AP°YPO¶OY§OY TELOS 30-01-08 11:04 ™ÂÏ›‰·199

International Antiquities Trafficking: Theft by Another Name

Protecting Archaeological Sites Abroad by Prosecuting Receivers, Sellers,
and Smugglers of Looted Antiquities under United States Domestic Law
Ricardo A. St. Hilaire
Office of the Grafton County Attorney, State of New Hampshire
SAFE / Saving Antiquities for Everyone
3785 Dartmouth College Hwy., Box 7
North Haverhill, New Hampshire 03774 USA
Phone: 00 1 603 787 6968
Fax: 00 1 603 787 2026
e-mail: [email protected]

International antiquities trafficking is theft by another name, which is why American prosecutors should vigor-
ously employ domestic laws such as the National Stolen Property Act, the federal smuggling statute, state re-
ceiving stolen property laws, and charities enforcement authority to combat this crime. Holding responsible
receivers, sellers, and smugglers of looted antiquities can reduce trafficking, thereby protecting archaeological
sites abroad. Prosecutors, nevertheless, will only combat antiquities trafficking to the extent that they perceive
the crime’s magnitude, to the degree that the public and policymakers support action, and to the extent that re-
sources are available. Creating these conditions requires education, advocacy, and partnership.

Keywords: antiquities trafficking, National Stolen Property Act, smuggling, receiving stolen property,
charities enforcement

1. INTRODUCTION against museums that are complicit in antiquities traffick-

ing through their charities enforcement authority.
Trafficking antiquities looted from archaeological sites Increased prosecutions necessarily require increased
is a crime. This simple concept is oftentimes overlooked public resources. However, it is unlikely that federal, state,
amid complex legal discussions surrounding the applica- county, or local governments will award significant taxpay-
tion of treaties and conventions to solve the international er dollars to prosecutors in the foreseeable future to com-
trafficking problem. In America, efforts have largely fo- bat antiquities trafficking. It is also unlikely in the next few
cused on seizing and repatriating looted objects. But au- years that chief prosecutors will launch major campaigns to
thorities would likely find greater success battling the inter- target antiquities receivers, sellers, and smugglers. That is
national antiquities trafficking chain by also prosecuting, because antiquities trafficking does not rank high on either
under domestic law, the individuals and institutions who the public safety or the public policy agenda. This percep-
receive, sell, or smuggle stolen antiquities. Pursuing this tion can change.
option could ultimately enhance the protection of archaeo- Prosecutors in the United States enforce the law, but
logical sites from looters. they do so to the extent that they perceive a criminal prob-
Some American prosecutors have already demonstrat- lem, to the degree that the public and policymakers en-
ed a willingness to combat the illegal antiquities trade by dorse the law’s enforcement, and to the extent that re-
applying federal criminal law. The published cases of Unit- sources are available. To create the conditions under which
ed States v. Schultz, United States v. McClain I and II, and prosecutors can effectively target antiquities trafficking re-
United States v. Hollinshead are examples of successful quires a threefold approach: education, advocacy, and
prosecutions using the National Stolen Property Act. How- partnership. The potential outcome is that the combined
ever, the small number of federal prosecutions has provid- effect of federal and state prosecutions, bolstered by sup-
ed no meaningful deterrent. State prosecutors, meanwhile, port from the public and policymakers, can mitigate the
have played almost no role in targeting international antiq- damage inflicted on worldwide archaeological sites caused
uities crime. by the illegal trade in global culture.
Federal prosecutors can diminish international antiq-
uities trafficking by more aggressively enforcing statutes 2. THE ANTIQUITIES TRAFFICKING CHAIN
outlawing theft and smuggling. State prosecutors should
understand that they too can confront antiquities traffick- International antiquities trafficking is a crime that
ing by enforcing receiving stolen property statutes. Addi- steals our ability to understand human history. Prosecutors
tionally, state attorneys general possess power to act will recognize that the damage caused by pilfering archaeo-
199
AP°YPO¶OY§OY TELOS 30-01-08 11:04 ™ÂÏ›‰·200

R. A. St. Hilaire

logical sites is the same harm caused when evidence is re- ports that his country recovered 2,000 antiquities from
moved or destroyed prior to investigators documenting abroad, largely from auction houses and dealers in a recent
and preserving a crime scene: valuable information is for- three year period (“Tomb-Robbing”).
ever lost, which cannot be recovered. That is why antiqui- Receivers are located at the end of the antiquities traf-
ties trafficking is not an offense against an object, it is a se- ficking chain. They include museums and collectors, but it
rious crime against people’s heritage and culture. is important to stress that not all museums and collectors
The U.S. National Central Bureau of Interpol esti- behave with culpability. Museums and collectors, never-
mates that the illegal international antiquities trade is the theless, have been identified as purchasers of illicit antiqui-
fourth largest global crime, finding that “[t]he annual dol- ties. Italian prosecutor Paolo Ferri contends that “[t]raffic
lar value of art and cultural property theft is exceeded only in archaeology goes from Italy to Switzerland, and from
by trafficking in illicit narcotics, money laundering, and there, it’s sold to most art museums in America” (“Tomb-
arms trafficking” (United States Department of Justice). Robbing”). Ferri’s charges against convicted dealer Giaco-
Looters, smugglers, dealers and auction houses, and buy- mo Medici, and his indictments against Robert Hecht, and
ers like collectors and museums can be found at the heart former Getty Museum curator Marion True declare that
of this chain. major museums house illicit artifacts, including New
Looters who steal from archaeological sites are found York’s Metropolitan Museum of Art, Boston’s Museum of
at the beginning of the trafficking chain. They go by such Fine Arts, New Jersey’s Princeton University Art Museum,
seemingly romantic titles as tomb raiders, treasure hunters, and Ohio’s Cleveland Museum of Art (“Tomb-Robbing;”
huaqueros, and tombaroli, ransacking sites in Cambodia, see also Felch and Frammolino). “The problem of West-
China, India, Kenya, Belize, Peru, Egypt, Turkey, Italy, the ern museums is, they buy stolen artifacts,” charges Zahi
United Kingdom, and elsewhere.* Yet whatever their Hawass, Secretary General of the Egyptian Supreme
name and wherever they dig, looters inevitably leave be- Council of Antiquities (“Tomb-Robbing”). Currently
hind signature holes that transform archaeological sites in- Hawass is seeking the return of an allegedly stolen mummy
to pockmarked landscapes emptied of any archaeological mask from the Saint Louis Art Museum (Associated Press:
context. “Egypt Asks”). Private collectors, innocently or intention-
Many looted antiquities are removed from their coun- ally, also receive stolen antiquities. Allegedly looted arti-
try of origin and secreted into America by smugglers. facts such as a bronze statuette purchased for $1.2 million
Smuggling networks are international in scope, stretching and seven vases bought for at least $5 million are in a col-
across sovereign borders so that antiquities from Peru, for lection owned by Shelby White, and photographs have
example, reportedly travel through Chile before entering been uncovered of looted objects that found their way into
the United States. Moreover, according to one dealer, the famed Levy-White and Fleischman collections (“Met’s
non-stop flights between Hong Kong and New York have Antiquities”).
made it easier to bring illegally excavated Chinese antiqui- The antiquities trafficking chain may be global in
ties to American galleries (Atwood 28, 31). scope, but American prosecutors possess the legal tools to
Once an object is smuggled into the United States, a target many of those involved in criminal conduct.
seller moves the artifact into the market. Sellers predomi-
nantly take two forms: dealers and auction houses. While 3. PROSECUTORS AND UNITED STATES LAW
there are legitimate and scrupulous antiquities dealers and
auction houses, there are others who operate in the shad- The criminal justice system is society’s premier
ows. Over the years several dealers have been implicated in method to redress criminal behavior, and prosecuting cul-
antiquities trafficking. For example, Italian authorities in- pable participants in the antiquities trafficking chain
dicted longtime New York antiquities trader Robert Hecht through the judicial process should be no exception. Pros-
(Felch). American authorities convicted New York antiq- ecutions under American law remained an option even af-
uities dealer and former president of the National Associa- ter the 1983 enactment of the Convention on Cultural
tion of Dealers in Ancient, Oriental and Primitive Art Property Implementation Act (CPIA), which gave legal
Frederick Schultz, sentencing him to 33 months in prison force to the UNESCO Convention on the Means of Pro-
plus a $55,000 fine (“Art Dealer”). Federal authorities also hibiting and Preventing the Illicit Import, Export and
convicted Hicham Aboutaam, co-owner of Phoenix An- Transfer of Ownership of Cultural Property (the UN-
cient Art in New York and Geneva, with smuggling ESCO Convention). The United States Senate plainly de-
(Meier). Auction houses too have been implicated. Peter clared that the CPIA “neither pre-empts State law in any
Watson’s investigative report, Sotheby’s: The Inside Story, way nor modifies any Federal or State remedies that may
describes how the auction house sold smuggled antiquities pertain to articles to which the provisions of this bill ap-
in London. Meanwhile Ibrahim Abdel Megid Ramadan, ply” (United States Senate Report 22). Lawmakers there-
the director of a stolen artifacts department in Egypt, re- fore ensured that the CPIA would leave existing federal
and state laws accessible to authorities to act against an-
* For a more complete discussion of archaeological site tiquities trafficking.
looting, see Brodie et al. Not all the links in the trafficking chain can be broken,
200
AP°YPO¶OY§OY TELOS 30-01-08 11:04 ™ÂÏ›‰·201

