Case Review: United States v. Twenty-Nine Pre-Columbian and Colonial Artifacts, From Peru

October 6, 2014

By Chris Michaels

Miami has long operated as a market for stolen cultural objects. The high-profile case of Henri Matisse’s “Odalisque in Red Pants,” which was recovered in Miami in 2012, is a prime example of Miami being one of the top destinations for hot cultural objects. On 11 September 2014, an Order out of the Southern District of Florida addressed a Motion filed in U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts From Peru, which shed more light on the illicit cultural heritage trade that pervades South Florida. The recent Order, issued by U.S. District Judge Joan A. Lenard, allowed the United States government to pursue a claim for the forfeiture of artifacts illegally exported from Peru.

The property in dispute in the U.S. v. Twenty-Nine Pre-Columbian and Colonial Artifacts From Peru case arrived in Miami in 2010. Jean Combe Fritz, a citizen of Peru, was caught at Miami International Airport on 21 August 2010 with thirty-two ancient artifacts stashed in his luggage. The artifacts included bone carvings, ornaments, and Inca burial bundles. Upon initial examination by officers of the United States Custom and Border Protection (“CBP”), Fritz told the officers that he intended to send the artifacts to his aunt in San Francisco. After more extensive questioning, however, Fritz admitted that the artifacts were to be distributed to three people, whose names Fritz received from his father.

The artifacts were seized by the CBP, submitted to Dr. Carol Damian, the Director of the Patricia and Phillip Frost Art Museum, for further examination and subsequently identified as archeological and ethnological material from Peru. The U.S. then submitted detailed photos of the artifacts to the Minister Counselor of the Embassy of Peru, Luis Chang, who in turn notified the United States government that the artifacts were indeed a part of the Peruvian cultural heritage and, as such, governmental authorization was required to export the items. For these particular items, Chang noted, no such authorization was provided.

The United States moved for forfeiture of twenty-nine of the thirty-two artifacts under sections 2601-2613 of the Cultural Property Implementation Act (“CPIA”), which addresses the illicit trafficking of cultural property. In this complaint, the United States argued that the artifacts were produced by indigenous tribal people in Peru during the Pre-Colombian or Colonial periods, the artifacts are important to the cultural heritage of the Peruvian people, and that the artifacts were subject to export control by Peru.

Another three artifacts were seized by the United States as stolen cultural property under 19 U.S.C. §1595a. In the complaint, the United States argued that these artifacts were illegally introduced into the United States because they were stolen, smuggled, or clandestinely imported or introduced. Based on the Order alone, it is unclear why two separate actions for the artifacts were commenced, but both were challenged by Fritz in a Motion to Dismiss, which sought dismissal for lack of subject matter jurisdiction, failure to state a cause of action, and lack of due process of law.

In denying the Motion to Dismiss, the Court first addressed the novel issue raised by Fritz’s attorneys of whether the Court of International Trade (“CIT”), which is based in New York City, has exclusive jurisdiction over actions that arise out of any law providing for embargoes. The District Court noted that the CIT has exclusive jurisdiction over civil actions commenced by the United States arising out of import transactions concerning civil penalties, the recovery of a bond, or the recovery of customs duties. Therefore here, the Court correctly reasoned that the CIT did not have jurisdiction over the two actions because they involved criminal forfeiture of property. Thus, District Court retained jurisdiction over the cases.

The Court also denied the Claimants argument to dismiss the cases for the United States’ alleged failure to state a claim. With respect to the first case involving a forfeiture action under the CPIA, the Court noted that the United States has the burden to show that the artifacts have been listed by the Secretary of the Treasury on a designated list. The burden then shifts to the claimant to show that the artifacts were legally imported. If the claimant cannot prove legal importation, the artifacts are seized and offered for return to the State Party. In this case, the Court stated that the United States successfully demonstrated that the artifacts were of Pre-Colombian “remains… metal objects, and textiles.” Further, the Court noted that the Claimant failed to show that the artifacts were legally imported. As such, the Court found that the United States would likely be able to meet its burden of proof regarding the CPIA claim.

As for the forfeiture action involving the other three artifacts, the Court found that there was probable cause to believe that the Claimant clandestinely introduced the artifacts into the United States illegally. Accordingly, the Court denied the Motion to Dismiss on the failure to state a claim issue.

Finally, the Court dismissed the argument that the Complaints should be dismissed based on a denial of the due process argument. The Court ruled that because Fritz was provided notice of and the opportunity to protest the detention of the artifacts, he could not claim that he was denied due process.

Reasoning in this ruling brings to light some of the procedural aspects of cases involving stolen cultural heritage objects that find their way to Miami and potentially other ports of entry into the United States. By denying the Motion to Dismiss and allowing the United States to proceed with the forfeiture cases, the Court has laid another brick in the wall that closes off Miami from Latin America as a destination and illegal market for these kinds of stolen artifacts. While the ruling is not groundbreaking in terms of its application of law, it is noteworthy as a step in the right direction for the resolution of cultural heritage cases in United States Courts.

Sources:

• Order, U.S. v. Twenty-Nine Pre-Colombian and Colonial Artifacts, From Peru, Case No. 13-21697-CIV-LENARD/GOODMAN (S.D. Fla. Sept. 11, 2014), http://www.courthousenews.com/2014/09/22/Peruvian%20Dismiss%20Order.pdf
• Accused Smuggler Can Chase Claim for Artifacts, Courthouse News Service, http://www.courthousenews.com/2014/09/22/71652.htm
• Miami Is a Hub for Stolen Art and Artifacts, http://blogs.miaminewtimes.com/riptide/2014/09/miami_is_a_hub_for_stolen_art_and_artifacts.php
• Matisse’s “Odalisque in Red Pants” Recovered by FBI and Returning Home to Venezuela, http://itsartlaw.com/2013/02/16/matisses-odalisque-in-red-pants-recovered-by-fbi-and-returning-home-to-venezuela/

About the Author: Chris Michaels is a litigation attorney in the Philadelphia office of the Atlanta, GA-based law firm, Cruser & Mitchell, LLP, where he actively pursues his interest in the field of art law. He may be reached at (518) 421-7238, chriswmichaels@gmail.com, or on Twitter @CMichaelsartlaw.