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Writs and Reprimands

A Fortunate Forfeiture

            Your liberty isn’t the only thing at stake when you get arrested. All too often, defendants face the possibility of having their property seized as well.

The Background

            Simone Perez (not her real name) was driving her fully paid-for personal car through Ruraltown, Rural County, Texas (not a real place) when she was pulled over for speeding. The local constabulary searched her vehicle and allegedly found narcotics in her glove box. The police arrested Simone, charged her with felony possession of a controlled substance, and impounded her car. For Simone, who had never been in trouble, this was a nightmare – but it wasn’t over yet.

            Several days later, the local DA’s office filed a Notice of Seizure and Intended Forfeiture giving Simone notice that the State of Texas intended to seize and sell her car. The DA’s office and Ruraltown PD would split the proceeds. Simone now faced not only criminal charges, but the very real prospect of losing her vehicle – and with it, her job.

The Law

            Texas law allows the State, acting through local District Attorneys and police departments, to seize “contraband” and sell it. The proceeds from the sale benefit law enforcement. Originally, “contraband” meant the proceeds of drug trafficking – but over the years the definition has expanded. Nowadays, “contraband” includes not only the proceeds from drug trafficking but anything “used or intended to be used” to commit a felony. Unfortunately for Simone, in this case that includes her car, which was allegedly “used” to “possess” a small, but felony-level, amount of narcotics.

            However, the Eighth Amendment to the U.S. Constitution prohibits “excessive fines”. In the case of United States v. Bajakajian, 524 U.S. 321, 334 (1998), the U.S. Supreme Court required that a forfeiture be proportional to the offense alleged. In this case, the maximum fine Simone could be charged with, if convicted, is $10,000, but her car was worth $15,000 – clearly, the seizure would be disproportionate, especially since the amount of drugs Simone allegedly possessed was very, very small.

The Result

            Fortunately for Simone, I had handled dozens of asset forfeiture cases as a prosecutor and quickly identified the Eighth Amendment issue in Simone’s case. When I filed an answer in the forfeiture lawsuit I also filed a Motion for Summary Judgment on the Eighth Amendment issue. A few days later the State dismissed the forfeiture case and acknowledged that a forfeiture would be disproportionate.

            Ultimately, this was a good outcome for everyone involved, including the taxpayers of Rural County. Simone got to keep her car. The DA’s office did the right thing when it recognized that forfeiting Simone’s car would harm her without a corresponding benefit to society. And, the taxpayers of Rural County and the State of Texas benefit because a productive member of society can continue working and contributing to society.

Can you steal whiskey by drinking it? A follow up to "Grand Theft Bourbon"

After writing my previous post about bourbon theft, I came across a story too good not to share: that of John Saunders, a caretaker at a Pennsylvania mansion who drank one hundred thousand dollars’ worth of pre-Prohibition “Old Farm” brand rye whiskey that did not belong to him – as dastardly and base a whiskey-related crime as can be imagined.

The Facts

Patricia Hill of Pittsburgh, PA found 9 cases of Old Farm Pure Rye Whiskey distilled in 1912 and bottled in 1917 hidden in the walls and stairwell of a historic mansion she had bought and was renovating. After the discovery and during the renovations, Ms. Hill’s live-in caretaker, John Saunders, apparently drank four of the cases (!) emptying 52 bottles in all (!!). Police got a search warrant to test Saunders’ DNA and matched it to DNA found on the lips of three of the bottles. Saunders only escaped prosecution for felony theft and receiving stolen property by the not-recommended expedient of dying before trial. The whiskey’s value was appraised at over $102,000.

Saunders was charged with theft under Pennsylvania law. What about under Texas law? Could he be convicted for theft for drinking all of that whiskey?

The Law

He sure could. Although there doesn’t appear to be a Texas case on point, his actions fit all the elements of the theft statute. Recall that a person commits “theft” in Texas by unlawfully acquiring or otherwise exercising control over property with the intent to deprive the owner of that property and without the owner’s effective consent. Tex. Penal Code Sec. 31.03. The whiskey was the property Saunders acquired, he acquired or exercised control over it by drinking it without the permission of its owner, and by doing so he deprived the owner of that whiskey. And, since the whiskey had an appraised value of $102,000, Saunders could have been charged with a 3rd Degree Felony and punished by up to 10 years in prison and up to a $10,000 fine. Which hardly seems like justice for this particular offense. We Texans have a phrase that seems a better fit: “Hangin’s too good for ‘em.”

