Friday, September 30, 2011

Self-Defense and Reckless Offenses

Under Chapter 9 of the Texas Penal Code, self-defense is provided as a justification to the offense of murder (among others).  Chapter 9 makes clear that if a fact-finder believes a defendant’s actions are justified, the fact-finder may not convict for an offense based on those self-defense actions.  In essence, a defendant that pleads self-defense is telling the fact-finder that he intentionally performed certain actions in order to protect himself against the unlawful actions of another.  So…if the defendant intentionally performed the self-defensive actions, can self-defense be applied to an offense like manslaughter that requires “reckless” conduct vice intentional?

In Alonzo v. State, the 13th District Court of Appeals (Corpus Christie) “believed it is illogical for a defendant to argue self-defense when charged with an offense whose requisite mental state is recklessness.”  The Texas Court of Criminal Appeals, however, disagrees, explaining that “there is nothing in Penal Code Section 2.03 or Chapter 9 that limits justification defenses to intentional or knowing crimes, nor do we have a reason to infer such a limitation.” The CCA notes that limiting self-defense to only intentional or knowing crimes could encourage prosecutors to charge manslaughter (a reckless offense) vice murder when there is a self-defense issue, because self-defense would be inapplicable.

Judge Womack explains that “by arguing self-defense, a defendant is arguing that his actions were justified, and therefore he did not act recklessly.” So really, it’s just another way to disprove the charged offense.

Of course, a defendant cannot argue self-defense in the face of a murder charge and then at the same time request a lesser-included instruction on manslaughter. The CCA made sure not to disrupt prior caselaw holding such. But the overarching takeaway from Alonzo is that a defendant that is acquitted of a murder charged based on self-defense CANNOT be convicted of the LIO of manslaughter.

The CCA reversed the decision of the 13th Court and remanded the case for a harm analysis.  Click HERE to read the facts of the case.  Presiding Judge Keller concurred.

Thursday, September 29, 2011

Massachusetts Court Dismisses Rubin v. Government of Iran v. Boston MFA and Harvard

A Massachusetts federal court has ruled that the Museum of Fine Arts and Harvard University will not lose their collection of ancient Persian objects to eight plaintiffs injured in a 1997 terrorist bombing. The United States District Court, District of Massachusetts, issued a five page opinion on September 15, 2011 denying the plaintiffs’ efforts to gain control over the artifacts to satisfy their multi-million dollar court judgment against the government of Iran.

Jenny Rubin and several other Americans were injured in Jerusalem after Hamas carried out three bombings. Because the terrorist group received backing from Iran, the eight plaintiffs sued the government of Iran in federal district court in Washington, DC, winning a $71.5 million default award after the Iranian government failed to show up to court. Since then, the plaintiffs have sought to recover that judgment.

The government of Iran would not be expected to pay the court award, so the plaintiffs searched for local Iranian assets to seize. One place they looked was Boston/Cambridge, Massachusetts, where museums housed artifacts excavated from ancient Iran. The plaintiffs initiated a court action--known as an attachment--against the Boston Museum of Fine Arts, Harvard, the Harvard University Art Museums, the Busch-Reisinger Museum, the Fogg Art Museum, the Sackler Museum, the Semitic Museums, and the Peabody Museum of Archaeology and Ethnology. But the judge dismissed the plaintiffs’ case in his recent court order.

District Court Judge George O’Toole ruled that the plaintiffs could pursue their attachment action under the federal Terrorism Risk Insurance Act of 2002 so long as they could prove, under Massachusetts state law, that Iran owned the artifacts in the museums. But the plaintiffs could not supply this proof. Judge O’Toole wrote: “In the present case, the plaintiffs have not shown that the ‘goods, effects, or credits’ at issue here are property ‘of the defendant’ Iran." He added that “[d]espite extensive discovery, the plaintiffs are unable to sustain their burden of showing that any particular item held by the Museums is the property of Iran . . . . It is not enough simply to show that antiquities held by the Museums originated from sites within Iran.”

The court highlighted that the plaintiffs failed to prove that an Iranian cultural patrimony law declared ownership of the artifacts. Judge O’Toole wrote: “For example, the so-called ‘1930 Law’ [the plaintiffs’] cite does not automatically vest ownership of excavated antiquities in the government of Iran. In the first place, the 1930 Law does not on its face purport to vest ownership of excavated antiquities in the government. Moreover, the 1930 Law clearly contemplates that antiquities may be owned by private persons. . . . Additionally, other courts have concluded that the 1930 Law permits private ownership and is inconsistent with automatic government ownership of all antiquities originating from Iran.”

