U.S. v. One Lucite Ball Containing Lunar Material, 01-0116CIVJORDAN.

• Citation: 252 F.Supp.2d 1367
• Decision Date: 24 March 2003
• Docket Number: No. 01-0116CIVJORDAN.,01-0116CIVJORDAN.
• Parties: UNITED STATES of America Plaintiff v. ONE LUCITE BALL CONTAINING LUNAR MATERIAL (One Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque Defendant In Rem
• Court: U.S. District Court — Southern District of Florida

252 F.Supp.2d 1367

UNITED STATES of America Plaintiff v. ONE LUCITE BALL CONTAINING LUNAR MATERIAL (One Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque Defendant In Rem

No. 01-0116CIVJORDAN.

United States District Court, S.D. Florida, Miami Division.

March 24, 2003.

Names & Addresses, James Swain, AUSA, Of Counsel, Jonathan Zwibel, Esq., U.S. Customs Service, Miami, for Plaintiff.

Names & Addresses, Peter Stanwood Herriek, Miami, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

JORDAN, District Judge.

The United States seeks civil forfeiture in rem of one lucite ball containing lunar material, that is, a moon rock, and one 10 inch by 14 inch wooden plaque. It asserts that the moon rock and plaque are stolen property that were introduced into the United States in violation of 19 U.S.C. § 1595a(c)(1)(A). The claimant, Alan Rosen—who purchased the items from a retired Honduran colonel for $50,000—argues that he is entitled to the return of the property because, among other things, the government has failed to establish probable cause.

On March 3, 2003, the parties presented evidence (through testimony and matters already in the record) at a bench trial. As explained below, I find that the United States is entitled to forfeiture because the items were stolen from the Republic of Honduras and then introduced into the United States.

I. FACTS

The moon rock was originally retrieved from the surface of the moon by astronauts on a NASA mission. In 1973, President Nixon, on behalf of the United States, made a gift of the moon rock and plaque to the government and people of the Republic of Honduras.

A. MR. ROSEN'S ACQUISITION OF THE ITEMS

While in Honduras on business in early 1994, Mr. Rosen learned from a friend that a retired colonel from the Honduran military was seeking to sell a moon rock. When he found out that the asking price was $1 million, Mr. Rosen said he was not interested in purchasing it, as it "sounded to [him] like the Brooklyn Bridge." Subsequently, however, Mr. Rosen did some investigating, and learned that a slide with specks of lunar dust had sold at a Sotheby's auction for $500,000.

In 1995, Mr. Rosen returned to Honduras. While there, he met with Oscar Ruiz at the house of Jose Bayardo Moya Moya. Mr. Rosen mentioned the moon rock, and asked if the colonel might be willing to sell for a lower price. A meeting was arranged for the next day, and the colonel, Roberto Argurcia Ugarte, showed Mr. Rosen the case with the rock and the plaque. In the words of Mr. Rosen, Colonel Argurcia seemed "quite anxious to sell it." Mr. Rosen testified that Colonel Argurcia told him he had been given the items as a gift after a coup d'etat sometime around 1973. Colonel Argurcia, however, did not have any ownership documents.

On May 15, 1995, Mr. Rosen, Mr. Bayardo, and Colonel Argurcia agreed that Mr. Rosen would pay $50,000 for the moon rock and plaque. The written document, however, does not appear to be a bill of sale, but rather an assignment. In it, Colonel Argurcia agrees to give the items to Mr. Rosen "for marketing," and "[i]n the event the relic is not sold to a third party within a period of ninety days, said relic shall be returned ..." Mr. Rosen testified that notwithstanding the written assignment, the actual agreement was for the sale of the items to him, and the clause providing for their return if not sold was included to protect him in case the moon rock and plaque were not genuine. Mr. Rosen initially paid $10,000 in cash, and also gave Colonel Argurcia—through Mr. Bayardo, the middleman—a refrigerated truck worth about $15,000.

Mr. Rosen then returned to the United States and attempted to raise additional money for the purchase of the moon rock and plaque. In April of 1996, Mr. Rosen spoke to Mr. Bayardo and told him he had raised an additional $5,000. Mr. Bayardo responded that someone would be coming to Miami to meet with him. The meeting took place at a Denny's restaurant near the airport. Mr. Rosen gave the individual who met him the $5,000 in exchange for the moon rock and plaque.¹

Following his receipt of the items, Mr. Rosen went to Massachusetts to set up a microprobe study to verify that the rock was actually lunar material. He contacted David Lange, an electron microprobe specialist at Harvard University. Initially, Mr. Lange did not want to get involved because of the possibility that the rock might be actual lunar material. He eventually agreed, however, to conduct the analysis. On November 12, 1996, he sent a letter to Mr. Rosen indicating that the mineral composition of the rock was consistent with lunar material. Mr. Rosen also received a letter from the Conservation Analytical Laboratory at the Smithsonian Institution stating that it appeared that the material was "lunar rock."