International Antiquities Trafficking: Theft by Another Name

however. Looters cannot be prosecuted because they oper- quire a prosecutor to show how the original theft was com-
ate on foreign soil, outside the jurisdiction of the United mitted, relieving the prosecution of a heavy burden. But
States. But many other important groups likely would be the prosecution still must show that the antiquity possesses
covered under federal and/or state law, including receivers, a stolen character. Authorities have two leading options to
sellers, and smugglers. Federal attorneys could apply the accomplish this task: relying on foreign patrimony laws or
National Stolen Property Act (NSPA) and the smuggling employing sting operations.
statute against receivers, sellers, and smugglers; and state Where a foreign country’s patrimony law vests owner-
prosecutors could employ receiving stolen property laws ship of an antiquity with that nation, the removal of the an-
and charities enforcement statutes to target receivers and tiquity from that country without its permission character-
sellers. izes the artifact as stolen for purposes of the NSPA (U.S. v.
McClain I and II, U.S. v. Schultz; see also U.S. v.
3.1 U.S. Attorneys, the National Stolen Property Act, and Hollinshead). To illustrate, the case of United States v.
the federal smuggling statute Schultz recognized that Egypt’s patrimony law, Law 117,
The NSPA is the federal law, principally enforced by infused a stolen character to the antiquity at issue. In that
United States Attorneys, that prohibits theft. It states, in case, antiquities dealer Frederick Schultz acquired a sculp-
relevant part: tured bust of Amenhotep III for $800,000, knowing the
Whoever receives, possesses, conceals, stores, barters, bust was stolen, and later transferred it to a private collec-
sells, or disposes of any goods, wares, or merchandise … tor for $1.2 million. A federal jury convicted Schultz of
of the value of $5,000 or more … which have crossed a conspiring to violate the NSPA. Upholding the conviction,
State or United States boundary after being stolen, un- the appeals court stated “that the NSPA applies to proper-
lawfully converted, or taken, knowing the same to have ty that is stolen from a foreign government, where that gov-
been stolen, unlawfully converted, or taken … [s]hall be ernment asserts actual ownership of the property pursuant
fined under this title or imprisoned not more than ten to a valid patrimony law” (United States v. Schultz 416).
years, or both (18 U.S.C. § 2315). It is important to add that securing a conviction under
An additional section of the statute forbids the trans- the NSPA requires a showing that the foreign nation’s pat-
portation of stolen items valued at $5,000 or more (18 rimony law is one that absolutely asserts ownership rather
U.S.C. § 2314). While it may be impossible for federal au- than simply regulating antiquities as in the case of an ex-
thorities to prosecute a looter who commits a theft in a for- port control law. In the words of United States v. McClain I:
eign country, the NSPA broadens the proscription against “a declaration of national ownership is necessary before
stealing by making it illegal for one to receive, sell, or trans- illegal exportation of an article can be considered theft,
port a stolen item. The purpose of this broader language is and the exported article considered ‘stolen’, within the
to deter the original theft (see e.g., U.S. v. Bolin, U.S. v. meaning of the National Stolen Property Act. Such a de-
Moore). By pursuing criminal convictions and penalties claration combined with a restriction on exportation
against those who receive stolen antiquities, prosecutors without consent of the owner ... is sufficient to bring the
can stop crime in the United States while also deterring NSPA into play” (1000-01).
looters from plundering archaeological sites abroad. An antiquity can also possess a stolen character when it
To secure a conviction under the NSPA against a crim- is part of a sting or surveillance operation. An object is con-
inal defendant, a prosecutor must prove all elements of the sidered stolen when undercover police represent that it is
statute beyond a reasonable doubt to a unanimous jury of stolen during a staged business deal (18 U.S.C. § 21). An
twelve citizens. Consequently, U.S. Attorneys must be object is also deemed stolen in instances where the police
mindful of several challenges. The NSPA, for instance, re- continue to monitor a truly stolen antiquity during the
quires proof of value of $5,000 or more.* Proving that an course of a transaction. Court decisions explain that an ob-
antiquity is worth $5,000+ would likely require the testi- ject remains “stolen” when it is under surveillance by po-
mony of an expert trial witness to fend off defense chal- lice and not in their sole possession (U.S. Attorneys’ Man-
lenges that the antiquity at issue is actually worth less than ual 1317 (citing U.S. v. Muzii, U.S. v. Dove)).
the threshold amount.** The NSPA, furthermore, requires proof that the crimi-
The NSPA also requires proof that an object was nal defendant knew the property was stolen. Factors show-
stolen. Proving that an antiquity was stolen does not re- ing that a defendant knew an antiquity was stolen could in-
clude evidence that the defendant acquired the item dur-
* The U.S. Attorneys’ Manual at 1316 explains the law on val- ing an usual time or at an unusual place, concealed the
ue in more detail. See also 18 USC ¨ 2311 for the statutory defini- item, purchased the item for an uncommon price, made
tion of value. dishonest remarks concerning the item, used an alias when
** Despite the terms of the NSPA, many federal prosecutors acquiring the item, obtained the item while being aware
have instituted an alternative minimum value threshold in an ef- that it had been separated from a matching or complemen-
fort to allocate limited resources to only the more important cases. tary object, masked the item, or covered up evidence relat-
So even if a stolen antiquity is valued at $5000 or more, a U.S. At- ed to the item’s purchase. To counter a defendant’s claim
torney might decline to prosecute the case as a matter of policy. that he did not know an antiquity was stolen because he
201
AP°YPO¶OY§OY TELOS 30-01-08 11:04 ™ÂÏ›‰·202

