917 F.2d 278 (7th Cir. 1990), 89-2809, Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg and Feldman Fine Arts, Inc.

Docket Nº:89-2809.
Citation:917 F.2d 278
Party Name:AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS and The Republic of Cyprus, Plaintiffs-Appellees, v. GOLDBERG AND FELDMAN FINE ARTS, INC., and Peg Goldberg, Defendants-Appellants.
Case Date:October 24, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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917 F.2d 278 (7th Cir. 1990)

AUTOCEPHALOUS GREEK-ORTHODOX CHURCH OF CYPRUS and The

Republic of Cyprus, Plaintiffs-Appellees,

v.

GOLDBERG AND FELDMAN FINE ARTS, INC., and Peg Goldberg,

Defendants-Appellants.

No. 89-2809.

United States Court of Appeals, Seventh Circuit

October 24, 1990

Argued Jan. 16, 1990.

Rehearing and Rehearing En Banc

Denied Nov. 21, 1990.

Page 279

John D. Hoover, Sally F. Zweig, Johnson, Smith, Densborn, Wright & Heath, Indianapolis, Ind., Thomas R. Kline, and Thomas E. Starnes, Andrews & Kurth, Washington, D.C., for plaintiffs-appellees.

Joseph H. Yeager, Jr., Joe C. Emerson, Baker & Daniels; Phillip A. Terry, Brian K. Peters, McHale, Cook & Welch; and Ezra H. Friedlander, Friedlander & Kirsh, Indianapolis, Ind., for defendants-appellants.

Before BAUER, Chief Judge, and CUDAHY, Circuit Judge, and PELL, Senior Circuit Judge.

BAUER, Chief Judge.

There is a temple in ruin stands,

Fashion'd by long forgotten hands;

Two or three columns, and many a stone,

Marble and granite, with grass o'ergrown!

Out upon Time! it will leave no more

Of the things to come than the things before!

Out upon Time! who for ever will leave

But enough of the past and the future to grieve

O'er that which hath been, and o'er that which must be:

What we have seen, our sons shall see;

Remnants of things that have pass'd away,

Fragments of stone, rear'd by creatures of clay!

from The Siege of Corinth,

George Gordon (Lord Byron) 1

Byron, writing here of the Turkish invasion of Corinth in 1715, could as well have been describing the many churches and monuments that today lie in ruins on Cyprus, a small, war-torn island in the eastern corner of the Mediterranean Sea. In this appeal, we consider the fate of several tangible victims of Cyprus' turbulent history: specifically, four Byzantine mosaics created over 1400 years ago. The district court awarded possession of these extremely valuable mosaics to plaintiff-appellee, the Autocephalous Greek-Orthodox Church of Cyprus ("Church of Cyprus" or "Church"). Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F.Supp. 1374 (S.D.Ind.1989). Defendants-appellants, Peg Goldberg and Goldberg & Feldman Fine Arts, Inc. (collectively "Goldberg"), claim that in so doing, the court committed various reversible errors. We affirm.

I. Background

In the early sixth century, A.D., a large mosaic was affixed to the apse of the Church of the Panagia Kanakaria ("Kanakaria Church") in the village of Lythrankomi, Cyprus. The mosaic, made of small bits of colored glass, depicted Jesus Christ as a young boy in the lap of his mother, the Virgin Mary, who was seated on a throne. Jesus and Mary were attended by two archangels and surrounded by a frieze depicting the twelve apostles. The mosaic was displayed in the Kanakaria Church for centuries, where it became, under the practices of Eastern Orthodox Christianity, sanctified as a holy relic. It survived both the vicissitudes of history, see Autocephalous, 717 F.Supp. at 1377 (discussing the period of Iconoclasm during which many religious

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artifacts were destroyed), and, thanks to restoration efforts, the ravages of time. 2

Testimony before Judge Noland established that the Kanakaria mosaic was one of only a handful of such holy Byzantine relics to survive into the twentieth century. Sadly, however, war came to Cyprus in the 1970s, from which the mosaic could not be spared.

The Cypriot people have long been a divided people, approximately three-fourths being of Greek descent and Greek-Orthodox faith, the other quarter of Turkish descent and Muslem faith. 3 No sooner had Cyprus gained independence from British rule in 1960 than this bitter division surfaced. Civil disturbances erupted between Greek and Turkish Cypriots, necessitating the introduction of United Nations peacekeeping forces in 1964. (U.N. forces still remain in Cyprus.) Through the 1960s, the Greek Cypriots, concentrated in the southern part of the island, became increasingly estranged from the Turkish Cypriots, concentrated in the north. 4

The tensions erupted again in 1974, this time with more violent results. In July, 1974, the civil government of the Republic of Cyprus was replaced by a government controlled by the Greek Cypriot military. In apparent response, on July 20, 1974, Turkey invaded Cyprus from the north. By late August, the Turkish military forces had advanced to occupy approximately the northern third of the island. The point at which the invading forces stopped is called the "Green Line." To this day, the heavily-guarded Green Line bisects Nicosia, the capital of the Republic, and splits the island from east to west.

