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Bid to Block Testimony in Peru Artifact Case Fails

MIAMI (CN) - A Peruvian accused of smuggling ancient artifacts into the United States lost his bid to block government witnesses from testifying in a legal battle over the confiscated artifacts.

When Jean Combe Fritz, a citizen of Peru, flew into Miami International Airport in August 2010, the U.S. Custom and Border Protection found 32 objects that appeared to be ancient artifacts in his luggage.

Combe Fritz initially claimed he was on vacation and that he was bringing the artifacts for his aunt in San Francisco. He later admitted that the objects were intended for people on a list he had received from his father, whom the United States presumed to be a smuggler.

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.

After the United States seized the artifacts, a U.S.-based expert in Latin American and Pre-Columbian art examined them, and concluded they appeared to be archeological and ethnological objects from Peru.

Peru's government confirmed that Combe Fritz did not have authorization to export the items, which it claimed were part of the country's cultural heritage, according to court filings.

The United States filed two lawsuits in 2013, claiming that the artifacts were subject to forfeiture under the Cultural Property Implementation Act. Some of the artifacts qualified as stolen cultural property that had be returned, according to the government's filings.

The federal court in Miami refused to stay the lawsuits pending the outcome of a criminal investigation, noting that Combe Fritz, who had returned to Peru, was not being prosecuted.

U.S. District Judge Joan Lenard greenlighted the forfeiture actions, finding that Combe Fritz had failed to show that the artifacts had been legally imported.

However, although Combe Fritz resisted deposition on grounds that the United States was using the civil lawsuits to build a criminal case against him, the court allowed him to pursue his claims to the objects.

In addressing the parties' numerous pre-trial motions last week, U.S. Magistrate Judge Jonathan Goodman said Combe Fritz cannot stop custom and border protection officers from testifying for the government at trial. Combe Fritz made no efforts to re-schedule the officers' deposition after the government postponed it, according to Goodman's Feb. 3 ruling.

The claimant cannot depose the officers, whose identities he had known since before discovery, five months after the discovery deadline, the judge said.

Additionally, an expert witness whose identity was not timely disclosed may not testify on behalf of Combe Fritz, Goodman said in a separate order.

The court ruled that Combe Fritz cannot testify at trial either, unless he appears for deposition by Feb. 13.

"Claimant continuously refused to appear for deposition, citing fear of criminal prosecution or of separate civil proceedings in the United States or Peru that might rely substantially on his testimony in this case," Goodman wrote in a third ruling. "A protective order was issued to alleviate claimant's principal fear - that this case was just a stalking horse for the government's soon-to-be-filed criminal case - and yet, claimant still refused to appear for deposition. ... It would be fundamentally unfair to allow claimant to hold this position throughout the entire discovery period, and then to appear as a witness at trial (even with a protective order in place)."

Excluding Combe Fritz's expert witness and possibly his own testimony at trial are sufficient sanctions for his failure to meet pre-trial deadlines and obligations, the judge said.

In a separate ruling, Judge Lenard said Combe Fritz may not use as evidence a tentative report by Peru's Ministry of Culture, in which a Peruvian archeologist stated that on-site inspection of the artifacts was needed to confirm his findings of authenticity.

Moreover, Combe Fritz failed to show that the archeologist was unavailable as a witness, Lenard noted.

Additionally, evidence that law enforcement officers refused to appear for deposition is irrelevant and cannot be used against the government, the Feb. 4 ruling states.

But Lenard refused to exclude evidence concerning the government's alleged burden to prove at trial that the artifacts are the cultural property of Peru.

The parties asked the court to schedule the trial for March 16.

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