R. A. St. Hilaire

was uninformed, a prosecutor can rely on a doctrine known smuggling and making false statements (Associated Press:
as willful blindness, conscious avoidance, or the ostrich rule. “Scholar”). The Schultz court also mentioned that civil and
That doctrine states “that deliberate ignorance and positive criminal penalties could overlap in the context of the CPIA
knowledge are equally culpable” (U.S. v. Jewell 700). Con- and the NSPA (United States v. Schultz 409). To date, how-
victions can therefore be secured against persons who pur- ever, no known prosecutions involving the CPIA and the
posely remain unaware of an antiquity’s stolen character.*** smuggling statute have either been suggested or attempted.
The statute titled Smuggling Goods into the United
States is another law in the U.S. Attorney’s arsenal that po- 3.2 State prosecutors, receiving stolen property laws, and
tentially can be used to combat the antiquities trafficking state charities enforcement
chain. The federal statute reads, in part: The laws potentially available to state prosecutors are
Whoever fraudulently or knowingly imports or brings in- twofold. District and county attorneys can rely on receiving
to the United States, any merchandise contrary to law, or stolen property statutes to target culpable receivers and sell-
receives, conceals, buys, sells, or in any manner facilitates ers of antiquities. Attorneys general, meanwhile, can use
the transportation, concealment, or sale of such mer- their charities enforcement power to pursue museum mis-
chandise after importation, knowing the same to have conduct.
been imported or brought into the United States contrary Every state has enacted a receiving stolen property
to law [s]hall be fined under this title or imprisoned not statute in some form. These laws prohibit a person from re-
more than 20 years, or both. ceiving property of another when the person knew the
Proof of defendant’s possession of such goods, unless ex- property was stolen. Many of these same statutes also crim-
plained to the satisfaction of the jury, shall be deemed ev- inalize situations where the person should know, had rea-
idence sufficient to authorize conviction for violation of son to know, had reason to believe, or simply believed that
this section (18 U.S.C. § 545). the property was stolen or probably stolen. New Hamp-
The United States has, over the years, imposed import shire’s statute is one example:
restrictions on a variety of cultural and ethnographic items A person commits theft if he receives, retains, or disposes
from several countries including Bolivia, Cambodia, Cana- of the property of another knowing that it has been stolen,
da, Colombia, Cyprus, El Salvador, Guatemala, Honduras, or believing that it has probably been stolen, with a pur-
Iraq, Italy, Mali, Nicaragua, and Peru. Many import restric- pose to deprive the owner thereof (R.S.A. § 637:7, I).
tions have been instituted under the authority of the CPIA, While state receiving stolen property laws are funda-
which authorizes the president to enter into a bilateral mentally similar to the federal NSPA, many provide distinct
agreement with a country that requests protection of its cul- advantages to prosecutors. First, several state statutes estab-