The court struck down the plaintiffs’ further argument that an Iranian civil law, Article 26 of its 1928 Civil Code, makes the artifacts government property. The opinion declared that [t]he plaintiffs have not shown that any of the antiquities now held by the Museums were at the time of removal from Iran ‘Government property . . . in use for the service of the public or the profit of the state.’ The necessary conclusion cannot be drawn simply from the fact that the items are the products of archeological explorations that were conducted in Iran . . . .”

The court also rejected the plaintiffs’ claim that antiquities from Persepolis were the property of the Iranian government. The court ruled that “[t]he plaintiffs’ specific argument that items taken from the ruins of the ancient city of Persepolis cannot be privately owned is also not persuasive. The legal argument relies heavily on Article 26 which . . . does not support a generalized conclusion that excavated items necessarily belonged to the government of Iran. The plaintiffs point to texts suggesting that foreign excavators unlawfully took items from Persepolis. Even if that is true as an historical matter, it does not get the plaintiffs where they need to go. As a general matter, establishing that a particular item was unlawfully exported or removed from Iran is not equivalent to showing that it now should be regarded as property of Iran subject to levy and execution. And as a particular matter, the plaintiffs simply are unable to establish that any item in the possession of the Museums, whether from Persepolis or elsewhere, is rightly considered to be the property of Iran.”

The case in the Massachusetts district court is now at an end.  Any appeal would be filed in the First Circuit federal court.

Contact information may be found at

Monday, September 26, 2011

ACCG Files Notice of Appeal in Baltimore Coin Case

After having its case dismissed in August, the Ancient Coin Collectors Guild filed a notice of appeal on September 21, 2011 in the US Court of Appeals, Fourth Circuit.
A federal district court last month dismissed the ACCG's lawsuit, which challenged protective American import restrictions placed on Chinese and Cypriot ancient coins. The court ruled that the ACCG failed to make out a sufficient case. The ACCG started the test case when the organization brought 23 ancient coins to Baltimore on a transatlantic flight

Contact information may be found at DISCLAIMER: The information provided on this web site/email/blog/feed/podcast 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 web site or email.

Friday, September 23, 2011

Khouli +3 Case Update: Search Warrant Affidavit Describes HSI Investigation

Homeland Security Investigations (HSI) petitioned for a warrant on July 12, 2011 to search Salem Alshdaifat’s home-based business and seize “antique coins and[/]or other antiquities or any other works of art or cultural antiquities of Greek, Roman, Mesopotamian, Islamic, European, Egyptian origin . . .” HSI also requested business records, correspondence, photos of merchandise, bank records, import records, and the like located at the home.

An HSI special agent applied to the United States District Court for the Eastern District of Michigan for the warrant to search the home. That is the location where it is reported that Alshdaifat runs the ancient coins business called Holyland Numismatics. The affidavit, now unsealed, reveals further details about the antiquities smuggling investigation into Alshdaifat and three other co-defendants--Mousa Khouli, Ayman Ramadan, and Joseph A. Lewis, II.

It should be noted that a search warrant affidavit is a narrative that a law enforcement official or prosecutor supplies to a judge. It is meant to demonstrate the probable cause to believe that an object or thing is at a specified location and that it is probable evidence of a crime. Information contained in a search warrant affidavit may or may not be admitted as evidence at a trial. That is why an affidavit should not be read to form a conclusion of criminal guilt. Only a jury can decide whether there has been a violation of law, basing its decision only on legally admissible evidence.

In the present case, the federal agent’s affidavit called attention to several observations and actions of interest. For instance, the search warrant petition was filed following a review of Alshdaifat’s Yahoo! email account. Also reported were Alshdaifat’s alleged sale of ancient Egyptian artifacts in 2009 and his alleged importation of ancient coins in Detroit in 2010.

Writing in the July 2011 affidavit, the HSI special agent explained that a March 29, 2010 search warrant probe of “Alshdaifat’s e-mail records . . . confirm[] that he uses e-mail to communicate with sellers, purchasers, dealers and transporters of cultural property including stolen and/or smuggled cultural property.” A January 2009 email exchange was described where Alshdaifat allegedly offered a hoard of coins “[u]ncleaned at $4.5 each.” The email continued: “[T]he hoard came from Egypt and [is] now in Dubai[.] I asked my partner to ship directly from Dubai to you. [T]his hoard came from Banha, I think we bought coins that we sold you befor[e] from Banha, it is very big Roman city. [Y]ou can wire the funds to my bank account.”

