Federal
prosecutors recently scored three court victories in two forfeiture actions and
one subpoena case involving allegedly contraband Peruvian artifacts.
A
federal magistrate in New Mexico recommended that a conservator, who may have
handled contraband objects, turn over his business records to prosecutors under subpoena, a decision
that certainly will attract attention among conservation professionals since they are rarely the subject of cultural property claims filed by the
government.
A federal judge in Miami, meanwhile, ruled that the two cases seeking to forfeit the Peruvian objects could not be halted
by a parallel criminal investigation, if one even existed. The court also denied
a request to dismiss the forfeiture cases in their entirety.
The Peruvian
artifacts forfeiture cases began in 2010 when U.S. Customs and Border Protection
(CBP) seized 33 objects from Jean Combe Fritz’s luggage. Authorities suspected
Combe Fritz and his father of engaging in a smuggling ring, according to information
supplied by court papers. The two made 21 trips to Miami in ten years, returning
to Peru after one or two days’ stay, which caught customs officials’ attention.
Prosecutors
alleged in court pleadings that “[i]n August 2010, Combe-Fritz attempted to
smuggle thirty-two ancient Peruvian artifacts into the United States through
the Miami International Airport. Because Customs officers could not confirm the
authenticity of the apparently-ancient artifacts without an expert appraisal,
Combe was released that day. The U.S. Attorney’s Office Major Crimes section
subsequently declined to prosecute the criminal case because Combe had returned
to Peru.”
Without the
possibility of prosecution, federal attorneys decided to seek title to the objects
through civil forfeiture with the intent to return the heritage objects to
Peru.
Prosecutors filed
a civil action in Miami federal district court on May 10, 2013 to forfeit
29 objects consisting of a Moche
bone carving (pictured here), a 12 piece Inca burial bundle, an Early Horizon/Chavin stone
carving, and more. They argued that the Convention on Cultural Property
Implementation Act (CPIA) forbade their entry into the United States.
Prosecutors filed a
second forfeiture complaint on July 18, 2013 seeking to forfeit three more
objects, this time arguing that they should be forfeited under 19 U.S.C. § 1595a(c)(1)(A) because they were stolen, smuggled,
or clandestinely introduced into the United States.
While
it is rare for a claimant to step forward in a cultural property forfeiture case,
Jean Combe Fritz did,
and his lawyers have vigorously battled the government ever since.
They
have argued that the CPIA does not
apply, that the objects seized cannot be shown to be Pre-Columbian or Colonial,
that it is not possible to determine whether Peru is the source country, 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 case stalled for one year after federal
attorneys attempted to depose Combe Fritz, an effort resisted by the claimant’s
lawyers on grounds that the government cannot go searching for criminal
evidence by using the civil court process. Prosecutors countered by accusing
the claimant of delay.
Combe Fritz’s lawyers filed a motion to stay
the civil forfeiture proceedings until federal authorities concluded their
criminal investigation. But prosecutors objected, writing on July 10, 2014 that
there was no criminal investigation and no possibility of prosecution. “The Government
disclosed this fact to counsel early in the litigation,” they explained.
Notwithstanding this representation by the government, one day
earlier, on July 9, federal prosecutors in New Mexico targeted the conservator who
allegedly handled pre-Columbian artifacts brought to the U.S. by Combe Fritz. Prosecutors
told the court that the conservator was not implicated in any wrongdoing, but that
they wanted information from him to find out who was running Peruvian artifacts
between Miami and New Mexico.
The claimant’s lawyers tried to
convince the Miami federal court that the existence of the New Mexico case clearly
revealed that a criminal investigation was underway. But the judge in Miami would not stop the
forfeiture cases. The court even denied the claimant’s motion to dismiss the matters outright, not just delay them.
The federal magistrate in New Mexico,
meanwhile, authorized a subpoena to be
issued to the conservator for information relating to the Miami forfeiture cases despite his objections.
The conservator objected to turning over specific information to the government, stating that the information sought was irrelevant to
the forfeiture cases in Miami; insisting that he had not received
any material from Combe Fritz; protesting that the disclosure of business
records would violate the confidentiality necessary to conduct conservation
work for his clients; and complaining that retrieving company's records would be too
burdensome.
The magistrate noted that the
conservator was “willing to provide some information and submit to deposition
questioning about certain matters,” but that the conservator says “he does not
know Combe Fritz, was never contacted concerning any of the 32 items at issue
in the Florida cases, and has no reason to believe that any of his clients has
anything to do with Combe Fritz or the 32 items.”
The magistrate sided with the government, nevertheless, reasoning
in his recommended disposition of August 29,
I agree
with the United States that the information sought is relevant to its claims ….
It is beside the point whether the government already has some evidence to prove its claims. There is
no limit on the quantum of evidence that the government may amass—within the
rules—to make its case as strong as possible. See Fed. R. Civ. P. 26(b)(1). I find that [the
conservator’s] records and knowledge are reasonably calculated to lead to the
discovery of evidence that is admissible and relevant to the elements that the
government must prove ….
