Fossil Smuggler Sentenced

Microraptor fossil recovered by ICE.

Fossil smuggling has been an area of law enforcement success for Homeland Security Investigations (HSI). The investigative arm of Immigration and Customs Enforcement (ICE) rarely generates heritage trafficking cases that lead to prosecutions. But court cases against Jun Yang, Eric Prokopi and John Richard Rolater have been noteworthy exceptions.

HSI's latest achievement is a plea deal concluded by the U.S. Attorney's Office in Wyoming with Charles Magovern of Boulder, Colorado, who was convicted of fossil smuggling.

Following the terms of the agreement, a federal district court last week sentenced Magovern to probation for illegally importing dinosaur specimens into the United States from China and Mongolia.

The felony information filed by Assistant United States Attorney Stuart Healy, III charged Magovern with willfully and knowingly importing paleontological material "by means of false statements and false papers, to wit, customs import declarations ... were false and fraudulent in that they did reflect as the purchase price of said merchandise a value which was less than the purchase price of said merchandise." Magovern, along with "fossil retailer" John Richard Rolater and another conspirator, "did knowingly aid and abet each other in the commission of this offense," the information further charged. The violations constituted offenses against 18 USC §§ 542 and 2.

ICE reported that the illegal imports were concealed "within legitimate cargo."

According to a press release issued by the agency, the smuggled objects included fossils dating as far back as 151 million years. They consisted of:

Anchiornis fossil recovered by ICE.

• a Chinese Sinovenator valued at approximately $70,000;
• an Anchiornis Huxley valued at approximately $100,000;
• a Protoceratops valued at approximately $250,000; and
• four Microraptors valued at approximately $38,000 to $45,000 each.

Part of the sentence included Magovern's agreement to forfeit "fossils already provided by the defendant" to ICE.

Magovern appears to have cooperated with authorities given his waiver of grand jury indictment, the quickness between the filing of the criminal complaint in July to the time of sentencing, and the actual terms of the sentence.

Photo credits: ICE

Text copyrighted 2015 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. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Canadian Man Charged with Trafficking Dinosaur Fossils from China

U.S. District Court in Tucson, AZ.

A man has been arrested in Arizona for allegedly trying to sell dinosaur fossils imported from China to undercover federal agents. Jun Yang, a Canadian, faces criminal charges of archaeological smuggling and wildlife trafficking.

The charges, initiated by U.S. Homeland Security Investigations (HSI), likely will be challenged by defense lawyers because of legal irregularities.

Filed on Tuesday in federal district court (15-mj-07055), the complaint alleges that the defendant

did fraudulently and knowingly offer for sale and sell merchandise, namely one Psittacosaurus fossil and  approximately 15 Hadrosaur fossil eggs, after the merchandises' importation into the United States, knowing said merchandise had been imported into  the United States contrary to law; that is, ... Jun Yang knowingly sold said merchandise knowing that they are cultural property that had been imported into the United States from the People's Republic of China contrary to law, that is specially protected fossils are prohibited  from being sold to any foreigner or foreign organization, all in violation of Title  19, United  States Code  Section  2606(a) [the Cultural Property Implementation Act (CPIA)] and Title  18 United States Code Section 545 [the anti-smuggling law].
...
[and] did unlawfully and knowingly import in foreign commerce, transport, receive and acquire any wildlife, that is one Psittacosaurus fossil and approximately 15 Hadrosaur fossil eggs, knowing that said wildlife were taken, possessed, transported and sold in violation of the laws of the People's Republic of China. all in violation  of Title  16 United States Code. Sections 3372(a)(2)(A) and 3373(d)(l)(B) [the Lacey Act].

The CPIA, which is relied on by Count 1 in the charging document, is the federal statute that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. While the 1970 UNESCO Convention’s definition of "cultural property" includes "objects of palaeontological interest," the CPIA itself only applies to archaeological and ethnological objects. Palaeontolological material--like dinosaur fossils--are not archaeological or ethnological objects by definition. And while the U.S. has signed a bilateral agreement with China that restricts the import of designated Chinese archaeological and ethnological artifacts across America's borders, that agreement does not prohibit dinosaur fossils.