tural heritage (19 U.S.C. § 2602). The president can grant lish lower mental states. The NSPA requires proof that a
immediate protection by authorizing “Emergency Action” person knew the received property was stolen, but several
when an emergency condition exists, but only after the coun- states only require proof that the actor should know, had
try has requested a bilateral agreement; such action is typi- reason to know, had reason to believe, or simply believed
cally followed by a bilateral agreement (19 U.S.C. § 2603). If that the property was stolen or probably had been stolen.
the president determines, among other criteria, that the re- Thirty six states and the District of Columbia have enacted
questing country’s cultural patrimony is in jeopardy, he may laws with a lesser mens rea.* Second, almost one quarter of
authorize the imposition of import restrictions on cultural the states possess some form of dealer provision, making it
artifacts originating from the requesting country (19 U.S.C. easier to prosecute antiquities traders.** Where a dealer
§ 2602). The restrictions can require an importer of the item
to produce evidence that the item was exported lawfully (19 * Alabama, Alaska, Arizona, Arkansas, Colorado,
Connecticut, Delaware, District of Columbia, Florida, Georgia,
U.S.C. § 2606). Otherwise, the item may be seized and sub- Idaho, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland,
ject to forfeiture by federal authorities (19 U.S.C. § 2602). Minnesota, Mississippi, Missouri, Nebraska, Nevada, New
The CPIA’s civil remedy of forfeiting an unlawfully im- Hampshire, New Jersey, New Mexico, North Carolina, Ohio,
ported object is arguably complemented by the smuggling Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota,
statute’s criminal remedy of prosecuting the perpetrator. Utah, Vermont (in the case of dealers), Virginia (in the case of
That is because the federal anti-smuggling law declares that sellers), West Virginia, and Wyoming.
a person is subject to criminal prosecution when he fraudu- ** Alabama, Arizona, Florida, Hawaii, Iowa, Maryland,
lently or knowingly imports an item “contrary to law.” One Michigan, New Hampshire, New Jersey, New Mexico, New York,
U.S. Attorney applied similar legal reasoning in the unpub- and Utah. Other states with dealer provisions have more unique
statutes. California’s statute criminally penalizes dealers who fail to
lished case of United States v. Joseph Braude, charging
make inquiry into the property they receive; Colorado places more
Braude in part with knowingly and intentionally importing severe penalties on dealers who deal in stolen goods; Texas requires,
three Mesopotamian cylinder seals contrary to the import subject to criminal penalty, dealers in secondhand property to obtain
restrictions set forth by the Iraqi Sanctions Regulations (Su- identifying information from the owner, identifying information
perseding Indictment). Braude pleaded guilty in 2004 to from the property, and a warranty of ownership or possession from
the person selling the item to the dealer; and Vermont lowers the
*** The doctrine was applied in the case of United States v. mens rea for dealers by criminalizing situations where the dealer
Schultz. simply believes the property received was stolen.

