Wednesday, March 22, 2006
Convictions for Stealing Petroglyphs Are Overturned
From Staff and Wire Service Reports
Two men who removed rocks with ancient drawings on them from a Nevada national forest were wrongly convicted of stealing government property, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The convictions under 18 U.S.C. Sec. 641 were improper, a three-judge panel said, because prosecutors never presented evidence of a market value for the petroglyphs. The men, John Ligon, 41, of Reno, Nev. and Carroll Mizell, 45, of Van Nuys, said the site was unmarked and claimed they were unaware that by removing the rock drawings they might be committing a crime.
Writing for the panel, Judge William A. Fletcher pointed out that thefts may punished under Sec. 641 as either misdemeanors or felonies, depending on whether the “value” of what was stolen exceeds $1,000. The statute defines “value” as “face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
Prosecutors presented testimony from a Forest Service archeologist that the “archeological value” of the stolen artifacts was about $8,000.
The Forest Service had a dealer in Indian artifacts, Mark Bahti, prepare an evaluation of the value of the drawings, but he said they were worth only $800 to $900 because they had been damaged when they were removed. In good condition, he said, they would be worth about $1,500.
The government did not use the dealer’s evidence, instead relying on the archeologist’s testimony and the definition of archeological value in the Archaeological Resources Protection Act. U.S. District Judge Howard D. McKibben of the District of Nevada rejected the defendants’ contention that such evidence was inadmissible under Sec. 641.
McKibben, Fletcher said, was wrong.
Regulations adopted under the ARPA define “archeological value” as the “value of the information associated with the archaeological resource,” Fletcher pointed out, and go on to provide, “This value shall be appraised in terms of the costs of the retrieval of the scientific information which would have been obtainable prior to the violation.”
The judge reasoned:
“‘Archaeological value,’ so defined, is not the equivalent of, nor is it encompassed by, ‘face, par, or market value, or cost price, either wholesale or retail,’ as those terms are used to define ‘value’ in [Sec.] 641. Moreover, our case law is clear that acceptable alternative methods of calculating value—are permissible only where market value is not readily ascertainable—.Here, the government had evidence of the petroglyphs’ market value but did not introduce that evidence at trial.”
“The government’s choice not to introduce any evidence of ‘value’ within the meaning of [Sec.] 641 unfortunately leaves us little choice. It is clear that Ligon and Mizell stole the petroglyphs. It is equally clear that the petroglyphs had a market value, as evidenced by Bahti’s report. But the government did not introduce that report into evidence, or indeed anything else that might have served as evidence of ‘value’ within the meaning of [Sec.] 641, although it obviously could have done so.”
David Houston, a Reno lawyer who represented Mizell, commented:
“The Ninth Circuit agreed with us—that this case never should have gone to the jury.”
Assistant U.S. Attorney Robert Don Gifford, who helped prosecute the case, said he was reviewing the opinion and had no immediate comment.
Scott Freeman, a Reno lawyer who represented Ligon, said the appellate court reversed the conviction without taking the typical next step of remanding it to federal court to rehear the case.
“You rarely will see a complete reversal. Normally you see a direction for the court to correct the error. So we are ecstatic,” Freeman said.
After Ligon was convicted, while awaiting sentencing, he was arrested on gun and drug charges and subsequently pleaded guilty to being a felon in possession of a firearm.
Freeman said now that the theft conviction has been overturned he’ll try to get the firearm conviction thrown out, too.
“We’re going to see if we can get the conviction set aside or get a congressional or presidential pardon so he will have his right to bear arms,” Freeman said.
The case received widespread attention and sparked a debate about the best way to protect artifacts — by keeping them secret or posting signs that welcome visitors and would-be vandals alike.
Signs would only invite trouble, land managers said at the time.
“Putting up a sign at an archaeological site is almost like saying, ‘Dig here for buried treasure,’” Fred Frampton, a Forest Service archaeologist said. Judges Stephen Reinhardt and Sidney R. Thomas concurred in the opinion authored by Fletcher.
The case is United States v. Ligon, 04-10495.
Copyright 2006, Metropolitan News Company