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Small Gets 2 Years' Probation
Smithsonian Secretary Bought Protected Artifacts

By Jacqueline Trescott
Washington Post Staff Writer
Saturday, January 24, 2004

RALEIGH, N.C., Jan. 23 -- A federal judge sentenced the secretary of the Smithsonian Institution to two years' probation and 100 hours of community service Friday for the purchase and possession of 206 art objects made with the feathers of protected species.

In addition, the judge ruled that Lawrence H. Small, 62, must submit a letter of apology and explanation for publication in The Washington Post, the New York Times, the Wall Street Journal, the Los Angeles Times and National Geographic.

Small, who heads the largest museum complex in the world, had surrendered approximately 1,000 pieces -- worth hundreds of thousands of dollars -- from his private collection of Amazonian tribal art to the U.S. Fish & Wildlife Service in 2001 as a result of the investigation, according to documents made public Friday.

Chief Judge Terrence W. Boyle accepted Small's guilty plea to a criminal violation of the federal Migratory Bird Treaty Act but rejected a provision in the plea agreement that required Small make regular speeches about the need to protect wildlife.

Small maintained he had no knowledge that the collection, which he bought before he became head of the Smithsonian, contained protected feathers. Prosecutors said Small was charged under a provision that is not often used, though it has been employed to prosecute people who collected bald eagle feathers.

Small bought the collection in February 1998 for $400,000 from an anthropologist in Cary, N.C. The government also found that Small had personally imported 13 items that included the feathers of species protected under various international laws. Among them are the scarlet macaw, the hyacinth macaw, the harpy eagle and the roseate spoonbill.

In a statement earlier this week, the Smithsonian's board, which is headed by William Rehnquist, chief justice of the United States, said Small's anticipated guilty plea "will not impair the Secretary's ability to continue serving."

In the courtroom, Small said, "The court should be aware that the collection was obtained before I became secretary." The Fish & Wildlife Service has not decided what it will do with his collection, but Small told the court it should not be lent to the Smithsonian.

The government displayed several colorful headdresses and other artifacts on the rim of the jury box. Assistant U.S. Attorney Banumathi Rangarajan pointed out feathers from the great egret, the jabiru, the anhinga and the woodstork. Boyle asked for details of the investigation, which began in November 2000, saying he wanted to make sure a crime had been committed. He noted Small's cooperation with the government and his accounts that he did not knowingly purchase the illegal items.

"We are not in the business of convicting innocent people," Boyle said.

The government argued that Small was not an uninformed buyer because he had done research and was familiar with tribal art through his work and travel in South America.

"At the time of the purchase, he had a legal obligation" to make sure the sale was proper, Rangarajan said. Small has said he consulted a lawyer about the purchase, but Rangarajan said, "The government's position is that there was no discussion with the lawyer about the legality."

After the proceeding, Frank D. Whitney, the U.S. attorney for the Eastern District of North Carolina, emphasized that Small "is not an individual that did not have resources. He had $400,000 at this disposal" and could easily have ensured that he was not violating the law.

Small was formally charged Jan. 5 and had worked out a plea agreement with the government before Friday's hearing. Boyle said he was uneasy with several points in the agreement. Small had agreed to make a series of speeches "no less than once a month" on the importance of endangered species laws. Boyle ruled that requirement was unnecessary.

Boyle also rejected a provision that Small post a two-page letter of apology on the Smithsonian's Web site. "I don't see the propriety of that," he said.

But the prosecution argued that although the collection was purchased before Small become Smithsonian secretary in January 2000, it was in his possession during his tenure. The judge then directed Small to submit the letter of apology to the five national publications.

Afterward Small said, "For someone who can't ever remember getting a speeding ticket, it is unusual to find myself in the position of having broken the law, but I'm glad we have gotten to closure."

Small pleaded guilty to a Class B misdemeanor, which carries a maximum jail term of six months and a $15,000 fine.

The hearing was in North Carolina because the protected items were purchased in the state, but many of the key players as well as Small have important ties to Washington.

Small's attorney, Judah Best, has represented former vice president Spiro T. Agnew and Watergate figures Charles Colson and Harry Dent. Whitney, a former Army intelligence officer and a paratrooper, worked in the capital as a clerk at the U.S. Court of Appeals and then for a D.C. law firm.

Boyle was nominated to the U.S. Court of Appeals by President Bush last May, and the selection was sent to the Senate for confirmation earlier this month. He had been nominated for the same post by the first President Bush, but the nomination was never approved.

One of those who helped block Boyle's appointment was Sen. John Edwards (D-N.C.). Boyle briefly worked for another North Carolina senator, Republican Jesse Helms.

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