Thursday, October 15, 2020

Brooklyn Man Indicted for Egyptian Artifact Smuggling. Did COVID-19 Impact Grand Jury Selection?

Man who arrived at JFK Airport and indicted for allegedly possessing illicit Egyptian artifacts had unfair jury panel, defense lawyer suggests.

Ancient Egyptian canopic jar lids seized by Homeland Security
Ancient Egyptian canopic jar lids are some
of the antiquities seized by Homeland Security.

"Loose sand or dirt came out of the suitcases as they were opened," and there was the smell of "wet earth," recited the arrest warrant affidavit filed in U.S. v. Eldarir, an antiquities smuggling case pending in a New York federal district court.

Now a veteran defense lawyer has challenged the criminal prosecution by suggesting that the COVID-19 outbreak interfered with the selection of a fair grand jury.

Homeland Security Investigations (HSI) arrested 
Ashraf Omar Eldarir of Brooklyn in February. The court released him on $60,000 bond and placed the case under seal, which has since been lifted.

A grand jury sitting in the Eastern District of New York (E.D.N.Y.) indicted Eldarir five months later 
on two counts of smuggling under 18 U.S.C. § 545, alleging:
On or about April 18,2019, within the Eastern District of New York and elsewhere, the defendant ASHRAF OMAR ELDARIR, also known as "Omar Eldarir," did knowingly, intentionally and fraudulently import and bring into the United States merchandise contrary to law, to wit: one ancient Egyptian polychrome relief [and] ... approximately 590 Egyptian artifacts and pieces thereof.
A grand jury indictment simply initiates a criminal case; it is not a finding of guilt. The defendant is presumed innocent unless the government proves guilt beyond a reasonable doubt.

In addition to criminal penalties, prosecutors seek criminal forfeiture of the cultural artifacts pursuant to 18 U.S.C. § 982, which include ancient Egyptian shabtis, gold artifacts, coins, panels, masks, and canopic jar lids in addition to Greco-Roman rings, stele, and a torso.

Attorney Marietou Diouf, who joined the U.S. Attorney's Office in 2020 and previously served 
as an E.D.N.Y. law clerk, leads the prosecution. She is pitted against experienced Assistant Federal Defender Kannan Sundaram, who has raised the specter of irregularities surrounding the grand jury's selection.

"The unusual circumstances of the indictment—the grand jury sat in Central Islip as opposed to Brooklyn, at a time when most members of the public in the Eastern District of New York were still under a stay-at-home order—may have compromised the defendant’s right to a grand jury selected from a fair cross section of the community," argued Attorney Sundaram in a letter to the court that asked to probe juror records. AUSA Diouf countered that the grand jury "was empaneled ... many months before the start of the pandemic—and has remained empaneled since then. And ... the Grand Jury was selected from a list of residents drawn from all five counties of the Eastern District of New York."

Should the case proceed to trial, court papers reveal that the prosecution's evidence consists of the defendant's statements to law enforcement, EgpytAir travel records, the defendant’s past customs declarations, information from the defendant’s cell phone, including documentation and photos regarding the polychrome relief that was brought to America in April 2019; artifacts recovered from the defendant's luggage; "documents from Christie’s Auctions & Private Sales relating to historical sales of artifacts by the defendant," "records and documents from Arte Primitivo, including statements of the defendant," and "records and documents from Palmyra Heritage Gallery, including statements of the defendant."

US v. Eldarir antiquities smuggling case
Archaeological material recovered by
Homeland Security in the case of U.S. v. Eldarir.
A member of HSI's Cultural Property Arts and Antiquities Group petitioned the court 
earlier this year for a warrant to arrest Eldarir (20-MJ-00200). According to an affidavit supplied by Special Agent Igor Gamza, Eldarir arrived at JFK International Airport from Egypt on January 22, 2020. After deplaning, U.S. Customs and Border Protection (CBP) officers, on HSI's orders, stopped Eldarir, discovering hundreds of cultural objects in foam and bubble wrap stowed in three checked suitcases. "CBP officers asked Eldarir if he was transporting any artifacts into the United States to which Eldarir replied, 'No.'"