202
AP°YPO¶OY§OY TELOS 30-01-08 11:04 ™ÂÏ›‰·203

International Antiquities Trafficking: Theft by Another Name

takes possession of an item and either (a) does not reason- nations to purchase illegally excavated, exported, or im-
ably gather information about whether the item was lawful- ported antiquities and (b) purchasing or accepting dona-
ly sold or delivered to the dealer, (b) acquires the item for tions of antiquities that have been illegally excavated, ex-
payment far below reasonable value, or (c) purchases or ported, or imported. Under any of these circumstances,
sells the item outside of the regular course of business, state laws potentially can be applied to curb such impropri-
these statutes generally declare that the dealer is presumed eties. The California attorney general, for example, is dele-
to have known that the item was stolen. The New York Pe- gated with the responsibility to regulate charitable corpo-
nal Law serves as an illustration of scenario “a”: rations and charitable assets to ensure that business is con-
A … person in the business of buying, selling or otherwise ducted for a public purpose (e.g., Cal. S.T.F.C.P.A. §
dealing in property who possesses stolen property is pre- 12588, § 12598(a)). Buttressing this authority is the attor-
sumed to know that such property was stolen if he ob- ney general’s subpoena power that can “require any agent,
tained it without having ascertained by reasonable in- trustee, fiduciary, beneficiary, institution, association, or
quiry that the person from whom he obtained it had a le- corporation, or other person to appear, at a named time
gal right to possess it (§ 165.55(2)). and place … to give information under oath and to produce
Third, state receiving stolen property statutes provide books, memoranda, [or] papers …” (Cal. S.T.F.C.P.A. §
criminal penalties for defendants who possess property of 12588; see also § 12589).
most any value as compared with the NSPA’s $5,000 There are several areas that the California attorney
threshold. New Mexico’s statute is a typical example: general could investigate pursuant to his charities enforce-
Whoever commits receiving stolen property when the ment authority. Among them are whether a museum’s col-
value of the property is one hundred dollars ($100) or lection contains looted antiquities purchased with public
less is guilty of a petty misdemeanor. contributions and whether a museum’s board of directors
… when the value of the property is over one hundred would have violated its fiduciary duty to the corporation if
dollars ($100) but not more than two hundred fifty dol- the board accepted looted objects without adequately in-
lars ($250) … a misdemeanor. quiring about their provenance. The attorney general
… when the value of the property is over two hundred could issue subpoenas for documentation and depositions
fifty dollars ($250) but not more than two thousand five as necessary, and the evidence collected by the attorney
hundred dollars ($2,500) … a fourth degree felony general could ultimately lead to a variety of outcomes in-
… when the value of the property is over two thousand cluding taking no action; initiating a criminal probe of the
five hundred dollars ($ 2,500) but not more than twenty museum and/or its directors and officers under the Penal
thousand dollars ($20,000) … a third degree felony. Code (Title 7 and Title 13) or under the Nonprofit Public
… when the value of the property exceeds twenty thou- Benefit Corporation crimes and penalties section of the
sand dollars ($20,000) … a second degree felony (§§ Corporations Code (§§ 6810-6815); pursuing civil penal-
30-16-11, D-H). ties and lawsuits against the museum and its governing
The legal advantages of lower mental states, dealer body (S.T.F.C.P.A. § 12591 and § 12598); revoking or sus-
presumptions, and decreased value thresholds make pros- pending the registration of the museum, thereby hamper-
ecuting antiquities trafficking under state law an appealing ing its ability to fundraise (S.T.F.C.P.A. § 12598(e)(1)); or
option, particularly when targeting receivers or sellers. pursuing a negotiated resolution that brings about compli-
Another statutory tool available to state prosecutors is ance with the law (S.T.F.C.P.A. § 12591.2).
charities enforcement power, which can be used to ensure
that deliberately unscrupulous or simply reckless museums 4. CREATING A FAVORABLE CLIMATE FOR PROS-
are held to account for acquiring looted antiquities. Most ECUTORIAL ACTION
museums are designated as nonprofits, charities, charita-
ble trusts, education corporations, or public benefit corpo- U.S. Attorneys, district and county attorneys, and at-
rations that are held accountable to the public by state offi- torneys general will aggressively confront a particular crim-
cials.* The state’s top prosecutor, the attorney general, is inal problem when they judge it to be a priority, and when
the person typically assigned to oversee museums and oth- they possess both the public’s and policymaker’s support as
er charities operating within a state.** To that end, the du- well as adequate funding and resources. Education, advo-
ties of the attorney general are to investigate abuses. cacy, and partnership can create the climate in which
Museum participation in the antiquities trafficking American prosecutors can confidently confront interna-
chain can take several forms—many at the object accession tional antiquities trafficking.
stage—including (a) using funds raised through public do- Education is required to alert prosecutors, the public,
and policymakers that antiquities trafficking attacks peo-
* While there may be technical distinctions between the terms
ple’s history and culture. Experts in the field must enthusi-
listed, they are all used here flexibly to stress that museums, as
charitable institutions, are subject to state regulation. astically step forward to demonstrate how antiquities traf-
** Some states task an official other than the attorney general ficking destroys humanity’s past by obliterating the archae-
to supervise charities, but that official is still a public representative ological record. For example, museums could host special
whose duty it is to supervise and regulate. public exhibitions highlighting the looting problem; ar-
203
AP°YPO¶OY§OY TELOS 30-01-08 11:04 ™ÂÏ›‰·204

