Conservator's Records To Be Subpoenaed As Prosecutors Score Triple Victory in Peruvian Artifacts Forfeiture Cases

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 argumentsand 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 Ancient Coin 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.

"Smuggling Protected Cultural Property is Not 'Commercial Trade,'" Say Federal Attorneys in Peruvian Artifacts Forfeiture Case

The United States Attorney's Office for the Southern District of Florida last week filed its Response to the Claimant's Motion to Dismiss in the case involving forfeiture of Peruvian artifacts seized at Miami International Airport. The Response argues that the federal district court--not the Court of International Trade--is the proper venue to litigate a Cultural Property Implementation Act (CPIA) forfeiture; that due process was not denied to the claimant, Jean Combe Fritz; and that the forfeiture complaints are legally sufficient.

The claimant's lawyers last month argued that the Court of International Trade (CIT) should hear the forfeiture case. But the government's lawyers contend that the claimant's reading of the law is wrong, citing in part the federal district court case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection. The ACCG court concluded that it had jurisdiction over "any seizure" by the terms of 28 U.S.C. § 1356.

The prosecutors point to 28 U.S.C. § 1355(a) for the proposition that “[t]he district courts shall have original jurisdiction ... of any action or proceeding for the recovery or enforcement of any ... forfeiture ... incurred under any Act of Congress, except matters within the jurisdiction of the Court of International Trade under section 1582 of this title." (Emphasis in the original). Section 1582 describes civil actions brought by the U.S. to enforce import transaction penalties, bond recoveries, and customs duties.

Highlighting that the CIT’s jurisdiction over embargo issues applies only when the government is sued under 28 U.S.C. § 1581, the prosecutors maintain that "[t]his case is a complaint for civil forfeiture brought by the United States against the Defendant Property, and is therefore clearly not within the CIT’s jurisdiction."

To explain what an embargo is and what it is not is important to the prosecutors, who distinguish between ordinary commercial trade and criminal trafficking. They write in their Response:

The differences between the [CPIA] statute in this case and an embargo are many. The motivating force behind the prohibition is not the United States, but the country of origin of the artifacts. In an embargo, the prohibition on an entry is absolute; in this case, the basis for the prohibition is whether or not the property is restricted under the CPIA or is stolen under 19 U.S.C. § 1595a(c). Under either statute, the prohibition is qualitative, not quantitative – cultural property from Peru can legally enter the United States so long as it meets one of the several criteria necessary to obtain permission from the Peruvian government.

But most importantly, cultural property from another country that has been illegally exported in violation of their patrimony laws is not "products" or "merchandise" that can be commercially traded between merchants: it is stolen property. The CPIA is not a "government order prohibiting commercial trade" because smuggling protected cultural property is not "commercial trade": it is criminal[] activity.

The prosecution, meanwhile, argues that the claimant was not denied due process. "Contrary to Claimant’s statements in his motion, he was provided with notice...."  In fact, "Claimant cannot now seek relief from the district court regarding the issue of exclusion when he failed to pursue his administrative remedy timely,"insist the government's attorneys. The prosecutors contend that "Claimant has incorrectly interpreted the Convention on Cultural Property Implementation Act ("CPIA") and the corresponding regulations, and has incorrectly concluded that he was denied due process, when in fact, he was provided with fair notice and an opportunity to contest the detention of the artifacts." "The statutes and regulations relating to the CPIA," they say, "directed CBP [U.S. Customs and Border Protection] to proceed with summary forfeiture against the applicable seized artifacts." As a result, the "Claimant’s rights were not violated."

Finally, the prosecutors declare their forfeiture complaints to be legally sufficient. "In this case, the United States has presented a specific, detailed analysis of all twenty-nine seized artifacts, accompanied by the opinion of a distinguished expert who is a professor of art history with a specialty in Latin American and Pre-Columbian art ...." The lawyers comment that "[t]here is ... nothing 'purported' about Professor Damian, whose opinion is well-substantiated by her scholarly writings as well as by the opinion of Luis Chang, Minister Counselor of Peru, who has examined the artifacts and advised that the artifacts constitute part of the Peruvian cultural heritage."