The Turkish forces quickly established their own "government" north of the Green Line. In 1975, they formed what they called the "Turkish Federated State of Cyprus" ("TFSC"). In 1983, that administration was dissolved, and the "Turkish Republic of Northern Cyprus" ("TRNC") was formed. These "governments" were recognized immediately by Turkey, but all other nations in the world--including the United States--have never recognized them, and continue to recognize the Republic of Cyprus ("Republic"), plaintiff-appellee in this action, as the only legitimate government for all Cypriot people.

The Turkish invasion led to the forced southern exodus of over one-hundred thousand Greek Cypriots who lived in northern Cyprus. Turkish Cypriots living in southern Cyprus (and tens of thousands of settlers from mainland Turkey) likewise flooded into northern Cyprus, resulting in a massive exchange of populations.

Lythrankomi is in the northern portion of Cyprus that came under Turkish rule. Although the village and the Kanakaria Church were untouched by the invading forces in 1974, the villagers of Greek ancestry were soon thereafter "enclaved" by the Turkish military. Despite the hostile environment, the pastor and priests of the Kanakaria Church continued for two years to conduct religious services for the Greek Cypriots who remained in Lythrankomi. Hardy as they must have been, these clerics, and virtually all remaining Greek Cypriots, were forced to flee to southern Cyprus in the summer of 1976. Church of Cyprus officials testified that they intend to re-establish the congregation at the Kanakaria Church as soon as Greek Cypriots are permitted to return safely to Lythrankomi. (Thirty-five thousand Turkish troops remain in northern Cyprus.) 5

When the priests evacuated the Kanakaria Church in 1976, the mosaic was still intact. In the late 1970s, however, Church

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of Cyprus officials received increasing reports that Greek Cypriot churches and monuments in northern Cyprus were being attacked and vandalized, their contents stolen or destroyed. (Such reports were necessarily sketchy and unverifiable as officials from the Republic and Church of Cyprus have been denied access to northern Cyprus.) In November, 1979, a resident of northern Cyprus brought word to the Republic's Department of Antiquities that this fate had also befallen the Kanakaria Church and its mosaic. Vandals had plundered the church, removing anything of value from its interior. The mosaic, or at least its most recognizable and valuable parts, had been forcibly ripped from the apse of the church. Once a place of worship, the Kanakaria Church had been reduced to a stable for farm animals.

Upon learning of the looting of the Kanakaria Church and the loss of its mosaics (made plural by the vandals' axes), the Republic of Cyprus took immediate steps to recover them. As discussed in greater detail in Judge Noland's opinion, see 717 F.Supp. at 1380, these efforts took the form of contacting and seeking assistance from many organizations and individuals, including the United Nations Educational, Scientific and Cultural Organization ("UNESCO"); the International Council of Museums; the International Council of Museums and Sites; Europa Nostra (an organization devoted to the conservation of the architectural heritage of Europe); the Council of Europe; international auction houses such as Christie's and Sotheby's; Harvard University's Dumbarton Oaks Institute for Byzantine Studies; and the foremost museums, curators and Byzantine scholars throughout the world. The Republic's United States Embassy also routinely disseminated information about lost cultural properties to journalists, U.S. officials and scores of scholars, architects and collectors in this country, asking for assistance in recovering the mosaics. The overall strategy behind these efforts was to get word to the experts and scholars who would probably be involved in any ultimate sale of the mosaics. These individuals, it was hoped, would be the most likely (only?) actors in the chain of custody of stolen cultural properties who would be interested in helping the Republic and Church of Cyprus recover them.

The Republic's efforts have paid off. In recent years, the Republic has recovered and returned to the Church of Cyprus several stolen relics and antiquities. The Republic has even located frescoes and other works taken from the Kanakaria Church, including the four mosaics at issue here. These four mosaics, each measuring about two feet square, depict the figure of Jesus, the busts of one of the attending archangels, the apostle Matthew and the apostle James.

To understand how these pieces of the Kanakaria mosaic resurfaced, we must trace the actions of appellant Peg Goldberg and the other principals through whose hands they passed in 1988.

Peg Goldberg is an art dealer and gallery operator. Goldberg and Feldman Fine Arts, Inc., is the Indiana corporation that owns her gallery in Carmel, Indiana. In the summer of 1988, Peg Goldberg went to Europe to shop for works for her...

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