R. A. St. Hilaire

chaeologists could organize trips to communities possess- such as Mothers Against Drunk Driving and because of
ing plundered archaeological sites; conservator-restorers partnerships promoted by organizations like the National
could host public forums to explain the damage caused by Highway Transportation Safety Administration, DWI to-
improper excavation, storage, and transportation of arti- day is a crime that receives significant law enforcement and
facts; anthropologists could produce popular writings for public attention. In the same way, antiquities trafficking
magazines that highlight the need to scientifically docu- can become a matter of important societal concern.
ment sites in order to evaluate context; art historians could
teach courses to college students that explain antiquities 5. CONCLUSION
trafficking; and various experts could hold educational
seminars for members of the National District Attorneys International antiquities trafficking is simply theft by
Association or offer antiquities identification courses to another name. Thinking about antiquities trafficking this
federal customs officials. The objective would be to make way better promotes the application of the American crim-
prosecutors, the public, and policymakers aware of the inal justice system toward mitigating the plunder of archae-
harm caused by criminals plundering antiquities abroad ological sites abroad. Despite evidence of a large criminal
and then distributing the objects in the United States. problem, there has been little prosecution response. But a
Advocacy must supplement education in order to con- combination of federal and state prosecutions, leading to
vince prosecutors, the public, and policymakers, that tak- prison and/or fines, could deter criminally culpable re-
ing action against antiquities trafficking should be given ceivers, sellers, and smugglers.
the same attention as other serious international crimes The recent successful conviction and imprisonment of
such as money laundering and counterfeiting. A personal Frederick Schultz should encourage authorities to increase
visit with a U.S. Attorney or a local district attorney can their commitment to prosecuting antiquities offenders.
alert these authorities that antiquities trafficking requires The result in that case squares firmly with U.S. Attorneys’
an assertive criminal justice response. Meetings with con- prosecution philosophy that “[h]ighest priority should be
gressmen, county commissioners, and others with authori- given to the prosecution of [those] who operate legitimate
ty over criminal justice budgets can stimulate funding for businesses and sell stolen property to the public” (U.S. At-
the prosecution of cases. Participation in education and torneys’ Manual 9.61-400). The case should also serve as
advocacy groups such as SAFE/Saving Antiquities for an impetus for state prosecutors to apply state receiving
Everyone can kindle public encouragement for prosecu- stolen property laws to the fight against antiquities traffick-
tors to take action. Because effective advocacy requires ing. Meanwhile, Italy’s current indictments against two an-
credibility, experts in the field must show that they too are tiquities dealers and a museum official, along with its dec-
working to end antiquities trafficking by refusing to au- larations that stolen antiquities are located in several
thenticate suspect antiquities and by diligently publishing American museums, should prompt attorneys general to
more aggressively oversee suspect institutions within their
the results of archaeological excavations.
own states. With support from the public and policymak-
Criminal justice intervention necessarily requires re-
ers, prosecutors working cooperatively can help protect ar-
sources. Because it is unlikely that large sums of money
chaeological sites abroad from the damage caused by the
and manpower will be forthcoming, prosecutors must at-
illegal trade in antiquities.
tack the problem in the short term by relying on existing
funds and personnel. Federal and state officials should
REFERENCES
therefore foster cooperation to investigate and prosecute
antiquities trafficking. U.S. Attorneys should be willing to [1] 18 U.S.C. § 21.
share information with district attorneys; the FBI should [2] 18 U.S.C. § 545 as amended by USA Patriot Improve-
seek out investigative cooperation from local police de- ment and Reauthorization Act of 2005.
partments; and customs officers should contact state attor- [3] 18 U.S.C. § 2311.
neys general about suspect objects. Meanwhile when an [4] Associated Press: “Egypt Asks Saint Louis Art Museum
antiquity becomes the subject of a criminal case, profes- to Return Mummy Mask.” KansasCity.com (February
sionals in the museum, archaeological, anthropological, art 23, 2006), <http://www.kansascity.com/mld/kansasci-
history, conservation-restoration, and related fields should ty/news/local/13945243.htm>.
be willing to assist authorities for free or at reduced cost. [5] Associated Press: “Scholar Gets House Arrest in Iraq
It takes time to encourage action against a criminal Looting,” Newsobserver.com, (November 22, 2004)
problem. Nevertheless, the threefold approach of educa- (modified December 28, 2004), <http:// newsobserv-
tion, advocacy, and partnership can create an environment er.com/24hour/world/story/1853098p 9761208c.html>.
whereby federal and state prosecutors vigorously target re- [6] Atwood, R.: “Stealing History: Tomb Raiders, Smug-
ceivers, sellers, and smugglers of plundered artifacts. In- glers, and the Looting of the Ancient World”, New
deed, there was a time in the United States when society York: St. Martin’s Press (2004).
was not mindful of the traffic deaths caused by driving [7] “Art Dealer Jailed for Smuggling,” News.bbc.co.uk,
while under the influence of alcohol or drugs (DWI). How- BBC News (June 12, 2002), <http://news.bbc.co.uk/
ever, because of education and advocacy efforts by groups 1/hi/entertainment/arts/2040769.stm>.
204
AP°YPO¶OY§OY TELOS 30-01-08 11:04 ™ÂÏ›‰·205

