U.S. v. McClain

• Decision Date: 24 January 1977
• Docket Number: No. 75-3368,75-3368
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patty McCLAIN, Joseph M. Rodriguez, Ada Eveleigh Simpson, William Clark Simpson and Mike Bradshaw, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 988

545 F.2d 988

UNITED STATES of America, Plaintiff-Appellee, v. Patty McCLAIN, Joseph M. Rodriguez, Ada Eveleigh Simpson William Clark Simpson and Mike Bradshaw Defendants-Appellants.

No. 75-3368.

United States Court of Appeals Fifth Circuit.

Jan. 24, 1977.

Charles E. Biery Court-appointed), San Antonio, Tex., for McClain.

Thomas H. Sharp, Jr. (Court-appointed), San Antonio, Tex., for Rodriguez.

J. Michael Myers (Court-appointed Co-Counsel), O'Neal Munn, Gerry L. Saum, San Antonio, Tex., for Ada Simpson.

James R. Gillespie, San Antonio, Tex., for M. Bradshaw and Wm. C. Simpson.

Edward E. DeWees, Jr., San Antonio, Tex., for Wm. C. Simpson.

John E. Clark, U. S. Atty., W. Ray Jahn, Le Roy Morgan Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

James R. McAlee, Rosalind C. Cohen, Patrick F. J. Macrory, Attys., Washington, D. C., for amicus curiae Assoc. of Dealers in Ancient, etc., Art.

Appeals from the United States District Court for the Western District of Texas.

Before WISDOM and INGRAHAM, Circuit Judges, and GROOMS, ^* District Judge.

WISDOM, Circuit Judge:

Museum directors, art dealers, and innumerable private collectors throughout this country must have been in a state of shock when they read the news if they did of the convictions of the five defendants in this case. ¹ The defendants were indicted under the National Stolen Property Act,18 U.S.C. §§ 2314, 2315, and were convicted of conspiring to transport and receiving through interstate commerce certain pre-Columbian artifacts (terra cotta figures and pottery, beads, and a few stucco pieces) knowing these artifacts to have been stolen. These articles had not been registered with the Public Register of Archaeological and Historical Zones and Monuments of the Republic of Mexico, or with any government register, and were exported without a license or a permit from Mexico into the United States. The district court instructed the jury that "since 1897 Mexican law has declared pre-Columbian artifacts . . . to be the property of the Republic of Mexico, except in instances where the Government" has issued a license or permit to private persons to possess, transfer, or export the artifacts. This instruction casts a cloud on the title of almost every pre-Columbian object in the United States. This Court, of course, recognizes the sovereign right of Mexico to declare, by legislative fiat, that it is the owner of its art, archaeological, or historic national treasures, or of whatever is within its jurisdiction; possession is but a frequent incident, not the sine qua non of ownership, in the common law or the civil law. The district court's instruction was erroneous. Not until 1972 did Mexico enact a law declaring all archaeological objects within its jurisdiction, movables and immovables, to be the property of the Nation. We reverse and remand.

I.

The National Stolen Property Act (NSPA) prohibits the transportation "in interstate or foreign commerce (of) any goods, . . . of the value of $5,000 or more", with knowledge that such goods were "stolen, converted or taken by fraud". 18 U.S.C. § 2314. The Act also subjects to criminal liability "whoever receives, conceals, stores, barters, sells, or disposes of any goods . . . of the value of $5,000 or more . . . moving as, or which are part of, or which constitute interstate or foreign commerce, knowing the same to have been stolen, unlawfully converted, or taken . . . ". 18 U.S.C. § 2315. The case turns on whether the pre-Columbian antiquities in question, exported from Mexico in contravention of that country's law, were knowingly "stolen" within the meaning of the National Stolen Property Act.

Patty McClain, Joseph M. Rodriguez, Ada Eveleigh Simpson, William Clark Simpson, and Mike Bradshaw, the defendants-appellants, were all convicted by a jury of conspiring to transport, receive, and sell assorted stolen pre-Columbian artifacts in interstate commerce, in violation of 18 U.S.C. §§ 2314, 2315, and 371. The appellants were also convicted of receiving, concealing, bartering, and selling these items in violation of § 2315. Additionally, Rodriguez was convicted of the transportation of the items in interstate commerce (from Calexico, California to San Antonio, Texas) in violation of § 2314.

Many of the relevant facts are not in serious dispute. The evidence showed that all of the defendants except Rodriguez were involved in negotiations leading to the sale of various pre-Columbian artifacts to prosecution witness John McGauley, an undercover agent of the Federal Bureau of Investigation.