Objecting to the fact that the "Claimant has imposed burdens on the government that it does not in fact bear," the prosecutors wield the Fourth Circuit Court case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection to support their position. They write that "it will be the responsibility of the government at trial to prove that the defendant artifacts are within the designated categories listed by the Secretary of State." But, relying on the persuasive authority of the federal appeals court sitting in Virginia, they resolve, "It is not the responsibility of the government to prove that an artifact came from Peru, nor do we have any responsibility to prove that the artifacts are 'of cultural significance' to Peru separate from our duty to prove that they are within the designated categories: all of the items on the designated list are, by definition, of cultural significance to Peru."

The government's attorneys go on to pointedly criticize "Claimant’s suggestion that Peru cannot claim pre-national artifacts as cultural property," calling this argument "astonishing."

The forfeiture case is civil in nature, focused on seizing, forfeiting, and repatriating Peruvian cultural material. It is not a case criminal case targeting an individual. Nevertheless, the government alleges criminal activity in its Response to bolster its claim. The lawyers raise allegations that the ancient artifacts brought from Peru to Miami were worth approximately $283,000 and not $500 as originally claimed during importation. Prosecutors also allege that false statements were made to customs officials about how the objects were possessed, the purpose for importing the items, and to whom the items would be delivered. Twenty-two "turn-around" trips in the last ten years raise the specter of "courier activity," the prosecutors suggest. While these allegations are made by the U.S. Attorney's Office to support its forfeiture action, court records show an absence of criminal charges having been filed.

Photo credit: Plex

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

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

Stakes Raised in Peruvian Artifacts Forfeiture Case: Claimant Says Objects Not Peruvian as Prosecutors Make New Assertions in Second Forfeiture Complaint

Miami, Florida.

The U.S. Attorney for the Southern District of Florida on July 18 filed a second complaint to forfeit Peruvian cultural property. The complaint alleges that Jean Combe Fritz, a citizen of Peru, illegally imported additional heritage objects when he arrived at Miami International Airport in Florida in August 2010. U.S. Customs and Border Protection (CBP) seized the items.

The federal district court has consolidated this new case of U.S. v. Three Artifacts Constituting Cultural Property of Peru with the case of U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts from Peru, filed in May. The three artifacts described in the latest complaint consist of two amulets and a tunic.

The prosecution's newest pleading follows on the heels of Combe Fritz's court notice claiming lawful title to the original 29 artifacts. In answer to the government's initial complaint, he denies "that the CPIA [Convention on Cultural Property Implementation Act] applies, that the items are Pre-Columbian or Colonial, and that Peru is the source country." In the alternative, the claimant argues that "it is not possible to determine whether or not Peru is the source country." Meanwhile, a third affirmative defense asserts that "[t]he articles seized are not Peruvian as their production predates the establishment of Peru as a nation."

A fourth affirmative defense raised by the claimant argues that the objects are not ones of "cultural significance" that can be forfeited as required by the terms of the CPIA. And a fifth affirmative defense contends that CBP failed to provide an administrative process that would have allowed the claimant to recover the property. Indeed, a final affirmative defense says that Combe Fritz "has valid title to the items and is a bona fide purchaser for value...."

The prosecutors' latest complaint targeting the three artifacts argues that the objects can be seized, not under the terms of the CPIA, but pursuant to 19 U .S.C. § 1595a(c)(1 )(A), which states that "[m]erchandise which is introduced or attempted to be introduced into the United States contrary to law . . . shall be seized and forfeited if it ... is stolen, smuggled, or clandestinely imported or introduced."

The prosecution alleges, "The Defendant in rem is merchandise that has been introduced into the United States contrary to law, as it constitutes property unlawfully exported from Peru and stolen, smuggled or clandestinely imported or introduced into the United States." They cite Law 28296 as legal authority, Peru's patrimony law, but make no mention of any specific U.S. criminal law that would have been violated.

Prosecutors, nevertheless, outline additional facts in their case. They allege, among other details, that

Combe-Fritz initially told the officers that he had come to Miami for a vacation and to do some shopping for his wife and child.  He said that he had purchased the artifacts for $500 from the Inca market in Lima, and that he intended to send them to his aunt in San Francisco. 

On further questioning by Customs officers, however, Combe admitted that he was bringing the artifacts in for three persons whose names were on a list given to him by his father, who had also paid for his ticket.

Those named include a doctor in New York City; a man located in Westchester County, NY; and a textile conservation company in New Mexico.

Photo courtesy naomistern.

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