Case 1:19-cv-01271-MAD-CFH Document 1 Filed 10/15/19 Page 1 of 7

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
Civil Action No.: 1:19-cv-1271 (MAD/CFH)

v.
ONE PAINTING ENTITLED “WINTER,”
aka “SKATERS” aka “SNOW”
Defendant.

VERIFIED COMPLAINT FOR FORFEITURE IN REM
The United States of America brings this verified complaint for forfeiture in rem against
the above-captioned asset (the “painting”) and alleges as follows in accordance with Rule (G)(2)
of the Federal Rules of Civil Procedure, Supplemental Rules for Admiralty or Maritime Claims
and Asset Forfeiture Actions:
THE PARTIES
1.

Plaintiff is the United States of America.

2.

The in rem defendant property is a painting, entitled “Winter,” by artist Gari

Melchers. At times “Winter” has been known as “Skaters” and “Snow.” A depiction of the
painting, and label on the back of its frame, is attached as Exhibit A. The painting is in the
possession of the Federal Bureau of Investigation (FBI).
NATURE OF THE ACTION
3.

This is an action in rem brought pursuant to 18 U.S.C. § 981(a)(1) and Rule G of

the Supplemental Rules for Certain Admiralty or Maritime Claims and Asset Forfeiture Actions.
The painting is subject to forfeiture for the two reasons described in paragraphs 4 and 5 below.

 Case 1:19-cv-01271-MAD-CFH Document 1 Filed 10/15/19 Page 2 of 7

4.

In 1933, members of the Nazi party stole, unlawfully converted, or took, the

painting from its rightful owner. The painting, valued at more than $5,000, crossed a United States
boundary in violation of the National Stolen Property Act (NSPA), 18 U.S.C. §§ 2314 & 2315.
5.

Alternatively, because the property was stolen, unlawfully converted, or taken,

when it entered the United States, it was introduced contrary to law, and is therefore subject to
forfeiture. 19 U.S.C. § 1595a(c).
JURISDICTION AND VENUE
6.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§§ 1345 and 1355.
7.

This Court has in rem jurisdiction over the defendant painting pursuant to 28 U.S.C.

§§ 1355(b) & 1395 because the property was recovered in Canajoharie, New York and is currently
held in Albany, New York, within Northern District of New York.
8.

Venue is proper in this district pursuant to 28 U.S.C. §§ 1355 and 1395 because the

painting was found, and remains, within this judicial district.
FACTS GIVING RISE TO FORFEITURE
9.

Rudolf Mosse was a German publisher and philanthropist who lived from 1843-

1920. Rudolf Mosse, along with his family, was of Jewish descent.
10.

Rudolf Mosse was the founder of Rudolf Mosse Company oHG, which published

several periodicals in Berlin, Germany during the early twentieth century, including the Berliner
Tageblatt.
11.

In July 1900, Rudolf Mosse acquired the painting directly from the artist Gari

Melchers at the Great Berlin Art Exhibition.

 Case 1:19-cv-01271-MAD-CFH Document 1 Filed 10/15/19 Page 3 of 7

12.

In 1920, Rudolf Mosse died and all of his holdings, including the painting, passed

to Emilie Mosse, Rudolf Mosse’s wife.
13.

In 1924, Emilie Mosse died, and all of her holdings, which included the painting,

passed to Felicia Lachmann Mosse, Rudolf Mosse’s adopted daughter and her husband, Hans
Lachmann Mosse, who were both shareholders in the Rudolf Mosse Company oHG.
14.

After 1924, Felicia Lachmann Mosse and Hans Lachmann Mosse owned and

controlled the Rudolf Mosse Company, oHG, which included the Berliner Tageblatt, as well as
the Mosse family’s art collection, which contained almost 200 pieces of art, including the subject
painting.
The Nazis come to power in Germany
15.

The Berliner Tageblatt was critical of the Nazi Party as it came to power in the

1920s and early 1930s.
16.

Adolf Hitler criticized the Berliner Tageblatt, among other Jewish-owned

publishing companies, during his rise to power in the 1920s and early 1930s.
17.

When the Nazis came to power, they began a process of “Aryanization,” designed

to remove Jews from German economic life.
18.

Beginning in early 1933, the Nazi party persecuted the Mosse family because they

were Jewish, and because of their affiliations with the Berliner Tageblatt.
19.

Felicia and Hans Lachmann Mosse emigrated from Germany during the first half

of 1933, and their assets, including the family art collection, were placed into state administration.
20.

The Nazis commissioned Karl Haberstock of the Rudolf Lepke auction house, to

liquidate the Mosse family’s art collection.

 Case 1:19-cv-01271-MAD-CFH Document 1 Filed 10/15/19 Page 4 of 7

21.

Karl Haberstock was a German art dealer who has a well-documented history of

working for the Nazis.
22.

The painting (then known as “Schlittschuhlaufer” or “Skaters”) was included in a

May 21, 1933 inventory of the Rudolf Mosse Art Collection, and was mentioned in the
introduction to the Rudolf Lepke Auction catalog.
23.

