U.S. v. Schultz, No. 02-1357.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Meskill
• Citation: 333 F.3d 393
• Docket Number: No. 02-1357.
• Decision Date: 25 June 2003
• Parties: UNITED STATES of America, Appellee, v. Frederick SCHULTZ, Defendant-Appellant.

333 F.3d 393 UNITED STATES of America, Appellee,
v.
Frederick SCHULTZ, Defendant-Appellant. No. 02-1357. United States Court of Appeals, Second Circuit. Argued March 10, 2003. Decided June 25, 2003.

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Paul Shechtman, New York City (Kathryn A. Meyers, Stillman & Friedman, New York City, of counsel), for Appellant.

Marcia R. Isaacson, Assistant United States Attorney, Southern District of New York, New York City (James B. Comey, United States Attorney for the Southern District of New York, Gary Stein, Assistant United States Attorney, Southern District of New York, New York City, of counsel), for Appellee.

Before: MESKILL, CARDAMONE and CABRANES, Circuit Judges.

MESKILL, Circuit Judge.

Defendant-appellant Frederick Schultz (Schultz) appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York, Rakoff, J., after a trial by jury. Schultz was convicted of one count of conspiracy to receive stolen property that had been transported in interstate and foreign commerce, in violation of 18 U.S.C. § 371. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. Appellate jurisdiction is appropriate because "[w]e have jurisdiction to consider appeals from final decisions of the district courts, which are judgments of conviction and sentence in criminal cases." United States v. Ferguson, 246 F.3d 129, 138 (2d Cir.2001). See also 28 U.S.C. § 1291.

BACKGROUND

Schultz was a successful art dealer in New York City. On July 16, 2001, he was indicted on one count of conspiring to receive stolen Egyptian antiquities that had been transported in interstate and foreign commerce, in violation of 18 U.S.C. § 371. The underlying substantive offense was violation of 18 U.S.C. § 2315, the National Stolen Property Act (NSPA).

Schultz moved to dismiss the indictment, asserting that the items he was charged

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with conspiring to receive were not stolen within the meaning of the NSPA. Specifically, Schultz contended that the Egyptian antiquities he allegedly conspired to receive were not owned by anyone, and therefore could not be stolen. The prosecution asserted that the antiquities were owned by the Egyptian government pursuant to a patrimony law known as "Law 117" which declared all antiquities found in Egypt after 1983 to be the property of the Egyptian government. After an evidentiary hearing, the district court denied the motion to dismiss in a written memorandum and order. See United States v. Schultz, 178 F.Supp.2d 445 (S.D.N.Y.2002). Schultz was tried before a jury in January and February 2002.

The following facts were adduced at trial.

In 1991, Schultz met Jonathan Tokeley Parry (Parry), a British national, through a mutual friend. Parry showed Schultz a photograph of an ancient sculpture of the head of Pharaoh Amenhotep III, and told Schultz that he had obtained the sculpture in Egypt earlier that year from a man who represented himself to be a building contractor. Parry had used an Egyptian middle-man named Ali Farag (Farag) to facilitate the deal. Parry had smuggled the sculpture out of Egypt by coating it with plastic so that it would look like a cheap souvenir, then removed the plastic coating once the sculpture was in England.

Schultz offered Parry a substantial fee to serve as the agent for sale of the Amenhotep sculpture, which Parry accepted. Parry and Schultz discussed the problems that might arise if they were discovered to have the piece, and set out to create a false provenance for the sculpture, so that they could sell it. They decided that they would claim that the sculpture had been brought out of Egypt in the 1920s by a relative of Parry and kept in an English private collection since that time. Parry and Schultz invented a fictional collection, the "Thomas Alcock Collection," and represented to potential buyers that the sculpture came from this collection. With Schultz's knowledge, Parry prepared fake labels, designed to look as though they had been printed in the 1920s, and affixed the labels to the sculpture. Parry also restored the sculpture using a method popular in the 1920s.

Acting as Parry's agent, Schultz attempted to sell the Amenhotep sculpture to various parties, using the "Thomas Alcock Collection" story, but was unsuccessful. Eventually, Parry sold the sculpture to Schultz for $800,000, and Schultz sold it to a private collector in 1992 for $1.2 million. In June 1995, Robin Symes (Symes), who then owned the Amenhotep sculpture, asked Schultz to provide him with more details about the sculpture's origin, because he had learned that the Egyptian government was pursuing the sculpture. Schultz responded by asking questions regarding the Egyptian pursuit, but did not provide Symes with any additional information regarding the Amenhotep sculpture.