Further reading

If you can bear it:

http://www.thespiritsbusiness.com/2014/08/man-charged-with-drinking-100k-rare-whiskey-dies/

http://www.wtae.com/news/local/westmoreland/man-charged-with-drinking-102000-worth-of-preprohibition-whiskey-held-for-court/19430164

http://www.thespiritsbusiness.com/2013/03/mansion-caretaker-charged-with-drinking-100000-rare-whiskey/

 

Grand Theft Bourbon

Bourbon is Big Business

Ah, whiskey: the cause of, and solution to, all of life’s problems. I’m a big whiskey fan – as a founding member of the Dallas Scotch Society, I’d better be – and if there’s anything I like more than drinking a good whiskey it’s drinking a good whiskey and reading about scallywags who also like whiskey. There are a bunch of them. Whiskey drinking is sometimes correlated with good behavior but is rarely its cause.

Whiskey – in this case, premium bourbon – is a big and delicious business. The problem with bourbon is that when it comes out of the still it’s moonshine: clear as a tear and with all the subtlety of rubbing alcohol. To make it worth drinking, you have to age it in barrels, specifically, new, charred barrels. Caramelized sugars in the charred wood gives bourbon its color and flavor. This aging takes time. “Straight bourbon” must be aged at least two years, and all bourbon aged less than four years must have an age statement on the bottle. Most bourbons don’t make an age claim, thus, most contain a blend of bourbon that is at least four years old. Because most bourbons have to sit around in big barrels for at least four years, large distilleries have tens or hundreds of thousands of barrels in inventory at any given time. In Kentucky, where most bourbon is made, there may be upwards of 5.7 million barrels of bourbon aging in warehouses right now. Barrels of premium bourbon can be valued at $5,000 apiece. Bottles of a super-premium brand like Pappy Van Winkle can be worth up to $100,000. Pappy nominally retails for $250, if you can find a bottle, which you can’t, at any price. Neither can I, but I’m working on it.

Grand Theft Bourbon

If you have millions of barrels of valuable whiskey barrels sitting around in often poorly-secured warehouses, it’s not surprising that some of them just walk away. Or more correctly, roll away in the personal trucks of unscrupulous but highly motivated employees. Just that very thing happened in Kentucky a few years ago when several Buffalo Trace employees stole tens or even hundreds of thousands of dollars worth of bourbon from their employer.

Of course, that happened in Kentucky. I’m from Texas, where good Kentuckians go when they die. I don’t know much about Kentucky law, but I do know a bit about the law in Texas, which is supposedly what this blog is about. So let’s discuss a hypothetical where some disaffected employees of the fictional Waco Whiskey Works (“WWW”) steal some good Texas bourbon whiskey and use it to learn a bit about Texas law. We’ll use cases instead of barrels in our example because the math is easier.

Grand Theft Bourbon, Texas Style

Three Baylor Law School students, Justin O., Brian S. and Ron W., get jobs working in the WWW warehouse to make some mad money. One day after sampling the wares, Justin hatches an ingenious scheme: the next Tuesday when he closes up the warehouse, the three of them will sneak cases of Waco’s finest Texas Bourbon out of storage and sell them on the black market. Brian agrees to the plan. Ron does not agree to help with the actual theft, but gives Justin the key to the warehouse and asks Justin to steal a case for him. Later, Justin and Brian sell Ron a case of the bourbon for $500. Ron gets caught by undercover TABC Agents the next week trying to sell his case, and immediately confesses to the whole plan. That night, Justin and Brian are caught red-handed with the remaining two cases. Under Texas law, who is liable for what violations of what laws? 

Theft

For starters, all three are liable under Section 31.03 of the Texas Penal Code. Sec. 31.03 criminalizes “theft”. The statute is simple in concept and complicated in execution. Basically, a person commits theft when they unlawfully “appropriate” property with the intent to deprive the owner of the property. Tex. Penal Code Sec. 31.03(a). In this case, “appropriation” means to “acquire or otherwise exercise control over property.” Texas Penal Code Sec. 31.01(4)(B). Property is “appropriated” when it is taken without the owner’s effective consent, or when the actor appropriates the property knowing it was stolen. Id. at Sec. 31.03(b)(1, 2). Here, Justin and Brian have committed theft because they took the three cases of whiskey from WWW without the company’s consent. Ron has committed theft because he knew that the one case of whiskey he appropriated from Justin and Brian was stolen by them. Also, because Ron assisted Justin and Brian by encouraging them and giving them a key to the warehouse, he is equally liable for their crime under the law of parties. Tex. Penal Code Sec. 7.01(a)(b), 7.02(a)(1).