Mr. Rosen testified that he received one serious offer from a Swiss man who wished to purchase the moon rock to use in making a high-end line of watches for Omega. The man offered Mr. Rosen $500,000 and a percentage of the sale of the watches. Mr. Rosen declined this offer because he thought it was too low.

B. THE STING

On October 14, 1998, Special Agent Joseph Gutheinz of the NASA Office of the Inspector General told United States Customs Service Special Agent David Atwood that Mr. Rosen had contacted him based upon a newspaper advertisement that had been placed by Agent Gutheinz in a national newspaper. The advertisement was placed under the name of an undercover company being run by Agent Gutheinz. The advertisement sought to purchase "moon rocks" and provided a return address for interested sellers to send pictures, documentary proof, and their asking price.

On September 29, 1998, an individual identified at that time only as "Alan" telephoned the undercover business and left a return phone number stating, "I think I have something for you." On September 30, 1998, Agent Gutheinz returned the telephone call to the number specified in the message and spoke to an individual who identified himself as Alan Rosen. Mr. Rosen stated that he had in his possession a moon rock that was approximately five grams in weight. He said that he was surprised to see the advertisement in the newspaper because most dealings are done under the table or in dark rooms or alleys. He further acknowledged that NASA considered any lunar material, including moon rocks, obtained during the Apollo missions to be illegal for anyone to own, buy, or in any way possess.

Agent Gutheinz asked Mr. Rosen what price he had in mind for the plaque. Mr. Rosen said that a sale of a similar plaque from the country of Nicaragua, along with some pre-Columbian artifacts, had sold to a middle-eastern buyer for between $5 and $10 million. Mr. Rosen said that he was looking for a proportional amount of money. He did not, however, wish to sell the entire moon rock. Instead, Mr. Rosen wanted to return the plaque and a small portion of the rock to the country of origin and have it placed in the presidential museum. Mr. Rosen said that if he sold the entire rock and plaque, he might have a duplicate/fraudulent plaque made for the country.

Mr. Rosen also told Agent Gutheinz that he had a web site on the internet. Agent Atwood accessed the internet site and confirmed that it contained information pertaining to the moon rock and plaque. The web site, though containing an image of the lunar material, obscured the Honduran flag and the presentation plaque. Mr. Rosen informed Agent Gutheinz that he had taken the rock to Harvard University to have it analyzed, and that the analysis had confirmed that the substance originated from the moon.

On October 14, 1998, Postal Inspector Robert Cregger, acting in an undercover capacity along with Agent Gutheinz, called Mr. Rosen using the alias "John Marta." He arranged a time and place to meet Mr. Rosen and negotiate the purchase of the moon rock and plaque. Inspector Cregger asked Mr. Rosen how he had come to possess the plaque if it was given to a foreign government. Mr. Rosen explained that he was approached by a retired military officer from the foreign country who was seeking to sell the items, and he decided after a year to purchase them. After repeated questioning about how the items got into the United States, Mr. Rosen told Inspector Cregger that it did not matter.

The following week, on October 20, 1998, Agent Gutheinz and Inspector Cregger met Mr. Rosen at a restaurant in North Miami Beach. Another individual accompanied Mr. Rosen and participated in the conversation pertaining to the purchase of the moon rock. Mr. Rosen provided Agent Gutheinz and Inspector Cregger with documents downloaded from his website, including a color photograph of the plaque. The plaque had two inscriptions. The first reads: "This fragment is a portion of a rock from the Taurus Littrow Valley of the Moon. It is given as a symbol of the unity of human endeavor and carries with it the hope of the American people for a world at peace." The second reads: "This flag of your nation was carried to the moon aboard Spacecraft American during the Apollo XVII mission. December 7-19, 1972. Presented to the people of the [name of country removed] from the people of the United States of America. Richard Nixon 1973."

Because he did not want to reveal the name of the country until the time of sale, Mr. Rosen informed the undercover agents that he had covered the center portion of the plaque where the country's flag was displayed. He said that there were five countries that have similar flag configurations and identified them as El Salvador, Nicaragua, Honduras, Argentina, and one other country that he could not remember. He stated that each of these countries had received a similar plaque. He described the plaque as being made of black maple with measurements of 10 inches by 14 inches.

Mr. Rosen also said that the moon rock weighed 1.142 grams, not the five grams he had previously mentioned.² He indicated that...