A Utah pothunter who once boasted he had looted archaeological sites "thousands of times" must be resentenced, a federal appeals court ruled Tuesday.
A three-judge panel of the 10th Circuit Court of Appeals held that a federal district judge should not have enhanced Earl K. Shumway's sentence because of a "vulnerable victim" factor.In December 1995, U.S. District Chief Judge David Winder sentenced Shumway to 61/2 years in prison, the stiffest sentence ever imposed under the federal Archaeological Resource Protection Act of 1979.
A jury found Shumway guilty of four counts of unauthorized excavation of two Anasazi sites, Dop-Ki Cave in Canyonlands National Park and Horse Rock Ruin near Allen Canyon in the Manti-LaSal National Forest. Following the conviction, Shumway pleaded guilty to consolidated charges that included a subsequent indictment.
Shumway appealed both his sentence and jury conviction, contesting the admissibility of some of the evidence and the criteria the judge applied in his sentencing.
While upholding the conviction and three of the four sentencing points raised on appeal, the 10th Circuit Court found sufficient error on one point to order a new sentencing.
At the trial, witnesses testified that Shumway and another man used a helicopter to reach the Dop-Ki Cave, where they excavated a number of artifacts, including the remains of an infant wrapped in a burial blanket.
"When the damage to the site was later assessed, the only portion of the infant's skeleton remaining was the skull on top of the dirt pile," according to a court summary.
After excavating the Dop-Ki site, Shumway led the expedition to the Horse Rock Ruin. On appeal, Shumway questioned the admissibility of evidence relating to his prior illegal activities at the Horse Rock site.
The judges, however, said the evidence was admissible because Shumway's prior activities and the acts charged in the later indictment shared a distinctive feature: "The skill and specialized knowledge necessary to commit both acts."
In sentencing Shumway, Winder applied enhancements, including one that adds prison time for committing an offense against someone who is particularly susceptible to criminal conduct.
"Skeletons certainly are completely unable to defend themselves against criminal conduct," the appeals judges wrote. "However, to illustrate the absurdity of applying the `vulnerable victim' status to a skeleton, consider for example a pile of cremated remains or a pile of dirt that was once a pile of bones."
If skeletal remains are "vulnerable victims," then so are those other examples, the judges said.
They were less sympathetic with Shumway's complaints about how the court calculated the damage he caused. He argued the judge should have limited the assessment to fair market value, or about $9,122. An assessment of damage is included as part of the sentencing criteria.
"We agree with the district court the paltry sum of $9,122, the asserted cost of the artifact's fair market value and cost of restoration and repair, fails to reflect adequately the extent of damage Mr. Shumway inflicted," the court said.
The amount was "grossly insufficient to quantify the devastating and irremediable cultural, scientific and spiritual damage Mr. Shumway caused to the American people in general and to the Native American community in particular," the judges said.
According to court documents, Shumway admitted under oath he had been digging artifacts from public lands ever since he was a child and that he had looted sites thousands of times.