U.S. v. Eighteenth Century Peruvian Oil on Canvas Painting

The District Court for the Eastern District of Virginia recently issued the first published decision in a case of forfeiture brought under a Memorandum of Understanding under the Convention on Cultural Property Implementation Act, 19 U.S.C. § 2602. The two paintings, an 18^th and a 17^th century oil on canvas, were brought into the United States from Bolivia through Miami International and Reagan Washington National Airports. Both paintings are representative of the Cuzco School of Art, which began in the Incan town of Cuzco in south-central Peru, and had been cut out of their frames for transport. A dealer who was asked to sell the paintings suspected they were stolen and contacted the FBI, which seized the paintings. The importer chose to contest the administrative forfeiture. The government moved for summary judgment, which the court granted.

The MOU with Peru includes on its designated list of cultural materials subject to import restriction “[o]bjects that were used for religious evangelism among indigenous peoples” and specifically mentions paintings of the Colonial period, between 1532 and 1821. Although required for the import of objects on the designated list that left the country after the effective date of the import restrictions, the importer could not produce a certificate showing that export from Peru was not in violation of Peruvian law.

The decision is notable because it clearly sets out the placement and shifting of burden of proof in CPIA forfeiture cases. The United States bears the initial burden of showing that the seized property is designated under an MOU with another State Party to the 1970 UNESCO Convention and is subject to import restriction under the CPIA. Once the government makes this showing, the burden of proof shifts to the claimant to establish “by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.” In this case, the claimant defended by stating that the paintings came from Bolivia, not Peru, but the court rejected this defense because the U.S.-Bolivia MOU also covers Colonial and Republican religious art, including oil paintings of the saints, angels, apostles and Holy Family and dating between 1533 to 1900. Therefore, regardless of whether the paintings had originated in Peru or in Bolivia, they were still subject to forfeiture.