The partner referred to is Ayman Ramadan of Nafertiti Eastern Sculptures Trading in Dubai (NEST). Alshdaifat referred to NEST as his Dubai office, and that “Ramadan ships antiquities from the UAE to Alshdaifat’s customers on Alshdaifsat’s behalf,” declared the affidavit.

A second email dated February 22, 2010 from Alshdaifat reportedly said:
“[F]or a hoard from Egypt this is real[l]y a[]lot :) , you got a small group[], we usually don[‘]t see them at all in Egypt, I was told today that they found in the same spot while they are making the hole bigger another group[] around 800 coins, they are still working in the area, I hope it will[] be bigger than what I think. [N]ext week I will get those 800 tog[e]ther with the 2000 coins. [I]t is much easy to sell uncleaned, I notice[e] that they already tried to clean some, but I told them to stop[.]”

The HSI investigating agent, without supplying specific details, added that Alshdaifat’s email account allegedly showed that he “has offered customers hoards of coins taken directly from Petra, Jordan and from Kyrene, Libya.”

Perhaps most directly related to the current federal indictment, the affidavit described allegations that Alshdaifat in May 2009 “offered a New York dealer a set of ancient Egyptian funerary boats and limestone figures for $40,000.” The New York dealer found a customer interested in purchasing these antiquities . . . and resold them to the customer for a higher price. Ramadan shipped the ancient boats and limestone figures to the New York dealer via mail from the UAE.” The shipping label said “antiques.”

On December 20, 2010, Alshdaifat carried coins through the Detroit Metropolitan Airport on his way back from Amman, Jordan, according to the affidavit. Customs reportedly seized the coins because Alshdaifat presented inconsistent sets of invoices during two separate airport inspections. The first invoice presented was from NEST to Holyland Numismatics for Byzantine gold coins and Byzantine gold tremissis coins totaling $234,875. The invoice stated that they originated from Syria, according to the affidavit. Alshdaifat then reportedly offered a second set of invoices listing Byzantine gold coins and Roman-Egyptian billion tetradrachms. When Alshdaifat returned later with two mail packages of similar coins in an attempt to convince federal authorities to release the detained coins, customs officials seized these packages too because they were without entry paperwork, declared the affidavit.

Federal agents staked out Alshdaifat’s home in June 2011. After seeing a “for sale” sign posted, two HSI agents posed as potential buyers of the house and entered the home with a real estate agent. Alshdaifat was at the residence at the time. The agents reportedly observed pictures of coins on Alshdaifat’s computer and as well as books about ancient coins and artifacts.

Based on this information, federal authorities applied for a search warrant of Alshdaifat’s Michigan home. That search warrant preceded the eventual multiple count indictment against Alshdaifat and the three named co-defendants on charges related to antiquities trafficking.

Photo courtesy of ICE.

Contact information may be found at

Wednesday, September 21, 2011

Videotaped Testimony of Child Sexual Abuse Victims Held Unconstitutional

Last week, the Texas Court of Criminal Appeals issued its opinion in Coronado v. State
[The CCA] granted review of the case to determine whether the videotape procedures set out in [the Texas Code of Criminal Procedure] Article 38.071, Section 2, including the use of written interrogatories in lieu of live testimony and cross-examination, satisfy the Sixth Amendment rights of confrontation...
The case involved a six year-old victim (who was three years-old when the abuse began) that the trial court determined was "unavailable" to testify in court because of the likelihood that she would suffer severe emotional trauma upon seeing the defendant.  Accordingly, the trial court allowed a neutral child interviewer to videotape an interview pursuant to Article 38.071, Section 2.  The defense counsel agreed to this procedure and propounded numerous questions for the interviewer to ask.  The defense counsel also agreed to allow the interviewer to ask follow-up questions that she deemed appropriate.  At trial, the video of the interview was played to the jury in lieu of any live testimony by the victim.

The videotape procedures of Article 38.071, Section 2, were enacted prior to the Supreme Court's decision in Crawford v. Washington.  Since that time, there has been a marked shift in confrontation clause jurisprudence in favor of a strict requirement of face-to-face live confrontation.  The lower appellate court, however, failed to cite (or even mention) the Crawford line of cases in its analysis.  The CCA, on the other hand, explained:
We are unable to find any post-Crawford precedent from any jurisdiction that states, or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child in an ex parte interview, is a constitutional substitute for live cross-examination and confrontation...There was no "rigorous adversarial testing" of [the child victim's] testimonial statements by that greatest legal engine for uncovering the truth: contemporaneous cross-examination.  The written-interrogatories procedure used in this case does not pass muster under our English common-law adversarial system or our United States Constitution.
The CCA's reluctance to overturn this case was apparent.  On page 2 of the opinion, Judge Cochran writes, "On federal constitutional matters, we are obliged to follow the dictates of the United States Supreme Court regardless of our own notions."