Count 2 relies on the Lacey Act, a federal law designed to protect wildlife and other natural resources. Under the terms of the statute, it is illegal to import or sell designated wildlife that is taken, possessed, or sold in violation of any law, treaty or regulation of the United States. But are dinosaur fossils wildlife? While the statutory definition of "wildlife" includes a dead wild animal or an egg, would either a dinosaur fossil or dinosaur eggs actually be considered "wildlife"?

The defendant's arrest is explained by the allegations contained in the criminal complaint:

On or about February l0, 2015, in Tucson in the District of Arizona, agents of the Department of Homeland Security acting in an undercover capacity walked through the display area at [a gem and mineral show] .... Agents spoke with Mr. Yang about an item displayed and advertised as a Psittacosaurus Fossil. Mr. Yang stated the fossil was 100 to 130 million years old and from the province Henan and was "dug up" in  central  China  approximately 200-300 kilometers south of Mongolia. Mr. Yang stated the price of the Psittacosaurus Fossil was $15,000.00 (United States Currency) and was not negotiable because of the quality of the fossil. Agents heard Mr. Yang  speak with  another  customer regarding egg fossils adjacent to the Psittacosaurus fossil. Mr. Yang identified the eggs as Chinese dinosaur egg fossils  and told  the agents they were Hadrosaur  Eggs, a "duck billed" dinosaur in  China. A sign on the dinosaur egg fossils display box stated "$450.00" for each egg. 

On or about February 10, 2015, agents posing as shoppers ... again spoke with Mr. Yang about the Psittacosaurus fossil .... Mr. Yang stated that he illegally removed the fossils from China, put the fossils in containers with stone carvings, shipped them to the United States and didn't disclose that fossils were in the containers to US Customs and Border Protection, only paying tax on the stone carvings. 

When asked, Mr. Yang said that the exportation of the Psittacosaurus fossil and the Hadrosaur Eggs were in violation of Chinese law. Mr. Yang stated this was only a violation of the laws of China, not US. Mr. Yang stated he has no documents for any of the fossils. Agents asked for permission to photograph the fossils, and Mr. Yang agreed. 

The pictures were later sent to a Subject Matter Expert (SME) who, based on the photographs taken by the agents confirmed the fossils are a Psittacosaurus fossil and Hadrosaur Eggs and were indigenous to certain regions of China. The SME stated that these fossils are of high scientific value. A review of the law of the Peoples Republic of China prohibits the sale of specially protected fossils to foreigners or foreign organizations. 

On or about February 14, 2015 an agent acting in an undercover (UC) capacity entered the Arctic Products Inc. display area posing as a shopper. The UC agent started the conversation with Mr. Yang about the Hadrosaur Eggs that were on display and inquired as to how many they would be able to purchase for five-thousand dollars (USD-$5000.00). Mr. Yang stated that the Hadrosaur Eggs are from China, that they were very rare and that he used to have a lot, but may not be able to get them anymore. Mr. Yang stated that he already sold one (1) Hadrosaur Egg for four hundred fifty (USD-$450.00) but stated he would sell thirteen (13) Hadrosaur Eggs at a discounted rate for five-thousand dollars (USD-$5000.00) to the UC agent. 

The UC agent then inquired about the Psittacosaurus fossil.... Mr. Yang explained to the UC agent that the Psittacosaurus fossil was approximately 130-100 millions years old and it was for sale for fifteen thousand dollars (USD-$15,000). Mr. Yang stated that all the stuff was from China. Mr. Yang stated that he has had the Psittacosaurus fossil for a few years and that it was from the North-Eastern part of China. When asked how he got the fossils out of China, Mr. Yang stated the fossils are put in containers with the stone carvings and "we do not declare, we declare it as stone."

An arrest is not a finding of guilt; it is simply a process that initiates a criminal court proceeding. The prosecution bears the burden to prove that a defendant is guilty beyond a reasonable doubt.

