A publication of the Archaeological Institute of America
Schultz's attorneys and the U.S. District Attorneys have submitted briefs outlining the arguments to be addressed in the appeal. The main points are described below.
Argument #1: The National Stolen Property Act and Egyptian law cannot be used to claim Schultz's guilt.
Schultz's attorneys argue that their client's conviction should be reversed as it is "bottomed on the principle enunciated in the much-criticized decision in United States v. McClain" that they believe was wrongly decided. In the late 1970s case United States v. McClain, art dealers were prosecuted under the NSPA for trafficking antiquities that were property of the Mexican government according to that country's law. Though the dealers were ultimately acquitted on substantive counts, this case established that the U.S. recognizes foreign laws vesting ownership of undiscovered antiquities (so long as the property ownership law of the country is truly an ownership law that is unambiguous and sufficiently clear). The defendant claims that applying the NSPA to both the case of McClain and that of Schultz is inconsistent with the United State's policy regarding the importation of cultural material. Schultz's attorneys argue that the Cultural Property Implementation Act (CPIA), which states that the U.S. cannot ban the importation of art simply because the "objects have been exported in violation of the laws of another country," overrides the NSPA and should be applied in this case. Furthermore, the defense lawyers feel the CPIA's definition of "stolen property" must be utilized in this case. This definition limits "stolen property" to those objects removed from a museum or monument and dismisses all other items, including artifacts newly taken from the ground, from being considered stolen.
The defendant's brief reiterates statements by Paul M. Bator, an art law specialist and author of the article "An Essay on the International Trade in Art." In 1985 testimony, Bator advocated for the NSPA to return to "its intended framework--that is, cases of real theft, where it is shown and proved that somebody took something from somebody else's ownership, and it is a real ownership not simply one of these abstract vesting statutes saying that everything belongs to the State." The defendant's attorneys feels Egypt's ownership laws are in conflict with American laws of private property and that according to the CPIA the artifacts are not stolen and thus the NSPA cannot be applied. The defendant's brief suggests it would be unreasonable to convict Schultz of theft by utilizing another country's definition of ownership laws. To add credence to this idea, the defendant's brief quotes a 1973 article by attorney William D. Rogers entitled "The Legal Response to the Illicit Movement of Cultural Property": "[U]ntil the 1960s traditionally the attitude of the United States toward the entire problem [of illicit traffic in antiquities] was one of indifference."
Rebuttal #1: The Egyptian definition of property can legitimately be employed in the Schultz trial and the NSPA has been appropriately applied.
The Government's brief states that the McClain doctrine is not contrary to U.S. public policy regarding property and that the defendant's conviction is not based on a foreign ownership law. United States v. Schultz involves the prosecution of Frederick Schultz in violation of the NSPA. This U.S. law defines the crime of theft; the Egyptian law defines only the nature of property ownership.
The U.S. attorneys disagree with the defendant's claim that Egyptian laws are in conflict with the United State's view of private property. In fact, the AIA et al. brief points out that many American laws, such as the Archaeological Resources Protection Act of 1979, claim that remains of archaeological interest excavated on public land are the property of the U.S. Additionally, in 1991 the U.S. Customs Service issued a directive that recognizes the legitimacy of national ownership laws. The McClain trial approved of the application of NSPA pursuant to such laws to support future criminal prosecutions and to deter damage of cultural heritage. Although Schultz's lawyers claim the CPIA preempts the McClain doctrine and the NSPA in its application to foreign patrimony laws, the U.S. District attorneys state that the court previously ruled that there is no mention of preemption in the legislative history of the CPIA. Although the defense claims that the Egyptian ownership law is an import regulation and regulatory in nature in their appeal brief, the U.S. attorneys feel this is virtually the same point that was repudiated during the pre-trial motion.
The Defense attorneys brief also states that "even if McClain was rightly decided, Schultz's conviction should be reversed because of errors that were committed during the trial." The defendant's problems with the trial and the plaintiff's rebuttals are explained below.
Argument #2: Schultz should have been permitted to present his defense that he was misinformed of American law.
Schultz claims he was unaware of Egyptian laws that vest ownership of undiscovered antiquities to the Egyptian government. The defendant's attorneys claim the court incorrectly dismissed the U.S. attorneys from their obligation to prove Schultz was aware his activities were in violation of the law. Without such a proof, the defense believes Schultz could not have been proven guilty. The defense attorneys feel that they should have been allowed to present a video to the jury demonstrating Schultz's misunderstanding of ownership laws. This video contains a speech given to the American Association of Appraisers in April 1996 in which Schultz says, "We do not recognize foreign patrimony laws of foreign countries."
Rebuttal #2: Ignorance of the law is not a defense.
In response to Schultz' purported unawareness of ownership laws, the government references Judge Rakoff's comment in the pre-trial motion that this is a "classic ignorance-of-the-law-type defense which is not a defense." The judge stated that one couldn't purposefully remain ignorant of the law in order to escape the consequences of the law. Additionally, the U.S. attorneys argue that the video evidence, if the jury were allowed to view it, would not have proved that Schultz was ignorant or mistaken about what the law was, but simply took a different view of what the law should be.
Argument #3: The judge's permission of testimony concerning what other witnesses knew about Egypt's national ownership law was "reversible error."
U.S. attorneys had five art scholars testify to their own knowledge of Egyptian laws to corroborate the claim that Schultz probably had knowledge of the Egyptian national ownership laws. The defense attorneys feel, however, that this proof should not have been allowed as evidence that Schultz was aware of these laws. The brief states that by permitting the government to elicit testimony from its witnesses as to their knowledge of Egyptian law, the trial court committed reversible error. The defense believes that such testimony "encourages the jury to focus on what others knew and to convict Schultz because he failed to come up to their standard." This is considered unacceptable proof because it is reversible.
Rebuttal #3: The court was correct in allowing the witnesses to testify.
The U.S. attorneys had five people testify legitimately and helped to show "how widely this information [of foreign patrimony laws] was known in the antiquities world during the conspiracy." Additionally, the government feels that even if the testimonies of the witnesses were rejected Schultz's knowledge of the Egyptian law was proved independently through the various letters of correspondence between him and his associate, Jonathan Tokeley-Parry.
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