Friday, April 5, 2013

Peruvian Artifacts Trafficking Prosecution is Worth Watching

A federal grand jury on Wedesday charged four defendants--Javier Abanto-Sarmiento and Alfredo Abanto-Sarmiento of Trujillo, Peru and Cesar Guarderas and Rosa Isabel Guarderas of West Valley City, Utah--with one count each of illegally smuggling and transporting Peruvian artifacts. An indictment is not a finding of guilt, and a defendant is presumed innocent unless proven guilty.

An undercover Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) agent cracked open the case last fall when he arranged the purchases of a dozen illegal Peruvian artifacts totaling $23,000, according to an amended complaint filed on March 25. The complaint explains that the purchases uncovered an alleged conspiracy:

Undercover telephone, email, and in-person discussions conducted concurrent to the purchase of artifacts further corroborates [Javier] Abanto-Sarmiento's and [Cesar] Guarderas' conspiracy in trafficking of Peruvian artifacts. Several discussions have resulted in declarations of the following: Guarderas stating Abanto-Sarmiento has access to over one hundred (100) pieces of pottery in Peru and is willing to ship them to the U.S.; Abanto-Sarmiento stating he bribes officials in Peru in order to get the artifacts out of Peru; Guarderas stating Abanto-Sarmiento knows where to look for pottery buried in the ground and that he acquires some of his pottery via this method; Guarderas stating Abanto-Sarmiento has a contact with the Institute of National Culture in Peru who provides Abanto-Sarmiento with authentic certifications stating all of his pottery are replicas; and Guarderas stating Abanto-Sarmiento uses these authentic certifications  to illegally export genuine artwork out of Peru.
The smuggling charge in this case differs from U.S. v. Perez where the defendant was found guilty of illegally importing artifacts from El Salvador in violation of the Cultural Property Implementation Act's (CPIA) import controls. An April 3, 2013 HSI news release recites, "In 1997, the United States and Peru entered into a bilateral agreement prohibiting the importation into the United States of specific cultural property originating from Peru, including artifacts and ethnological religious objects." But the cultural property import restriction on Peruvian cultural heritage--put in place by a Memorandum of Understanding (MoU) adopted pursuant to the CPIA--is not alleged to have been violated. Prosecutors have not charged the defendants with that section of 18 U.S.C. 545 that says "[w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law" is guilty of a crime. The current defendants instead are charged with knowingly and willfully smuggling "merchandise which should have been invoiced, or did make out or pass, or attempt to pass, through the customhouse any false, forged, or fraudulent invoice, or other document, or paper ...." The indictment does not allege further specifics.

The second count alleges a violation of the National Stolen Property Act, and states that the defendants "did transport, transmit and transfer in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud, and did aid and abet therein, in violation of 18 U.S.C. §§ 2314 and 2."

HSI cultural property cases often follow a pattern of "seize and send," whereby illegal cultural objects are seized by authorities and then sent back to their country of origin without criminal prosecution in the United States of the traffickers. In recent years, ICE's seize and send policy has repatriated several art and artifacts to Peru, including in 2012, 2011, and 2010, and 2009.  But it is not often that criminal charges are filed against alleged antiquities traffickers. That is why the Abanto-Sarmiento case is worth watching.

UPDATE January 10, 2014:  The district court yesterday set a schedule in this case as follows: Pretrial Conference set for 1/26/2015. Jury Trial set for 2/9/2015. Pleadings due by 8/18/2014. Expert Discovery due by 10/9/2014. Fact Discovery due by 7/18/2014. Joinder of Parties due by 8/18/2014. In Limine Motions due by 12/15/2014. Dispositive Motions due by 10/14/2014. Pretrial Stipulation due by 12/29/2014.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at 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: