## Facts

- Defendants were art and antiquities dealers/intermediaries in San Antonio, Texas, involved in marketing pre-Columbian artifacts originating in Mexico.
- The objects included terra cotta figures and pottery, beads, and stucco pieces that had been brought from Mexico into Texas by a Mexican supplier.
- Mexico had enacted statutes culminating in a 1972 law declaring categories of archaeological objects, and ultimately all pre-Columbian artifacts found in Mexico, to be property of the Mexican nation.
- The prosecution theory was not that defendants took artifacts from a private owner’s possession, but that the artifacts were “stolen” because unauthorized excavation, possession, or dealing unlawfully converted Mexican state-owned property.
- The supplier left the collection with two defendants, who were authorized to sell the items; later meetings included discussions of selling, moving the objects to Europe for auction, and re-importing them into the United States.
- An undercover FBI agent posed as a buyer (with an associate posing as an “appraiser”) and recorded negotiations and concealment efforts.
- Evidence showed defendants discussed the legal risks, indicated awareness of Mexico’s ownership claims, and sought methods to reduce detection and confiscation.

## Issues

1. Whether artifacts can qualify as “stolen” under the National Stolen Property Act (NSPA), 18 U.S.C. §§ 2314–2315, based on a foreign sovereign’s patrimony law vesting ownership in the state, absent a conventional theft from a private possessor.
2. Whether the trial court erred by submitting to the jury the determination of the content and effective dates of Mexican patrimony law and by giving legally inadequate instructions on that foreign law.
3. Whether the evidence was sufficient to sustain convictions for substantive NSPA offenses and conspiracy under 18 U.S.C. § 371.

## Decision

- The Fifth Circuit reversed the substantive NSPA convictions for receiving, concealing, and/or selling stolen goods because the jury was inadequately instructed on Mexican law and was improperly left to determine foreign law.
- The court affirmed the conspiracy convictions under § 371, holding the instructional error was harmless as to conspiracy and the evidence supported an agreement and intent to traffic in property defendants believed was unlawfully exported and state-owned.
- The court accepted that, as a matter of federal law, property may be “stolen” for NSPA purposes when taken or dealt in contrary to a foreign law that clearly vests ownership in the foreign state, but stressed that the predicate foreign law must be determined by the court and correctly conveyed to the jury.

## Legal Principles

- The NSPA’s “stolen, converted or taken by fraud” element may be satisfied where a foreign sovereign’s clear ownership law vests title to certain cultural property in the state and unauthorized removal or dealing constitutes conversion of that state property.
- Foreign law relevant to criminal elements is a question for the court; it may not be left to the jury to determine whether and when foreign statutes vested ownership.
- When a substantive federal criminal charge depends on foreign patrimony law, due process requires the law to be sufficiently determinate and the jury to be instructed with adequate legal specificity on the law’s scope and effective dates.
- Conspiracy under 18 U.S.C. § 371 turns on agreement and intent plus an overt act; instructional errors about the predicate foreign law may be harmless where evidence shows defendants believed the property was illegally exported/state-owned and acted to further the unlawful plan.

## Conclusion

The Fifth Circuit set aside the defendants’ substantive NSPA convictions because the jury was not properly instructed on Mexican patrimony law and was improperly tasked with deciding foreign law, but it sustained the conspiracy convictions because the evidence showed an agreement and intent to traffic in artifacts defendants understood to be unlawfully removed from Mexico and treated the instructional defects as non-prejudicial to that charge.


United States v. McClain, 593 F.2d 658 (5th Cir. 1979)