Photo source: U.S. DoJ

Text copyrighted 2015 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. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Dinosaur Skull Forfeited by Federal Judge in Eastern District of NY

Attorney General nominee Loretta Lynch wrapped up another cultural property case yesterday. The matter of U.S. v. One Alioramus Dinosaur Skull came to a conclusion after a federal district court judge in Brooklyn ordered the dinosaur head's forfeiture.

No claimants appeared in court to oppose the civil forfeiture, even though French dealer Gefossiles, Inc. once tried to convince American authorities that all was proper with the company's dinosaur shipment. U.S. Customs seized the dinosaur skull in Newark, New Jersey in 2004.

The U.S. Attorney's Office for the Eastern District of New York alleged in its forfeiture complaint filed in September that the head had been illegally imported into the U.S., and it was stolen property originating from Mongolia. A full description of the prosecution's allegations can be found here.

"Smugglers will falsify documents and lie about the origin and value of a cultural artifact just to get it across our borders to sell to the highest bidder," remarked James Hayes, Jr., Homeland Security Investigations Special Agent-in-Charge in New York. His team investigated the case. No arrests were made.

Now that the district court has forfeited the skull, it is expected to be sent back to Mongolia. Foreign officials first must file a petition for remission to have the object repatriated.

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.

Allegations of False Declarations and Altered Trade Papers: Forfeiture Complaint Says $250,000 Dinosaur Skull Isn't from France and Isn't a Cheap Replica

In a civil forfeiture complaint published today and filed last Friday, the U.S. Attorney’s office for the Eastern District of New York told a federal district court that a fossilized dinosaur skull over 65 million years old isn’t a cheap replica and isn’t from France.

Prosecutors alleged in their complaint that a French fossil dealer attempted to unlawfully import the Alioramus dinosaur head into the United States by failing to disclose that it was real, that it originated from Mongolia, or that it was valued at a quarter million dollars.

This latest case appears to be part of a trend by U.S. and Mongolian authorities to focus attention on illegal imports of dinosaur fossils. The smuggling convictions U.S. v. Rolater and U.S. v. Prokopi are examples of recent criminal prosecutions. No criminal prosecution has been announced in the present case, which is an in rem action against the object that is captioned as U.S. v. One Alioramus Dinosaur Skull.

Assistant U.S. Attorney Karin Orenstein wrote in the verified civil complaint that the dinosaur skull must be forfeited under 19 U.S.C. § 1595a because the skull is considered stolen property according to the terms of the National Stolen Property Act 18 U.S.C. § 2314. The prosecutor also asserted that the head was smuggled into the U.S. in violation of 18 U.S.C. § 542 and/or § 545.

The AUSA recited the following allegations in support of the lawsuit to take title to the fossil and repatriate it to Mongolia:

In January 2014, Geofossiles shipped an Alioramus dinosaur skull via UPS from France to Newark, New Jersey. U.S. Customs intercepted and detained the shipment. “Attached to the customsdeclaration was an invoice dated January 9, 2014 for ‘fossil cast dinosaur bones from France’with a sales price of 2,500 Euros plus fees. Atthe time, 2,500 Euros could be exchangedfor approximately $3,400.”

Geofossiles petitioned Customs to reclaim the dinosaur head but provided conflicting paperwork that declared that the head was actually of Mongolian origin. Geofossiles attached to its petition "a different invoice, dated March 18, 2014, describing the Defendant in rem as 'Fossil dinosaur bones 70% and 30% cast' with a purchase price of $250,000, indicating that the shipment containeda genuine fossil.”

The prosecutor’s complaint outlined how Mongolian authorities uncovered allegedly altered information during an examination of export paperwork:

Geofossiles attachedto the Petition documents whichpurported to show that the Defendantin rem was reported to the Mongolian government and allowedto leave Mongoliain 2006. 

....

The documents supplied by Geofossiles were reviewed by Mongolian authorities who located their original counterparts in their records. The Mongolian authorities determined that the copies provided by Geofossiles were altered versionsof records pertainingto the export of four Mongolian  “ger” sets in 2006. A ger is a moveable,circular dwelling that is a traditional residential structure in Mongolia. 

The original MongolianCertificate of Originlists only the gers. By comparison,the copy of the MongolianCertificate of Originsupplied by Geofossiles lists the same gers, but has been altered to add, in a different font, four paleontological terms, including “tarbo[]saurus.”

The French dealer, or any other valid party that chooses to assert title to the Alioramus skull, will have an opportunity to challenge the allegations made by the U.S. Attorney’s office.

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.

Dinosaur Cases Offer Due Diligence Lesson

Cultural property attorneys should inform their dealer and collector clients that due diligence and a transparent marketplace are necessary to steer clear of contraband heritage that is offered for sale. That is an important lesson taught by the cases of U.S. v. Eric Prokopi and United States v. One Tyrannosaurus Bataar Skeleton.

The companion cases involved the criminal prosecution of Prokopi for fossil smuggling and the seizure and forfeiture of dinosaur bones. They allowed Manhattan’s top federal attorney on Thursday to repatriatean astonishing 18 trafficked dinosaur skeletons to the Mongolian people.

Prokopi’s cooperation helped to wrap up a two-year law enforcement investigation into fossil trafficking networks, which stripped irreplaceable paleontological evidence from the Gobi Desert and inserted black market fossils into the stream of legitimate commerce.

Some of the paleontological material returned to Mongolia
by U.S. officials last week. Courtesy ICE

The items returned included the bones of two Tyrannosaurus bataars. Federal officials repatriated another virtually complete Tyrannosaurus bataar last year following Prokopi’s 2012 guilty plea to conspiracy, unlawful import of goods by means of false statements, and transportation of goods converted and taken by fraud.

The cases remind observers that even though a seller may claim to offer artifacts legally, that does not necessarily mean the goods are legitimate. They must be checked out.

To discover the truth about whether artifacts have been stolen, illegally exported, or smuggled requires buyers and the marketplace as a whole to ask pointed questions and to demand credible documentation. That is why finding out where cultural objects originated from and obtaining their shipping and import documents must be an important function of cultural property attorneys who advise dealers and collectors about due diligence. To counsel clients otherwise may be unwise.

For example, Prokopi’s lawyers in the federal forfeiture case told the court in 2012 that government officials and “a media campaign stirred up by academic paleontologists” combined to unjustly target their small business clients. The attorneys, who regularly represent the interests of ancient coin dealers and collectors, wrotein pleadings filed with the court that the “commercial paleontologist” properly bought fossil bones on the open market, devoted time and expense to restoring and mounting the bones and, for this trouble, was unfairly targeted by the justice system.

They raised claimssimilar to those used to bolster the undocumented transnational trade of ancient coin artifacts:

• The dinosaur bones were not stolen.
• U.S. officials failed to publish proper country of origin and valuation rules for fossils.
• The bones could not be proven to have actually originated from Mongolia.
• It could not be proven that the bones were taken without the Mongolian government’s permission.
• Mongolian law was ambiguous and unenforced.

Despite the arguments, the cases resulted in the production of information verifying that the fossils were in fact stolen, smuggled, and bound for the highest bidders, presumably to be bought by individuals who would not ask where the objects came from or how they made their way to the market. That prompted Homeland Security Investigation’s Special Agent-in-Charge James Hayes, Jr., to issue a statement last week warning that “HSI will not allow the illicit greed of some to trump the cultural history of an entire nation.”

Cultural property lawyers can help dealers and collectors avoid entanglements with heritage traffickers and their illegal goods by promoting strict due diligence practices to investigate the origins and transportation of cultural artifacts. Attorneys can also take the lead to protect cultural heritage by supporting legislative reforms that would shine a spotlight on the black trade. This would be a significant step in the right direction now that the fossil smuggling cases in New York have come to a successful conclusion.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

UPDATED 10/21/14 > Dinosaur Track Defendant Pleads Guilty and is Sentenced to PRPA Charge in Utah Federal Court

A federal district court in Utah has accepted a guilty plea from a man accused of violating the Paleontological Resources Preservation Act (PRPA).

UPDATED > 10/21/14: Judge Dale A. Kimball on October 20, 2014 sentenced Jared Ehlers to one year of probation, including 6 months house arrest, and restitution of $15,090.44, payable at $500 per month.

