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Criminal Intent "Selling the Past: United States v. Frederick Schultz"
April 22, 2002

The Application of the National Stolen Property Act

In the past, customs seizures and civil forfeitures have aided the repatriation of looted and smuggled antiquities without criminal prosecution. But since 1974, prosecutors have explored the criminal application of the National Stolen Property Act (NSPA) of 1934, since stolen antiquities cross national and state borders upon entering the country.

United States v. Hollinshead in 1974 was the first case to apply the NSPA to cultural property, when a Maya stela was stolen and imported from Guatemala. But it is not often considered a dramatic legal precedent, because it was obvious that the defendants knew the stela was stolen. United States v. McClain, conducted in 1979 over Precolumbian artifacts smuggled out of Mexico, was a much more bitterly contested case under the NSPA. Prosecutors lost some convictions in the case during appeals, and its precedent was not firmly upheld again until the Schultz case, 23 years later. The outcome of McClain sanctioned the use of the NSPA, however, with the proviso that a clear national ownership law has to have been enacted before an object was taken for the object to be considered stolen.

"It is generally believed that the United States does not enforce the export controls of another country," explains Gerstenblith. "So the defense [in McClain] tried to say that the law did not really vest ownership in the government so that there was no theft, only a violation of Mexico's export control." Prosecutors attempted to prove that the defendants both violated and conspired to violate the NSPA by knowingly exporting the Mexican artifacts illegally. The Fifth Circuit appeals court agreed that the prosecutors could apply the NSPA but disagreed that they had clarified the relevant Mexican antiquities law enough for the jury. The appeals court ultimately ordered a retrial and then reversed all the convictions in the case except for one count of conspiracy. "Ultimately a conviction was obtained only on a conspiracy charge, but it still set up the principle that national ownership laws create ownership so that when antiquities are stolen, individuals can be prosecuted under the NSPA," says Gerstenblith.

In 1989, the case Government of Peru v. Johnson further highlighted the importance of clarity in national property laws and of proving provenience for the McClain precedent. Peru enacted a law in 1929 covering monuments and a separate law in 1958 covering export, but no single clear law covering antiquities. "The claimant was unable to prove that the objects came from within modern day Peru, because the Inca culture spread across many different countries," Gerstenblith explains. "And at the trial court level, the court also held that the Peruvian law was not sufficiently clear in vesting ownership in the national government."

In 1997, the Steinhardt civil forfeiture of a Sicilian golden phiale, or bowl, became the first forfeiture of an illegally obtained artifact to be tried under the NSPA (see "The Case Of The Golden Phiale," May/June 1998). The appeals court in that case did imply that it supported the McClain doctrine but only ordered the forfeiture of the $1 million phiale on the basis of customs technicalities. "The only part of the appellate decision that was interesting was that for misrepresentations on import forms to cause forfeiture, the misrepresentations had to be considered material, of significance," says Gerstenblith. "The appellate court said the misrepresentation of the country of origin was material because the customs officials, if they had known the phiale was from Italy, would have known that Italy had national ownership laws and they could have held the object at least temporarily."   [Next Page*

© 2002 by the Archaeological Institute of America