Fort Worth Court of Appeals Cheapens the Meaning of “Modus Operandi”

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District Court of Appeals (Fort Worth) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

The Facebook Instruction

As I was perusing my typcial news sources this morning, I came across this article about a Tarrant County juror who was excused from a civil case and then charged with contempt for trying to "friend" the defendant in the case on Facebook.  That's the world in which we live, I suppose.  Everything is real-time, social media is pervasive, and folks are indiscriminate about what they do online.  It has already been and will continue to be interesting to see how the trial judges tackle this issue in their instructions to venire panels.

Commentary on SLAM Mummy Mask Case - Proceeds Contraband and Statute of Limitations

The current civil litigation surrounding whether the Ka-Nefer-Nefer mummy mask is contraband is worth following given the current legal arguments in play.

The mask, located at the St. Louis Art Museum (SLAM), is claimed by the federal government to be contraband, which is always unlawful to possess. SLAM, meanwhile, argues that the mask, if it is contraband, must be considered derivative contraband, compelling the government to prove that the mask was utilized in the commission of a crime.

It is open to discussion whether the mummy mask fits into the same category as contraband like illegal narcotics. It is also remarkable to think of the mummy mask as derivative contraband like a car used in illegal gun running. It may be that both legal theories are inexact.

The mummy mask might be categorized as proceeds or fruits instead.

Broadly speaking, criminal search and seizure law categorizes property as fruits, instrumentalities, or contraband. Fruits of a crime are the proceeds of a criminal transaction. These items are ones connected with a criminal act and may be seized. Instrumentalities are objects used to facilitate a crime, and these too may be seized. Contraband items are ones that are plainly unlawful to possess like counterfeit money, and these too may be seized.

In the realm of civil forfeiture of property, particularly dealing with items alleged to be connected to a crime, these criminal law concepts of fruits, instrumentalities, and contraband may be translated into three legal theories: proceeds forfeiture, instrumentalities forfeiture, and contraband forfeiture. If contraband forfeiture is the argument of the government, and instrumentalities forfeiture is the argument of the museum, will proceeds forfeiture be considered by the court? We shall see.

Meanwhile, SLAM’s assertion that the statute of limitations has expired in this case, preventing the government from pursuing its court action, is an argument worth watching closely. Statute of limitations is always an issue of importance when applied to cases of fine art and cultural heritage. In the Ka-Nefer-Nefer mummy mask case, it should be noted that the statute of limitations would not likely apply if the mummy mask is categorized as contraband per se. That is because it would be unlawful to possess the mask under any circumstance at any time. And that is perhaps one reason why the government hopes to characterize the mask as contraband, because it could potentially steer the case away from litigation over the statute of limitations altogether.

We look forward to further developments.

DISCLAIMER: The information provided here is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this site. Contact information may be found at www.culturalheritagelawyer.com.

Obscure Texas Law #5 - Seinfeld Did It

If there are any Seinfeld fans out there, you might remember the episode where Kramer tries to entice Jerry to have cable illegally installed by two Russians.  Well, Jerry's actions would be a Class C misdemeanor here in Texas under this week's obscure Texas law.

Section 31.12 - Theft of or Tampering With Multichannel Video or Information

Under this law, "[a] person commits an offense if, without the authorization of the multichannel video or information services provider, the person intentionally or knowingly makes or maintains a connection, whether physically, electrically, electronically, or inductively, to a television set, videotape recorder, or other receiver attached to a multichannel video or information system."

There is much more to it than that.  If you're curious about whether you may have violated this one in the past (long before the statute of limitations ran out, of course), click on the link above to see the full text of the law.

"Justice for None" - Book Review

Last month I received an email from a PR firm (News and Experts) asking if I would read and review the book "Justice for None" by author Jessica James.  I'm sure some of the other criminal defense blawggers out there received a similar request.  "Why not," I thought.  After all, I have ample time to read on my daily commute.  So they sent me the book and I put it aside until yesterday.

Before I provide my thoughts on the book, let me just say that I'm sure that I regularly violate the rules of proper grammar and punctuation on this blawg.  My writing is not perfect and I doubt it ever will be.  But..... my blawg posts are not bound and published and they certainly are not being professionally publicised, so surely that entitles me to some mistakes here and there.

As a published author myself (of a children's book, however), I understand how important a good review can be.  Unfortunately, I cannot provide such in this case.  I would prefer to write a positive opinion, but the misspellings (e.g. Pittsburgh spelled as Pittsburg) and other grammatical errors (e.g. subject-verb agreement, punctuation) in the Preface and first chapter of this book prevent me from offering a laudatory opinion.

As a disclaimer, I admit that I only read the Preface and first chapter, but it made me believe that my time would be sorely wasted if I continued on.  I was so distracted with the mistakes (my OCD tendencies kicking in), that I could not even focus on the substance (which, from what I could tell, was complete propaganda about how police officers, prosecutors, and judges are evil conspirators against justice).  I'll leave it at this, in my opinion (which is probably not worth that much), "Justice for None" is not "For Y'all."

