As
2012 comes to a close, a case concluded in the Central District of California this year is important to
highlight. It is the federal district
court matter of United States v. Perez
(07-CR-499 C.D.Ca. 2007), prosecuted by U.S. Attorney André Birotte, Jr.'s office.
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| Source: U.S. Attorney's Office, C.D.CA |
The case confirms that
the federal anti-smuggling statute, 18 U.S.C. 545, can punish cultural property
smugglers who illegally import archaeological or ethnological material in violation of the Convention on Cultural
Property Implementation Act (CPIA).
It
has been suggested over the years that a person who violates the CPIA’s cultural property
import restrictions faces the civil remedy of seizure of the cultural object but not
criminal prosecution. So if a person
smuggles an archaeological object into the United States from Cyprus, for
example—a country that has a bilateral agreement with the U.S. under the CPIA—the smuggler
cannot be indicted or go to prison, according to this argument. Only
the smuggled artifact can be taken away.
I believe that this interpretation of law is incorrect.
In
a paper presented to the International Council of Museums Conservation
Committee in 2007 and referenced by Patty Gerstenblith, “Controlling the International Market in Antiquities: Reducing the Harm, Preserving the Past,” 8Chicago Journal of International Law169 (2007), I stated that the CPIA’s “civil remedy of forfeiting an unlawfully
imported object is arguably complemented by the smuggling statute’s
criminal remedy of prosecuting the perpetrator. That is because the federal
anti-smuggling law declares that a person is subject to criminal prosecution
when he fraudulently or knowingly imports an item ‘contrary to law.’” This argument, that an individual can face conviction for smuggling as a result of violating the CPIA's import restrictions is supported by the conviction
in the Perez case.
In that case, federal officials discovered that Robert Perez was selling pre-Columbian and pre-Hispanic pots imported illegally into the United States
from El Salvador.
The U.S. has import restrictions on cultural property from El Salvador as a result of a bilateral agreement with that nation, authorized by the CPIA. The grand jury indicted Perez on one count
of smuggling under 18 U.S.C. 545, charging the following:
“On or about December 11, 2002, in Orange County, within the Central District of California, defendant ROBERT PEREZ did
fraudulently and knowingly sell merchandise, namely,
one melon-shaped, pre-Hispanic ceramic bowl, after the merchandise's importation
into the United States, knowing said merchandise had been imported into the United States contrary to law.
Specifically, on said date, defendant PEREZ knowingly
sold said ceramic bowl knowing that it was a
pre-Hispanic archeological material that had
been imported into the United States from El Salvador contrary to law, namely, without first obtaining a
valid export certificate from the country of
El Salvador, in violation of [the CPIA] Title 19, United States Code, Section
2606(a).”
The case concluded with a
plea agreement in January 2012, supporting the opinion that the CPIA's import restrictions on cultural property may be enforced by federal criminal statutes.
This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com