On May 29, 1934, an unknown purchaser bought the painting (then known as

“Schlittschuhläufer” or “Skaters”) at the Lepke Auction House for 1100 Reichsmarks.
24.

In October 1934, the painting, then known as “The Skaters,” appeared at the

MacBeth Art Gallery in New York City, likely consigned by the Henry Schultheis Gallery, also of
New York City.
25.

The Mosse family never received compensation from the sale of their art collection.

26.

The legal process of dispossessing the Mosse family of its property was found to

be a charade. A German appellate court, the Civil Senate of the Higher Regional Court of Berlin,
found the Mosse’s “surrender” of their assets to be non-voluntary and part of the Nazi’s
Aryanization measures against Jewish business owners. See Kammergericht Berlin [KG Berlin],
Jan.11, 1954, docket no. 14/3 W 4443.52.
Bartlett Arkell purchases “Winter”
27.

Bartlett Arkell was a co-founder, and president, of the Imperial Packing Company,

which ultimately became Beechnut Packing Co. located in Canajoharie, New York.
28.

Bartlett Arkell also collected thousands of art pieces from all over the world, and

frequently purchased artwork from the MacBeth Art Gallery.
29.

In October or November 1934, Bartlett Arkell purchased the painting from the

MacBeth Art Gallery.

 Case 1:19-cv-01271-MAD-CFH Document 1 Filed 10/15/19 Page 5 of 7

30.

Bartlett Arkell arranged to ship the painting to Canajoharie, New York, where it

became part of his personal art collection, which ultimately became the Arkell Museum’s
collection. The Arkell Museum is also known as the “Canajoharie Library and Art Gallery.”
31.

The painting remained in the Arkell Museum’s collection until September 10, 2019,

when Federal Bureau of Investigation (FBI) agents recovered the painting.
32.

When the FBI recovered the painting, Charles J. Tallent, a trustee of the Arkell

Museum, executed a document that “waive[d] any right, title, and interest in [the painting]…”
Suzan Friedlander, Executive Director of the Museum, witnessed Mr. Tallent’s waiver.
33.

The painting is now in the FBI’s possession, at its Albany, New York facility.
CONCLUSION

The facts set forth above support a reasonable belief that the painting is subject to forfeiture
and the government will be able to meet its burden of proof at trial. Specifically, probable cause
exists to believe that the defendant painting is subject to forfeiture because it is valued at more
than $5,000 and was stolen, unlawfully converted, or taken from its rightful owner, and crossed a
United States boundary, in violation of the NSPA. Alternatively, the painting is subject to
forfeiture pursuant to 19 U.S.C. § 1595a(c), because it was introduced to the United States contrary
to law.
WHEREFORE, pursuant to Supplemental Rule G, plaintiff the United States of America,
respectfully requests that the Court:
(1)

Issue a Warrant of Arrest In Rem, in the form submitted with this Complaint;

(2)

Direct any person having any claim to the defendant painting to file and serve their

Verified Claims and Answers as required by 18 U.S.C. § 983(a)(4) and Supplemental Rule G;

 Case 1:19-cv-01271-MAD-CFH Document 1 Filed 10/15/19 Page 6 of 7

(3)

Enter judgment declaring the defendant painting to be forfeited for disposition

according to law; and
(4)

Award such other and further relief to the United States as it deems proper and just.

Dated: October 15, 2019

GRANT C. JAQUITH
United States Attorney
By:

/s/ Christopher R. Moran
CHRISTOPHER R. MORAN
Assistant United States Attorney
Bar Roll No. 700767

 Case 1:19-cv-01271-MAD-CFH Document 1 Filed 10/15/19 Page 7 of 7

VERIFICATION

STATE OF NEW YORK
COUNTY OF

LBANY

)
)
)

ss:

Joanne Q. Sills being duly sworn, deposes and states:
I am a Special Agent with the Federal Bureau oflnvestigations. I have read the foregoing
Complaint for Forfeiture In Rem and assert that the facts contained therein are true to the best of
my knowledge and belief, based upon knowledge possessed by me and/or on information received
from other law enforcement officers.

y-./
Dated this l!_ day of October, 2019.

Joanne Q. Sills, Special Agent

i

[Federal Bureau oflnvestigations ,

Sworn to and subscribed before me this

11

.r--

day of October, 2019.

