U.S. v. McClain

• Citation: 593 F.2d 658
• Decision Date: 23 April 1979
• Docket Number: No. 77-5690,77-5690
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patty McCLAIN, Mike Bradshaw, Ada Eveleigh Simpson and William Clark Simpson, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 658

593 F.2d 658

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

No. 77-5690.

United States Court of Appeals Fifth Circuit.

April 23, 1979.

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

Pat Priest, San Antonio, Tex. (Court-appointed), for Bradshaw.

O'Neal Munn, San Antonio, Tex., for A. Simpson.

John S. Broude, Fort Worth, Tex. (Court-appointed), for Wm. Clark Simpson.

James R. McAlee, Washington, D. C., Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, W. Ray Jahn, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before GEWIN, RONEY and GEE, Circuit Judges.

GEE, Circuit Judge:

Again before us come Patty McClain, Mike Bradshaw, Ada Simpson and William Simpson, challenging their second round of convictions for having received, concealed and/or sold stolen goods in interstate or foreign commerce and also for conspiracy to do the same, violations of 18 U.S.C. §§ 371, 2314 and 2315. The goods in which they dealt are pre-Columbian artifacts, and in neither this nor the prior trial was there evidence that the appellants or anyone else had taken the items from the personal possession of another. The legal theory under which the case was tried was that the artifacts were "stolen" only in the sense that Mexico generally has declared itself owner of all pre-Columbian artifacts found within its borders. Thus, anyone who digs up or finds such an item and deals in it without governmental permission has unlawfully converted the item from its proper owner. ¹

By various formulations, appellants and the amicus curiae, the American Association of Dealers in Ancient, Oriental & Primitive Art, raise basically three issues in this appeal. They challenge: (1) the propriety of the application of the National Stolen Property Act (N.S.P.A.), 18 U.S.C. §§ 2314, 2315, to dealings in pre-Columbian artifacts; (2) the correctness and sufficiency of the jury instructions regarding the Mexican law of pre-Columbian artifacts; and (3) the sufficiency of the evidence to support the convictions as measured under their view of the Mexican law. Though in raising these issues the appellants did not distinguish between their convictions on the substantive count and their convictions on the conspiracy count, we find that their arguments regarding jury instructions compel reversal of the substantive count only. On the conspiracy charges, we find the shortcomings below merely harmless error and thus affirm the convictions on that count for the reasons expressed below. This mixed disposition requires a more detailed account of the facts than is present in the earlier opinion. We first review, therefore, the evidence adduced at trial, cast in the light most favorable to the government's verdict.

I. The Appellants' Dealings in Pre-Columbian Artifacts.

In May 1973, Joseph Rodriguez, a resident of Calexico, California, arrived at a Dallas motel with a collection of pre-Columbian artifacts for display and sale. ² He sold pieces at least to a local art dealer and to a law professor who was staying in the same motel. He thereafter moved his wares to a San Antonio motel, apparently as a result of his dealings with the professor, who taught in San Antonio. From the new location Rodriguez contacted prospective buyers, including Alberto Mejangos, who unbeknownst to Rodriguez was director of the Mexican Cultural Institute, an educational outpost of the Mexican government located in San Antonio. Suspecting Rodriguez of illicit dealings, Mejangos and Adalina Diaz-Zambrano, the librarian at the institute, visited Rodriguez to see the collection, without identifying themselves as officials of the Mexican government. Rodriguez showed them a large collection of fine artifacts, many of which were caked with mud and straw. When he was asked how it was possible that he had all these ancient artifacts, Rodriguez said that he had five squads working in various Mexican archaeological zones and that the objects were passed, a few at a time "by contraband" to his Calexico store, which served as a front for his operation. When he amassed enough objects, he said, he would sell them in different localities. He priced the items he showed Mr. Mejangos and Ms. Diaz-Zambrano at figures ranging between $5,000 and $20,000, explaining that the prices had gone up as a result of the February 1972 presidential agreement between the United States and Mexico. He said he now had to give more money to the people who were passing the objects to him.