Judge Hervey concurred.  While she agreed with the majority that the procedure used in this case was unconstitutional, she wrote separately to express her opinion that the defendant's right to confrontation should be balanced with the societal interest in protecting child victims.  She would not foreclose the possibility of allowing testimony via closed circuit television where the witness would testify in a separate room, but where the victim could still see the defendant and the jury.

Presiding Judge Keller dissented.  In a well-reasoned opinion, she explains why she believes that the confrontation clause was not violated in this case.  She calls this a "close case," but she would have affirmed.

Tuesday, September 20, 2011

Heritage Protection Laws in Uganda

The 16th annual triennial meeting of ICOM’s conservation committee took place in Lisbon, Portugal this week. Many outstanding papers were presented.

I was privileged to moderate the Legal Issues in Conservation Working Group session. One paper of interest dealt with cultural heritage laws in Uganda. Frederick Nsibambi of Cross-Cultural Foundation of Uganda spoke of the laws covering the protection of heritage, commenting that a 1967 statute simply fined a person $1 for a violation. More about his organization’s projects can be found at

Contact information may be found at DISCLAIMER: The information provided on this web site/email/blog/feed/podcast 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 web site or email.

Show Me Your Green Card

In United States v. Soto, a case decided last month, the 5th Circuit Court of Appeals (Federal) affirmed appellant's conviction for unlawfully transporting an illegal alien.  The court admitted that this was a close case, but ultimately affirmed the ruling of the trial court denying the appellant's motion to suppress.

Facts:  Upon seeing Border Patrol agents, a passenger in appellant's vehicle, exhibited a look of shock and immediately ducked down and slumped back, out of the agents’ sight. (The Court held that the only plausible explanation for this behavior is that the passender was attempting to hide from the agents.)  Adding to the agents’ suspicion, when they pulled up alongside appellant's vehicle, the passenger's darkly tinted rear window, which was halfway down when the agents first saw it, had been completely rolled up.  Finally, the agents made their observations sixty miles from the border on a route known for illegal alien trafficking.
The 5th Circuit applied the Supreme Court standard for resonable suspicion that was laid out in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), wherein the Court held,
factors that may be considered in determining reasonable suspicion include: (1) the area’s proximity to the border; (2) characteristics of the area; (3) usual traffic patterns; (4) the agents’ experience in detecting illegal activity; (5) behavior of the driver; (6) particular aspects or characteristics of the vehicle; (7) information about recent illegal trafficking of aliens or narcotics in the area; and (8) the number of passengers and their appearance and behavior.
Explaining that no single factor is determinative in this test, the court held that under the totality of the circumstances, the court held that the conduct witnessed by the Border Patrol agents was sufficient to create reasonable suspicion of illegal activity to justify the traffic stop.

Monday, September 19, 2011

New Criminal Laws in Texas

This month's Texas Bar Journal alerts us to a few new criminal laws that our elected officials have just added to the books.  Below are some of the more interesting (imo) additions:

Bath Salts - House Bill 2118 outlaws the possession of bath salts, or the chemicals contained in bath salts.  Apparently, folks were using bath salts as alternatives to cocaine, LSD, ecstasy, and methamphetamine.  This is now a felony offense.

Spice - Senate Bill 331similarly bans the possession of synthetic marijuana (i.e. "K2" or "Spice").  Depending on the quantity of the substance possessed, this new offense will be a Class B misdemeanor up to a first-degree felony.

Sexting for Minors - Under Senate Bill 407, Texas teenagers that send naked photographs via text message will no longer be deemed to have sent "child pornography."  Sexting will now be considered a Class C misdemeanor for a first offense.

Saturday, September 17, 2011

Discovery Violation...Now What?

In State v. Banda, the Third District Court of Appeals (Austin) decided a case at the end of last month addressing an issue regarding a discovery violation by the State.  The opinion addresses a key issue: what does a court do to remedy a discovery violation?  Often, the primary consideration is not whether a violation occurred, but what a court should do about it.

