Sunday, November 18, 2012

Jail or No Jail? Sentencing Arguments Filed in US v. Khouli

Mousa "Morris" Khouli will be sentenced this week in federal court in Brooklyn.  Khouli's lawyer, Gerald Shargel, seeks a sentence of probation while the prosecution wants imprisonment.

[UPDATE 11/21/12: Judge Edward R. Korman on November 20 sentenced Khouli to terms that included six months home confinement, one year probation, up to 200 hours of community service, and a criminal monetary assessment of $200.  Judge Korman departed from the federal sentencing guidelines when issuing the order.  Khouli also agreed to forfeit the property seized.]

Assistant United States Attorney Karin Orenstein submitted written arguments to the U.S. District Court for the Eastern District of New York in advance of the sentencing, asking for 46-57 months of incarceration. The prosecutor writes:

Source: ICE
"The smuggling of the Egyptian antiquities that are the subject of the Indictment comprised but a small part of the defendant's smuggling career. ... His willingness to invent provenances to 'launder' cultural property has added an air of legitimacy to items that should be scrutinized as potential stolen property. Indeed, the defendant sold at least one antiquity, the terre-crue head, that was stolen from Iraq. Last, the defendant lied to government agents repeatedly to cover up his criminal conduct."

But Khouli's lawyer argues in court papers that similarly situated defendants have not received sentences of imprisonment. Cultural property dealers, an American soldier, a book author, and a hand surgeon have all received probation for smuggling cultural property, the defense argues.  The defense points to ten criminal cases involving 25 defendants to show that probation is the typical sentence handed down by the courts.

Federal prosecutors counter in their pleadings "that the combination of the rarity of cultural property smuggling prosecutions accompanied by a pattern of non-incarcerative sentences has failed to have a deterrent effect. To the contrary, the remote possibility of a non-jail felony conviction has become the cost of doing business." They add, "Unlike securities dealers or government contractors, dealers in cultural property can continue to work in the same field despite convictions for smuggling and lying to government agents."

Prosecutors concede that "smugglers of cultural property have generally received non-incarcerative sentences" but observe "that that these sentences often include a period of six months or a year of home detention as well as forfeiture and fines." Cases cited by federal prosecutors include (with descriptions and sentences supplied by this author):
  • United States v. Malter, (a case that includes Malter Galleries, Inc.) 09-CR-834 (C.D. Cal.): Pleas of guilty in 2012 to illegal trafficking of artifacts from federal land in violation of the Antiquities Resources Protection Act. Charges dropped involving illegal pre-Hispanic ceramic vessels and artifacts from El Salvador.  Sentence imposed of one year home detention, two years probation, payment of $10,000 of community service to the National Park Foundation Pacific West Region Archaeological Investigation fund, special assessment of $100, restitution in the amount of $6,215.57, and a fine of $8,000.
  • United States v. Perez, 07-CR-499 (C.D. Cal.):  Plea of guilty in 2012 to a single count indictment of smuggling a pre-Hispanic bowl from El Salvador in violation of 18 USC 545 without an export permit as required by 19 USC 2606(a) of the Cultural Property Implementation Act (CPIA). Sentenced to six months house arrest and a fine of $10,000.
  • United States v. Johnson, 08-CR-491 (S.D.N.Y.):  Egyptian stolen property case with a plea of guilty in 2008 to misdemeanor count (dropped from a felony) of receiving stolen property within special maritime and territorial jurisdiction pursuant to 18 USC 662.  Sentenced to restitution in the amount of $21,200 plus a special assessment of $25 and 18 months probation with the first six months served in home detention.
  • United States v. Braude, 03-CR-1009 (E.D.N.Y.):  Pleas of guilty to smuggling under 18 USC 545 and false statements under 18 USC 1001 for trafficking three Iraqi cylinder seals. Sentenced to six months house arrest and a fine of $2000 plus $300 assessment.
"Khouli's professional life has suffered tremendously," argues Khouli's attorney, adding that others do not want to engage in business with a felon who is seen a "a pariah in the industry."  That is why "the government's deterrence arguments [in favor of incarceration] are meritless," he writes.

The defense additionally takes issue with the prosecution's assertion that Khouli had knowledge that an Iraqi terre-crue artifact was stolen.  The defense also emphasizes that "their is no claim that any antiquities at issue in this case were stolen or looted, possessed by Khouli in violation of U.S. law, or imported in violation of Egyptian patrimony laws" (emphasis in the original).

Federal prosecutors want the court to consider that "the defendant flouted Customs regulations time and time again for his own pecuniary gain" and that "Khouli lied to Customs for years and covered up those lies by making false statements directly to investigating agents." They conclude, "A nonincarcerative sentence under these circumstances does not promote respect for the law."

Mousa "Morris" Khouli pleaded guilty on April 18, 2012 to smuggling Egyptian cultural property into the United States and making a false statement to law enforcement authorities.  The antiquities dealer was indicted by a federal grand jury in 2011.  Also indicted were Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan who continue to litigate their cases. Ramadan remains at large.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: