Accused Smuggler Can Chase Claim for Artifacts

     MIAMI (CN) – A man accused of smuggling 32 ancient Peruvian artifacts into the United States can pursue his claim to the objects despite resisting pretrial discovery, a federal judge ruled.
     The U.S. Customs and Border Protection seized the artifacts from Peruvian citizen Jean Combe Fritz, who entered the United States in Miami in August 2010. The objects, which included bone carvings, ornaments and Inca burial bundles, were believed to be from the Pre-Columbian and Colonial eras. Authorities, however, could not get an expert appraisal right away and released Combe Fritz, who was never prosecuted.
     Three years later, the United States filed two forfeiture actions for the objects in its custody. It argued that 29 of the artifacts were cultural objects subject to forfeiture under the Cultural Property Implementation Act. The remaining three objects must also be returned to Peru because they were stolen or smuggled into the United States, the government claimed in the second action.
     According to the consolidated lawsuits, Combe Fritz admitted the objects were intended for people on a list he had received from his father, whom the government presumed to be a smuggler.
     A U.S.-based expert in Latin American and Pre-Columbian art later examined the artifacts and concluded they appeared to be archeological and ethnological objects from Peru. Peruvian authorities then confirmed that the artifacts were part of Peru’s cultural heritage and had been exported without their permission, according to the United States’ May 2013 complaint.
     Combe Fritz claimed the artifacts, arguing that the United States could not show their origin or age, and could not establish they were banned cultural property. He also said the government had brought the suit to the wrong court and violated due process.
     The federal court in Miami refused to stay the lawsuit pending the outcome of a criminal investigation, noting that Combe Fritz, who had returned to Peru, was not being prosecuted.
     But Combe Fritz resisted deposition on grounds that the United States was using the civil lawsuit to build a criminal case against him.
     The United States asked the court to dismiss Combe Fritz’s claim, arguing that he had disregarded court orders by failing to appear for deposition and to interview government witnesses.
     U.S. Magistrate Judge Jonathan Goodman ruled Wednesday that dismissal was too drastic, even if Combe Fritz’s alleged failure to comply with court-ordered deposition might warrant sanctions.
     The government could have sought less severe sanctions, such as preventing Combe Fritz from testifying at trial or from deposing its witnesses, the Sept. 17 order states.
     Additionally, the United States failed to show that Combe Fritz missed all of the five scheduled depositions on purpose, the judge said.
     “For instance, as outlined above, an agreement by government counsel to reschedule a deposition cannot now be fairly branded as claimant’s bad faith failure to appear at a scheduled deposition,” Goodman wrote.
     Combe Fritz’s scheduling conflicts and his filing of motions concerning discovery could justify missing other deposition dates, according to the 22-page ruling.
     His fear of criminal prosecution in the United States, which was fueled by miscommunication between his attorney and government counsel, is also a valid reason for avoiding deposition, the order adds.
     The government did not reschedule the claimant’s deposition during the extended discovery period, and refused to interview him by video conference, Goodman noted.
     The United States also failed to confer with Combe Fritz’s counsel before filing the dismissal action, as required by civil procedure, according to the ruling.
     Goodman said the parties might have to go to trial without discovery unless they seek an extension of discovery deadlines.
     In a separate order[AEND], U.S. District Judge Joan Lenard refused to dismiss the United States’ forfeiture lawsuits.
     The court has jurisdiction to hear the claims, which involve only the forfeiture of property, Lenard said in the Sept. 11 ruling.
     The government has a plausible claim because Combe Fritz failed to prove that the artifacts were legally imported into the United States, the ruling states.
     Lenard also dismissed Combe Fritz’s due-process claims, finding that the government had provided him with notice of and opportunity to challenge the seizure of the artifacts. Miami has become a hub for stolen antiquities since the 1980s. South Florida authorities have seized artwork and artifacts from Peru, Greece, Egypt, and other countries, including Henri Matisse’s Odalisque in Red Pants, and an Egyptian sarcophagus.
     The United States declined to comment on the pending litigation.
     Combe Fritz’s attorney did not respond to a request for comment.

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