Let’s review the law on discovery:

Brady v. Maryland – A prosecutor must disclose exculpatory evidence if it is material to either guilt or punishment, including impeachment. Brady v. Maryland, 373 U.S. 83 (1963); see also Thomas v. State, 841 S.W. 2d 399 (Tex. Crim. App. 1992) (describing Brady parameters in Texas).

Under the U.S. and Texas Constitutions, Brady breaks down to two duties related to pretrial disclosure of evidence by the State:
1) Disclose all favorable, material evidence in her possession.
2) Preserve and make available to the defendant any favorable, material physical evidence that the accused cannot otherwise obtain and that may be material to his defense.

See also CCP art. 39.14; Whitchurch v State, 650 S.W.2d 422, 425 (Tex. Crim. App. 1983) (no general defense right of discovery in Texas). BUT, see also Nielsen v. State, 836 S.W.2d 245 (Tex. App. – Texarkana 1992, pet. Ref’d) (The prosecution has a duty to disclose exculpatory evidence regardless of whether the defense files a discovery motion requesting the material. But even if the evidence is requested, the State does not have to disclose it unless it is also material to the defense.)
Though a prosecutor is not required to deliver his entire file to defense counsel, a prosecutor’s open file policy is generally sufficient to comply with the prosecutor’s Brady obligation. See United States v. Bagley, 473 U.S. 667, 676 (1985).

As stated above, often the primary consideration for the trial court is not whether a Brady violation occurred, but what a court should do about it.  In Banda, the trial court decided that the State’s failure to comply with a court order on discovery was grounds for the court to dismiss the State’s case with prejudice to refile.  The appellate court did not focus on whether a discovery violation had occurred – it technically had.  The appellate court’s focus was on the fact that the trial court dismissed the State’s case without prejudice as a result of the violation.  The Court found that absent constitutional or statutory authorization a trial court cannot dismiss a prosecution except on the motion of the prosecuting attorney and that the trial court does not have general authority to dismiss the indictment without prejudice in absence of the State’s consent.  State v. Pambeck, 182 S.W.3d 365, 366, 370 ( Tex. Crim. App. 2005); State v. Williams, 938 S.W.2d 456, 459 (Tex. Crim. App. 1997).  In Banda’s case there were no circumstances existing that would allow the court to make such a dismissal (even given the discovery order violation).

Ultimately, the Court held that “failure to comply with court orders on discovery may warrant suppression of the evidence in question, but discovery abuse is not recognized in the Texas Code of Criminal Procedure as a basis for dismissing the case with prejudice. See Tex. Code Crim. Proc. Ann. Art. 39.14 (West Supp. 2010)”. Id. at page 3.

Banda shows defense attorneys that discovery violations are extremely important and can be effective to win a case but only as long as the attack is not misplaced on attempting to get the court to dismiss the case.

Thursday, September 15, 2011

Khouli +3 Update: Salem Alshdaifat’s Coin Inventory Returned

Salem Alshdaifat’s attorney sent two letters on August 17, 2011 to complain that coins seized from his client were not properly cared for by Immigration and Customs Enforcement and to request an inspection of the items after an initial effort to examine the coins resulted in objections from federal officials. Alshdaifat’s lawyer asserted that his client possessed documentation to prove bona fide ownership of the property. The court treated the correspondence as a motion for return of property.

A federal district court in Michigan issued an order on September 6 that recognized the issue as moot. That is because the US Attorney’s Office for the Eastern District of New York and Alshdaifat’s attorney reportedly reached an agreement to return the inventory. The terms of that agreement are unknown.

Meanwhile, highlights of the letters written by Alshdaifat's legal counsel reveal the following:

• “[T]he agents took the entirety of Mr. Alshdaifat's business inventory and related documentation . . . .”

• “Mr. Aishdaifat operates an ancient coins business from his home in Orchard Lake, Michigan. He has been in the business of trading ancient coins ever since he left his home country of Jordan more than ten years ago. He has been a student of numismatics his entire life. On July 13, 2011, federal agents from Immigration and Customs Enforcement ("ICE") raided his home and seized his entire inventory of ancient coins, estimated at over 7,000 coins, and other property.”

• “ICE and CBP had decided to transfer custody to the ICE case agent in Brooklyn, New York all of the seized property from the four seizures of Mr. Alshdaifat's property that occurred in the Detroit area. These include: (1) the December 20, 2010 seizure of ancient coins at the Detroit Metro Airport; (2) the December 2010 seizure of two mail packages that were voluntarily brought by Mr. Alshdaifat to ICE offices in Detroit and [an agent]; (3) the February 2011 seizure of a Federal Express package for export to Singapore; and (4) the July 13, 2011 seizure of thousands of coins and other property from Mr. Alshdaifat's . . . home.” (For information related to most of these seizures, see the September 23, 2011 blog entry here).

