Soon after, Mardirosian was indicted in the U.S. under §2315 of the National Stolen Property Act, which makes it a crime to receive or possess stolen goods worth $5,000 or more that have crossed a U.S. boundary. In his defense, Mardirosian argued that the 1999 Agreement (which allegedly gave Mardirosian title to the six paintings in exchange for the Cézanne) terminated his illegal possession, and in the intervening eight years, the statute of limitations had run. In affirming his conviction, the First Circuit Court of Appeals dismissed the argument — contracts for illegal purposes are never valid:

The 1999 Agreement was illegal in that Mardirosian conditioned the return of the stolen Cézanne on Bakwin’s relinquishment of title to the six paintings. We tread no new ground in declaring that the act of demanding a fee for the return of stolen property is unlawful.

Mardirosian was sentenced to seven years, assessed a $100,000 fine, and disbarred. In a later civil case, Bakwin and the ALR won $3 million in damages from Mardirosian for all their trouble. Perhaps being both disbarred and behind bars has changed his tune, but before his 2007 criminal trial, Mardirosian had this to say for himself:

I know some things don’t look good here, but I believe I have a legitimate case to make…. I could have sold these a dozen times, but never did. My whole intent was to find a way to get them back to the owner in return for a 10 percent commission.

To be sure, some things don’t look good here for Mardirosian. But they are looking up for Bakwin, who sold his Cézanne for $29 million shortly after reacquiring it in 1999. Meanwhile, because Mrs. Gardner’s will requires the Gardner to remain exactly as it was the day she handed it over, empty frames and blank spots greet the museum’s guests where the Rembrandts and the other stolen works used to hang. Last year, on the heist’s anniversary, the FBI issued a press release announcing that it knew the identities of the thieves, as well as the arts’ location in the years immediately after the theft. The arts’ current location remains unknown, however, and the Gardner’s $5 million reward for information leading to the return of its stolen works is unclaimed. The field is crowded, so bring your “A” game and join the professional art investigators, petty criminals, psychics, and the rest of the motley crew hoping to capitalize on the Gardner’s misfortune.

Sponsored

Inside The Gardner Case [ARTnews]
Ripped From the Walls (And The Headlines) [Smithsonian]

Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at OnRemand@gmail.com.

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