J f:S ,. !CA FEREDAY
Not:J.ry J. 1:r: S~a: of f\'<;w York
~;), (, r_ '--:::.;' 3
Oualifi.... d in t ,3 i'1,' - lc.:;r County r,e.
Commission Exj::,ires January 8, 20 c:/J

r

r--'."=:J

 Case 1:19-cv-01271-MAD-CFH Document 1-1 Filed 10/15/19 Page 1 of 1
1:19-cv-1271 (MAD/CFH)

EXHIBIT

A

 Case 1:19-cv-01271-MAD-CFH Document 1-2 Filed 10/15/19 Page 1 of 2

CIVIL COVER SHEET

2JS 44 (Rev. 12/07)

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided
by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

ONE PAINTING ENTITLED “WINTER,” aka “SKATERS” aka
“SNOW”

UNITED STATES OF AMERICA

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)

Montgomery

(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Christopher R. Moran, Assistant U.S. Attorney (518) 431-0247
United States Attorney's Office, 445 Broadway,
Albany, New York 12207

II. BASIS OF JURISDICTION

(Place an “X” in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an “X” in One Box for Plaintiff

u 1

U.S. Government
Plaintiff

u 3 Federal Question
(U.S. Government Not a Party)

(For Diversity Cases Only)
PTF
Citizen of This State
u 1

DEF
u 1

u 2

U.S. Government
Defendant

u 4 Diversity

Citizen of Another State

u 2

u

2

Incorporated and Principal Place
of Business In Another State

u 5

u 5

Citizen or Subject of a
Foreign Country

u 3

u

3

Foreign Nation

u 6

u 6

(Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT
CONTRACT

u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excl. Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

u
u
u
u
u
u
u
u
u

u
u
u
u
u
u
u

V. ORIGIN
u 1 Original
Proceeding

and One Box for Defendant)
DEF
PTF
Incorporated or Principal Place
u 4
u 4
of Business In This State

(Place an “X” in One Box Only)
TORTS
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
CIVIL RIGHTS
441 Voting
442 Employment
443 Housing/
Accommodations
444 Welfare
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
440 Other Civil Rights

FORFEITURE/PENALTY

PERSONAL INJURY
u 362 Personal Injury Med. Malpractice
u 365 Personal Injury Product Liability
u 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
u 370 Other Fraud
u 371 Truth in Lending
u 380 Other Personal
Property Damage
u 385 Property Damage
Product Liability
PRISONER PETITIONS
u 510 Motions to Vacate
Sentence
Habeas Corpus:
u 530 General
u 535 Death Penalty
u 540 Mandamus & Other
u 550 Civil Rights
u 555 Prison Condition

(Place an “X” in One Box Only)

u 2 Removed from
State Court

u 3 Remanded from
Appellate Court

u 610 Agriculture
u 620 Other Food & Drug
u 625 Drug Related Seizure
of Property 21 USC 881
u 630 Liquor Laws
u 640 R.R. & Truck
u 650 Airline Regs.
u 660 Occupational
Safety/Health
u 690 Other
LABOR
u 710 Fair Labor Standards
Act
u 720 Labor/Mgmt. Relations
u 730 Labor/Mgmt.Reporting
& Disclosure Act
u 740 Railway Labor Act
u 790 Other Labor Litigation
u 791 Empl. Ret. Inc.
Security Act

BANKRUPTCY

u 422 Appeal 28 USC 158
u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
u 820 Copyrights
u 830 Patent
u 840 Trademark
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS
u 870 Taxes (U.S. Plaintiff
or Defendant)
u 871 IRS—Third Party
26 USC 7609

u
u
u
u
u

IMMIGRATION
u 462 Naturalization Application
u 463 Habeas Corpus Alien Detainee
u 465 Other Immigration
Actions

OTHER STATUTES

u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u
u

from
u 4 Reinstated or u 5 Transferred
u 6 Multidistrict
another district
Reopened
Litigation
(specify)

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
810 Selective Service
850 Securities/Commodities/
Exchange
875 Customer Challenge
12 USC 3410
890 Other Statutory Actions
891 Agricultural Acts
892 Economic Stabilization Act
893 Environmental Matters
894 Energy Allocation Act
895 Freedom of Information
Act
900Appeal of Fee Determination
Under Equal Access
to Justice
950 Constitutionality of
State Statutes

Appeal to District

from
u 7 Judge
Magistrate
Judgment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

18 USC 2314, 2315, 19 USC 1595a(c)

VI. CAUSE OF ACTION Brief description of cause:

u CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER F.R.C.P. 23
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
JUDGE
IF ANY
DATE

CHECK YES only if demanded in complaint:
u Yes
u No
JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

s/Christopher R. Moran

10/15/2019
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

waived

APPLYING IFP

JUDGE

MAD

MAG. JUDGE

1:19-cv-1271

CFH

 JS 44 Reverse (Rev. 12/07)

Case 1:19-cv-01271-MAD-CFH Document 1-2 Filed 10/15/19 Page 2 of 2

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required
by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use
of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint
filed. The attorney filing a case should complete the form as follows:
I.
(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only
the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving
both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time
of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases,
the county of residence of the “defendant” is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section “(see attachment)”.
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an “X” in one
of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the
Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box
1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the
different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section
for each principal party.
IV.
Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient
to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select
the most definitive.
V.

Origin. Place an “X” in one of the seven boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition
for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict
litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box
is checked, do not check (5) above.
Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge’s decision.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes
unless diversity.
Example:
U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VII.

Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers
and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.