• Additionally, through his attorney, Alshdaifat advised federal officials to store groups of coins “in open containers, not in closed plastic bags.” “The coins,” he said, “should also be stored in a dry environment, preferably with a dehumidifier.” He further recommended that authorities “[s]eparate the "diseased" coins from the rest. These coins can be identified by the green powdery substance on the surface of the coins. . . . The diseased coins should be handled with gloves, and when doing so agents should avoid exposure in closed areas with little air circulation.” Alshdaifat also advised that “[t]he silver and gold coins should be kept in individual coin holders” and that coins found in acid baths “needed to be washed in hot, running water and dried individually.” Finally, he requested that “[t]hose coins with soil incrustation should be separated from others with similar incrustation. Because soil taken from different places consists of various different minerals and it would be impossible to know if incrusted coins came from the same soil, those coins that are incrusted should simply be separated to avoid any chemical reaction from the interaction of different soil minerals.”

Contact information may be found at DISCLAIMER: The information provided on this web site/email/blog/feed/podcast 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 web site or email.

Wednesday, September 7, 2011

Ayman Ramadan and Nafertiti Eastern Sculptures Trading

Readers will recall that the US Justice Department issued a press release in July 2011 announcing the unsealing of a multiple count indictment charging four men charged with antiquities smuggling and money laundering. Ayman Mohammad Ramadan was one of the men indicted. (Note: an indictment is not a finding of guilt.) He is currently a fugitive.

The US Attorney’s Office, Eastern District of New York, summarized the alleged facts of the case in this way: “[F]rom October 2008 through November 2009, [Joseph] Lewis [of Virginia] purchased a Greco-Roman style Egyptian sarcophagus, a nesting set of three Egyptian sarcophagi, a set of Egyptian funerary boats and Egyptian limestone figures from [Moussa “Morris” Khouli, who earlier acquired those items from [antiquities dealer Salem] Alshdaifat and [antiquities dealer Ayman] Ramadan. Each of these antiquities was exported from Dubai, United Arab Emirates, and smuggled into the United States using a variety of illegal methods intended to avoid detection and scrutiny by U.S. Customs & Border Protection (“Customs”).”

Ayman Ramadan is described by US Customs in a July 2011 press release as “a Jordanian antiquities dealer and operator of Nafertiti Eastern Sculptures Trading . . . . Ramadan was shipping goods to Windsor Antiques, a New York City gallery that showcased antiquities from around the world."

There is information to suggest that Ayman Ramadan may go by the name of Ayman Libzo. A Facebook profile bearing the name Ayman Libzo describes this named individual as the owner and president of Nafertiti Sculptures Trading L.L.C. It also lists Dubai as the place where this individual lives.

Paul Barford, in his blog on Portable Antiquity Collecting and Heritage Issues, referenced Nafertiti Sculptures Trading in a 2010 entry. Commenting on a sale of artifacts by Salem Alshdaifat, Barford posted the following on September 4, 2010 to show what was reportedly advertised online by Alshdaifat, an apparent business associate of Ramadan and a co-defendant. The information suggests a business connection with Ayman Ramadan’s company, Nafertiti Eastern Sculptures Trading.

"10 Ancient Egyptian Blue Faience Ushabti C.600 BC. Size around 3 inches high .(7 - 8cm long) Rare items in great looking blue Faience (paist clay and glazed) Mummyform ushabti (servant for the next life) . perfect condition for the type, a real rare chance to get them in this condetion, Guaranteed Authenticity. this lot will be shipped from our office in Dubai Nefertiti Eastern Sculptures Trading Co P.O Box: 111301 Bar Dubai, Dubai. United Arab Emirates. Price US$ 1,300.00" (Errors in the original.)

A recent search on the government of Dubai’s web site reveals no current trade names or active trade licenses for Nafertiti Eastern Sculptures Trading or any variation of that name. There are also no companies listed that are associated with the names Ayman Ramadan or Ayman Libzo.

(As a side note, it is of interest that the government of Dubai maintains a relevant trade name category called “Authentic Antiques, Artefacts & Artworks Trading," classified by Activity Code 513969. Many art and antiques dealers, however, seem to place themselves in the “Novelties Trading” or “Gifts Trading” company category as a matter of course.)

