United States of America, Plaintiff-appellee, v. Patty Mcclain, Joseph M. Rodriguez, Ada Eveleigh Simpson,william Clark Simpson and Mike Bradshaw,defendants-appellants, 545 F.2d 988 (5th Cir. 1977)

Museum directors, art dealers, and innumerable private collectors throughout this country must have been in a state of shock when they read the news if they did of the convictions of the five defendants in this case.¹  The defendants were indicted under the National Stolen Property Act,18 U.S.C. §§ 2314, 2315, and were convicted of conspiring to transport and receiving through interstate commerce certain pre-Columbian artifacts (terra cotta figures and pottery, beads, and a few stucco pieces) knowing these artifacts to have been stolen. These articles had not been registered with the Public Register of Archaeological and Historical Zones and Monuments of the Republic of Mexico, or with any government register, and were exported without a license or a permit from Mexico into the United States. The district court instructed the jury that "since 1897 Mexican law has declared pre-Columbian artifacts . . . to be the property of the Republic of Mexico, except in instances where the Government" has issued a license or permit to private persons to possess, transfer, or export the artifacts. This instruction casts a cloud on the title of almost every pre-Columbian object in the United States. This Court, of course, recognizes the sovereign right of Mexico to declare, by legislative fiat, that it is the owner of its art, archaeological, or historic national treasures, or of whatever is within its jurisdiction; possession is but a frequent incident, not the sine qua non of ownership, in the common law or the civil law. The district court's instruction was erroneous. Not until 1972 did Mexico enact a law declaring all archaeological objects within its jurisdiction, movables and immovables, to be the property of the Nation. We reverse and remand.

The National Stolen Property Act (NSPA) prohibits the transportation "in interstate or foreign commerce (of) any goods, . . . of the value of $5,000 or more", with knowledge that such goods were "stolen, converted or taken by fraud". 18 U.S.C. § 2314. The Act also subjects to criminal liability "whoever receives, conceals, stores, barters, sells, or disposes of any goods . . . of the value of $5,000 or more . . . moving as, or which are part of, or which constitute interstate or foreign commerce, knowing the same to have been stolen, unlawfully converted, or taken . . . ". 18 U.S.C. § 2315. The case turns on whether the pre-Columbian antiquities in question, exported from Mexico in contravention of that country's law, were knowingly "stolen" within the meaning of the National Stolen Property Act.

Patty McClain, Joseph M. Rodriguez, Ada Eveleigh Simpson, William Clark Simpson, and Mike Bradshaw, the defendants-appellants, were all convicted by a jury of conspiring to transport, receive, and sell assorted stolen pre-Columbian artifacts in interstate commerce, in violation of 18 U.S.C. §§ 2314, 2315, and 371. The appellants were also convicted of receiving, concealing, bartering, and selling these items in violation of § 2315. Additionally, Rodriguez was convicted of the transportation of the items in interstate commerce (from Calexico, California to San Antonio, Texas) in violation of § 2314.

Many of the relevant facts are not in serious dispute. The evidence showed that all of the defendants except Rodriguez were involved in negotiations leading to the sale of various pre-Columbian artifacts to prosecution witness John McGauley, an undercover agent of the Federal Bureau of Investigation.

The government presented no evidence as to how and when the artifacts were acquired in Mexico, nor as to when the pieces were exported.

Mrs. Adalina Diaz Zambrano, an employee of the Mexican Cultural Institute in San Antonio, Texas, testified that Rodriguez had approached Albert Mijangos, the Director of the Institute, with a proposal to sell various artifacts. The Institute was an official arm of the Mexican government, a fact unknown to Rodriguez. Mrs. Zambrano identified, from photographs, artifacts later seized by the government from the other appellants as some of the artifacts shown to her and Mijangos by Rodriguez. In Rodriguez's attempt to sell artifacts to the Institute and in the other defendants' attempt to sell artifacts to McGauley and an informer, some of the defendants made statements showing that they were aware that Mexican law forbade the exportation of artifacts without permits from the Mexican government. After agreeing to a purchase price of $115,000 for the artifacts held in San Antonio, defendants Simpson and Bradshaw brought McGauley to Los Angeles to view other pre-Columbian artifacts. Bradshaw and Simpson told McGauley that they expected to realize about $850,000 for the Los Angeles artifacts. Before a final price was agreed upon they were arrested. The other defendants were arrested in San Antonio.