Parry and Schultz became partners, in a sense. They endeavored to bring more Egyptian antiquities into America for resale, smuggling them out of Egypt disguised as cheap souvenirs, assigning a false provenance to them, and restoring them with 1920s techniques. Parry testified about six items or groups of items, in addition to the Amenhotep sculpture, that he and Schultz attempted to remove from Egypt and sell under the false provenance of the Thomas Alcock Collection.

In 1991, Parry smuggled a sculpture of Meryet Anum (a daughter of Pharoah Ramses II) out of Egypt and performed extensive restorations on it. Parry brought the sculpture to New York and

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showed it to experts who determined it to be a fake.

In 1992, Parry sold Schultz a black top vase for $672, informing Schultz that the vase had been brought out of Egypt. Parry affixed a Thomas Alcock Collection label to the vase. Schultz and Parry acquired this vase because they believed that including some less valuable pieces in the imaginary Thomas Alcock Collection would make the Collection more believable.

In 1992, Parry wrote to Schultz from Egypt, telling Schultz that he had obtained a sculpture he called "The Offeror." Parry smuggled The Offeror out of Egypt and performed extensive restoration work on it. Parry believed the sculpture was authentic until testing revealed it to be a fake. Parry delivered The Offeror to Schultz without informing him of either the extensive restorations or the fact that the sculpture was not authentic. However, when Schultz discovered the sculpture was a fake, he returned it to Parry. Later, when Parry was arrested, The Offeror was confiscated by British authorities. Schultz contacted the authorities attempting to claim The Offeror as his own, eventually sending a forged invoice purporting to show that Schultz had bought the sculpture from a New York art dealer and had given it to Parry only for restoration. Schultz did not succeed in claiming The Offeror.

In 1992, Parry and Farag learned that someone had reported them to the Egyptian authorities for dealing in antiquities. Due in part to the assistance of Farag's father, who was a powerful Egyptian government official, Parry and Farag were able to get their names removed from police records by paying a bribe to certain corrupt members of the Egyptian antiquities police. These same corrupt police officers then entered into a deal with Parry and Farag, offering them a variety of antiquities in police possession in exchange for Parry and Farag paying off some debts owed by the police officers. Parry chose three items from the "bran tub"¹ full of items offered; he later sent those items to Schultz. Parry informed Schultz of how he had obtained the items. One of the items was marked with an Egyptian government registry number, which Parry succeeded in partially obliterating.

In 1992, Parry purchased the top half of a limestone sculpture of a striding figure, which he dubbed "George," from a group of Egyptian villagers. Apparently, when the sculpture had been found, it was in pieces, and the pieces were divided among rival groups of villagers. Parry wrote to Schultz telling him of the acquisition and informing Schultz that he was attempting to obtain George's bottom half. Parry also requested money to assist in the purchase of George and other items. Parry and Farag eventually succeeded in purchasing the bottom half of the sculpture, and reassembled the whole thing. Parry then coated George in plastic, and in plaster, and painted it to look like a tourist souvenir so it could be taken out of Egypt. Parry kept Schultz informed of his progress and eventually brought George to New York for Schultz to sell. When George was offered for sale, it was treated with 1920s restoration techniques and represented to be part of the Thomas Alcock Collection. Schultz was unable to sell George, and Parry requested that Schultz send George to Switzerland, where Parry planned to retrieve it. For reasons that are not clear from the record, Parry was not able to retrieve George.

In June 1994, Parry was arrested in Great Britain, and Farag was arrested in

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Egypt. Each was charged with dealing in stolen antiquities. Schultz was aware of the arrests and communicated extensively with Parry after his arrest about Parry's legal situation. Parry and Schultz also continued to correspond regarding plans for new acquisitions.

In December 1994, Parry wrote to Schultz describing three limestone "stelae," or inscribed slabs, which had been discovered by builders in Egypt and were being offered for sale. Parry had an expert review photographs of the stelae, and the expert determined that the pieces were newly discovered and not listed in any of the catalogs of antiquities known to the Egyptian government. By 1995, there were ten pieces available from this find, and although Parry had been taken into custody in Great Britain, he continued attempting, with Schultz, to obtain the stelae. Schultz sent money for this purpose, and Parry directed that the pieces be shipped to Switzerland for Parry to retrieve...