In re the Extradition of Khochinsky

116 F. Supp. 3d 412, 2015 U.S. Dist. LEXIS 100695
CourtDistrict Court, S.D. New York
DecidedAugust 3, 2015
DocketNo. 15 Mag. 847(JSR); No. 15 Crim. Misc. 1 Page 207(JSR)
StatusPublished
Cited by2 cases

This text of 116 F. Supp. 3d 412 (In re the Extradition of Khochinsky) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Extradition of Khochinsky, 116 F. Supp. 3d 412, 2015 U.S. Dist. LEXIS 100695 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER

JED S. RAKOFF, District Judge.

In response to a request from the Government of the Republic of Poland ("Poland”), the United States (the “Government”) has petitioned the Court for a certification that Alexander Khochinsky is extraditable pursuant to the U.S.-Poland Extradition Treaty, T.I.A.S. No. 99-917, signed in Washington, DC on July 10, 1996 and entered into force on Séptem-ber 17, 1999 (the. “Treaty”). The charge levied against Khochinsky concerns a 1754 painting by the French rococo master Antoine Pesne titled “Girl with Dove” (the “Painting”), which was looted from a Polish museum by the Nazis during World War II and then removed to the Soviet Union by the Red Army following the Allied victory. Poland accuses Kho-chinsky, a Russian citizen and art dealer residing in New York, of unlawfully acquiring “Girl with Dove” knowing that it was stolen property.

On February 25, 2015, the Government filed a Complaint in this Court seeking Khochinsky’s extradition. See Complaint dated February 25, 2015, ECF No. 1 (“Extradition Complaint”); On April 2, 2015, Khochinsky moved to dismiss the Extradition Complaint, raising a variety of arguments, including that “Girl with Dove” was not stolen property because it was expropriated by the Soviet Union in 1945 pursuant to a valid Act of State, and that Kho-chinsky acquired good title to the Painting via the Russian law of adverse possession. On May 18, 2015, the Court held oral argument on Khochinsky’s motion to dismiss but, finding that the motion raised factual questions not appropriately resolved at that stage, deferred decision on Khochinsky’s motion until after the extradition hearing. Accordingly, on June 17, 2015, the Court held an evidentiary hearing pursuant to 18 U.S.C. § 3184.

At the hearing,, the Government, on behalf of Poland, submitted evidence of the following. According to the statement of Krzysztof Grzeúkowiak, District Prosecutor of Poznañ, the Wielkopolskie Museum in Poznañ purchased “Girl with Dove” for 3,000 zlotys in 1931. See Request for Provisional Arrest and Extradition dated June 11, 2013, Government’s Exhibit (“GX”) 1 (“Extradition Request”), at 3. During World War II, the Nazis removed the most valuable works in the Wielkopolskie Museum’s collection, taking them deep into the territory of the Third Reich. Id. As the war drew to a close, Red Army detachments found them and brought them back to the Soviet Union, where they were allocated to'individual museums. Id.

In the years following World War II, some of the lost collections were recovered and returned to the Wielkopolskie Museum’s successor, the National Museum in Poznañ. Id. However, the location of “Girl with Dove” remained unknown. Id. The Extradition Request states that the “canvas was probably stolen after the collections were seized by the Soviet party— either still in the territory of the then Germany or during transport, or in the territory of the former Soviet Union.” Id. The painting was listed as lost in Interpol’s Stolen Works of Art database under the reference number 2010/50630-1.1.1 Id.

In the meantime, however, it appears undisputed that the Painting was being [415]*415openly exhibited at Khochinsky’s art gallery in Moscow, known as “Bohema,” as well as being advertised in the gallery’s catalogs. See Transcript dated June 17, 2015 (“Tr”) at29:1-7, 33:16-24, 48:13-51:6; Defendant’s Exhibits (“DX”) E, F, K, L. On May 18, 2010, Khochinsky emailed the Polish Embassy in Moscow. See Email from Alexander Khochinsky dated May 18, 2010, GX 4. In his email, Khochinsky stated that he had been thinking about “replacement restitution.” Id. He explained that his mother was a Polish Jew who was forced to flee the country during World War II. Id. She made her way to Tashkent and began working at a military hospital, where she met Khochinsky’s father, a Soviet soldier who had been severely wounded at the front. Id. Khochinsky stated that, about ten years prior, he had visited his mother’s home town in Poland and discovered that a Roman Catholic Cathedral had been built on the lot where his mother’s house once stood. Id.