The
United States … argues that the information sought pursuant to the subpoena is
relevant to the elements that it must prove…. The government's aim is not
merely to identify the intermediary. Rather, the government's aim is to
identify the intermediary and, more importantly, to secure his/her testimony as
an "eyewitness[] to acts of the conspiracy and the persons involved in it,
as would be the person who was to transport the textile from Miami to New
Mexico[;] that information could be critical to the government's case."
[Doc. 9] at 4.
The
magistrate carefully reframed the government’s original subpoena to
restrict overbroad language and to confine the document disclosures
to narrowly tailored information about pre-Columbian textiles. Indeed, the
conservator’s lawyer informed the district court that his client worked
in textiles alone and not with other types of artifacts.
Approximately three weeks before the magistrate's recommendation to issue the subpoena, the federal
district court in Miami ruled that the forfeiture cases would push forward
despite the claimant’s request that the court process stop temporarily . The court wrote,
Claimant argues that
"by engaging in discovery and offering evidence in support of his interest
in the seized objects, he will be forced to incriminate himself in violation of
his Fifth Amendment rights." (D.E. 74 at 2). The Government has not
indicted Claimant and further states that no actual prosecution or criminal
investigation is in progress.
....
The mere existence of
parallel criminal and civil proceedings does not compel a stay of the civil
proceeding.
Under the circumstances
presented here, the Court finds that a stay is not warranted. Claimant has
submitted no evidence that his invocation of the privilege against
self-incrimination would compel an adverse judgment against him.
. . . If "special circumstances" arise that Claimant believes
warrants a stay during the course of litigation, then Claimant may re-file his
motion.
The claimant’s attorneys raised “special circumstances”
in their motion to reconsider dated August 16. They claimed that “new facts
clearly reveal that the Government is using civil discovery in this case to
further its criminal inquiry,” asserting that “new evidence will show that the
criminal inquiry is active and ongoing, despite the Government’s
unsubstantiated protestations to the contrary.”
The
claimant’s lawyers said federal prosecutors’ efforts to compel the conservator
to turn over documents “strongly supports Claimant’s position that the
Government is improperly using civil discovery to supplement its ongoing
criminal inquiry or as an improper substitute for an open and outright criminal
investigation. Indeed, the non-party witnesses in New Mexico have corroborated
this position and presented compelling, independent evidence in support of the
same …[demonstrating] that the Government’s purported civil discovery demands
were in fact issued in order to generate evidence of a criminal smuggling ring.”
The court rejected such claims and ruled on
September 9 that "[e]ven if the Government is engaged
in an active and ongoing criminal inquiry, the mere existence of parallel
criminal and civil proceedings does not compel a stay of these civil
proceedings.”
The court soon thereafter ruled against
the Claimant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, Denial
of Due Process of Law, and Failure to State a Cause of Action, a pleading that had
been pending for one year. Judge Joan Lenard weighed both the claimant’s arguments
and the government’s objection,
which included the government’s position that “…smuggling
protected cultural property is not ‘commercial trade’: it is criminal[]
activity.”
In its ruling against the motion to dismiss, the Miami federal district court first determined that it
had jurisdiction to hear the case. “Because this action involves the forfeiture
of property and does not involve the recovery of civil penalties, the recovery
of a bond, or the recovery of customs duties, the Court has jurisdiction….,”
the court wrote. The case was not required to be heard by the Court of
International Trade as the claimant’s lawyers argued.
Second, the district court concluded
that prosecutors sufficiently stated their claims in both the CPIA forfeiture
complaint and the 15 U.S.C. § 1595a forfeiture complaint.
Citing in part AncientCoin Collectors Guild v. U.S. Customs, Judge Lenard ruled that the CPIA
forfeiture complaint “demonstrated that the artifacts in this action consist of
Pre-Columbian perishable remains, lithics, metal objects, and textiles. (First
Compl. ¶ 16). Such items are listed on a designated list within the meaning of
the CPIA. See 19 C.F.R. 12.104g; Archaeological and Ethnological Material From
Peru, 62 Fed. Reg. 31712-01 (June 11, 1997). Claimant has failed to demonstrate
that the artifacts are legally importable by providing a State Party issued certification
or any other documentation certifying that the artifacts may be legally imported
into the United States.”
The §
1595a forfeiture complaint was also sufficient, the court explained:
Here, the artifacts were stashed in
Claimant’s luggage. CBP officers located the artifacts in Claimant’s luggage
only after conducting a secondary examination. When questioned about the artifacts,
Claimant made false statements regarding how he came to possess the artifacts,
his purpose for bringing the artifacts into the United States, and the individuals
to whom he intended to deliver the artifacts. Additionally, Plaintiff alleges that
the introduction of the artifacts into the United States was a violation of
Peruvian law. Based on these facts set forth in the Second Complaint, the Court
finds that there is probable cause to believe that Claimant clandestinely introduced
the artifacts into the United States contrary to law.
The forfeiture cases have been captioned as U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru and U.S. v. Three Artifacts Constituting Cultural Property of Peru.
By Rick St. Hilaire
Text copyrighted 2014 by Cultural Heritage Lawyer. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.
