## Facts

- Defendants were dealers and intermediaries who acquired pre-Columbian artifacts originating in Mexico and sold them in the United States.
- The government alleged the artifacts were exported from Mexico without required licenses or permits and were not registered with Mexico’s relevant cultural property registry.
- The FBI conducted an undercover operation in which agents posed as buyers of the artifacts.
- Defendants were indicted under the National Stolen Property Act (NSPA), 18 U.S.C. §§ 2314, 2315, and for conspiracy under 18 U.S.C. § 371, based on transporting and receiving “stolen” goods in interstate commerce.
- At trial, the government offered expert testimony regarding Mexican cultural property laws.
- The district court instructed the jury that since 1897 Mexican law had declared pre-Columbian artifacts to be property of Mexico absent a governmental license or permit.
- The jury convicted defendants on conspiracy and substantive NSPA counts.

## Issues

1. Whether cultural objects can be “stolen” within the meaning of the NSPA when removed in violation of a foreign nation’s patrimony laws that vest ownership in the state.
2. Whether the district court erroneously instructed the jury about the content and effective dates of Mexican laws vesting ownership of pre-Columbian artifacts in Mexico.
3. Whether an erroneous instruction expanding the period of alleged state ownership required reversal of NSPA-related convictions.

## Decision

- The Fifth Circuit reversed the convictions and remanded for a new trial.
- The court held that foreign patrimony legislation can establish state ownership recognized in U.S. courts, so removal of such state-owned cultural property may constitute “stolen” property under the NSPA.
- The court found the jury instruction erroneous because Mexico did not clearly declare all archaeological objects to be national property until a 1972 statute, not “since 1897.”
- Because the instruction materially expanded what the jury could treat as Mexican state property (and thus “stolen”), the error required reversal.

## Legal Principles

- The NSPA’s term “stolen” can include cultural property owned by a foreign state through clear patrimony laws; physical possession or registration is not a prerequisite to ownership if the foreign law vests title in the state.
- For NSPA prosecutions based on foreign patrimony laws, the government must show the foreign law clearly vested ownership in the state and was in effect at the time of removal.
- Jury instructions describing foreign law must accurately state the law’s content and effective dates; misstatements that broaden the scope of “stolen” property are prejudicial.
- Applying U.S. criminal liability based on foreign ownership statutes requires attention to clarity and notice to avoid imposing criminal sanctions on dealings not shown to involve state-owned property at the relevant time.

## Conclusion

The Fifth Circuit recognized that clear foreign patrimony statutes can render unlawfully removed antiquities “stolen” under the NSPA, but it reversed and remanded because the jury was incorrectly told that Mexico had vested ownership in pre-Columbian artifacts since 1897, when the broad vesting occurred only in 1972.


United States v. McClain, 545 F.2d 988 (5th Cir. 1977)