SLAM Disputes Government's "Contraband" Claim in Ka-Nefer-Nefer Mummy Mask Case

In the latest round of legal papers filed in the case of United States v. Mask of Ka-Nefer-Nefer, the St. Louis Art Museum (SLAM) says that its possession of the ancient Egyptian mummy mask cannot be likened to possession of cocaine as the US government's lawyers claim. (See July 31, 2011 blog post for background.)

SLAM's attorneys describe two kinds of contraband. They explain that there is contraband per se, which include items illegal to possess under any circumstance (author's note: think of counterfeit money) and which can be automatically confiscated by the government without a hearing. They also say that there is derivative contraband, which include lawful items that are forfeitable because they are connected with a crime (author's note: think of a car used in drug trafficking). SLAM argues that if the mask is in fact contraband, then it must be characterized as derivative contraband that is not automatically forfeitable. Because the mask is not automatically forfeitable contraband per se, SLAM argues that the government must present evidence that the object is forfeitable as an item that derives from a criminal act.

SLAM writes in its August 3, 2011 pleading (some citations omitted):
"The Government’s evolving positions with respect to the ownership issue seem to be at war with themselves. First, it admitted in its own pleadings that there are several bases under [Egypt’s patrimony] Law No. 215 which would provide for private ownership of artifacts such as the Mask. Now it argues that Egyptian Law No. 215 forecloses property rights in artifacts such as the Mask and renders them contraband per se, akin to cocaine or an illegal whiskey still. In fact, Egyptian Law No. 117, which was enacted in 1983, after Law No. 215, specifically acknowledges that artifacts such as the Mask could be privately owned. United States v. Schultz, 333 F.3d 393, 401-02 (2d Cir. 2003). In that seminal case, the Second Circuit went on to recognize that Law No. 117 was the first Egyptian law declaring illegal any private ownership of all antiquities found in Egypt after 1983. The Mask, therefore, clearly cannot be considered contraband per se in the way that such items as narcotics are intrinsically unlawful to possess."

By making the claim that the mummy mask arguably can be characterized contraband derived from a crime, SLAM tries to reinforce its assertion that the burden of proving the forfeiture is on the government.

Meanwhile, it should be noted that the issue of whether the statute of limitations forecloses the government's seizure action is an argument that SLAM continues to raise. SLAM's lawyers write:
"The Museum has consistently taken the position that the Government’s claim is barred from the outset by the statute of limitations and that its forfeiture claim must fail because the Government is unable to prove the Mask was stolen. In raising the arguments it does, the Government is attempting to delay or avoid the consideration of those questions by confusing the standard for constitutional standing and making the bizarre suggestion that the Court pretend that the Museum claims an interest 'not of a centuries old Egyptian mask, but rather a kilogram of cocaine.'"

The United States Attorney's Office counters SLAM's latest assertions in a pleading filed August 4, saying that SLAM failed to make arguments about the contraband issue when it was supposed to. The government’s lawyers contend that SLAM never before raised the distinction of contraband per se and derivative contraband, writing that the museum only now “disputes whether private ownership of the Mask is authorized under Egyptian law.”

Prosecutors Reveal Further Details in Khouli Case: Allege One Half Million Dollars Paid Abroad, Smuggled Antiquities Found in Garage, Ancient Artifacts Labeled 19th Century "English Glass Bottles"

The US Attorney’s Office, Eastern District of New York, brought an in rem action (Latin for “against the thing”) on June 14, 2011 to forfeit cultural property seized from Mousa “Morris” Khouli, an antiquities dealer who operated Windsor Antiques in New York. The objects sought to be forfeited are three Egyptian wood nesting coffins, two wooden horses, wood furniture, $80,488.99 in cash, thirty-seven Luristani bronzes, eighteen Iraqi glass vessels, twenty-one clay relief plaques, and sixty-five stone flat faces.

A grand jury in May indicted Khouli and three co-defendants on criminal charges stemming from their involvement in an alleged antiquities smuggling ring. Now the government’s civil complaint is unsealed, providing further details about the case.

A summary and timeline containing the latest information has been created below. All quotations come from the government’s thirty-seven page in rem complaint dated June 24, 2011. Moreover, the government’s assertions must be proven in court by prosecutors; they remain allegations at this stage of the proceedings.

Authorities say that Windsor Antiques listed many imported cultural objects to have originated from the United Arab Emirates. Federal prosecutors allege illegal entry of these goods by means of false statements and smuggling.The US Attorney’s Office charges that “[u]pon information and belief, Windsor [Antiques] has sold stolen Iraqi cultural property in violation of Iraqi patrimony laws and has imported Egyptian antiquities and other antiquities in violation of 18 U.S.C. §§ 542 and 545.”

“All the [cultural objects] were imported, sold, purchased, and/or are proceeds of an extensive scheme by Khouli, and others, to smuggle cultural property and launder money, by and through their respective entities, Windsor, and other entities.”

“Although Khouli and Windsor have been on notice [since 2003] of the need to accurately declare country of origin, Customs entry records for the past five years reveal that 75% of Windsor’s declared cultural property listed the United Arab Emirates (‘UAE’) as the country of origin.” “[F]ifteen out of twenty cultural property importations . . . by Windsor listed the UAE as the country of origin. Given Khouli’s February 10, 2009 representation [to authorities] that none of his merchandise originated in the UAE, all of these declarations were false and contrary to Title 18, United States Code, Section 542 and 545.”

(It should be noted that there is no mention by the government of Khouli’s spin-off company known as Palmyra Heratige (sic). As reported in this blog on July 18, 2011, Khouli’s sole-proprietorship, known as Windsor Antiques, Inc., was created on September 28, 1995 and dissolved on December 27, 2010, roughly one year after the government moved to dismiss initial criminal charges against Khouli. Palmyra Heratige (sic), Inc., Khouli’s newly formed company, emerged on May 28, 2010, about three and a half months after federal authorities searched Khouli and his business. That February 12, 2010 search, described below, netted several ancient Iraqi artifacts.)

On May 23, 2003 federal authorities seized four FedEx packages originating from the United Kingdom. Waybills described the export country and country of origin as English even though the majority of the objects were ancient Iraqi.“For example, two of the FedEx waybills included “English glass bottles circa 1860 A.D.” in their respective list of contents. However, experts in archeology and Iraqi antiquities determined that the glass bottles in these shipments were . . . dated from the third century B.C. to 8 century A.D.”

“Upon information and belief, Windsor/Khouli abandoned its claims to these glass bottles after they were seized by Customs/ICE, and they have since been repatriated to the Iraqi authorities.”

Between 2003-2005, Windsor Antiques offered an unusually high number of Luristani bronzes for sale, suggesting illegal excavation of the antiquities.“While a small percentage of an area’s artifacts can be expected to move to other regions during antiquity, the volume of Luristani bronzes offered for sale by Windsor—over 300 between 2003 and 2005—is consistent with illegal excavation from Iran and Iraq, rather than sporadic findings in other locations due to ancient movement. Indeed, Luristani bronzes are known to have been the subject of significant looting from excavations in the Luristan region.”

In October 2006, federal officials seized Luristani artifacts that were marked as originating from the United Arab Emirates.“Emirates Post, an international mail carrier, shipped to Windsor, using an informal entry, 19 copper daggers. The label on the package being shipped to Windsor described its contents as 19 copper daggers and handles valued at $350 whose country of origin was the UAE. Customs officers examined the contents and took photographs of the daggers. The photographs were identified by an expert on Iraqi antiquities as ‘Luristani bronzes’ originating from Luristan, a province in western Iran, with some pieces found in eastern Iraq near the Iraqi-Iranian boarder.”

Between January 2008 and February 2008, stone faces were smuggled out of the United Arab Emirates and into to the United States. They were described as made in India, originating in Yemen, being south Arabian, or as “other antiques.”“Correspondence between Khouli and the UAE between approximately January and February 2008, demonstrate that Khouli attempted to arrange and/or arranged for as many as 89 Stone Flat Face Antiquities to be smuggled out of the UAE and imported into the United States with false or fraudulent customs declarations, invoices, and countries of origin.”

“For example, as a result of these correspondences, a shipping invoice from an entity ‘Palace Arts’, in Dubai, UAE to Windsor in New York, dated January 29, 2008, was created and indicated ‘89 Decorative Stone Carved Heads;’ ‘Origan [sic] made in India;’ and with a unit price of $75 U.S. dollars, for a total price of $6,675 in U.S. currency.”

“Another shipping invoice, apparently from the same UAE entity to Windsor, New York, for this same shipment and also dated January 29, 2008, was also created and indicated ‘89 Decorative Stone Carved Heads;’ ‘All antque [sic] and over one hundred years old;’ ‘Country of Origan [sic] Yemen;’ and with a unit price of $140 U.S. dollars, for a total price of $12,460 in U.S. currency.”

“On February 6, 2008, upon entry into the United States to John F. Kennedy Airport via Emirates Sky Cargo, from the UAE, this shipment was declared to Customs as 465 kilograms of ‘other antiques over 100 Years Old.’”

“Upon information and belief, within a couple days after smuggling these Stone Flat Face Antiquities from the UAE into the United States with multiple invoices, containing different countries of origin and with different values, Khouli attempted to sell at least one of these items for approximately $700 describing it as ‘Limestone Yemen head’ circa 200 A.D.”

“Further, upon information and belief, on or about September 2008, Khouli sold one of these items for approximately $2,000 describing it as a ‘South Arabian limestone steale’ circa 1-2nd Century A.D.”

From December 2007 through May 2008 over one half million dollars was paid out by Khouli or his shop, contrasted with slightly more than $32,000 claimed by Windsor Antiques for all US imports taken in.“[A]n analysis of the WINDSOR ACCOUNT for the six month period of December 2007 through May 2008 indicates that Khouli/Windsor sent via wire transfer or otherwise, a minimum of approximately $527,620 in U.S. currency abroad, including to the UAE. Yet for the same six month period, U.S. Customs databases and invoices of declared imports by Windsor into the United States indicate that Windsor claimed imports valued worth only $32,360. This discrepancy suggests that Windsor has purchased significantly more cultural property using the WINDSOR ACCOUNT than it has declared on its imports into the United States.”