The defendants do not dispute that the artifacts involved in this case were illegally exported from Mexico. The government contends that the pre-Columbian artifacts were stolen from the Republic of Mexico; that Mexico owned these objects despite the probability or possibility that the defendants, or their vendors, acquired them from private individuals or "found" them e. g., by accident in overturning the soil or digging at archaeological sites on private property in Mexico.

The primary evidence as to the ownership of the artifacts under Mexican law was the testimony of Dr. Alejandro Gertz, a deputy attorney general of Mexico. He was qualified as an expert on Mexican law without objection. Dr. Gertz had been instrumental in revising Mexican laws dealing with protection of the Mexican cultural heritage and, at the time of trial, his official duties included enforcing that law. Gertz testified that Mexico has had laws protecting its cultural heritage since 1897 and that the most recent modification of those laws was a 1972 statute. Gertz testified that the ownership of pre-Columbian artifacts has been vested by law in the Mexican government since 1897,²  despite the fact that private individuals have been allowed to possess such items. Since 1934, individuals possessing pre-Columbian artifacts have been required to register them with the government. Export permits have been required since 1934, although since then only 50 to 70 permits have been issued. A check by Gertz of the records of the National Institute of Anthropology and History showed that the defendants had neither registered nor received permission to export the artifacts found in their possession in the United States. Finally, he testified that under Mexican law pre-Columbian artifacts which are removed from Mexico without permit are considered stolen.

Dr. Richard E. Adams, a Professor of Anthropology and Dean of Humanities and Social Studies at the University of Texas in San Antonio, Texas, testified as the other government expert on pre-Columbian artifacts. He testified that Mexican law with respect to pre-Columbian artifacts had not changed in two generations. As will be seen in Section III of this opinion, this belief was erroneous. He testified that some of the artifacts in question were from Guatemala, Honduras, Panama, and Costa Rica, and some were fakes.

The trial court declined to appoint an expert and also an interpreter, as requested by the defendant Rodriguez.

The trial judge instructed the jury that, before it could find any defendant guilty, it had to find beyond a reasonable doubt that the property described in the indictment was "stolen". The judge informed the jury that

stolen means acquired or possessed as a result of some wrongful or dishonest act of taking, whereby a person willfully obtains or retains possession of property which belongs to another, without or beyond any permission given, and with the intent to deprive the benefits of ownership and use.

Basing his charge on Mexican law as explained by Dr. Gertz, the trial judge instructed the jury that

since 1897 Mexican law has declared pre-Columbian artifacts recovered from the Republic of Mexico within its borders to be the property of the Republic of Mexico, except in instances where the Government of the Republic of Mexico has, by way of license or permit, granted permission to private persons or parties or others to receive and export in their possession such artifacts to other places or other countries.

This erroneous instruction is discussed in Section III of this opinion.

The apparent purpose of Congress in enacting stolen property statutes was to discourage both the receiving of stolen goods and the initial taking. See United States v. Gardner, 7 Cir. 1975, 516 F.2d 334, 349, cert. denied, 423 U.S. 861, 96 S. Ct. 118, 46 L. Ed. 2d 89; United States v. Bolin, 9 Cir. 1970, 423 F.2d 834, 838, cert. denied, 398 U.S. 954, 90 S. Ct. 1882, 26 L. Ed. 2d 297. Such discouragement was, of course, intended to aid the states, which, because of jurisdictional limitations, could not prosecute the receivers or thieves of stolen property after that property moved across state lines. See United States v. Sheridan, 1946, 329 U.S. 379, 384, 67 S. Ct. 332, 91 L. Ed. 359; United States v. Patten, D.P.R. 1972, 345 F. Supp. 967, 968. The ultimate beneficiary of the law, of course, is the property owner who thereby enjoys greater governmental protection of property rights.

Sections 2314 and 2315 refer not only to interstate commerce, but to foreign commerce as well. It is no surprise, then, that the NSPA has been applied to thefts in foreign countries and subsequent transportations into the United States. See United States v. Rabin, 7 Cir. 1963, 316 F.2d 564, cert. denied, 375 U.S. 315, 84 S. Ct. 48, 11 L. Ed. 2d 50; United States v. Greco, 2 Cir. 1962, 298 F.2d 247, cert. denied, 369 U.S. 820, 82 S. Ct. 831, 7 L. Ed. 2d 785; United States v. Hollinshead, 9 Cir. 1974, 495 F.2d 1154. The Republic of Mexico, when stolen property has moved across the Mexican border, is in a similar position to any state of the United States in which a theft occurs and the property is moved across state boundaries.

First, the appellants contend that application of the National Stolen Property Act to cases of mere illegal exportation constitutes unwarranted federal enforcement of foreign law. They argue that the word "stolen" cannot include the pre-Columbian artifacts seized in this case, for there was no evidence showing that the artifacts had been taken without consent from private individuals or that the artifacts had been in the possession of the Republic of Mexico. Mexican legislative declarations of "ownership" of pre-Columbian artifacts are, the appellants say, not enough to bring the objects within the protection of the NSPA; "possession is the beginning of ownership".³  This United States statute, the appellants argue, employs the term "stolen" to cover only acts which result in the wrongful deprivation of rights of "ownership" as that term is understood at common law.

Second, the appellants contend that, even if a legislative declaration of ownership would, with export restrictions, invoke the protection of the NSPA, the trial court erred in instructing the jury that Mexico had, since 1897, vested itself with ownership of all pre-Columbian artifacts.

Our consideration of the meaning of the term "stolen" best begins with United States v. Turley, 1957, 352 U.S. 407, 411, 77 S. Ct. 397, 1 L. Ed. 2d 430. There the Supreme Court was called upon to determine the meaning of that term as used in the Motor Vehicle Theft Act,⁴  which prohibits the interstate transportation of "stolen" vehicles. The Court, pointing out that the word "stolen" has no accepted common law meaning and is not a term of art,⁵  concluded that "stolen" does not refer exclusively to larcenously taken automobiles; instead, a vehicle that had been rightfully acquired but wrongfully converted by a bailee was held to be "stolen" within the meaning of the Act.

The Turley Court cited with approval two National Stolen Property Act cases that had also given the word "stolen" broad scope. See Crabb v. Zerbst, 5 Cir. 1939, 99 F.2d 562, 565; United States v. Handler, 2 Cir. 1944, 142 F.2d 351, cert. denied, 323 U.S. 741, 65 S. Ct. 40, 89 L. Ed. 594.⁶  Both cases held that embezzled property was stolen within the meaning of the Act. In Crabb, we observed that "stealing" is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another and deprives the owner of the rights and benefits of ownership. Post-Turley cases have continued to give the term "stolen" a wide-ranging meaning. See, e. g., United States v. Bottone, 2 Cir. 1966, 365 F.2d 389, cert. denied, 385 U.S. 974, 87 S. Ct. 514, 17 L. Ed. 2d 437;⁷  United States v. Vicars, 6 Cir. 1972, 465 F.2d 720;⁸  Lake v. United States, 10 Cir. 1964, 338 F.2d 787.⁹ 

Thus, on one side of the argument we have a federal criminal statute that has been given an expansive scope. On the other side of that argument rests a doctrine of construction fundamental to a society in which governmental interest must be balanced against regard for individual liberty. It is not yet too ritualistic a practice to observe that, throughout our jurisprudence, the courts have considered that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity". Rewis v. United States, 1971, 401 U.S. 808, 91 S. Ct. 1056, 28 L. Ed. 2d 493.

The rule that penal laws are to be construed strictly, is, perhaps, not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals.

United States v. Boston and M. R. R., 1965, 380 U.S. 157, 160, 85 S. Ct. 868, 13 L. Ed. 2d 728, quoting United States v. Wiltberger, 1820, 18 U.S. (5 Wheat.) 76, 5 L. Ed. 37. This ancient precept has continued vitality. See, e. g., United States v. Bridges, 5 Cir. 1974, 493 F.2d 918;¹⁰  Merrill v. United States, 5 Cir. 1964, 338 F.2d 763.¹¹ 

Of course, the doctrine of strict construction is not absolute. "(T)he intention of the law-maker must govern in the construction of penal, as well (as) other statutes". Id. See also Garrett v. United States, 5 Cir. 1968, 396 F.2d 489, 491, cert. denied, 393 U.S. 952, 89 S. Ct. 374, 21 L. Ed. 2d 364; United States v. Mikelberg, 5 Cir. 1975, 517 F.2d 246, 252. We cannot accept, therefore, the appellants' initial argument by referring to the doctrine.

Nor can the issue in this case be resolved by suggesting that an affirmance condones unwarranted federal enforcement of foreign law. Congress chose to protect property owners living in states or countries hampered by their borders from effectively providing their own protection. The question posed, then, is not whether the federal government will enforce a foreign nation's export law,¹²  or whether property brought into this country in violation of another country's exportation law is stolen property. The question is whether this country's own statute, the NSPA, covers property of a very special kind purportedly government owned, yet potentially capable of being privately possessed when acquired by purchase or discovery. Our examination of Mexican law leads us to reject the appellants' argument that the NSPA cannot apply to illegal exportation of artifacts declared by Mexican law to be the property of the Nation.

We do not base this conclusion on illegal exportation of the antiquities. Professor Bator correctly states the law applicable to violations of export laws:

The general rule today in the United States, and I think in almost all other art-importing countries, is that it is not a violation of law to import simply because an item has been illegally exported from another country. This is a fundamental general rule today with respect to art importation. . . . This means that a person who imports a work of art which has been illegally exported is not for that reason alone actionable, and the possession of that work cannot for that reason alone be disturbed in the United States.¹³ 

This general rule has been qualified by congressional statute and by treaties.¹⁴  But we cannot say that the intent of any statute, treaty, or general policy of encouraging the importation of art more than 100 years old was to narrow the National Stolen Property Act so as to make it inapplicable to art objects or artifacts declared to be the property of another country and illegally imported into this country.

The government's expert on Mexican law testified, and the trial court instructed the jury, that Mexico has, since 1897, vested itself with ownership of pre-Columbian artifacts. This testimony and the subsequent instruction, as we pointed out, were in error. Mexican law has been concerned with the preservation and regulation of pre-Columbian artifacts since 1897, but ownership of all pre-Columbian objects by legislative fiat, did not come until much later. When it did come, it came, not at once, but in stages.¹⁵ 

Article 1 of the Law on Archaeological Monuments, May 11, 1897,¹⁶  did indeed declare that "archaeological monuments" were "the property of the Nation" and that no one could "remove them . . . without express authorization of the Executive of the Union". Archaeological monuments were defined to mean "ruins of cities, Big Houses (Casas Grandes), troglodytic dwellings, fortifications, palaces, temples, pyramids, sculpted rocks or those with inscriptions, and in general all the edifices that in any aspect may be interesting for the study of civilization and the history of the ancient settlors of Mexico". The class of objects involved in this case was covered by Article 6, which provided that

Mexican antiquities, codices, idols, amulets and other objects or movable things that the Federal Executive deems interesting for the study of the civilization and history of the aboriginals and ancient settlers of America and especially of Mexico, cannot be exported without legal authorization.

Nothing in this article constitutes a declaration of ownership. The 1897 law distinguishes between "antiquities . . . or movable things", which are subject to export restrictions, and archaeological monuments. Moreover, even with respect to movable artifacts ("antiquities, codices, idols, amulets and other objects or movable things"), the Federal Executive was obliged first to declare those objects "interesting" for studies of Mexican civilization and history for these objects to be subject to the export regulation under Article 6. We note too that the antiquities were not considered "immovables by destination", a category familiar to civilians.

The next major Mexican law pertaining to pre-Columbian artifacts was the Law on the Protection and Conservation of Monuments and Natural Beauty, January 31, 1930.¹⁷  This law set up a more complicated system of controlling objects of "artistic, archaeological, or historical value". These objects, both movable and immovable, "whose protection and conservation may be of public interest" because of such value, were declared "monuments". Art. 1. For an object to acquire status as a "monument", however, the object either would have to come into the care of the Secretariat of Public Education or be declared a "monument" by the Department of Artistic, Archaeological and Historical Monuments, which was instructed to make the declaration "with precision". Art. 6. But the 1930 law implicitly recognized the right to private ownership of monuments and expressly allowed monuments to be freely alienated, subject to the government's right of first refusal.¹⁸  Art. 16. Most significantly, ownership was not among the rights the government declared for itself in monuments. The 1930 law was the first to place export restrictions on all objects of the type here involved. The law prohibited the exportation of movables and immovables by destination which had been officially designated as "archaeological monuments", but permitted the exportation of other objects of archaeological value with official permission. Art. 19, 20. This law, therefore, is very different from the law of 1897.

The next relevant enactment came in the Law for the Protection and Preservation of Archaeological and Historic Monuments, Typical Towns and Places of Scenic Beauty, January 19, 1934.¹⁹  Again, "monuments" were regulated and were defined as objects "of archaeological origin and . . . whose protection and preservation are in the public interest, owning to . . . historical value". Art. 1. The 1930 definition of monuments was significantly expanded, however, for the law declared that "all vestiges of the aboriginal civilization dating from before the completion of the Conquest shall be considered as archaeological monuments". Art. 3. The law then declared that

(a)ll immovable archaeological monuments belong to the nation. Objects which are found (in or on) immovable archaeological monuments are considered as immovable property, and they therefore belong to the Nation.

Art. 4 (emphasis added).²⁰ 

It is still clear that not all pre-Columbian artifacts were declared "owned" by the Mexican government. The 1934 law specifically recognized private ownership of archaeological movables. Article 9 required the "Register of Private Archaeological Property" to maintain a record of movable artifacts "that are the property of private individuals at the time of this law's entry into force and for those which they may legally acquire in the future". No records were maintained, therefore, before 1934. Article 10 recognized that "transfers of ownership: ("propiedad") may be made by the owners of registered objects, but required the transfers to be recorded. The artifacts found in or on immovable monuments form a subset of the set of all pre-Columbian artifacts; those artifacts not in the subclass were not owned by Mexico.

The next Mexican law in this area was the Federal Law Concerning Cultural Patrimony of the Nation, December 16, 1970.²¹  This law again declared pre-Columbian archaeological immovables and movables found in or on²²  immovable archaeological objects to be the Cultural Patrimony of the Nation. Art. 52. Such objects could not be permanently exported. Art. 96. The law recognized private ownership of other movable artifacts, while continuing the scheme of registration established by the 1934 Act. Art. 54; Transitory Art. Fifth. Article 54 declares that movable artifacts which are not "unique, rare specimens or of exceptional value for their esthetic quality or for their other cultural qualities . . . can be the object of transfer of ownership". Article 55 creates a presumption that the unregistered movable archaeological objects are "the property of the Nation".

The statutory law shows, therefore, that Mexico did not assert ownership of all pre-Columbian artifacts in 1934. The same situation existed in 1970, when the next law was enacted. Even ethnological, anthropological, and paleontological pieces, which were defined as "articles of cultural value", Art. 3, and were ascribed to the "Cultural Patrimony of the Nation" were capable of being privately owned. See Arts. 17, 37.²³ 

Finally, we come to the Federal Law on Archaeological, Artistic and Historic Monuments and Zones, May 6, 1972.²⁴  Article 27 provides that "(a) rchaeological monuments, movables and immovables, are the inalienable and imprescriptible property of the Nation". Article 28 then establishes that

(m)ovable and immovable objects, product of the cultures prior to the establishment of the Spanish culture in the National Territory, . . . are archaeological monuments.

This law unequivocally establishes for the first time what Dr. Gertz testified had been the case since 1897. Only after the effective date of the 1972 law would the Republic of Mexico necessarily have ownership of the objects such as the artifacts involved in this case. This legislation "extended national ownership of the cultural patrimony to private collections and forbade absolutely the export of pre-Columbian items".²⁵  The law was adopted only after "a bitter constitutional debate" over the extension of public control over private property.²⁶  A grandfather clause protected pre-existing private ownership rights. Transitory Article Fourth. Moreover, Article 22 requires individuals to register monuments "of their ownership".