A grand jury in March indicted 35 year old Jared Ehlers for taking a three-toed dinosaur track from a trail near Moab and then discarding the ancient footprint. Federal prosecutors accused the construction company owner of violating PRPA as well as stealing public property, damaging federal property, and destroying evidence.

Ehlers pleaded guilty yesterday to the PRPA crime. In exchange, the U.S. Attorneys' Office dropped the rest of the charges.

As part of the swiftly concluded plea agreement reached with the defendant's lawyer, prosecutors will recommend a sentence that includes one year of probation, six months home confinement (which allows for the defendant to leave home for work), and $15,090.44 in restitution costs. 

The restitution amount reflects the expense incurred by the Grand County Sheriff's Office and the Utah Department of Safety, whose officers unsuccessfully searched the Colorado River for the 190 million year old dinosaur track discarded by the defendant.

The defendant admitted to several facts in papers filed with the court on Wednesday, including the following:

a. On or about February 17, 2014, I knowingly excavated and removed a paleontological resource, to wit: a 150 pound rock containing a trace fossil of a three-toed dinosaur track 

b. from the Sand Flats Recreation Area which is located on public lands administered by the United States Bureau of Land Management; and 

c. that the value of the paleontological resource, together with the cost of its restoration and repair exceeded $500. 

d. On or about March 3, 2014, I knowingly concealed and covered up the paleontological resource by throwing it into the Colorado River. 

The case of U.S. v. Ehlers might be the first direct, non-conspiracy conviction under PRPA, a law that took effect just five years ago.

One should still take note of the groundbreaking case of U.S. v. Franz, involving a stolen ivory mammoth tusk from Alaska. That case resulted in convictions in 2012 for both conspiracy and theft of government property. The conspiracy conviction explicitly referenced the unauthorized removal of a paleontological resource under PRPA and resulted in a sentence that included a $100,000 fine.

Other known cases have cited PRPA, but they have not resulted in direct convictions under that statute. In 2011 the U.S. Attorney in Utah pursued the case of United States v. Cowan, a PRPA prosecution that also involved the unlawful taking of a dinosaur track. Prosecutors ultimately dismissed the charge on March 12, 2013 after the defendant satisfied a pre-trial diversion program, according to court records. And in the companion case to U.S. v. Franz known as U.S. v. Jettmar, a grand jury originally charged Franz's co-conspirator with a PRPA count, but the defendant entered a plea agreement resulting in a misdemeanor conviction under a separate criminal statue.

The federal district court is expected to sentence Ehlers at a hearing scheduled for October 20.

Photo credit: Wilson Souza

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited.

U.S. v. Prokopi: Sentence Mitigated as Prosecutors Declare, "Not an Active Fossil Investigation That Has Not Been Informed ... by Information Given by Prokopi"

Calling Eric Prokopi “a unique and important cooperating witness in the annals of national resource crime,” federal prosecutors urged leniency for the accused dinosaur smuggler who pleaded guilty in 2012 for his involvement in illegally importing dinosaur bones into the United States, which included a Tyrannosaurus Bataar skeleton looted from Mongolia and auctioned for more than $1 million.

New York federal judge Alvin K. Hellerstein heeded the request and yesterday sentenced Prokopi to three months' custody; one year and three months supervised release, of which the first three months shall be community confinement; $300 special assessment; and community service during the year of supervised released.

Prokopi's sentence followed his earlier conviction to an information charging conspiracy to smuggle goods into the United States, conspiracy to commit bribery using federal funds, entry of goods by means of false statements, and transportation of stolen goods.

In a sentencing memorandum filed on Monday, prosecutors representing the U.S. Attorney’s Office for the Southern District of New York wrote that “Prokopi provided information that was and remains crucial in law enforcement’s revitalized efforts to police what had essentially become a black market in stolen national treasures that operated in plain sight.”

Prosecutors welcomed Prokopi’s cooperation after the defendant's lawyers in the forfeiture case—widely known for their ancient coin dealer and collector advocacy—vigorously contended that the Bataar skeleton was not stolen.