Immigration and Customs Enforcement (ICE) conducted searches on September 8, 2009 that yielded seized cultural property and money. Khouli was placed under arrest.“On September 8, 2009, pursuant to a consent search of Khouli’s residence . . . various antiquities and items of cultural property, including but not limited to, the INNER EGYPTIAN WOOD SARCOPHAGUS . . . and 61 of the 65 STONE FLAT FACE ANTIQUITIES . . . were seized by ICE.”

The inner Egyptian wood coffin was “consensually seized from Khouli’s garage.”

“On September 8, 2009, pursuant to a court authorized search warrant issued by the United States District Court for the Southern District of New York for Windsor, various antiquities and items of cultural property, including but not limited to, 3 of the 65 STONE FLAT FACE ANTIQUITIES . . . the 37 LURISTANI BRONZES . . . seized by agents of the Department of Homeland Security, United States Immigration and Customs Enforcement (‘ICE’).”

“Approximately Sixty-Five (65) of these smuggled Stone Flat Face Antiquities, have been located and seized by ICE: 61 were found in Khouli’s garage during the consent search on September 8, 2009; one was found, mounted on a stand, and seized at Windsor during the consent search on September 8, 2009 . . . .”

“In addition to Khouli’s history of importing from UAE and selling in the United States an unusually large volume of ‘Luristani’ bronzes . . . on September 8, 2009, during the execution of the search and seizure warrant at Windsor, agents found and seized approximately 37 additional ‘Luristani’ bronzes pieces which Khouli/Windsor had available for sale.”

“Upon information and belief, no certificates of origin or documentation exist to substantiate how the[se objects] entered the United States or their country of origin.”

“In addition, on or about September 8, 2009, pursuant to a court authorized seizure warrant issued by the United States District Court for the Eastern District of New York, all funds in the WINDSOR ACCOUNT . . . were seized by ICE. At the time of seizure, the WINDSOR ACCOUNT contained approximately $80,489.00 in U.S. currency.”

Between September 8, 2009 and November 4, 2009, Khouli arranged to deliver and sell illicit antiquities.“…Khouli sent and received numerous communications in order to arrange for: (a) portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities to be delivered into the United States; (b) monies to be sent from the WINDSOR ACCOUNT . . . to accounts outside the United States in order to pay for the smuggled Egyptian sarcophagus set and other Egyptian antiquities to be delivered into the United States; (c) invoices to be created in order to sell and/or attempt to sell the smuggled Egyptian sarcophagus set and other Egyptian antiquities with false or improper provenance documentation; and (d) monies to be sent to bank accounts owned and/or controlled by Khouli/Windsor that were located in and outside the United States, including but not limited to the WINDSOR ACCOUNT, for the anticipated sale or attempt to sell the smuggled Egyptian sarcophagus set and other Egyptian antiquities.”

Between October 2008 and November 2009, Khouli’s communications displayed efforts to engage in illegal antiquities trafficking.“Communications between Khouli and others between at least October 2008 and November 2009, further demonstrate that Khouli arranged for and/or caused to be wire transferred over $5,000 in U.S. currency from or through the WINDSOR ACCOUNT, to a place outside the United States in order to pay for portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities.”

“Similarly, communications between Khouli and others between at least October 2008 and November 2009, further demonstrate that Khouli arranged for and/or caused to be wire transferred tens of thousands of dollars in U.S. currency into or thorough the WINDSOR ACCOUNT, as well as other accounts held by Windsor/Khouli located outside the United States, in order to buy, smuggle, sell or attempt to sell portions of the smuggled Egyptian sarcophagus set and other Egyptian antiquities with false or improper provenance documentation.”

On November 4, 2009, federal authorities seized Egyptian cultural objects in New Jersey that were bound for Khouli/Windsor Antiques.“On or about November 4, 2009, pursuant to a border search at the Port of Newark, New Jersey, the INNER EGYPTIAN WOOD SARCOPHAGUS AND OUTER SARCOPHAGUS LID . . . and the 2 WOOD HORSES AND MULTIPLE PIECES OF WOOD FURNITURE . . . were found in a shipment from the UAE to Windsor/Khouli. This shipment was detained and seized by Customs/ICE.”

“Furthermore, the import documents accompanying the shipment from UAE to Khouli/Windsor that arrived in the Port of Newark, New Jersey before November 4, 2009, included an invoice, packing list, and ‘Certificate of Origin,’ indicating that it: (a) came from “Amal Star Antiques” in Dubai, UAE; (b) was shipped to Windsor, New York, New York; (c) contained fifteen pieces of “artistic hand made furniture”; (d) all pieces were ‘wooden’; (e) the country of origin was ‘India;’ and (f) the total value of the shipment was $13,700 in U.S. dollars.”

