Wednesday, December 26, 2012

U.S. v. Perez: Criminal Penalties for Violating Convention on Cultural Property Implementation Act

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.

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 Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: