By Richard Weatheringon
There are all kinds of ways for customers to try to con a pawnbroker. When a scam is used by a pawnshop employee, the pain and sense of betrayal is far harder to swallow. But such trickery doesn’t always go unpunished, as a shop employee recently discovered.
A man, whose first name was Michael, worked for an Arizona pawnshop. While employed there, Michael pawned six guns at his employer’s shop.
Michael filled out the pawn tickets and established his own loan amounts on those tickets, which far exceeded the real value of the guns.
Michael was later fired for other reasons and failed to repay the loans on the pawned weapons. After the pawn requirements were met, his guns were forfeited to the shop.
The pawnshop owner was not aware that Michael had pawned the guns until after he had been fired.
Michael was arrested, charged and convicted after a jury trial of third degree burglary and fraudulent scheme and artifice or trickery and sentenced to concurrent, mitigated prison terms, the longer of which was three years. Michael was acquitted of an additional count of third degree burglary as well as seven counts of trafficking in stolen property.
Michael then appealed his conviction to the Court of Appeals of Arizona, claiming that there was insufficient evidence to support his conviction of fraudulent scheme and trickery.
The Appeals Court first noted that it views the evidence in the light most favorable to upholding the jury’s verdict and reviews claims of insufficient evidence only to determine whether substantial evidence supported the jury’s decision.
Substantial evidence, noted the court, has been described as more than a mere scintilla of evidence; but it nonetheless must be evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt. Substantial evidence may be circumstantial or direct.
The court said it would reverse a conviction only if there was a complete absence of provable facts to support the jury’s conclusion.
According to Arizona Statute Section 13-2310, a person commits a fraudulent scheme if he or she, “pursuant to a scheme or artifice to defraud, knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises, or material omissions.”
“Reliance on the part of any person,” however, “shall not be a necessary element of the offense.”
Michael argued that he did not obtain a benefit — the loan — “by means of” a false pretense. He reasoned, pointing to the 1990 case of State v. Rios, that because he didn’t use the falsified pawn tickets “to convince the pawn shop owner or any other employee … to give him the money,” his pawning of the guns at an inflated value was instead “merely a tool to cover up” his theft of money from the pawn shop.
The defendants in the Rios case were department store employees, who had created false refund vouchers that they subsequently exchanged for cash. As a result, they were convicted of, among other things, “theft by deception.”
The Kansas Supreme Court determined that to convict the defendants of theft by deception, “the State would have to prove that the defendants obtained control over the store’s money by means of a false statement or representation, that the false statement or representation deceived the store, and that the store relied in whole or in part upon the false statement in giving up control of the money to the defendants.”
Thus, because the employees were “the highest ranking … employees in their respective stores” with access to the safes, cash rooms, and vouchers, the vouchers were used only “to cover up the thefts, not to cause the corporation to part with the monies represented by the vouchers.”
The Arizona Appeals Court noted, however, that the Rios case was plainly distinguishable, because unlike Arizona’s Section 13 2310, the Kansas fraud statute required reliance — that is, a successful deception.
Statement was Dicta
The Appeals Court said it recognized that, in the 1994 case of State v. Johnson, the Arizona Supreme Court stated in relation to a charge of fraud that, “the false pretense must actually cause the victim to rely and, as a result, give property or money to the defendant.”
But, noted the Appeals Court, as it had observed in the 1998 case of State v. Proctor, that statement was dicta. Dicta are observations or comments made by a court that were not necessary to the case outcome and may go beyond the facts present in the case.
The Appeals Court noted that the Johnson court did not intend to hold, in direct contravention of the language of Section 13 2310 and the basic rules of statutory construction, that reliance was required to prove a fraudulent scheme and trickery.
The fact that the pawnshop owner in this case was unaware of Michael’s deception was not material to his guilt or innocence of fraudulent scheme and trickery. And, said the Appeals Court, the evidence plainly supported the jury’s conclusion that Michael used the pawn tickets containing falsified values to engineer improper loans by which he obtained cash, which clearly constituted “obtaining any benefit by means of false or fraudulent … representations” under Section 13 2310.
Nor did the evidence compel a conclusion, said the Appeals Court, that Michael had used the tickets to conceal a theft, rather than as a means of committing it.
Michael acknowledged during his testimony at the trial that he had pawned the guns using inflated values, but asserted he had obtained permission from the store owner to do so.
And he stated another employee, who had entered the loans into the computer at Michael’s request based on documents Michael had completed, had given him the money for those loans.
The jury, said the Appeals Court, was free to accept or reject the trial testimony, including Michael’s, in whole or in part.
The court noted that no rule has been better established than that the credibility of the witnesses and that the weight and value to be given to their testimony are questions exclusively for the jury.
Therefore, the Appeals Court, in an unpublished opinion on Dec. 11, 2012, ruled that Michael’s conviction for fraudulent scheme and artifice was affirmed.
Readers who would like a free copy of this case sent electronically should send an E-mail to email@example.com with “Trickery” in the subject line.
By RIC BLUM
Those of us who watched Hill Street Blues in the 1980s remember Sgt. Phil Esterhaus (Michael Conrad) saying his trademark phrase, “Let’s be careful out there,” after morning roll call.
Did you ever think he may have been talking to you?
I don’t care who you are or where you are, the bad guys (and gals) are out there and you are their targets. It’s nothing personal, it’s just business.
Snatch and grab thieves (not to be confused with smash and grab) usually work by themselves, except for maybe a co-thief waiting in a nearby vehicle to help with the getaway.
Those with sticky fingers (distraction or sneak thieves) usually work in teams – one or two to distract the employee (you) and a limber party to take advantage of the situation. No one should be above suspicion. And keep in mind that children may often be used as part of the distraction.
Today we are going to concentrate on the “distraction thief.” This type of thief is an opportunist – unless you afford him the opportunity to steal something, he will seek an easier target to prey upon.
Your attentiveness to details, such as making sure all showcases doors are closed and locked, being aware of your surroundings, noting other customers in the store, not trying to take care of two customers at a time (kindly ask them to be patient or call another staff member), will usually prevent the distraction thief from having any success in your store.
I know you are supposed to give the customer(s) you are taking care of your full attention, but you still need to be aware of your surroundings.
Those working in teams will try to distract you in many ways to allow their companion to steal.
It may be a convincing act — they seem ready to make a large purchase, asking to see many items at once, or something “special” from the back room – but you still need to be aware of everything else going on in your store.
Asking you to run back and forth, or from showcase to showcase to see different items, may be a ploy to try to get you to leave a showcase door open or unlocked.
You also need to be wary of customers talking on their cellular telephone while asking to see jewelry, or even those not necessarily talking, but wearing wireless earpieces through which another party could be giving them instructions for a criminal action.
Cellular telephone use and lack of etiquette creates all kinds of issues in today’s businesses. Too many users feel their personal phone use takes priority over anything else. While we maintain a store policy to not wait on someone talking on a telephone, we are often met with hostility by the phone user.
I once witnessed an employee showing a young lady a gold chain from one end of a 6-foot showcase. While she was looking at the chain and had the employee’s full attention, her accomplice was sliding open the showcase door at the other end and reaching in to grab a handful of gold chains.
As I stopped him in the act, he dropped the chains and ran out the door, nearly knocking over a Dayton police detective who was entering the store (coincidentally, 20-some years later, this same detective became head of the city’s pawn detail). After he called for a cruiser, we questioned the lady looking at the chains.
She knew nothing about the man trying to grab a handful of chains (yeah, sure). When the uniform crew told her they were taking her in for further questioning (she also did not have any ID), all of a sudden she didn’t feel very well and requested that she be taken to the hospital (they know all the tricks). I never heard what happened in this case, but at least I still had my jewelry because I knew what to look for (and was very lucky).
Those of us who have been in business for a number of years have experienced some type of jewelry theft or have been very, very lucky. I also realize that there is often a difference in the attitude of awareness between owners and employees who may have the “it’s not my jewelry” attitude.
Many stores use a security buzzer/door lock system to allow people both in and out. The idea is here is to not be “overtaken” by a large number of customers all at once or to control access in and out.
Quite often, those perpetrating a distraction theft are well-dressed and above suspicion.
They are posing as real customers, ask serious questions and may possess some jewelry knowledge. They may also spend some time looking at all kinds of merchandise while setting the stage for their partner. They will also be gone before the theft is noticed.
For security reasons, your more expensive jewelry should be placed toward the front of your showcases and the less expensive items towards the rear. Any kind of loss is bad, but if someone did happen to reach into a showcase, chances are they would take something within easy reach – the items in the rear of the showcase.
As a subscriber to the Jewelers’ Security Alliance Crime Alert Network (Jeweler’s Security Alliance, firstname.lastname@example.org), from which I receive free weekly E-mail Crime Alert notification of reported (to JSA) thefts and robberies around the country (you may also view these online, http://www.jewelerssecurity.org), I am alerted to the most recent jewelry crimes including a short narrative and often video clips from the victim store’s surveillance system.
The following is an example of a recent JSA alert:
DISTRACTION CREW TAKE DIAMOND AND SAPPHIRE RING
Tampa, FL – September 30, 2013
Video surveillance available
At 5:00 p.m. a black male and female walked into a retail jewelry store in a mall as a couple and asked to see a watch from a front showcase. That showcase also contained a 6.048-carat diamond ring with pear shaped sapphires. The sales associate removed the watch but left the showcase unlocked. While the couple distracted the sales associate, a third black male suspect approached the showcase and removed the ring. He covered the ring with his jacket and left the store, and the couple followed shortly thereafter. The suspect who took the ring is described as 5’6”, 170 lbs. and 38-45-years-old. The male suspect in the couple is described as 5’8” and 170 lbs. The female suspect is described as 6’ and 260 lbs. If you have information, contact the Tampa Police Department at 813-276-3200.
RECOMMENDATION: All showcases must be kept locked except when actually taking merchandise out or returning merchandise to the showcase.
The complete scenario can be found on YouTube. These same distraction thieves were back on the job on Oct. 2, 2013, in Annapolis, Md. Confirmed afterwards by video surveillance
On October 2, 2013 at approximately 1700 hours, 3 unknown suspects entered a small retail jewelry store in Annapolis, MD and stole two gold bracelets and three watches. Suspect #1 and Suspect #2 were able to distract the sales employee while Suspect #3 entered the back room where a safe was located. The safe was locked and nothing is believed to have been stolen from the back room. Suspects #1 & #2 stole two gold bracelets by repeatedly asking to see different items on display. Suspect #3 stole 3 watches from a freestanding unlocked display case while the sales employee was distracted. Surveillance video shows Suspects #2 & #3 attempting to open several display cases while the sales employee was distracted.
Through another jewelry-related business network to which I belong, Polygon, I am alerted to problems being encountered by jewelers, pawnbrokers and related tradesman around the country.
I also subscribe to the National Pawnbrokers Association’s Members Forum from which I also learn of recent issues pertaining to theft and fraud perpetrated on pawnshops throughout the country.
If you add to that a half-dozen or more trade publications which I peruse each month, I am keenly aware there are jewelry thefts happening every day.
The worst part is that most of these thefts could have been prevented if store personnel were more diligent. For example, they need to make sure not to work alone or leave only one person on the sales floor.
I’m not trying to be an armchair quarterback. I too have experienced a couple of jewelry losses. (OK, more than a couple.)
Whether it is a showcase left unlocked (or even open), sleight of hand, an employee showing too many items at once, or complacent employees who would rather be texting on their cellular phones instead of being mindful of customers, it almost always boils down to situations which may have been preventable if someone exercised a little more caution.