“Amidst this shipment, [the EGYPTIAN WOOD INNER SARCOPHAGUS AND OUTER SARCOPHAGUS LID were] . . . undeclared and/or falsely declared and found tightly wrapped in heavy bubble wrapping, in contrast to the other pieces of the shipment, [specifically the horses].”

On December 16, 2009 the government filed a motion to dismiss the criminal charge against Khouli.

On February 12, 2010, federal agents seized several illicit Iraqi items from Khouli.“On February 12, 2010, pursuant to a second court authorized search warrant of Windsor issued by the Southern District of New York, various antiquities and pieces of cultural property including, the 18 PIECES OF IRAQI GLASS . . . ; and the 21 IRAQI CLAY PLAQUES . . . ; and 1 of the 65 STONE FLAT FACE ANTIQUITIES . . . seized by ICE.”

“… [A]nd three more, [Stone Flat Face Antiquities ] also mounted on stands, were found at Windsor during execution of the February 12, 2010 search warrant.” (Author’s note: Other paragraphs of the government’s complaint, like the one above, appear to indicate that only one stone face was seized on this date.)

“A review by an expert in ancient history and Mediterranean archeology of the 21 clay relief plaques seized from Windsor on or about February 12, 2010, indicated that they appear to be ancient and are of a type produced in central and southern Iraq (Babylonia) from around 2000-1600 B.C.”

“Upon information and belief, no certificates of origin nor any other documentation exists to substantiate how [the 21 clay relief plaques] entered the United States or their country of origin.”

On May 4, 2011 a federal grand jury handed up an indictment against the Khouli + 3 defendants, and on June 14, 2011 the government filed an in rem action to forfeit the antiquities and money seized from Khouli.

DISCLAIMER: The information provided here is general information only, not legal advice, and not guaranteed to be current, correct, or complete. No attorney-client relationship is formed, and no express or implied warranty is given. Links or references to outside sources are not endorsements. This site may be considered attorney advertising by some jurisdictions. The attorney is licensed in NH. The attorney is not certified by the TX Board of Legal Specialization, nor certified by NY regulators as a so-called "specialist" or "expert." Do not send confidential communications through this site.

Seized Cultural Property Identified in Khouli + 3 Case

A specific description of objects and papers in the possession of federal authorities is now available in the criminal case involving Mousa "Morris" Khouli, Joseph A. Lewis II, Salem Alshdaifat, and Ayman Ramadan. They are charged with participating in an alleged antiquities smuggling ring. (See this blog's July 16, 2011 post for background.)

Included are objects from ancient Egypt, Iraq, and Iran. Some of the descriptions are reprinted below, quoted from August 11, 2011 discovery letters issued by the United States Attorney, Eastern District of New York:

• set of three nesting Egyptian wood sarcophagi, bearing the name “Shesepamutayesher” and the title “Lady of the House,” circa 664-111 B.C., including: (a) one Egyptian wood inner sarcophagus seized on or about September 8, 2009 from defendant Khouli’s residence in Brooklyn, New York; (b) one Egyptian wood inner sarcophagus seized on or about November 4, 2009 at the Port of Newark, New Jersey; and (c) one Egyptian wood outer sarcophagus lid seized on or about November 4, 2009 at the Port of Newark, New Jersey;

• one Greco-Roman style Egyptian sarcophagus seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia;

• one set of Egyptian funerary boats seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia; and

• one set of limestone figures seized on or about July 13, 2011 from defendant Lewis’s residence in Chesterfield, Virginia.

• [T]wo wood horses and multiple pieces of wood furniture seized on or about November 4, 2009 at the Port of Newark, NJ;

• approximately thirty-seven (37) “Luristani bronze” objects seized on September 8, 2009;

• approximately eighteen (18) Iraqi glass vessels seized on February 12, 2010;

• approximately twenty-one (21) Iraqi clay relief plaques seized on February 12, 2010; and

• approximately sixty-five (65) stone flat face antiquities seized on September 8, 2009 and February 12, 2010.

• Photographs of a shipment of Luristani bronzes en route to Khouli in October 2006 (KHOULI 2094-2099);

• Trocadero.com printouts for the Windsor Antiquities storefront and sale of a terre-crue head (KHOULI 2100-03);

• Photographs of terre-crue head after excavation at Isin excavation site in May 2003 (KHOULI 2104-07).

Photos: US Immigration and Customs Enforcement

Obscure Texas Law #4 - NCAA Edition

Here's our weekly review of obscure Texas laws.  Although enacted in 1989, this harkens back to the era when SMU football was a powerhouse (before they received the death penalty).  I don't know whether they have a similar law in Florida, but from the looks of things the Miami Hurricanes may be finding out real soon.

Section 32.441 - Illegal Recruitment of an Athlete

Under this law, "[a] person commits an offense if, without the consent of the governing body or a designee of the governing body of an institution of higher education, the person intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another on an agreement or understanding that the benefit will influence the conduct of the person in enrolling in the institution and participating in intercollegiate athletics."

Of course there is an exception if the person providing the benefit is related to the athlete.

Violations of this law are broken down as follows:
     (1) Class C misdemeanor if the value of the benefit is less than $20;
     (2) Class B misdemeanor if the value of the benefit is $20 or more but less than $500;
     (3) Class A misdemeanor if the value of the benefit is $500 or more but less than $1,500;
     (4) state jail felony if the value of the benefit is $1,500 or more but less than $20,000;
     (5) felony of the third degree if the value of the benefit is $20,000 or more but less than $100,000;
     (6) felony of the second degree if the value of the benefit is $100,000 or more but less than $200,000; or
     (7) felony of the first degree if the value of the benefit is $200,000 or more.

This is one of those laws, however, in which you might see a lot of prosecutorial discretion.  After all, the elected district attorney might not position himself well for reelection if he goes around prosecuting the local cattle barons and oil tycoons.

Seizure of Mexican Figurine Prompts Question of CBP's Legal Authority

United States Customs and Border Protection (CBP) announced in a new(s) release on July 28, 2011 that it seized a Pre-Columbian artifact en route from Indiana to British Columbia. A buyer in Canada reportedly purchased the small orange Nayarit figure of a woman through an auction, and CBP agents intercepted the package in April during routine checks at Chicago's O'Hare Airport. CBP said that the shipment was "manifested as containing an artifact."

CBP and Immigration and Customs Enforcement-Homeland Security Investigations (HSI) had the Chicago Field Museum examine the object, concluding it "to be an authentic Pre-Columbian artifact of West Mexico dating to the early first millennium AD." The Consulate General of Mexico, meanwhile, claimed that the object was unlawfully exported from that country.

CBP seized the four inch tall Nayarit figurine under Title 19, Chapter 14 of the customs laws. The statute is commonly referred to as the Convention on Cultural Property Implementation Act (CPIA), meant to implement the well-known 1970 UNESCO Convention that covers cultural property. Federal agents in Chicago took the ancient Mexican artifact into their possession under Section 2609 of the CPIA, which permits seizure of protected cultural artifacts covered by import regulations promulgated under section 2606 (as well as stolen objects that had been documented in the institutional collection of a state party to the convention). Import restrictions enacted under Section 2606 result when the United States enters into an agreement with another nation under the authority of the CPIA. Many readers of this blog are familiar with the CPIA process and know that several nations have bilateral agreements with the United States pursuant to CPIA. Mexico, however, is not one of those nations.

So how can CBP take away an ancient Mexican cultural object from its possessor by using the CPIA? I called CPB to find out. The agency's representatives were polite and responsive to calls, but the replies were not helpful. A CBP Associate Chief Counsel said that "we don't comment on anything like this," adding that "we limit any of our comments about the law and our interpretation on the law to our client itself, which is, of course, the agency." Such a closed response from a government agency that actively sought public attention to this seizure and freely declared the legal basis for the seizure is unsatisfactory. CBP issued a public press release announcing the taking of the Nayarit figurine and broadcasted that "[t]he artifact will be returned to the Mexican government in an upcoming CBP and ICE-HSI repatriation ceremony." And while the agency claims the matter is under investigation, CBP's desire to return potential evidence to Mexico, coupled with its early public release of information relevant to the case, does not signal a meaningful commitment to maintain the integrity of the investigation.

We are left to speculate about what CBP may have been thinking when it seized the object. Federal officials could not have seized the Mexican artifact under a legal theory involving the National Stolen Property Act because the NSPA requires an item to have a value of $5000 or more before it is considered stolen under that law. The Mexican artifact was purchased at auction for $550, far less than $5000. So CBP had to look for other legal authority to take the artifact into custody.

Perhaps they erringly looked to a treaty for legal authority? The United States and Mexico entered into a Treaty of Cooperation on March 24, 1971, which provides for the recovery and return of stolen archaeological, historical, and cultural properties. The treaty, which is in force today, permits the United States "to employ the legal means at its disposal to recover and return from its territory stolen archaeological, historical and cultural properties that are removed after the date of entry into force of the Treaty from the territory of the requesting Party." But this agreement was not enacted into law under the terms of the CPIA, meaning there are no import restrictions on Mexican cultural property that derive from Section 2606 of the CPIA to justify a Section 2609 seizure of the Nayarit figurine by CBP.

So what exactly was CPB's legal authority to seize the Nayarit figurine? We have no explanation about why a Section 2609 seizure was the proper legal basis to take away the ancient Mexican artifact.

Federal officials must take great care when using unexplained interpretations of the law to promote seizures of property. While CBP may be commended for taking action to detect trafficked cultural heritage, federal authorities should exercise their authority in a reasonable, intelligent, and open fashion. No citizen should be left guessing about how exactly he or she can comply with the law so as to avoid the loss of property. Clear and reasonable applications of the customs laws, and plain explanations to back them, can build public support for America's effort to protect and secure at-risk cultural property. By contrast, offering questionable or undisclosed legal positions in cases where property may be seized—particularly in cases involving potentially innocent possessors—does little to garner confidence in public authorities.

