Monday, March 12, 2012

Pleadings Filed by Prosecution and Defense Attorneys Argue Lewis Dismissal Motion in US v. Khouli et al.

Lawyers for Joseph Lewis, II this past Friday filed a reply memorandum in support of their earlier motion to dismiss.  They claim that the prosecution does not have the evidence to prove Lewis guilty.  Federal prosecutors, meanwhile, demand that trial is the place where they will prove their case.

A federal grand jury in New York last year indicted Lewis and three others for their alleged roles in an Egyptian antiquities smuggling ring that involved sarcophagi and other artifacts.  All defendants are considered innocent unless proven guilty beyond a reasonable doubt in a court of law.

Lewis' pleading  lays out three separate arguments.  But the thrust of the defense counsels' memorandum is that Lewis was not deceitful about importing Egyptian cultural artifacts into the United States because he was neither involved with the importation process nor agreed to import the pieces unlawfully. "[T]here is no witness, no document, and no email that even alludes to Joseph Lewis participating in the importation process or agreeing with others that it would be handled deceitfully," the memorandum states.  The lawyers point out that Lewis "is not charged with importing contraband or of participating in a conspiracy to import contraband."

In support of the memorandum of law, defense lawyers for Lewis produced an email reportedly between Lewis and co-defendant Moussa Khouli dated April 12, 2009.  That email, in part, says the following:

"Hey Morris,

I am ready to wire the funds in the morning but because its a lot of $$$$, just to make sure that there are no misunderstandings; I want to doublecheck that you do guarantee the following:

1 - Provenance from your late father's collection, Israel 1960s; you have therefore established to the best of your knowledge, these items have not been illegally obtained from an excavation, architectural monument, public institution or private property.
2 - Clearance by US Customs (if the items are seized or detained more than 30 days upon arrival into the US you will issue a full refund)...."

The defendant's memorandum came in response to prosecutors' February 10, 2012 objection to Lewis' original motion to dismiss.  In that pleading, government lawyers reiterate that Lewis is charged with purchasing smuggled Egyptian antiquities transported into the United States, smuggling three Egyptian nesting coffins, conspiring to smuggle, and money laundering in support of smuggling.

The prosecution argues that "[i]t is 'axiomatic' that a criminal defendant 'may not challenge a facially valid indictment prior to trial for insufficient evidence,'" quoting federal case law.  Prosecutors add that "[t]he proper venue for testing the sufficiency of evidence is a trial, not a pre-trial motion based on 'defense counsel’s forecast of the ultimate trial evidence.'"  "Moreover, Lewis's characterization of the government's proof is based on a complaint against co-defendant Khouli and a series of search warrant applications, each of which explicitly states that it does not set forth all facts learned during the course of the government's investigation."

Federal prosecutors make efforts to resist presenting their case prior to going to trial.  They write:  "Accordingly, the government declines to respond to the particulars of Lewis's factual arguments, to correct misstatements of the government's legal theories, or to highlight relevant facts produced in discovery or know to Lewis that Lewis omitted from his factual recitation."