What punishment could they face? In Texas, the severity of a theft offense depends on the value of the goods stolen and can range from a Class “C” misdemeanor (similar to a traffic offense) to a first degree felony. Here, let’s say a bottle of WWW’s Texas Bourbon sells for $100. By itself, that’s a Class B misdemeanor punishable by up to 180 days in jail and a $2,000 fine. A case of 12 is worth $1,200, which is a Class A misdemeanor punishable by a $4,000 fine and a year in jail. Three cases of 12 are worth $3,600, which is a state jail felony punishable by up to two years in a state jail and a $10,000 fine. Justin and Brian, who stole three cases, can be charged with a state jail felony for stealing three cases, while Ron can be charged with a Class A misdemeanor for his receipt of one case. However, because Ron helped Justin and Brian by giving them the key to the warehouse, he is equally liable for their crime under the law of parties and can also be charged with a state jail felony.   

Engaging in Organized Criminal Activity

In addition to the theft charges, all three defendants might be charged with Engaging in Organized Criminal Activity ("EOCA") under Section 71.02 of the Texas Penal Code because they are a “combination” of at least three persons who conspired to, and did, commit the offense of theft. Tex. Penal Code Sec. 71.01(a); 71.02(a)(1). However, to secure a conviction the prosecution will also have to prove that the three intended to continue their organized conspiracy to steal bourbon. This will be difficult because case law generally holds that participation in one criminal act is not sufficient to support a conviction for EOCA. An aggressive prosecutor may argue that Ron intended the thefts to continue because he let Justin retain the warehouse key. Without more evidence, that is not likely to survive an appeal, but if the State can make their case the EOCA charge raises the punishment level up by one degree from the base theft offense to a third degree felony. That raises the possible punishment up to a maximum of 10 years in prison plus a $10,000 fine.

Enhancements and Civil Charges

Theft and EOCA each offer a prosecutor a lot of possibilities, and that's without touching on violations of the Alcoholic Beverage Code or potential enhancements to the punishment levels – for example, if any of our three offenders had previously been convicted of any theft, even a Class C shoplifting charge, they could be punished at the next higher punishment range. Plus, they could all be sued for a multitude of civil claims, including violation of the Texas Theft Liability Act and breach of fiduciary duty.

Conclusion

The number of possible offenses and ranges of punishments just goes to show the enormous power prosecutors exercise over criminal defendants merely by making charging decisions. The good news for our three defendants is that even though they were caught red-handed, there is a lot of wiggle room in the punishment ranges that a good defense attorney can take advantage of. For anyone who has been charged with a crime, it’s important to get a good attorney on your side ASAP to develop your defense and either try your case or work out the best possible deal. And if you can pay in whiskey, so much the better.

Postscript

If you ever have the chance to visit a distillery, do it. Even if you’re not a liquor fan, I promise you it’s a lot more interesting than you would think. In the Dallas/Fort Worth area, you can tour the JEM Beverage Co. Distillery, Witherspoon Distillery, Trinity River Distillery, Firestone & Robertson Distillery, and Dallas Distilleries. They make, respectively, Red River Texas Bourbon Whiskey, Witherspoon’s Texas Straight Bourbon Whiskey, Texas Silver Star Spirit Whiskey, TX Blended Whiskey and Herman Marshall Texas Bourbon. I’ve toured Firestone and Roberts and the DSS has toured Herman Marshall. Both tours are highly recommended.

Post-postscript

For further reading and information, check out the following articles and websites:

·      The Great Whiskey Heist” at mensjournal.com, accessed Oct. 20, 2016;

·      The Facebook page for the Dallas Scotch Society; and

·      Waco's own Balcones Distilling, for Texas's most lauded - and hard to find - whiskeys. 

 

Most Legal Blogs Are Boring. Let's Make This One Fun.

And if not fun, let's at least make it interesting.

Welcome to my inaugural blog post! I practice civil and criminal law in Dallas and Collin Counties. I'll be updating this blog semi-regularly and discussing topics relating to civil and criminal law that interest me. And, because those topics are boring to everyone else, I'll try to discuss more interesting things at the same time, like whiskey, or firearms, or whiskey and firearms. Along the way, if there are any questions that interest you, let me know and I'll try to address them. 

All the best, 

-HAF