There is also no listing in the UAE yellow pages or the Dubai commercial directory for Ayman Ramadan, Ayman Libzo, or any reasonable variation in spelling of Nafertiti Eastern Sculptures Trading.

There is information on a web page, nevertheless, that an “Ayman Libzo for Ancient Antiquity” existed. What remains of the now inactive and sparsely archived web page, copyrighted 2008, is a ‘browse catalog” link, a generic Dubai business location, and a Dubai-based cell phone number. The catalog link is inaccessible. The other information listed on the web page states that the company is part of the Trocadero network, which is a fine arts and antiques online selling platform. The Ayman Libzo for Ancient Antiquity web site once bore the web address of, as suggested by archived internet records.

There apparently was also an online store bearing the name “Ayman Libzo for Ancient Antiquity” at one time. It was likely located on, the Spanish eBay. That page does not exist today and is not archived. It was referenced, however, in an eBay “arqueologia y falsificaciones” (archaeology and forgery) discussion group during a 2008 conversation about Egyptian artifacts.

US Immigration and Customs Enforcement asks that anyone with information on the whereabouts of Ayman Ramadan contact the Tip Line at 866-DHS-2-ICE.

Contact information may be found at DISCLAIMER: The information provided on this web site/email/blog/feed/podcast 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 web site or email.

Tuesday, September 6, 2011

The Importance of a Waiver to a Potential Conflict of Interest

Back in June of this year the Texas Court of Criminal Appeals addressed a case involving a conflict of interest.  Criminal defense attorneys will find that conflict issues come up frequently. The writ of mandamus that the CCA heard in this case addresses conflicts of interest and provides some assurance as to what attorney’s can do to shore up any issues they may have with conflicts.

In Bowen v. State, a writ of mandamus was filed by a defense attorney representing a client on trial for Capital Murder.  A principal witness in the case against his client was a jailhouse informant who happened to also be a former client of the defense attorney.  The State moved to disqualify the attorney arguing that his ability to cross-examine his former client would be hampered because of the past representation.  At a hearing on the State’s motion to disqualify, the attorney introduced into the record signed written waivers from both his client on trial for capital murder and the witness whom he formally represented.  The trial court granted the State’s motion to disqualify the attorney.

The Court primarily looked to the Sixth Amendment as addressed by the Supreme Court in Wheat v. United States, 486 U.S. 153 (1988).  In Wheat, the Court emphasized the question of whether or not an actual conflict exists.  The Court held that trial courts must, “recognize a presumption in favor of [a defendant’s] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Id. at 164.  In absence of an actual conflict, the court gives great weight to a waiver.

The Court in the Bowen case held that the decision to disqualify the attorney was a clear interference with the defendant’s Sixth Amendment right to counsel and that there had been no evidence of the existence of an actual conflict.  Ultimately, the Court held that the waiver that had been signed was sufficient in this case to preclude disqualification of the attorney.

It is a “must” in the defense world to obtain waivers when facing potential conflicts of interest.  Even in a Capital Murder case, a waiver can be effective to disclaim the conflict.  This case does not make waivers the "end-all, be-all," but it does show the legal world that the court will give great deference to waivers and a defendant’s Sixth Amendment right to the counsel of their choice.

Friday, September 2, 2011

Homeless Thief Trades Laptop and iPhone for Egg McMuffin

In lieu of a post on an obscure Texas law this week, I have a bizarre story for you. This is a true story about something that happened to a coworker of mine in Washington DC this past week. I’m trying to convince her to write something about it for the Washington Post, but she doesn’t think it’s newsworthy. I disagree simply because it is so crazy and bizarre (and funny to everyone but her). So here goes.

My coworker, we’ll call her Lindsay, is a Marine officer and lawyer. Lindsay lives alone in a basement apartment in a, how should we say it, not-so-well-to-do section of Washington DC. She calls it a “transitional community.” On Monday morning, Lindsay woke up, got dressed, put on a pot of coffee and plugged her cell phone into her computer that was on the coffee table in the living room. Then she noticed a package waiting for her outside her front door. Lindsay went outside to get the package and did not lock the front door when she came back in. After all, who needs to lock the front door when they are about to walk right back out of it in 10 minutes to go to work?

Lindsay then went back to her bathroom to tie her hair into a neatly shaped bun, a daily requirement for female Marines (those with long hair at least). When she returned to her living room (only 10 minutes later) to retrieve her piping hot cup of Joe she went to grab her cell phone and found that it was missing. Not only that, the computer to which she had just plugged it in was also missing. Knowing good and well that her coffee had not yet begun to take the desired effect, Lindsay began questioning whether she had actually plugged her phone into her computer 10 minutes ago. “Was this the early onset of Alzheimer’s?” she thought as she checked the refrigerator and freezer for her computer and phone. Finally, after scouring the house, she gave up and went to work.