Demonstrating that the prosecution of cultural property crimes potentially offers law enforcement opportunities to learn about criminal techniques and to develop or confirm investigative leads—opportunites that may not be presented by the mere seizure and repatriation of contraband cultural heritage—government attorneys highlighted in their sentencing memorandum the advantages gained by Prokopi’s cooperation with federal investigators:

Prokopi met with agents and representatives of our Office and the Department of Homeland Security, Homeland Security Investigations numerous times, spent many hours giving information about the fossil trade not only to this office, but to three other offices as they developed their understanding of the fossil trade. Prokopi developed their knowledge of the players in the trade of not only dinosaur fossils, but other natural treasures. Since Prokopi’s cooperation, other fossils have been seized and individuals arrested. Although these owe to leads developed separately and in some cases before Prokopi’s cooperation, it is safe to say that there is not an active fossil investigation that has not been informed, to some degree, by information given by Prokopi in this case.

Prokopi’s lawyer argued for an entirely non-custodial sentence in light of the defendant’s cooperation, his background, the lack of jail sentences handed down to similarly situated defendants, and his acceptance of responsibility. A May 23 sentencing memorandum filed by defense counsel claimed that “Prokopi was led to believe that as long as the proper Mongoliangovernment permits were obtained, it would be lawful for a privateindividual to purchaseMongolian fossils for export.” The defense attorney argued more fully that:

Prokopi went awry, however,when, after having learned that the containers to be shipped from Mongolialacked what he believed to be the necessary export permits, he nevertheless facilitated their entry into the UnitedStates by makingfalse declarations on customs forms.He does not seek in any way to excuseor minimize this offense conduct. Rather, the distinction between transporting fossilsout of Mongolia in contravention of that  nation's  laws  and  procuring  stolen  fossils  from  within  Mongolia  is  underscored simply to dispel the notion of Prokopi as a black market ringleader who surreptitiously removedbones from the Gobi Desertin the dead of night.This distinction was all but lost in the mediafrenzy that followedProkopi's arrest on October 17, 2012.

The court, nevertheless, felt that some incarceration was needed in the case and imposed the three month prison term.

Fossils recovered by authorities from Prokopi are expected to be repatriated to Mongolia just as the Bataar skeleton was returned to that nation last year.

For more complete background about the criminal case of U.S. v. Prokopi and the forfeiture case of U.S. v.  One Tyrannosaurus Bataar Skeleton, see hereand here.

Photo credit: ICE

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Dinosaur Track Gone, Utah Man Indicted for Violation of PRPA

A grand jury indictment handed up this month charges a Utah man with taking and destroying a three-toed dinosaur track near the Hell’s Revenge Trail at the Sand Flats Recreation Area. The area forms part of the the 258 million acres of public lands administered by the Bureau of Land Management (BLM).

The U.S. Attorney for the District of Utah initiated the case of U.S. v. Jared Ehlers less than 30 days after the defendant allegedly removed, stole, and discarded the dinosaur fossil on or around February 17. Authorities believe that the dinosaur footprint was thrown into a river.

An indictment begins the criminal court process. It is not a finding of guilt. A defendant is presumed innocent unless proven guilty beyond a reasonable doubt.

The four-count federal indictment--more reminiscent of charging documents filed in state courts because of its brevity--charges Ehlers with violating the Paleontological Resources Preservation Act (PRPA) at 16 U.S.C. § 470aaa-5 as well violating three sections of the federal criminal code, namely stealing public property under 18 U.S.C. § 641, damaging federal property under 18 U.S.C. § 1361, and destroying evidence under 18 U.S.C. § 1519.

All together, the possible penalties include a prison term of 45 years, with the longest incarceration potentially coming from the destruction of evidence charge. Ehlers likely would not receive the maximum sentences were he to be convicted.

The case may be among the first of its kind--if not the first case--prosecuted under PRPA.* That statute, signed into law on March 30, 2009, is an outgrowth of a Department of Interior report published in 2000 titled Assessment of Fossil Management on Federal and Indian Lands. The report recommended that

[f]uture actions should penalize the theft of fossils from federal lands in a way that maximizes the effectiveness of prosecutions and deters future thefts. Penalties should take into account, among other factors, the value of fossils themselves, as well as any damage resulting from their illegal collection.