The Amicus states that this view is confirmed by the formal opinion of the Mexican Bar, which reviewed the 1972 statute prior to its enactment. See opinion de la Barra Mexicana Sobre La Iniciativa de Ley Federal Sobre Monumentos Arqueologicos, artisticos, Historicos y Zonas Monumentales (Opinion of the Mexican Bar on the Proposed Federal Law on Archaeological, Artistic, and Historical Monuments and Monument Zones), 5 El Foro No. 26 (Organo de la Barra Mexicana, Colegio de Abogados) 121, 124-25 (abril-junio, 1972): ". . . the Laws (prior to 1972) . . . established public ownership or general use only over archaeological immovable monuments and . . . movables found on them . . . . (I)t is of major relevance to point out that all this legislation permitted, recognized and protected private ownership over movable archeological monuments . . . ." (Translation from the Spanish, emphasis supplied.)²⁷ 

We find as a matter of law that the district court erred by instructing the jury in accordance with Dr. Gertz's testimony. See Fed. R. Crim. P. 26.1 (Determination of Foreign Law); cf. First National City Bank v. Campania de Aguaceras, S. A., 5 Cir. 1968, 398 F.2d 779, 781-82.

The court's instruction that the Mexican government had owned the artifacts for over seventy-five years was highly prejudicial to the defendants. It could have been the decisive factor in the jury's inferring that the defendants must have known that the artifacts in question were stolen.

This review of the relevant Mexican statutes demonstrates that the Mexican government has, since 1897, been staking out for itself greater and greater rights in pre-Columbian artifacts. Only in 1972, however, did the government declare that all pre-Columbian artifacts were owned by the Republic. We hold that a declaration of national ownership is necessary before illegal exportation of an article can be considered theft, and the exported article considered "stolen", within the meaning of the National Stolen Property Act.²⁸  Such a declaration combined with a restriction on exportation without consent of the owner (Mexico) is sufficient to bring the NSPA into play.²⁹ 

This conclusion is a result of our attempt to reconcile the doctrine of strict construction of criminal statutes with the broad significance attached to the word "stolen" in the NSPA. Were the word to be so narrowly construed as to exclude coverage, for example, with respect to pre-Columbian artifacts illegally exported from Mexico after the effective date of the 1972 law, the Mexican government would be denied protection of the Act after it had done all it reasonably could do vested itself with ownership to protect its interest in the artifacts. This would violate the apparent objective of Congress: the protection of owners of stolen property.³⁰  If, on the other hand, an object were considered "stolen" merely because it was illegally exported, the meaning of the term "stolen" would be stretched beyond its conventional meaning. Although "stealing" is not a term of art, it is also not a word bereft of meaning. It should not be expanded at the government's will beyond the connotation depriving an owner of its rights in property conventionally called to mind.³¹ 

We distinguish, therefore, between varying types of governmental control over property within the borders of a state. All property is presumably within a state's police power: a state may prohibit the sale of firearms to convicted felons; it may regulate the price charged for electric power; it may prohibit the use of a privately owed manufacturing plant in a racially discriminatory manner; it may require some private parties to sell their railroads to other private parties. But the state's power to regulate is not ownership. Nor does the fact that a state has regulated an object in and of itself constitute ownership.

To be sure, the pre-Columbian artifacts regulated by Mexico seem to be in a different position from firearms, electric power, manufacturing plant, and railroads. Because the artifacts cannot lawfully be taken from the country, without an export license they appear more "owned" than the other types of property. This appearance reflects the confusion of ownership with possession. Separating a piece of property from a country is analogous to depriving that country of possession over the property, because it deprives the country of jurisdiction over the property. Exportation restrictions guard that jurisdiction and power. But, except for this effect on jurisdiction, restrictions on exportation are just like any other police power restrictions. They do not create "ownership" in the state. The state comes to own property only when it acquires such property in the general manner by which private persons come to own property, or when it declares itself the owner;³²  the declaration is an attribute of sovereignty.

We summarize, then, how these conclusions square with Mexican law as we understand it. In order to say whether any of the pre-Columbian movable artifacts were "stolen", it is necessary to know first when that artifact was exported from Mexico.³³  If the exportation occurred after the effective date of the 1972 law, the artifact may have been stolen but only if it were not legitimately in the seller's hands as a result of prior law. (Transitory Article Fourth). If the exportation occurred before 1972, but after the effective date of the 1934 law, it would be necessary to show that the artifact was found on or in an immovable archaeological monument. If the exportation occurred before the effective date of the 1934 law, it could not have been owned by the Mexican government, and illegal exportation would not, therefore, subject the receiver of the article to the strictures of the National Stolen Property Act. Because the jury was not told that it had to determine when the pre-Columbian artifacts had been exported from Mexico and to apply the applicable Mexican law to that exportation, convictions of all the appellants must be reversed.