"When asked about the various pieces of stone, wood and ceramic pieces," Gamza attested that "Eldarir stated that they were items to decorate his two-bedroom apartment," that they were worth $300, that his family owned the pieces, and that he sold "a few artifacts within the last two or three years."

The affidavit added that "CBP officers recovered several documents from Eldarir's luggage listing previous sales of artifacts that bear Eldarir's name, as well as documents that Eldarir claimed were provenances from his grandfather dating back to the 1920s."

Gamza noted that experts examining the seized artifacts found the gold amulets to be rare because they constituted a full set. They also theorized that a relief inscribed with the name of a Ptolemaic king came from a royal building or temple, and they concluded that two stele were like ones found at the Egyptian site of Kom abu Bellou.

Antiquities trafficking indictments are uncommon. Federal prosecutors usually pursue a "seize and send" policy, which aims to seize cultural contraband and then send this evidence of heritage trafficking back to the country of origin—often in conjunction with a press conference—without holding criminals accountable or effectively dismantling trafficking networks. The goal is property repatriation, not personal responsibility.

The U.S. Attorney's Office for the E.D.N.Y., nevertheless, is noted for two well-known cultural property prosecutions. In the case of United States v. Braude (03-CR-1009), book author Joseph Braude pleaded guilty in 2004 to smuggling three Iraqi cylinder seals and making false statements. He served six months house arrest and paid $2300. In
 
U.S. v. Khouli et al. (11-CR-340), the court sentenced one defendant to house arrest in 2013 on charges of smuggling and making false statements. A second defendant plea bargained to misdemeanor accessory after the fact and received a fine of $1000. That accelerated a quick conclusion for a third defendant, who accepted a plea offer of deferred prosecution, which resulted in no conviction. A fourth defendant remains at large.

The Special Agent in Charge initially advertised Khouli et al. "as a ground breaking case for Homeland Security Investigations [because] [i]t is the first time a cultural property network is dismantled within the United States," and because it "focuses on money laundering." But the case fizzled after a defense lawyer filed a motion to dismiss the charges and after prosecutors' presented unsuccessful sentencing arguments.

In addition to the cultural property case of U.S. v. Eldarir (20-CR-243), the U.S. Attorney for the E.D.N.Y., pursuant to 19 U.S.C. § 1595(a)(c)(1)(A)currently is seeking repatriation of an ancient Mesopotamian artifact that depicts a portion of the Epic of Gilgamesh. The archaeological object is claimed by Hobby Lobby the craft store owned by the Green family, which underwrites the Museum of the Bible. Hobby Lobby has asserted an innocent owner defense in the case of U.S. v. One Cuneiform Tablet Known As "The Gilgamesh Dream Tablet" (20-CV-2222).

Meanwhile, there is another federal cultural property prosecution underway in California in the case of U.S. v. AlCharihi. Do the prosecutions of Eldarir and AlCharihi suggest that "seize and send" will be replaced by "investigate and indict?" Time will tell.

Time also will tell if 
COVID-19 gives defense counsel the unusual opportunity to access grand jury records in the Eldarir case.

Photo credit: U.S. Department of Homeland Security.

Text and original photos copyrighted 2010-2020 by Cultural Heritage Lawyer Rick St. Hilaire, a blog commenting on matters of cultural property law, art law, art crime, cultural heritage policy, antiquities trafficking, looted, antiquities, stolen relics,smuggled antiquities, illicit antiquities, museum risk management, and archaeology. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. The materials presented on this site are intended for informational purposes only and should not be used as legal advice applicable to the reader’s specific situation. In addition, the provision of this information to the reader in no way constitutes an attorney-client relationship. Blog url: culturalheritagelawyer.blogspot.com.