At some time after these meetings in San Antonio, Rodriguez returned to Calexico, leaving the collection behind with appellants William and Ada Simpson who were authorized to sell the items. The next known transaction regarding the Rodriguez artifacts occurred in early December 1973. Simpson and appellant Mike Bradshaw contacted William Maloof of Cleveland, Ohio, a college friend of Bradshaw, in an effort to raise money for an oil importation venture. They offered Maloof several of the artifacts as collateral for the loan Maloof considered making. Simpson, Bradshaw, and a third man whom Maloof spoke with only by phone, ³ told Maloof that the items had been "stolen" or "smuggled" out of Mexico. They said that a man named Rodriguez was "chief of the Mexican Secret Service" and had gotten the artifacts from "a vault" in Mexico. Patty McClain was mentioned as an appraiser who knew the value of the artifacts. Simpson and Bradshaw told Maloof that they planned to take most of the objects to Europe, "auction" them off, and then return them to the United States. This process would yield bills of sale from European art dealers, which would facilitate later resale. Maloof, suspecting he was being swindled, contacted the FBI and showed the objects to them. After being alerted by the Cleveland office, the Houston office of the FBI delegated Special Agent John McGauley, to determine whether stolen pre-Columbian artifacts were being sold by the group. To assist in the covert investigation, McGauley brought in Travis Benkendorfer, who had proven to be a reliable informant on other occasions.

In February 1974, after failing to contact Harry McClain, Benkendorfer succeeded in reaching the Simpson residence by telephone. Identifying himself as a Mr. Benks, Benkendorfer told Mrs. Simpson a cover story that he was interested in acquiring stolen treasury bills, stocks, bonds, or other stolen or illegal merchandise for resale. He said that he represented an international combine with Mafia or other underworld connections and that any stolen merchandise they purchased would immediately be flown out of the country by private plane. Mrs. Simpson replied that her husband and his partner Patty McClain were then in California, waiting for a shipment of pre-Columbian artifacts to cross the border. She said that she would have her husband and Mrs. McClain contact Benkendorfer. When Simpson called Benkendorfer the next morning, Benkendorfer repeated his story. He explained that he had gotten Simpson's name through a Long Island man with Mafia connections and had been instructed to discover for his principal whether Simpson had any artifacts for sale. Simpson replied that he had approximately 150 pieces already in San Antonio and was in Calexico awaiting a new shipment from the diggings. He described a "conduit" by which the items were taken from the diggings to the archaeological institute in Mexico, where documents or permits were forged or backdated. The items were then trucked in disguise to the border at Calexico before distribution to various cities in the United States, particularly San Antonio. Simpson stated that what they were doing "is illegal, but really not illegal, because if the Mexican authorities knew basically what we were doing, they would take them away from us, because the Mexicans really claim all of the items belong to them." Simpson explained further that the backdating of the papers was due to a new "presidential law" that had gone into effect in Mexico, prohibiting private ownership of artifacts after its effective date. He said that the group had planned to ship the items to Europe for sale but that they could save shipping and breakage costs if Benkendorfer and his principal bought the new shipment right at the border. Simpson said that Rodriguez and Patty McClain each had collections that also would be available. Benkendorfer said he would discuss the offer with his principal. He later relayed the message through Mrs. Simpson that he would prefer to have all the items shipped to San Antonio for a single viewing and purchase decision. Simpson agreed to this proposal, emphasizing that all of them would have to be extremely discreet. He said they would get into a lot of problems if the United States government caught them since what they were doing was against the law. He repeated that the Mexicans claimed ownership of the items. Simpson also mentioned during the conversation that his associate Mike Bradshaw was flying from Alabama to Calexico with money to pay for the items that were coming across the border.

Several days later, Benkendorfer received word from Mrs. Simpson that trouble had developed in the conduit or channel. Patty McClain confirmed this when she later contacted Benkendorfer to discuss terms for the sale of her collection. She said that the driveshaft of the truck carrying the artifacts had broken south of the border and that Simpson was sending a new truck to the interior to bring in the goods. In terms highly similar to Simpson's she also described the "channel" from the diggings and the system for getting backdated permits and trucking the items to Calexico developed by Joe and "staff." She said that she and Simpson were responsible for distributing the goods to various points away from Calexico,...