Federal prosecutors have moved quickly in the Ehlers case, buoyed by federal, state, and county cooperation. The Grand County Sheriff's Office earlier reported that the agency was working with the Utah Department of Safety and BLM to find the fossil track possibly beneath the waters of the Colorado River.

Cultural property prosecutions remain infrequent and require continuing public and judicial support. So it is wise in this case that prosecutors chose to have the defendant summoned to court rather than arrested. The decision contrasts with the FBI and BLM raids in 2009 that ignited a long-running feud between citizens, collectors, dealers, and law enforcement authorities in the American Southwest.

*UPDATE July 9, 2014: Further research suggests that U.S. v. Ehlers may be the first direct, non-conspiracy conviction under PRPA. See the blog post describing the guilty plea entered in this case here.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Dinosaur Smuggling Conspiracy: Bataar Skull Mislabeled as "Archaeological, Historic Piece" from Japan Says Newly Filed Forfeiture Complaint

"Archeological, historic pieces" from Japan is how the import paperwork described a Tyrannosaurus Bataar skull that illegally entered the United States. But the dinosaur head should have been classified as a paleontological fossil from Mongolia, according to the U.S. Attorney's Office in Colorado.

Bataar skull seized by ICE.

This month John Richard "Rick" Rolater pleaded guilty to conspiring to import dinosaur fossils illegally. As part of a plea agreement with Wyoming federal prosecutors, Rolater agreed not to contest the forfeiture of several paleontological objects in his inventory, including the Bataar skull.

Colorado U.S. Attorney John Walsh says that Rolater "was known as the largest United States seller of high-end Mongolian and Chinese fossils." In his office's 11 page forfeiture complaint filed in federal district court last week, prosecutors allege that an informant spotted the Bataar skull for sale in Relator's store in Jackson, Wyoming boasting a price tag of $320,000. The skull reportedly was "next to a placard stating that the fossil was a Tyrannosaurus Bataar, which existed during the late Cretaceous era, 67 million years ago, and was recovered from the Nemegt Basin in the Gobi Desert, Mongolia, Central Asia."

When the informant raised questions with the store about the skull's ownership, a clerk purportedly replied, "Well, I guess that goes to show that if you pay the right people ....," the prosecutors' complaint contends.

Prosecutors write in their court pleading that federal officials "seized several computers from the Rolater residence, and located numerous emails that showed Rolater knew it was illegal to import Chinese or Mongolian fossils. Some of the emails further indicated that Rolater conspired with others, and the import Customs forms were knowingly mislabeled, misidentifying the country of origin for the fossils he purchased, and mischaracterizing the contents of the imported items."

The forfeiture complaint describes an equivocal conversation between one store clerk and an undercover agent with U.S. Immigration and Customs Enforcement Homeland Security Investigations (HSI). The clerk "informed the undercover agent that the fossilized Bataar skull was approximately 60% complete, that the skull was recovered from the Gobi Desert in Mongolia, and that it was recovered from private land in Mongolia in the 1980s, thereby creating the fiction that lawful ownership was conveyed to the possessor of the skull."

The complaint alleges that "the Bataar skull had been pulled from display [in the store] after the publicized New York seizure of another Bataar, to avoid potential problems." The store clerk reportedly "told agents that the Bataar fossil subject to seizure was stored in a closet within the [clerk's] residence, and that Rick Rolater had directed [the clerk] to remove the Bataar" from the store.

The complaint adds that Rolater later told HSI "that his stores had sold five or six Bataar skulls in the past six years, and that he did not currently possess any additional Bataar fossils, other than the one seized in Jackson, Wyoming." But prosecutors go on to say that Rolater's lawyer corrected this assertion, explaining that another Bataar skull was inside Rolater's home in Colorado. HSI seized the skull:

Upon execution of the warrants on August 1, 2012, HSI officers located defendant Bataar Skull, which was found hidden in the crawl space of the residence, and appeared to have been placed there recently. Officers also located defendant Gallimimus Foot in the garage; it had a price tag on it which indicated that it also came from Mongolia. Defendants Bataar Skull and Gallimimus Foot were seized as illegally imported.