The government presented no evidence as to how and when the artifacts were acquired in Mexico, nor as to when the pieces were exported.

Mrs. Adalina Diaz Zambrano, an employee of the Mexican Cultural Institute in San Antonio, Texas, testified that Rodriguez had approached Albert Mijangos, the Director of the Institute, with a proposal to sell various artifacts. The Institute was an official arm of the Mexican government, a fact unknown to Rodriguez. Mrs. Zambrano identified, from photographs, artifacts later seized by the government from the other appellants as some of the artifacts shown to her and Mijangos by Rodriguez. In Rodriguez's attempt to sell artifacts to the Institute and in the other defendants' attempt to sell artifacts to McGauley and an informer, some of the defendants made statements showing that they were aware that Mexican law forbade the exportation of artifacts without permits from the Mexican government. After agreeing to a purchase price of $115,000 for the artifacts held in San Antonio, defendants Simpson and Bradshaw brought McGauley to Los Angeles to view other pre-Columbian artifacts. Bradshaw and Simpson told McGauley that they expected to realize about $850,000 for the Los Angeles artifacts. Before a final price was agreed upon they were arrested. The other defendants were arrested in San Antonio.

The defendants do not dispute that the artifacts involved in this case were illegally exported from Mexico. The government contends that the pre-Columbian artifacts were stolen from the Republic of Mexico; that Mexico owned these objects despite the probability or possibility that the defendants, or their vendors, acquired them from private individuals or "found" them e. g., by accident in overturning the soil or digging at archaeological sites on private property in Mexico.

The primary evidence as to the ownership of the artifacts under Mexican law was the testimony of Dr. Alejandro Gertz, a deputy attorney general of Mexico. He was qualified as an expert on Mexican law without objection. Dr. Gertz had been instrumental in revising Mexican laws dealing with protection of the Mexican cultural heritage and, at the time of trial, his official duties included enforcing that law. Gertz testified that Mexico has had laws protecting its cultural heritage since 1897 and that the most recent modification of those laws was a 1972 statute. Gertz testified that the ownership of pre-Columbian artifacts has been vested by law in the Mexican government since 1897, ² despite the fact that private individuals have been allowed to possess such items. Since 1934, individuals possessing pre-Columbian artifacts have been required to register them with the government. Export permits have been required since 1934, although since then only 50 to 70 permits have been issued. A check by Gertz of the records of the National Institute of Anthropology and History showed that the defendants had neither registered nor received permission to export the artifacts found in their possession in the United States. Finally, he testified that under Mexican law pre-Columbian artifacts which are removed from Mexico without permit are considered stolen.

Dr. Richard E. Adams, a Professor of Anthropology and Dean of Humanities and Social Studies at the University of Texas in San Antonio, Texas, testified as the other government expert on pre-Columbian artifacts. He testified that Mexican law with respect to pre-Columbian artifacts had not changed in two generations. As will be seen in Section III of this opinion, this belief was erroneous. He testified that some of the artifacts in question were from Guatemala, Honduras, Panama, and Costa Rica, and some were fakes.

The trial court declined to appoint an expert and also an interpreter, as requested by the defendant Rodriguez.

The trial judge instructed the jury that, before it could find any defendant guilty, it had to find beyond a reasonable doubt that the property described in the indictment was "stolen". The judge informed the jury that

stolen means acquired or possessed as a result of some wrongful or dishonest act of taking, whereby a person willfully obtains or retains possession of property which belongs to another, without or beyond any permission given, and with the intent to deprive the benefits of ownership and use.

Basing his charge on Mexican law as explained by Dr. Gertz, the trial judge instructed the jury that

since 1897 Mexican law has declared pre-Columbian artifacts recovered from the Republic of Mexico within its borders to be the property of the Republic of Mexico, except in instances where the Government of the Republic of Mexico has, by way of license or permit, granted permission to private persons or parties or others to receive and export in their possession such artifacts to other places or other countries.

This erroneous instruction is discussed in Section III of this opinion.

II.

The apparent purpose of Congress in enacting stolen property statutes was to discourage both the receiving of stolen goods and the initial taking. See United States v. Gardner, 7 Cir. 1975, 516 F.2d 334, 349, cert. denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89; United States v. Bolin, 9 Cir. 1970, 423 F.2d 834, 838, cert. denied, 398 U.S. 954, 90 S.Ct. 1882, 26 L.Ed.2d 297. Such discouragement was, of course, intended to aid the states,...