The government argues, however, that, even if the 1972 law was the first to make every pre-Columbian artifact in Mexico the property of the nation, the error in the trial court's jury instruction amounts merely to harmless error. The appellee points to the fact that the effective date of the 1972 law appears to have been June 5, 1972 (see Transitory Article First) whereas the pre-Columbian artifacts are known to have been in the United States in May 1973. The government suggests, then, that the "evidence . . . compelled the inference of recent exportation", (Br. at 27) i. e. exportation after June 5, 1972.

When the jury is not given an opportunity to decide a relevant factual question, it is not sufficient "to urge that the record contains evidence that would support a finding of guilt even under a correct view of the law". United States v. Casale Car Leasing Inc., 2 Cir. 1967, 385 F.2d 707, 712. The jury here was the only body that could have properly made the inference of "recent exportation" and a holding by us to the contrary would, by supplanting our determination for the jury's verdict, deprive the defendants of their right to a jury trial. Under a proper view of the law, it is extremely important to the issue of guilt or innocence for the jury to know or to make a fair inference as to just when the artifacts were exported. Accepting the government's argument would be tantamount to affirming a conviction in which the trial court had instructed the jury that "the artifacts were obviously recently exported". This, however, is the kind of judicial error that cannot be found harmless notwithstanding the strength of the evidence against the defendants. See Roe v. United States, 5 Cir. 1961, 287 F.2d 435, 438, cert. denied, 368 U.S. 824, 82 S. Ct. 43, 7 L. Ed. 2d 29; Carothers v. United States, 5 Cir. 1947, 161 F.2d 718, 722.

As the Court of Appeals for the Seventh Circuit said in United States v. England, 7 Cir. 1965, 347 F.2d 425, 430:

the defendant has an absolute right to a jury determination upon all essential elements of the offense. This right, emanating from the criminal defendant's constitutional right to trial by jury, is neither depleted nor diminished by what otherwise might be considered the conclusive or compelling nature of the evidence against him.

See also United States v. O'Dell, 6 Cir. 1972, 462 F.2d 224; United States v. Hayward, 1969, 136 U.S.App.D.C. 300, 420 F.2d 142, 144; United States v. Fueston, 9 Cir. 1970, 426 F.2d 785; United States v. Manuszak, 3 Cir. 1956, 234 F.2d 421.³⁴ 

There is one issue raised that is not necessary for us to reach but which may arise in the context of a retrial.

The appellants contend that the value of the artifacts could not be proved except by evidence showing value at the time and place of theft, citing Herman v. United States, 5 Cir. 1961, 289 F.2d 362, cert. denied, 368 U.S. 897, 82 S. Ct. 174, 7 L. Ed. 2d 93. The government's evidence tended to show the value of the artifacts after exportation, i. e. while sales were being negotiated to undercover agents. As we have already observed, it is not clear how much time elapsed between exportation and the appearance of the artifacts in San Antonio and Los Angeles.

In Herman, the question the Court faced was whether it was proper, in computing the value of stolen goods, to include a mark-up to retail value. This question was answered affirmatively. It is true, we observed that

(t)he standard test for determining market value of stolen property is the price a willing buyer would pay a willing seller at the time and place the property was stolen.

Id. at 366. We now emphasize that the willing buyer-willing seller formula need not always be confined to the time and place of theft.³⁵  Instead, as we have once before observed, value may be determined at any time during the receipt or concealment of stolen property. See United States v. Nall, 5 Cir. 1971, 437 F.2d 1177, 1187; accord, United States v. Riso, 7 Cir. 1968, 405 F.2d 134, 137, cert. denied, 394 U.S. 959, 89 S. Ct. 1306, 22 L. Ed. 2d 560; United States v. Gardner, 7 Cir. 1975, 516 F.2d 334, 349, cert. denied, 423 U.S. 861, 96 S. Ct. 118, 46 L. Ed. 2d 89; United States v. Tauro, W.D. Pa. 1973, 362 F. Supp. 688, 691-92, aff'd, 3 Cir. 1974, 493 F.2d 1402.

The convictions are reversed. The cases are remanded for further proceedings not inconsistent with this opinion.³⁶ 

REVERSED AND REMANDED.