The Internet is a great educational tool. I’ve just watched a few videos on YouTube showing incidents where jewelry was removed from showcases while the salesperson was being distracted. Don’t think this can’t happen to you, because it has happened to the best.
The perpetrators of these thefts are not usually amateurs. They have done this before and have honed their skills. They have usually cased (no pun intended) your store and have a target in sight; although there are so-called “crimes of opportunity.”
You can find quite a few YouTube videos you should watch. Just search for pawnshop and jewelry store robberies. There is nothing wrong with learning from someone else’s misfortune.
Management and staff need to constantly be reminded about store security. There is always someone waiting for you to let your guard down to take advantage of the situation.
Jewelers Mutual Insurance Company can provide you with two tent-like sign cards to place in your showcases. They read:
If and when you require identification (you can be selective), place the identification in the showcase. And if you ever have suspicions, signal a second employee to stand between your customer and the exit.
You can never be too cautious. If a customer can’t wait a moment, chances are they are not a true customer. You know that old saying, “The squeaky wheel gets the grease”? Well, in some cases, the squeaky (loud, rude, abusive) customer may actually be the distraction.
Ric Blum is a vice-president of Ohio Loan Co. in Dayton, Ohio. He has served as president of the Ohio Pawnbrokers Association, secretary/treasurer of the National Pawnbrokers Association and as a member of the board of directors and the board of governors of the National Pawnbrokers Association. Please feel free to e-mail your comments or tips that you would like to see included in this column to RicBlum@att.net or mail them to Ric Blum, Ohio Loan Co., 3028 Salem Ave., Dayton, OH 45406.
Jewelers Security Alliance
RECOMMENDATION: All showcases must be kept locked except when actually removing or returning merchandise. While a store is open, the selling floor should never be left without store personnel present.
CRIME PREVENTION ADVICE FOR JEWELERS: HOW TO SPOT A POTENTIAL JEWELRY THIEF, AND WHAT SHOULD A JEWELER DO?
Listed below are the top ten “red flags” or warning signs that a criminal is in your store, including robbers, distraction thieves and grab and run artists. None of the red flags below prove a crime is about to happen, but jewelers should be aware that the red flags below are how many of today’s jewelry criminals commonly behave. While genuine customers can also have habits like these, a jeweler should take special precautions when he or she sees the following red flags. Remember, no red flag is conclusive, but each additional red flag should raise the level of security.
TOP TEN RED FLAGS
1. Is the person talking on a cell phone? Inform the person that you will be happy to serve them as soon as they finish their call.
2. Is the person wearing sunglasses? Suggest that the person remove the sunglasses to get a better view of the beautiful merchandise.
3. Is the person wearing a hat pulled low or a hoodie to conceal his or her identity?
4. Is the person wearing inappropriate clothing for the season, like a wool cap when the weather is in the 80s, or a raincoat on a sunny day?
5. Are large numbers of people entering together, for example, three or more people? Will you be able to adequately protect your merchandise with a large number of people inside your store?
6. Is the person putting large or bulky items, including coats, on the showcase, or moving pads, mirrors or other items on the showcase in order to block the jeweler’s view?
7. Is the person asking unusual questions, particularly about security, hours or schedules, or looking with unusual interest at your cameras or security equipment?
8. Is the person asking to see the “most expensive” watch or jewelry item in the store?
9. Is the person making hand signals or other gestures that appear to be communicating with other people?
10. Is the person walking around the store with their hands in their pockets in order to avoid touching anything in the store that would leave fingerprints.
WHAT CAN A JEWELER DO WHEN RED FLAGS APPEAR?
