Monday, October 7, 2013

"Smuggling Protected Cultural Property is Not 'Commercial Trade,'" Say Federal Attorneys in Peruvian Artifacts Forfeiture Case

The United States Attorney's Office for the Southern District of Florida last week filed its Response to the Claimant's Motion to Dismiss in the case involving forfeiture of Peruvian artifacts seized at Miami International Airport. The Response argues that the federal district court--not the Court of International Trade--is the proper venue to litigate a Cultural Property Implementation Act (CPIA) forfeiture; that due process was not denied to the claimant, Jean Combe Fritz; and that the forfeiture complaints are legally sufficient.

The claimant's lawyers last month argued that the Court of International Trade (CIT) should hear the forfeiture case. But the government's lawyers contend that the claimant's reading of the law is wrong, citing in part the federal district court case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection. The ACCG court concluded that it had jurisdiction over "any seizure" by the terms of 28 U.S.C. § 1356.

The prosecutors point to 28 U.S.C. § 1355(a) for the proposition that “[t]he district courts shall have original jurisdiction ... of any action or proceeding for the recovery or enforcement of any ... forfeiture ... incurred under any Act of Congress, except matters within the jurisdiction of the Court of International Trade under section 1582 of this title." (Emphasis in the original). Section 1582 describes civil actions brought by the U.S. to enforce import transaction penalties, bond recoveries, and customs duties.

Highlighting that the CIT’s jurisdiction over embargo issues applies only when the government is sued under 28 U.S.C. § 1581, the prosecutors maintain that "[t]his case is a complaint for civil forfeiture brought by the United States against the Defendant Property, and is therefore clearly not within the CIT’s jurisdiction."

To explain what an embargo is and what it is not is important to the prosecutors, who distinguish between ordinary commercial trade and criminal trafficking. They write in their Response:
The differences between the [CPIA] statute in this case and an embargo are many. The motivating force behind the prohibition is not the United States, but the country of origin of the artifacts. In an embargo, the prohibition on an entry is absolute; in this case, the basis for the prohibition is whether or not the property is restricted under the CPIA or is stolen under 19 U.S.C. § 1595a(c). Under either statute, the prohibition is qualitative, not quantitative – cultural property from Peru can legally enter the United States so long as it meets one of the several criteria necessary to obtain permission from the Peruvian government.

But most importantly, cultural property from another country that has been illegally exported in violation of their patrimony laws is not "products" or "merchandise" that can be commercially traded between merchants: it is stolen property. The CPIA is not a "government order prohibiting commercial trade" because smuggling protected cultural property is not "commercial trade": it is criminal[] activity.
The prosecution, meanwhile, argues that the claimant was not denied due process. "Contrary to Claimant’s statements in his motion, he was provided with notice...."  In fact, "Claimant cannot now seek relief from the district court regarding the issue of exclusion when he failed to pursue his administrative remedy timely,"insist the government's attorneys. The prosecutors contend that "Claimant has incorrectly interpreted the Convention on Cultural Property Implementation Act ("CPIA") and the corresponding regulations, and has incorrectly concluded that he was denied due process, when in fact, he was provided with fair notice and an opportunity to contest the detention of the artifacts." "The statutes and regulations relating to the CPIA," they say, "directed CBP [U.S. Customs and Border Protection] to proceed with summary forfeiture against the applicable seized artifacts." As a result, the "Claimant’s rights were not violated."

Finally, the prosecutors declare their forfeiture complaints to be legally sufficient. "In this case, the United States has presented a specific, detailed analysis of all twenty-nine seized artifacts, accompanied by the opinion of a distinguished expert who is a professor of art history with a specialty in Latin American and Pre-Columbian art ...." The lawyers comment that "[t]here is ... nothing 'purported' about Professor Damian, whose opinion is well-substantiated by her scholarly writings as well as by the opinion of Luis Chang, Minister Counselor of Peru, who has examined the artifacts and advised that the artifacts constitute part of the Peruvian cultural heritage."

Objecting to the fact that the "Claimant has imposed burdens on the government that it does not in fact bear," the prosecutors wield the Fourth Circuit Court case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection to support their position. They write that "it will be the responsibility of the government at trial to prove that the defendant artifacts are within the designated categories listed by the Secretary of State." But, relying on the persuasive authority of the federal appeals court sitting in Virginia, they resolve, "It is not the responsibility of the government to prove that an artifact came from Peru, nor do we have any responsibility to prove that the artifacts are 'of cultural significance' to Peru separate from our duty to prove that they are within the designated categories: all of the items on the designated list are, by definition, of cultural significance to Peru."

The government's attorneys go on to pointedly criticize "Claimant’s suggestion that Peru cannot claim pre-national artifacts as cultural property," calling this argument "astonishing."

The forfeiture case is civil in nature, focused on seizing, forfeiting, and repatriating Peruvian cultural material. It is not a case criminal case targeting an individual. Nevertheless, the government alleges criminal activity in its Response to bolster its claim. The lawyers raise allegations that the ancient artifacts brought from Peru to Miami were worth approximately $283,000 and not $500 as originally claimed during importation. Prosecutors also allege that false statements were made to customs officials about how the objects were possessed, the purpose for importing the items, and to whom the items would be delivered. Twenty-two "turn-around" trips in the last ten years raise the specter of "courier activity," the prosecutors suggest. While these allegations are made by the U.S. Attorney's Office to support its forfeiture action, court records show an absence of criminal charges having been filed.

Photo credit: Plex

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com