International Antiquities Trafficking: Theft by Another Name

[8] Brodie, N., Doole, J., Renfrew, C. (eds.): “Trade in Illic- Princeton Museums,” Bloomberg.com (October 31,
it Antiquities: The Destruction of the World’s Archaeo- 2005), <http://archaeology.about.com/gi/dynamic/off-
logical Heritage”, Cambridge: McDonald Institute for site.htm?site=http://quote.bloomberg.com/apps/news
Archaeological Research (2001). %3Fpid=nifea%26%26sid=aThsZ%5F9K56sQ>.
[9] Cal. Corporations Code, Nonprofit Public Benefit Cor- [23] United Nations Educational, Scientific and Cultural Or-
poration Law §§ 5110 et seq. ganization Convention on the Means of Prohibiting
[10] Cal. Supervision of Trustees and Fundraisers for Chari- and Preventing the Illicit Import, Export and Transfer
table Purposes Act § 12580 et seq. of Ownership of Cultural Property (1970).
[11] Convention on Cultural Property Implementation Act [24] United States Senate. Report No.97-564: “Implement-
19 U.S.C. § 2601 et seq. ing Legislation for the Convention on the Means of
[12] Felch, J.: “A Web of Deals. Murky World of Antiquities Prohibiting and Preventing the Illicit Import, Export,
Trade,” Los Angeles Times.com (December 28, 2005). and Transfer of Cultural Property”, 2nd Sess. (1982).
Reproduced at The Cultural Property Protection Net [25] United States Department of Justice: “United States
mailinglist. <TTTThttp://cpprot.te.verweg.com/2005- Attorneys’ Manual, Criminal Resource Manual“ (Oc-
December/002307.html>. tober 1997), <http://www.usdoj.gov/usao/eousa/ foia
[13] Felch, J., Frammolino, R.: “Several Museums May Pos- reading room/usam/index.html> (December 29, 2006).
sess Looted Art,” LA Times.com (November 8, 2005), [26] United States Department of Justice, U.S. National
<http://www.latimes.com/news/printedition/cl-me-mu- Central Bureau of Interpol: “About the Cultural Prop-
seums8nov08,1,1929662.story?ctrack= 1&cset=true>. erty Program” (December 26, 2006),<http://www.us-
[14] Superseding Indictment: United States District Court, doj.gov/usncb/cultprop/cultureabout.htm>.
Eastern District of New York. United States of Ameri- [27] United States v. Bolin, 423 F.2d 834 (9th Cir. 1970).
ca against Joseph Braude, Defendant. Cr. No. 03-1009. [28] United States v. Dove, 629 F.2d 325 (4th Cir. 1980).
[15] Iraqi Sanctions Regulations 31 C.F.R. § 575 et seq. [29] United States v. Hollinshead, 495 F.2d 1154 (9th Cir.
[16] Meier, B.: “Art Dealer Pleads Guilty in Import Case.” 1974).
New York Times.com (June 24, 2004). [30] United States v. Jewell, 532 F.2d 697 (9th Cir. 1976).
[17] “Met’s Antiquities Case Shows Donor, Trustee Ties to [31] United States v. McClain (McClain I), 545 F.2d 988 (5th
Looted Art,” Bloomberg.com Canada (February 23, Cir. 1977).
2005),<http://www.bloomberg.com/apps/news?pid= [32] United States v. McClain (McClain II), 593 F.2d 658 (5th
0000082&sid=aSqTpqVQLIP8>. Cir. 1979).
[18] N.H. Rev. Stat. Ann. § 637:7, I. [33] United States v. Moore, 571 F.2d 154 (3rd Cir. 1978).
[19] N.M. Stat. Ann. § 30-16-11. [34] United States v. Muzii, 676 F.2d 919 (2nd Cir. 1982).
[20] N.Y. Penal Law § 165.55(2), Title 7, Title 13. [35] United States v. Schultz, 333 F.3d 393 (2nd Cir. 2003).
[21] National Stolen Property Act 18 U.S.C. §§ 2314- 2315. [36] Watson, P.: “Sotheby’s: The Inside Story”, New York:
[22] “Tomb-Robbing Trials Name Getty, Metropolitan, Random House (1998).

205