1. Look at and greet the person who enters your store.
2. Use a pre-established code word to put all staff members on high alert.
3. Have an employee pick up the store phone in an obvious manner, dial someone and talk.
4. Have more than one person wait on the suspicious person or persons, on both sides of the showcase.
5. Keep the showcases locked and show only one item at a time.
6. Tell the person that your insurance company requires you to see photo identification to show high value items.
7. Have visible cameras at eye level.
8. Call the police if you feel there is a criminal risk.
BASIC PROCEDURES TO PREVENT THEFT
1. Have buzzers or chimes on your doors so that you are alerted when someone enters your premises.
2. Make eye contact with each customer who enters your store, greet the customer, and note his or her appearance.
3. Have at least two people on the sales floor at all times.
4. Wait on only one customer at a time.
5. Never turn your back on a customer.
6. Never leave a customer alone with merchandise.
7. Never leave the showroom unattended, even “just for a minute.” You can be distracted or tempted to go to the rear of the store if someone asks for gift wrap or when answering the phone.
8. Show only one item at a time. If a second item is requested, show it on your own wrist or finger. Some highly successful jewelry retailers display a sign saying that their insurance company only permits them to show one item at a time.
9. When showing high-end goods to unfamiliar customers, tell them that your insurance requires you to ask for identification before displaying the items.
10. Do not bring entire trays of merchandise or a diamond wallet to the counter when waiting on a customer. Too much value will be exposed to a grab-and-run theft.
11. All wall cases, show windows, display cases and showcases must have locks, and be kept in a locked position except when actually removing or returning goods. It is best to have locks that do not permit the key to be removed unless the case lock is in a “locked” position.
12. Keep the keys to the showcases on your person, never on a hook or shelf in plain view. Keep the keys on a wrist or other holder so that it is less likely for you to put them down and forget them.
13. Be warned that many showcases have generic keys, that is, keys that fit all showcases of that type. Anyone with a key to that type of showcase may be able to unlock your showcase and steal your goods. If a generic lock will open your showcases, consider installing unique locks.
14. Showcase tops sealed with adhesive can be slit by thieves and lifted to remove goods. Make sure your showcases have secure metal edges or other means to secure the top even if the seal is cut. Inspect the tops and sides of showcases several times a day for evidence of tampering or attempts to lift the top.
15. After a customer has handled an item, re-examine it to make sure it is the same item before returning it to the showcase. Do not allow a customer to return an item to a tray.
16. Keep all jewelry trays completely filled, either with goods or with markers.
17. The most difficult showcases for a thief to get into are the cases in which the back flips up. It is easier for thieves to reach into cases that slide open from either side.
18. Do not let non-employees into work areas, your safe area, your rest room or behind your showcases. This can be a trick to gain access to your merchandise, or to case your premises for a future crime.
19. Your counter display cases should be built in a way that does not permit someone to crawl under them.
20. Make sure there are no blind spots in your store in which visibility from another part of the selling floor is obstructed.
21. Have an alert system in place in your store. If a suspicious person or situation is spotted, a code word or phrase can be used to alert the other employees that a crime may be underway.
22. If a customer is causing a commotion or engages in a loud disagreement, be alert for a distraction theft by an accomplice, and call another employee to assist you. Whenever you are suspicious of customer, request assistance from the manager or another employee.
23. Be particularly careful when customers are wearing or carrying inappropriate clothing, bags or items that could be used to hide goods or block your view while accomplices steal goods. Be especially careful if these items are placed on the showcase counter. In some stores sales associates immediately offer to take customers’ coats and bags and put them in a safe place while the customers shop.
Reprinted from http://www.jewelerssecurity.org/
By Glenn Lovelady
Technology is a wonderful thing that has changed the way we live our lives. Yet when it comes to diamond testing, it has its limitations.
There are a number of testers to choose from today, using different methods of identification and verification. This will tell you if it is diamond or a diamond stimulant.
That’s where it ends. To be competitive in this trade you’ll have to go a lot further to determine value.
We’ve all heard of the 4 Cs. If you can identify those in a diamond, a tester will be of secondary importance. Stick with the information I give you in this and future columns and surprise yourself with how little mystery is involved in diamond identification.