By Scott Sonner
Associated Press
March 21, 2006
RENO, Nev. - A federal appeals court overturned the conviction of two Nevada men in the theft of American Indian artwork Tuesday even though the judges said it was clear the men stole the centuries-old petroglyphs. The 9th U.S. Circuit Court of Appeals ruled that the Justice Department failed to prove the rock art taken from national forest land had a market value of more than $1,000.
The evidence federal prosecutors provided suggesting the drawings had an archaeological value estimated up to $8,000 was insufficient to warrant a conviction, the appellate court in San Francisco ruled.
A federal court jury in Reno convicted John Ligon, 41, Reno, and Carroll Mizell, 45, Van Nuys, Calif., in June 2004 of stealing government property.
"The 9th Circuit agreed with us - that this case never should have gone to the jury," said David Houston, a Reno lawyer who represented Mizell.
Ligon and Mizell admitted during the weeklong trial they took three boulders with etchings of an archer and bighorn sheep from the Humboldt-Toiyabe National Forest near a Reno neighborhood the summer before. But they insisted they didn't know they were breaking the law, partly because there were no signs marking the site.
Forest Service officials believe the petroglyphs are at least 1,000 years old, and an agency archaeologist testified they had an archaeological value of about $8,000.
But prosecutors chose not to introduce an Arizona art gallery owner's appraisal as evidence. He had estimated the boulders could be sold for $1,500 if they were in good condition but because they were badly scarred when they were removed, their commercial value was $800 to $900.
And, the 9th Circuit panel said, under federal law archaeological value is not of the artifact itself but of all the archaeological knowledge that goes with it, based on how much it would cost to obtain that knowledge.
"The government's choice not to introduce any evidence of 'value' within the meaning of (federal law) unfortunately leaves us little choice," Judge William A. Fletcher wrote in the opinion issued Tuesday.
"It is clear that Ligon and Mizell stole the petroglyphs. It is equally clear that the petroglyphs had a market value," he said.
"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 (the statute), although it obviously could have done so."
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,'" said Fred Frampton, a Forest Service archaeologist.