Wednesday, December 5, 2018

Court Dismisses Dinosaur Forfeiture Case

Missed statute of limitations deadline prompts government to lose cultural property forfeiture case filed in Texas.


A missed deadline has caused federal prosecutors to lose their court case to confiscate a dinosaur skull allegedly pilfered from Mongolia. "[T]he Court finds that the Government’s request for a final order of forfeiture for the Defendant Bataar Skull should be and is hereby DENIED," wrote U.S. District Judge Reed O'Connor in a decision rendered last week. The dismissal in the case of U.S. v. One Fossilized Tyrannosaurus Bataar Skull (17-cv-00106-O) is the second time that the court has quashed the government's forfeiture action.

Tyrannosaurus bataar
The fossilized Tyrannosaurus bataar skull.
The federal court in the Northern District of Texas, Wichita Falls Division, found that U.S. authorities knew about the existence of the 70 million year old dinosaur fossil on July 18, 2012, and "the Government surely knew of the offense when it prepared a search warrant affidavit to actually seize Defendant Bataar Skull on July 30, 2012." Judge O'Connor therefore concluded, "As the Government did not file this case until August 1, 2017, more than 5 years later, it failed to timely file this lawsuit."

Pleadings filed by the U.S. Attorney's Office for the Northern District of Texas allege that John Richard Rolater purchased the Tyrannosaurus bataar skull in January 2012 for $190,000 and then transferred ownership to his business partner, Dr. James Godwin. On July 12, 2013, a Wyoming federal district court issued a warrant to Immigration and Customs Enforcement Homeland Security Investigations (HSI) to seize the fossilized skull, located at Godwin's home in Wichita. HSI executed the warrant eleven days later, following a police interview of Godwin.

Four years later, on August 1, 2017, prosecutors filed their first complaint to forfeit the skull under 19 U.S.C. § 1595a(c) as "[m]erchandise which is introduced or attempted to be introduced into the United States contrary to law," arguing that the fossil had been looted from Mongolia in violation of that country's patrimony and criminal laws and that it had been illegally imported into the U.S.

Godwin's attorneys quickly asserted their client's claim of ownership over the skull in a September 2017 pleading that declared Godwin to be the bona fide purchaser. The lawyers filed a motion to dismiss on behalf of the claimant, writing "At the time of the purchase, Dr. Godwin was unaware of any problems regarding the import, purchase or ownership of fossils from Mongolia, and the Complaint does not allege facts to the contrary." The claimant's first argument was that the government transgressed the statute of limitations:
The statute of limitations applicable to a 19 U.S.C. § 1595a civil forfeiture claim is 19 U.S.C. § 1621. Under that provision, an action for forfeiture must be commenced within (i) five years after the time the alleged offense was discovered or (ii) two years after the involvement of the property in the alleged offense was discovered, whichever is later. 19 U.S.C. § 1621. ... Complaints filed outside of that period are time-barred.
The government replied by saying that it only learned of Godwin’s potential ownership on August 1, 2012, meaning that it had until August 1, 2017 to file a forfeiture action.

Judge O'Connor granted Godwin's motion to dismiss on March 16, 2018. But the court did not dismiss the case on statute of limitations grounds, saying in a footnote, "It appears that Plaintiff [Government] has adequately alleged ... that Plaintiff filed this action within the five-year statute of limitations." Instead, the court dismissed the case on the basis that the Lacey Act did not apply, latching on to a secondary legal argument made by the claimant.

Government lawyers contended in their forfeiture complaint that the dinosaur fossil was brought onto U.S. soil "contrary to law." The law contravened was the Lacey Act, which bans wildlife trafficking. Judge O'Connor ruled that "the Lacey Act does not concern fossils" and therefore dismissed the forfeiture case.

[Sidebar: In 2015, CHL questioned whether the Lacey Act applied to trafficked fossils, writing "But are dinosaur fossils wildlife?"]

Soon after dismissal, the U.S. Attorney's Office filed a fresh complaint. The amended forfeiture complaint claimed that the fossil's introduction into the U.S. was contrary to law because it was either (a) stolen and illegally exported property under Mongolian law or (b) stolen property as defined by the National Stolen Property Act, the federal "thou shall not steal" statute.

After dozens of pleadings filed by the parties, the government and the claimant had their showdown at a bench trial on November 20, which focused on the issue of statute of limitations. The claimant won because the court concluded that the government failed to file the forfeiture action before the five year statute of limitations deadline expired. The court found that the clock started to run on July 18, 2012 when federal officials received documents about the skull from Rolater's attorney in response to a summons from customs authorities. "The Government confirmed receipt of the responsive documents that same day," the court declared.

With the forfeiture case dismissed, the claimant petitioned to take physical possession of the fossil. Godwin's lawyers filed a motion to recover the dinosaur fossil pursuant to 28 U.S.C. § 2465(a)(1). They worried that the skull would be moved and wrote that "Dr. Godwin ... is concerned that the Government may delay returning the Defendant Bataar Skull." "Additionally, Dr. Godwin is concerned that the Defendant Bataar Skull, a priceless artifact, is apparently being stored in a plastic tub rather than a custom made protective case." The lawyers added that "Dr. Godwin is further concerned that the Defendant Bataar Skull may be in jeopardy of being damaged by an individual(s) obtaining possibly unauthorized access to the Defendant Bataar Skull."

Government lawyers objected to the fossil's return, and prosecutors filed a notice last Friday that stated, "The Defendant Bataar is not being transported to another location and the Defendant Bataar is appropriately secured at the Museum of the Rockies."

Magistrate Judge Hal Ray, Jr. has placed the matter on a fast track to resolve the dispute.

The case of One Fossilized Tyrannosaurus Bataar Skull is part of other federal court cases involving paleontological material sold by the Wyoming fossil gallery partially owned by Rolater and Godwin.

Rolater pleaded guilty in 2014 to unlawfully conspiring to smuggle vertebrate fossils into the U.S. through the use of phony invoices. As part of his plea deal, Rolater did not object to the government's forfeiture of several recovered paleontological objects. A co-conspirator, Charles Magovern, pleaded guilty in 2015 and forfeited fossils as old as 151 million years. The illegal imports were concealed "within legitimate cargo," according to authorities.

Court papers reveal that the Bataar Skull forfeiture case also is connected with the investigation and prosecution of Eric Prokopi, convicted in New York of conspiring to smuggle dinosaur fossils.

These convictions and others represent rare prosecutions of cultural heritage crimes by federal prosecutors.

Photo credit: U.S. District Court Northern District of Texas.
H/T Gary Nurkin


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