Cultural Property Implementation Act (CPIA) | Immigration and Customs Enforcement (ICE) | memorandum of understanding (MoU) | Peru | prosecutions | U.S. v. Abanto-Sarmiento et al.
Peruvian Artifacts Trafficking Prosecution is Worth Watching
A federal grand jury on Wedesday charged four defendants–Javier Abanto-Sarmiento and Alfredo Abanto-Sarmiento of Trujillo, Peru and Cesar Guarderas and Rosa Isabel Guarderas of West Valley City, Utah–with one count each of illegally smuggling and transporting Peruvian artifacts. An indictment is not a finding of guilt, and a defendant is presumed innocent unless proven guilty.
An undercover Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) agent cracked open the case last fall when he arranged the purchases of a dozen illegal Peruvian artifacts totaling $23,000, according to an amended complaint filed on March 25. The complaint explains that the purchases uncovered an alleged conspiracy:
An undercover Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) agent cracked open the case last fall when he arranged the purchases of a dozen illegal Peruvian artifacts totaling $23,000, according to an amended complaint filed on March 25. The complaint explains that the purchases uncovered an alleged conspiracy:
Undercover telephone, email,and in-person discussions conducted concurrent to the purchaseof artifacts further corroborates [Javier] Abanto-Sarmiento’s and [Cesar] Guarderas’ conspiracyin trafficking of Peruvian artifacts. Several discussions have resultedin declarations of the following:Guarderas stating Abanto-Sarmiento has access to over one hundred (100) piecesof pottery in Peru and is willing to ship them to the U.S.; Abanto-Sarmiento statinghe bribes officials in Peru in order to get the artifactsout of Peru; Guarderas statingAbanto-Sarmiento knows where to look for potteryburied in the ground and that he acquires some of his pottery via this method; Guarderas stating Abanto-Sarmiento has a contactwith the Instituteof National Culture in Peru who providesAbanto-Sarmiento with authenticcertifications stating all of his pottery are replicas; and Guarderas statingAbanto-Sarmiento uses these authentic certifications to illegally export genuineartwork out of Peru.
The smuggling charge in this case differs from U.S. v. Perezwhere the defendant was found guilty of illegally importing artifacts from El Salvador in violation of the Cultural Property Implementation Act’s (CPIA) import controls. An April 3, 2013 HSI news release recites, “In 1997, the United States and Peru entered into a bilateral agreement prohibiting the importation into the United States of specific cultural property originating from Peru, including artifacts and ethnological religious objects.” But the cultural property import restriction on Peruvian cultural heritage–put in place by a Memorandum of Understanding (MoU) adopted pursuant to the CPIA–is not alleged to have been violated. Prosecutors have not charged the defendants with that section of 18 U.S.C. 545 that says “[w]hoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law” is guilty of a crime. The current defendants instead are charged with knowingly and willfully smuggling “merchandise which should have been invoiced, or did make out or pass, or attempt to pass, through the customhouse any false, forged, or fraudulent invoice, or other document, or paper ….” The indictment does not allege further specifics.
The second count alleges a violation of the National Stolen Property Act, and states that the defendants “did transport, transmit and transfer in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud, and did aid and abet therein, in violation of 18 U.S.C. §§ 2314 and 2.”
The second count alleges a violation of the National Stolen Property Act, and states that the defendants “did transport, transmit and transfer in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud, and did aid and abet therein, in violation of 18 U.S.C. §§ 2314 and 2.”
HSI cultural property cases often follow a pattern of “seize and send,”whereby illegal cultural objects are seized by authorities and then sent back to their country of origin without criminal prosecution in the United States of the traffickers. In recent years, ICE’s seize and send policy has repatriated several art and artifacts to Peru, including in 2012, 2011, and 2010, and 2009. But it is not often that criminal charges are filed against alleged antiquities traffickers. That is why the Abanto-Sarmiento case is worth watching.
UPDATE January 10, 2014: The district court yesterday set a schedule in this case as follows: Pretrial Conference set for 1/26/2015. Jury Trial set for 2/9/2015. Pleadings due by 8/18/2014. Expert Discovery due by 10/9/2014. Fact Discovery due by 7/18/2014. Joinder of Parties due by 8/18/2014. In Limine Motions due by 12/15/2014. Dispositive Motions due by 10/14/2014. Pretrial Stipulation due by 12/29/2014.
UPDATE January 10, 2014: The district court yesterday set a schedule in this case as follows: Pretrial Conference set for 1/26/2015. Jury Trial set for 2/9/2015. Pleadings due by 8/18/2014. Expert Discovery due by 10/9/2014. Fact Discovery due by 7/18/2014. Joinder of Parties due by 8/18/2014. In Limine Motions due by 12/15/2014. Dispositive Motions due by 10/14/2014. Pretrial Stipulation due by 12/29/2014.
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©2010-2022 Cultural Heritage Lawyer Rick St. Hilaire. Content discussing cultural heritage law, art law, looted antiquities, stolen artifacts, and museum risk management that is general information only, not legal advice.