Photo: Chicago CBP

The Evils of Technology

I love technology - from tablet computers to smartphones to flat-screen televisions.  If it's shiny and new and guaranteed to make me the envy of my friends and family, I'll buy it (to the dismay of my wife).  One of the recent (in the last 5 years) technological advancements that has made its way into just about every home in America is GPS.  Whether it be a Garmin running watch, a TomTom navigational device, or a GPS location broadcaster on your cell phone, most people use some sort of GPS device every day.  Aside from the fact that we've lost the capability to drive somewhere without turn-by-turn directions, GPS is great.

Jose Juan Hernandez, however, might not agree that GPS is so great.  In a recent 5th Circuit Court of Appeals Case (Federal), Hernandez challenged the GPS device that the DEA had surreptitiously (and without a warrant) attached to his brother's truck to track its movements.  Hernandez was arrested while driving his brother's truck to California on a drug run.  The police seized 20 pounds of meth from the truck.  At trial, Hernandez moved to suppress the drugs, arguing that the discovery was the result of an unlawful search (as a result of the GPS tracking).  The trial court denied the request.

The 5th Circuit held that Hernandez had standing to challenge the use of the GPS device placed on his brother's vehicle by FBI agents because he drove the vehicle with consent, but he lacked standing to challenge its placement because the vehicle was not registered to him.  The Court also held that the DEA agents' use of the surreptitious GPS device to track Hernandez was not a search within the meaning of the Fourth Amendment, explaining that it was more akin to the old beepers that police used to place on vehicles in the 80's and 90's.  Accordingly, the Court upheld the trial court's denial of the motion to suppress. The Court did not decide whether a GPS device that continuously and precisely monitors location would constitute a search.

See the full opinion HERE.

Obscure Texas Law #3

Before my wife and I had children, I was used to running quick errands to the store in a matter of minutes.  When the rugrats arrived, the quick errands required carseats, strollers, diaper bags, etc.  While I am now somewhat of a pro at running errands with children, I didn't adapt all that quickly.  The first time I took my son to the store with me it was dark outside and he was asleep in his car seat.  I pulled up to Best Buy and completely forgot that I had him with me.  About 5 minutes after walking through the aisles I realized what I had done.  I'm sure I resembled the mother from the movie Home Alone as I darted out of the store to get my baby and bring him back in with me.  I can only imagine what the employees that guard the doors must have thought.  Well, Texas doesn't take kindly to idiot parents like me (correction: like I used to be).

Here's obscure Texas law #3.

Section 22.10 - Leaving a Child in a Vehicle

Under this law, it is a class C misdemeanor to intentionally or knowingly leave a child in a motor vehicle for longer than five minutes if that the child is younger than seven years of age; and not attended by an individual in the vehicle who is 14 years of age or older.

Okay, so I might not have been in trouble because (a) I did not intentionally leave my child in the car and (b) there is a decent argument that as a stupid new parent I also did not knowingly leave him in there, and (c) I didn't leave him in there for more than 5 minutes, but others may not be so lucky.  In all seriousness, however, if you ever see a small child locked in a vehicle (especially in the Texas summer heat), call the authorities immediately.  This law exists because children have died from the heat or cold of being locked in a car.

Judge Dismisses ACCG Challenge to Cultural Property Import Protections - Acknowledges President's Foreign Policy Role in MoU Process

Judge Catherine C. Blake of the United States District Court of Maryland yesterday dismissed the Ancient Coin Collectors Guild’s lawsuit against the federal government. The federal district court decision essentially declared that the ACCG failed to make out a sufficient case.

The ACCG set up a test case to challenge protective American import restrictions placed on Chinese and Cypriot ancient coins when the organization imported 23 from a London dealer in 2009, bringing them to Baltimore on a British Airways flight. The enactment of the import protections followed the president’s adoption of bilateral agreements with China and Cyprus under the Cultural Property Implementation Act (CPIA). The CPIA is the law that implements in the United States the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property.

The court supplied a comprehensive 52 page memorandum outlining its reasons for dismissal. While many observations are worth noting, three are discussed here.

First, the ACCG’s challenge to the protective import restrictions failed to establish a meritorious legal claim on all counts. The court discharged the ACCG’s case in its entirety, even while assuming that the facts asserted by the organization in its legal complaint were true and construing any inferences in favor of the ACCG. The ACCG, naturally, may appeal but for now Judge Blake’s order stands: “[T]his case is dismissed; and . . . the Clerk shall CLOSE this case.”

Second, the court recognized that the negotiations and implementation of a bilateral agreement adopted under the CPIA involve the president’s broader role in foreign policymaking. A passage from Judge Blake’s memorandum is instructive:

“[W]hen those agencies [such as the State Department] act on behalf of the President, the separation of powers concerns ordinarily apply with full force—especially in an area as sensitive and complex as foreign affairs. As with respect to almost any international agreement, the decision whether to enter an Article 9 agreement [under the 1970 UNESCO Convention] with a particular country does not occur in a foreign policy vacuum. The decision necessarily will involve a variety of considerations beyond those set out in the CPIA, including the broader relationship between the United States and the requesting country and the potential impact of such an agreement on the United States’s relationships with other countries. Those considerations exist regardless of who ultimately negotiates and enters the agreement, the President or the Assistant Secretary [of State for Educational and Cultural Affairs] on the President’s behalf. Furthermore, by lodging primary responsibility for imposing cultural property import restrictions with the President, rather than with an agency, Congress likely recognized these separation-of-powers concerns. While the parties have not pointed to a conclusive explanation in the CPIA’s legislative history, Congress likely concluded that deference to the President was appropriate given the foreign policy considerations inherent in deciding whether to impose import restrictions.”

