Footnotes

The Bost Arch in 1970

• An op-ed by Ann Marlowe in the New York Times describes the difficulty in preserving sites like this in Afghanistan.
• A Mexican court has ruled that a Frida Kahlo archive may be authentic.
• Jeanne Redd has brought suit against the Federal government alleging abusive treatment caused her husband to commit suicide.
• A nine year prison sentence has been handed down to a dealer of counterfeit art in Chicago.
• The AIA has condemned the Smithsonian's planned display of material from a wreck excavated off the coast of Indonesia, previously discussed here.
• The long effort devoted to preserving one of America's first Free Black Communities in Brooklyn.
• Bulgaria, perhaps the third-richest nation in Europe in terms of ancient heritage sites has "allowed their destruction."
• A dispute over the authenticity of works by Jean Cocteau pits a new Cocteau Museum against Pierre Berge.
• The CPAC will meet in June to evaluate the Memorandums of Understanding with Bolivia, Mali, and Guatemala.

Looting and Criminal Sentencing in the Four Corners

The Butler Wash Ruins near Blanding, UT

More and more of the Four Corners antiquities cases are entering the sentencing phase, and I want to highlight two profoundly different reactions.

First, Kimberly Alderman (an Assistant Clinical Professor at the University of Wisconsin Law School) argues:

It’s readily apparent that federal prosecutors overcharged the cases in an attempt to justify the immense resources that went into the investigation. One has to wonder if that contributed to the suicide death of Dr. James Redd, who in his medical practice served less advantaged communities in Utah. . . . Illicit excavation is only one misuse of “sacred artifacts.” Another is to use them to justify a witchhunt that serves only government propaganda.

Taking a very different view, Cindy Ho of SAFE argues instead that:

Receiving probation of three- and two- years and a fine of $2,000 and $300 respectively, Jeanne and Jericca Redd joined a number of other defendants who receive a mere slap on the wrist for their contribution to the destruction of cultural heritage and human remains.

In response, SAFE sent a letter (see full text below) to Judge Waddoups expressing our disappointment that the sentencing guidelines were not appropriately followed. Most importantly, that "the leniency shown to the Redds sends the message that such laws are unimportant or do not apply to the Four Corners region, and will encourage rather than deter looters." We did not receive a response from the Judge.

Stronger sentencing and custodial prison terms are poor measures for how seriously judges and the legal system take the looting of ancient sites. And placing the blame squarely on the shoulders of the sentencing Judge here misses the point I think. If you are really upset at the sentences (and I'm not sure you should be) blame should also be placed on the Federal Prosecutors. An axiom of criminal law every law student learns very early is that when defendants plead guilty, they will always receive a decreased sentence. Circumstances such as the personal circumstances of a defendant, their contriteness, and the violent or serious nature of the crime are also considered. One would be hard pressed to imagine a more sympathetic pair of defendants—a Mother and Daughter whose Father and Husband had committed suicide in the wake of the indictment. The U.S. Attorney's in this case pursued a strategy of seeking guilty pleas for many of the defendants, particularly as their witness (and two of the defendants) committed suicide.

These sentences are about the best that could be hoped for. These are not the first prosecutions in the area, but unquestionably these are exceedingly difficult crimes to prosecute and investigate for two reasons. First, the sites are remote and catching the looters in the criminal acts will always be a difficult and expensive proposition. Second, there is noting about the antiquities market which encourages giving the history of objects. Without a consistent way to adequately differentiate licit from illicit objects, the black market will continue to be profitable. Archaeologists and heritage advocates need to ask themselves a hard question: is prohibition working? We can point fingers at collectors and dealers, but this 'superindictment' in the Four Corners region is what enforcement will look like for the foreseeable future.

Superindictments and their Consequences

Yesterday there was a series of over 120 arrests of alleged mafia members. Though it is not quite on the same scale, it bears at least a few similarities to the indictments handed down in the Southwest as a part of  operation 'cerberus', or even the searches of California Museums in early 2007. Christopher Beam writes that these large investigations are 'superindictments':

Why one huge arrest, rather than a bunch of smaller ones? "It's a statement," says Jim Wedick, a former FBI agent. "They wanted to say, 'You know what? We are back in town.' " Since 2001, the FBI has shifted its resources away from traditional crime-fighting toward counterterrorism. Thursday's bust is a message from the Department of Justice to organized crime: We haven't forgotten about you.

A message certainly was sent yesterday. By using this large-scale investigation Beam writes that you can encourage individuals to cooperate, informants are almost assured if you arrest a large enough group, and a powerful message is sent. Yet the events in the wake of the Cerberus investigation are sobering. Do law enforcement officials need to weigh the severity of their actions? Or do individuals who break the law earn the hardships which can sometimes emerge.

Cerberus was the frightening three-headed dog that guarded the underworld. The beast prevented souls from crossing into or out of the Hades' dominion. A sad irony then that three suicides emerged from the investigation. The undercover informant who set much of the investigation into motion, and two of the individuals indicted. Antiquities looters have almost certainly changed their behavior. Whether the investigation drove them further underground or caused them to cease the looting remains to be seen. One hopes they have ceased looting of sites, but until the demand for black market antiquities is erased, there will sadly be people willing to risk arrest. Investigators worked very hard to make this case, and agents work tirelessly to police these sites, yet until the demand is eliminated, will these investigations continue?

1. Christopher Beam, FBI Mafia Arrests: The rise of the superindictment. Slate (2011), http://www.slate.com/id/2281894/?from=rss (last visited Jan 21, 2011).

Two Guilty Pleas in Four-Corners Antiquities Investigation

On Monday two pleaded guilty to stealing government property and violating the Archaeological Resources Protection Act.  Both Brent Bullock and Tammy Shumway had been among those indicted during a federal investigation into looting Native American sites in the Four Corners region in the Southwest.  From the AP:

Bullock, 61, sold several ancient Indian items to an undercover operative in 2007, including a blanket fragment for $2,000 and a hoe-like tool for $500, according to court documents. He also offered to sell several ceramic figurines taken from U.S. Bureau of Land Management land.

Bullock said he wanted to sell the items because he was in debt, according to a search warrant affidavit.

Investigators said Bullock acknowledged to the informant that the items came from public land in Utah but filled out paperwork saying they were from private land in Colorado.

Shumway, who introduced Bullock to the informant, was charged because the 40-year-old woman aided and abetted the deals and signed a falsified paper about the items' origin as a witness, federal officials said.

In U.S. District Court on Monday, Bullock and Shumway acknowledged they knew the items had been illegally dug up from public land in Utah. As part of a plea deal, they each pleaded guilty to one count of trafficking in stolen artifacts and theft of government property. Prosecutors agreed to seek a reduced sentence. 

A couple points which might not be evident from some of the coverage of these plea deals.  First, sentencing will occur in July; and the AP piece notes the maximum sentence is 12 years in prison.   Neither of these defendants will likely receive anything close to the statutory maximum.  That is because when a defendant enters into a plea deal, they do so in most cases to achieve a recommendation from prosecutors on sentencing; which will often fall far below the maximum sentences.  This should not be construed as authorities in the United States not taking these crimes seriously—rather a reflection of the general criminal procedures when plea agreements are reached. 

Second, Tammy Shumway is the widow of Earl Shumway, a notorious antiquities looter.  Shumway became a national figure in the 1980's, who boasted that he began looting at three years old with his father.  He sold a large collection of over thirty prehistoric baskets and sold them for a great deal.  Though he was prosecuted for selling those baskets, he cooperated with authorities and only received probation.  He went right back to looting, using a helicopter and even lookouts to avoid authorities.  He boasted to the media that he could never be apprehended.  Though he was not caught in the act of looting, authorities did secure a conviction using DNA evidence found on Mountain Dew soda cans he left in the areas he looted.  In 1995 he received a 5-year prison sentence which sent a message that Federal agents and prosecutors took this kind of crime seriously. 

1. Timothy Egan, In the Indian Southwest, Heritage Takes a Hit, N.Y. Times, November 2, 1995.
2. Mike Stark, 2 Utahns plead guilty in sweeping artifacts case, AP, March 29, 2010.

Yet Another Suicide Connected to Four-Corners Antiquities Investigation

The informant who was instrumental in the federal antiquities investigation in the Southwest has committed suicide.  This comes after two others accused of wrongdoing killed themselves. 

From the AP:

 The undercover operative who helped federal officials build a case against more than two dozen people for allegedly looting American Indian artifacts in the Southwest has apparently committed suicide.

Two defendants in the case killed themselves last year.

Police say 52-year-old Ted Dan Gardiner shot himself Monday at a home in a Salt Lake City suburb. He shares the name, date of birth and address of the man identified in court documents as the informant in the case that led to indictments against 26 people.

Gardiner worked with the FBI and the Bureau of Land Management for more than two years, coordinating deals with artifacts collectors, dealers and diggers in Utah, Colorado, New Mexico and Arizona.

Gardiner's father and his son told The Associated Press on Tuesday that they could not explain his death. The FBI and the U.S. attorney's office in Salt Lake City declined comment.

Two defendants — a Santa Fe, N.M., salesman and a prominent Blanding, Utah, physician, James Redd — committed suicide after their arrests in June.

Gardiner, an antiquities dealer, offered in 2006 to help federal authorities set up what turned into a long-running sting operation in the black-market trade in prehistoric relics. Court papers say he was typically paid $7,500 a month for secretly recording transactions across the Southwest for more than two years.

He was still being paid for helping agents prepare for court cases, and he was to receive more money if he had testified. Gardiner had received $162,000 in payments plus expenses, for a total of $224,000, when most of the arrests were made in June.

Federal authorities and Gardiner, who also ran an [artifact] authentication business, have insisted he was never in trouble with the law.

Unified Police Sgt. Don Hutson says a preliminary autopsy shows Gardiner's gunshot wound was probably self-inflicted. An officer fired a round during a standoff Monday night, but it didn't hit Gardiner.

Deputies were called to Gardiner's home Saturday night on a report that he was suicidal, Hutson said. Gardiner was transported for mental health treatment and his gun was taken away. Gardiner used another gun Monday night.

Gardiner's father, Dan Gardiner, declined further comment Tuesday, handing over the phone to one of Ted Gardiner's sons, who said, "We don't know any more than you." The son declined to give his name.