Khochinsky then turned to the subject of the Painting, stating that some time ago, he was having lunch in a Parisian restaurant with an employee of an organization called Artloss, which searches for missing artwork, who gave him some publications listing stolen paintings, among which he discovered a painting that he had in his collection titled “Girl with Goldfinch (or Dove).” Id. Khochinsky then continued:

I THOUGHT ONCE THAT IS NOT A PROBLEM FOR CHOCZINSKI [i.e., Khochinsky] TO SUGGEST TO THE POLISH PRESIDENT KACZYNSKI, TO THINK ABOUT EXCHANGE BY WAY OF REPLACEMENT RESTITUTION OF THE PAINTING, TO WHICH ACCORDING TO LAW POLAND PRETENDS, TO THE CASH COMPENSATION FOR A PARCEL WHICH LEGALLY BELONGED TO MY FAMILY, AND ON WHICH NOW A CHURCH IS CONSTRUCTED, PREVENTING ME FROM REQUESTING THE RETURN OF THIS LAND LOT.

Id. Khochinsky attached a' photograph of himself with' the Painting. ’ See Supplementary Information to the Request for Provisional Arrest and Extradition dated October 1,2013, GX 3.

On May 20, 2010, a representative from the Polish Embassy responded that “the Ministry of Culture and National Heritage of the Republic of Poland intends to negotiate with you about the acquisition of the painting that is in your collection,” but wished to have it examined by a Polish expert first. ‘ Email from Maügorzata Szniak, Embassy Counsel, dated May 20, 2015, GX 4.2 On July 22, 2010, with Kho-chinsky’s consent, Maciej Michaüowski, a curator from the National Museum in Poz-nañ, examined the Painting at Bohema (Khochinsky’s gallery in Moscow) and issued an opinion on August 30, 2010 confirming its authenticity. See Additional Information on the Request for Provisional Arrest and Extradition dated March 5, 2015, GX 4; GX 1 at 4. During that visit, an unidentified gallery employee told Mi-chaúowski that the painting was purchased at “the auction in the West.” GX 4.

On September 24, 2010, Khochinsky, apparently not having been informed of Mi-chaúowski’s conclusion, again emailed, the Polish authorities, asking for “information about the conclusions reached by your Polish experts.” Email from Alexander Kho-chinsky dated September 24, 2010, GX 4. He inquired whether Poland intended to purchase, the Painting, alluding to “two [416]*416potential customers” who were waiting for a response. Id. In the meantime, he stated, he “forwarded the painting for storage to a secluded'location.” Id. On September 29, 2010, a representative of the Polish Embassy responded, informing Khochin-sky that “the representatives of the Ministry of Culture are currently preparing the documents necessary to,come to Moscow,” and promising to inform him “of all the details after receiving them from Warsaw.” Email from Adam Sadownik dated September 29,2010, GX 4.

On October 9, 2010, Jacek Miler, Director of the Cultural Heritage Department of the Polish Ministry of Culture and National Heritage wrote a letter to Kho-chinsky informing him that Michahowski had confirmed that the Painting in Kho-ehinsky’s possession was identical to that lost by.

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Related

Alexander Khochinsky v. Republic of Poland
1 F.4th 1 (D.C. Circuit, 2021)
Khochinsky v. Republic of Poland
District of Columbia, 2019

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Bluebook (online)
116 F. Supp. 3d 412, 2015 U.S. Dist. LEXIS 100695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-extradition-of-khochinsky-nysd-2015.