Finally, the court acknowledged the federal government’s authority to ban the importation of undocumented ancient coins. Judge Blake noted that the thrust of the CPIA is to mitigate the theft of cultural heritage. She intelligently observed that “[l]ooted objects are, presumably, extremely unlikely to carry documentation, or at least accurate documentation, of when and where they were discovered and when they were exported from the country in which they were discovered. Congress is therefore unlikely to have intended to limit import restrictions to objects with a documented find spot.” Judge Blake therefore concluded that “the import restrictions on Chinese and Cypriot coins, which have the effect of barring the importation of coins with unknown find spots, do not exceed the State Department’s authority under the CPIA.”

Obscure Texas Law #2

Continuing our weekly look at obscure Texas laws (in no particular order), here is one that gives a whole new meaning to the phase "Give me a hand."

Section 48.02 - Prohibition of the Purchase and Sale of Human Organs

Under this law, it is a Class A mismedeanor if a person "knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ."

Of course, there are exceptions for blood and plasma, and more exceptions for medical transplants.  I cannot imagine that this law is charged very often, but it would not be on the books if it hadn't been a problem at some point in time.  Perhaps the lawmakers were concerned with the urban legend in which the person wakes up in the bathtub of ice and both kidneys missing.

Revisiting Michigan v. Bryant

Back in February, we alerted you to the Supreme Court decision in Michigan v. Bryant regarding testimonial v. non-testimonial statements.  I wanted to re-post on this case and take a deeper look at what has changed as a result of the Supreme Court’s opinion.

The Bryant court came up with a new test to evaluate what types of statements made to law enforcement are testimonial.  Before Bryant, Crawford basically stated that statements made during interrogations qualified as testimonial.  But, Crawford was just the tip of the iceberg.  After Crawford, the Court in Davis v. Washington specifically addressed statements made to officers to enable them to respond to an ongoing emergency.  The Court held that those statements are non-testimonial.  The problem was that the Court in Crawford and Davis failed to give us a clear test to determine what types of statements would be non-testimonial.

Finally, the Court decided Bryant, giving us a test. Under the Bryant test, courts must consider three factors:

1) The circumstances of the encounter;

2) The questions and statements of the participants; and

3) The primary purpose of the interrogation as viewed by reasonable participants at the time.

The case was consistent with Crawford.  Analyzing the facts in Crawford, we can see that a 911 call reporting an ongoing assault would still be held non-custodial under the Bryant test.  The circumstances of the encounter was that there was an ongoing emergency taking place, the questions and statements of the participants were specifically in relation to the 911 call and the primary purpose of the 911 call was to report an emergency.  The Bryant court ultimately held that if the primary purpose of the statement is not for the purpose of creating a substitute for trial testimony, then the Confrontation Clause does not apply.

For all practical purposes, Crawford seemed to give a blanket exception for all 911 calls as being non-testimonial.  By giving us a test, the Supreme Court left each statement to be evaluated on a case-by-case basis.  Could a 911 call be considered testimonial?  If evaluated under the Bryant test, and the right circumstances exist, we think it could be.  This argument could have been made even after the Crawford decision came down, but it may be easier to point the court to the Bryant test when arguing that statements made were subject to the confrontation clause – even if there is an emergency situation taking place.

Michigan v. Bryant, 131 S. Ct. 1143 (2011)
Crawford v. Washington, 541 U.S. 36 (2004)
Davis v. Washington, 547 U.S. 813 (2006)

"Use Caution When Calling Someone Ineffective"

Last week, Justice Quinn of the 7th District Court of Appeals (Amarillo) very thinly masked his disgust in a three-page opinion (designated for publication) aimed at an appellant and his attorney who claimed that the trial defense counsel had been ineffectice.  A shot across the bow to other would-be appellate attorneys who might be considering an ineffective assistance challenge, Justice Quinn warns "It ain't a game folks; it's real lives we are dealing with."

The opinion (HERE) is short enough to read in about two minutes so I won't reprint much of it, but here is, IMO, the best paragraph:

Counsel is not ineffective simply because he did not do that which his accuser thought he should have done. Nor is he legally deficient simply because some attorney who enjoys the benefit of hindsight and cool reflection would have taken a different tact. Indeed, appellate counsel should not only recognize what is required by law but also use caution when calling someone ineffective. Those before us today should heed that admonishment when next they think about invoking the theory. Unfounded and undeveloped accusations like those uttered at bar needlessly belittle their human target and do little to serve a client’s interests. It “ain’t” a game folks; it’s real lives we are dealing with.