Tuesday, September 17, 2013

A Big Deal? CPIA Embargo Argument Raised in U.S. v. Peruvian Artifacts

U.S. Customs and Border Protection (CBP) detained what it calls "ancient indigenous artifacts" from Peru when Jean Combe Fritz, a Peruvian citizen, arrived at Miami International Airport in August 2010. CBP seized the items because they violated the import restrictions covering protected Peruvian cultural property enacted under the Cultural Property Implementation Act (CPIA). Fritz wants them back.

Fritz is the claimant, and he has already offered affirmative defenses in the consolidated forfeiture cases of U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru and U.S. v. Three Artifacts Constituting Cultural Property of Peru. Now Fritz's lawyers argue in their motion to dismiss filed yesterday that federal prosecutors violated due process, that federal attorneys brought the case to the wrong court, and that the items seized by CBP weren't even banned cultural property.

The second argument raised by the attorneys puts forward a highly relevant issue of law that could end up being consequential in future cases.

When federal prosecutors filed the forfeiture cases this year in federal court in the southern district of Florida, they went to the wrong courthouse, the claimant's lawyers contend. Cultural Heritage Lawyer flagged the important legal question posed by this argument in July, asking "Do CPIA Import Restrictions Constitute an Embargo?" The claimant's attorneys now advance this issue, expressing the position that the CPIA's import barriers act just like an embargo. Therefore the Court of International Trade must hear the case.

The claimant's attorney's write that because the "CPIA [Cultural Property Implementation Act] and its implementing regulations create an embargo on the importation of certain items designated as cultural property from Peru ... the CIT [Court of International Trade] has exclusive jurisdiction to hear any claims involving embargoes."

Should this argument prevail, future CPIA forfeiture actions might be filed in the CIT in New York and not in local federal district courts. But it is noteworthy that the claimant's pleading does not mention that a federal district court in Baltimore--in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection Agency, Department of Homeland Security et al.--already ruled that federal district courts have jurisdiction over CPIA forfeiture cases.

An additional dismissal argument offered by the claimant' latest motion is that Fritz's due process rights were violated. The U.S. Attorney in Miami only filed the forfeiture complaints in court this year. The claimant's lawyers therefore charge:
For approximately two and a half years, Claimant and his attorneys received no information from CBP regarding a seizure, despite Claimant’s efforts to obtain such information from Customs. Further, CBP failed to issue a detention notice or any other notification advising either Claimant or his attorneys of the status of the detention. Indeed, on numerous occasions, Claimant’s attorneys requested a status of the matter, but were told only that the objects had been sent to an outside expert for purposes of authentication.

After years of silence, Customs finally sent two letters to Claimant’s attorneys. The Notice of Summary Forfeiture Proceedings did not provide Mr. Fritz an opportunity to seek administrative relief, as required by Customs law and regulations. Despite Claimant’s attorneys’ repeated attempts to convince CBP in Miami and CBP headquarters to reconsider the issue, Customs has continued to refuse to provide the required administrative relief to Claimant. (Citations omitted).
Finally, the claimant's attorneys insist that the Peruvian artifacts are not subject to CPIA import controls, nor are they stolen property. The lawyers maintain, in part, that the government 
fails to make a plausible claim that the detained items, in fact: (1) are pre-Colombian, Colonial, or Peruvian; (2) can be identified as originating from Peru; (3) predate the establishment of Peru as a nation such that they could constitute Peruvian cultural property; and (4) constitute items of “cultural significance” to Peru.
The government will have a chance to respond to the motion to dismiss in the near future.

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