The forfeiture complaint concludes that the Bataar skull and the Gallimimus foot were found to have been

excavated in Mongolia in the mid-1990s and smuggled out of the country. The Bataar Skull was shipped to Rolater from Japan in August 2010; the Customs declaration, which Rolater knew was incorrect, listed not only the shipping country as Japan, but also misstated that the country of origin of the fossil was Japan and that the shipped contents consisted of "archeological, historic pieces" (which are man-made), rather than the truthful "paleontological fossils."

The legal basis upon which the U.S. Attorney's office relies to forfeit the fossils is 18 U.S.C. § 981(A)(1)(C), which governs civil forfeitures of property derived from the proceeds of a crime. In this case, the crime alleged is smuggling under 18 U.S.C. § 545.  Also relied on is 19 U.S.C. § 1595a(c), the customs statute that permits forfeiture of merchandise introduced into the U.S. "contrary to law." Prosecutors additionally reference Mongolia's 1924 patrimony law prohibiting personal ownership of cultural property as well as two Mongolian criminal statutes forbidding the transportation and smuggling of cultural objects.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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

Dealer Pleads Guilty to Smuggling, $2.5M in Fossils to be Returned

One of the Tyrannosaurus Bataar skulls seized by ICE.

After news broke of the forfeiture case of United States v. One Tyrannosaurus Bataar Skeleton, a Bataar skull of Mongolian origin and in the possession of fossil dealer John Richard "Rick" Rolater quickly disappeared from public view. That led to a tipster's call and a subsequent federal investigation.

U.S. Immigration and Customs Enforcement (ICE) calls Rolater a "fossil retailer" who operates stores in Wyoming and Colorado. He pleaded guilty in Wyoming federal district court last week to a charge of conspiracy to commit smuggling under 18 U.S.C. §§ 371 and 545 for illegally dealing in dinosaur fossils.

ICE said in a prepared statement that the Bataar skull displayed in Rolater's Jackson, Wyoming store vanished from sight around June 2012, the time when federal prosecutors filed an unrelated dinosaur forfeiture case in New York. ICE's Homeland Security Investigations (HSI) soon afterwards executed a search warrant and located the skull secreted away, "hidden in a closet of the rented residence of the store's director, which was owned by Rolater." Two months later agents located a fossilized Gallimimus foot and a fossilized juvenile Bataar skull, "hidden in the crawl space of Rolater's house," according to authorities.

"These fossils had been illegally exported from China and Mongolia, and then illegally imported into the United States," explained Kumar C. Kibble, special agent in charge of HSI Denver, which covers Wyoming.

Christopher "Kip" Crofts, the U.S. Attorney in Wyoming, last Thursday put his signature to a single information charging Rolater with unlawfully conspiring to smuggle Chinese vertebrate fossils into the U.S. between May 2010 and May 2012. The criminal complaint tells how the conspirators generated phony invoices in order to smuggle the goods past customs. The information recites,

Rolater received emails from his Chinese supplier describing how the supplier would package Chinese vertebrate fossils in a manner to subvert both Chinese and United States customs and import regulations. 

In 2012, knowing that the Chinese supplier was willfully and intentionally subverting Chinese and United States import and Customs regulations, Rolater continued to communicate via email with the Chinese supplier to solicit Chinese vertebrate fossils from his supplier which Rolater intended to resell in the United States.

A seized dinosaur skeleton.

Together the Chinese and Mongolian objects seized by ICE and selected for appraisal totaled $2,450,815. Among the items identified were three Bataar skulls worth $1,875,000, four Micro-Raptors priced at $173,000, a Protoceratops valued at $100,000, and a Gallimimus skeleton also valued at $100,000.

Rolater will pay a $25,000 fine, receive two years of probation, and return the fossil specimens in exchange for his plea of guilty.

UPDATE: More details about the case can be found in the government's forfeiture pleading, described here.

Photo credits: ICE

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 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