Lindsay told me about her troubles as soon as she walked in the door to our Pentagon office and then she called her bank and credit card company. Believing now that someone had entered her house and stolen her laptop and phone, she also tried to report the incident to the DC police, but they refused to take the complaint. “You have to be calling us from inside your home or we cannot do anything.” She protested by kindly pointing out that the perpetrator had stolen her phone, but they weren’t convinced.

Right about now you might be thinking, “Okay, so what? She was burglarized. What’s so crazy about that?” Well here’s the crazy (and ridiculously lucky) part of the story. About an hour after she got to work, Lindsay received an odd message. Someone had called our office to report that she was in possession of Lindsay’s computer and cell phone. Lindsay called the woman who confirmed that she indeed had the laptop and cell phone and they arranged a time and place to meet up. When Lindsay met the woman she received the rest of the story.

This woman (the one that found the laptop and phone) was walking to work near the Washington Navy Yard when she saw a little homeless man walking down the street carrying a laptop and an iPhone. In fact, the iPhone was still plugged into the compter.  Finding the Apple-laden homeless man a bit out of place, the woman approached the him and said “Hey, I don’t think that laptop and cell phone belong to you. How about I buy you some breakfast at McDonald’s and you give me the laptop and cell phone so that I can return them to their rightful owner.” (After all, what’s a MacBook Pro when you can have a tasty egg McMuffin, right?) The homeless man agreed, enjoyed a McDonald’s breakfast and promptly relinquished the contraband items.

Later Lindsay paid the kind woman back for the homeless man’s breakfast and thanked her for stepping in. She is still pretty “creeped-out” as she puts it, that a random homeless man just let himself into her apartment while she was in the back room, but she has learned a valuable lesson about locking the door behind her. As Lindsay told us the story while we went for a jog around Capitol Hill, we wondered whether we would stop a homeless man to ask where he got a laptop/phone. We’re not sure we would have done that, but Lindsay sure is glad someone did.

Thursday, September 1, 2011

"Mr. Prosecutor Can't Come to the Phone Right Now..."

One of our Texas prosecutors took a break from his cases to provide us this little insight into his world.  Here's what he has to say.


You might wonder sometimes how nice it would be to have the life of a highly-paid government lawyer (i.e. prosecutor) with one of the easiest and least demanding jobs in the world. No nagging clients, no trips to the jail, no requirement to return endless phone messages... Yeah, right. You may have a hundred clients, we've got a thousand cases and a thousand victims and thousands of witnesses and, of course, an endless array of defense attorneys. And what do all of these have in common (at least all of the ones that I work with)? They like to leave their message after the beep...

We always give due diligence when it comes to returning calls, but as you know, it can sometimes take a while not only listen to the messages, but then return them one by one. Here's my simple piece of advice. Put down the phone and open up the laptop. I had a defense attorney in my office yesterday and we had finished discussing a case. On his way out the door, I told him to call me with any other questions. His response? "I'll send you an email. I always get a quicker response from prosecutors that way."

There was a man who had a dog and Bingo was his name - oh! B-I-N-G-O!

The reason its easier to return an email is because of the numerous ways we access our email now. Clearly, you're not getting a prosecutor's cell phone number, but guess what he checks on his cell phone? That's right! Emails. He may be in court, in a meeting or even stuck at his desk. More than likely, wherever he is, he's checking his emails. And, almost as easily as we check them, we can respond to them. Sometimes you need a quick answer on something. Sometimes you just need to verify something said at a prior meeting. Whatever the reason you need to communicate with a prosecutor is irrelevant. What matters is nowadays you have 3 ways to communicate - 1) over the phone 2) in person (appointments only please!) or 3) or via email. Email is to phone calls what, well, email is to snail mail. Much faster and easier.

That's not to say you can never call a prosecutor. But think about this, if you communicate normally via email with a prosecutor and do end up with a pressing matter you need to call him about, how much more will your call mean? "Hmmm, this must be important, she always emails..." is probably the thought the prosecutor's having.

I don't know a single prosecutor who would rather make a call than respond to an email. But remember, if I respond to your email and it's clear in my response I need your response, treat me with the same respect I showed you and email me back. Don't leave me hanging or I might forego further emails with you and make you wait for the beep...