Where the law has a problem with this is that the facts that would have put Sam Ash on notice that the seller did not have good title to the horns are not clear, well-documented, or indisputable. Since you didn't figure out the theft for 10 months, what could Sam Ash have done differently? The woman would have just sold the horns to someone else if they had sent her away on some vague suspicion alone.
The police have been in contact with the people who currently have the instruments. They are operating under the BFP philosophy, which just plain stinks. It is like I lost them twice.
Having been in a relationship with the woman who did this does not always work out in my behalf. I had some belongings shipped to her home, which I was supposed to move into. My entire MIDI studio was in that shipment, and since I addressed the boxes to her, the local police and sheriff will not press any charges against her for the return of that property.
If this ever gets to court, she really has no leg to stand on. It is just a matter of if and when that happens. She made a claim to the county sheriff that she has proof of ownership of the instruments, yet she told Sam
Ash that I was dead, so she screwed herself on that one.
So have the police given you the names of the people with the instruments? Or, do you know their identity from some other source? If so, if the police are not recovering the horns for you, then you need to sue those people (with the horns) immediately. If you have been out of work for awhile just represent yourself, as it sounds like you would have a very strong case.
It would be totally worth it for that 1962 Mark VI tenor if it has the original finish. One from that year could be worth up to 10 grand.
I imagine the OP will have to wait until the ex-friend is convicted of the theft. However, this will likely get complicated since she didn't break in and take them, and since she apparently had possession of them for a long time. Did she ever have a legal right to possess them? I'm confused. The OP says he made plans "for over a year" to go pick them up. If he left them with her, then she didn't steal them. Her unauthorized sale, however, could be actionable as some sort of unlawful conversion. She will likely say that the OP gave them to her or told her she could sell them and keep the money. It will become a "he said, she said" battle, so proving her guilty beyond a reasonable doubt will be difficult (especially on the facts of this case -- leaving them with her for over a year without filing a police report supports her likely claim that she was not in possession of them without the OP's consent).
The ultimate purchasers probably feel as though they did nothing wrong. They made a legitimate purchase from Sam Ash. Sam Ash, in turn, probably feels that they did nothing wrong, as well. They made what they thought was a legitimate purchase from the woman.
To undo this whole mess, the instruments would need to be returned to the OP. The money the ultimate purchasers gave to Sam Ash would need to be returned to them. Sam Ash would need to get the money back from the woman for the unauthorized sale. This will probably require a civil lawsuit between Sam Ash and the woman. If the woman is convicted, she can be ordered to pay restitution to Sam Ash, but actually getting the money back is another matter entirely. Restitution orders often go unpaid. Sam Ash will lose the profit they made on the resale, and will incur legal fees in a civil action against the woman. Of course, "doing the right thing" would require Sam Ash to start this process now, but they are probably guided more by their big corporate business mentality than any personal moral code.
There are many lessons to be learned from this case. Good luck, StolenmarkVI. I'm sure everyone here will be rooting for you. Please give us updates as this case unfolds.
Also, if the facts of the case don't support a conviction beyond a reasonable doubt, the OP can sue the woman himself. In a civil suit, the burden of proof is only by a preponderance of the evidence (a much lower burden than that which is required in criminal cases). However, StolenMKVI will only get money using this route, not his instruments. Understandably, it sounds like the instruments themselves are what he or she is after.
Are you an attorney, Buck? If not, I would recommend that you read the contents of the link I posted earlier by Bear @ Cybersax.com.
Bear did speak to his attorney on this, and the legal view he presented conflicts with what you just posted.
Please share with us the extent of your credentials, or if you have personal experience in these matters.
The instruments were not left in her possession.
I had lived in Florida earlier. I dated the woman for a while, then we split up. A few months later, I moved. We started talking again, and she asked me if I wanted to live with her. In a few months I packed up, and sent some of my stuff to her house. The sax and flute were at my parents rental home in Florida. She had permission to borrow a key and get cookware from the house, in May of 2006.
I was in New Jersey and about two days before I was to move in she told me she didn't want to live together, but still wanted to be friends. So we continued to talk. In August of that year when some family went the Florida home I asked them to bring my horns back with them. They discovered that my horns were not there anymore. I called my friend and questioned the circumstances, she said she took the horns when she got the cook ware. As far as the police were concerned, since someone had been given a key, they would not do anything. The clincher to this is the key was never returned, and the person she borrowed it from is dead.
Buck's statements do NOT conflict with what Bear wrote.
Sure, if proven to be stolen goods, he has a right to his property...
But just because the OP has learned the identity of the current owners - he does NOT have the right to just go in and grab his sax. If he does that the police will probably consider him the thief, confiscate the sax, and let the courts sort it out. - especially when they produce a receipt for the sale.
And the current owners do not share any legal liability, as they purchased the sax from a bona-fide and reputable dealer, and have no way of verifying any claims of stolen property.
The ex-friend however is looking at 3rd degree Felony Theft under Florida Law, ($300 - $19,000) and can receive up to but not exceeding 5 years in jail. But it's going to be one heck of time proving that since the OP sent his key to her, and the only witness to those circumstances is dead.
As for her permission (or lack thereof) to sell - that amounts to heresay.
If she only had permission to get cookware, then taking the instruments was clearly a larceny. No reasonable jury in the world would believe she confused a saxophone and a flute for "cookware." You're going to have to get some sort of legal determination that she did not have authority to sell the instruments to Sam Ash in the first place. You need to pursue criminal charges against her, but I know how frustrating that can be when local law enforcement agencies are reluctant to take action. You should also consider filing suit against this woman -- even in small claims court (where you don't need an attorney). If you can obtain a judgment against her, that might be enough to start the process of getting the actual instruments returned to you. I think another poster might have confused "receiving stolen property" with "possession of stolen property." The ultimate purchasers might have lacked knowledge ("mens rea") that the instruments were stolen when they purchased them, but if you can get a legal determination of their stolen status, then you can pursue getting them returned now. I don't know how their "bona fide purchaser" status will affect this, though. State laws vary.
There are many factors to consider here. I wouldn't rely on advice from any websites or forums. Facts are rarely identical in any situation, and someone needs to delve into the unique facts of your case specifically. I suggest speaking with a local attorney. Most will provide free initial consultations. You might need to check with several attorneys, as some might be more willing than others to take on a case like this.
Best of luck . . .
Selmer Mk VI Tenor, s/no. 85,xxx Tn mpc - Jody Jazz DV New York 7*, Marquez Chinese tenor. JJ DV, JJ ESP, Link STM, Selmer Mk VII Alto, s/no. 302,xxx, Yamaha Flute F100SII http://www.youtube.com/kavalasax
You don't have to be an attorney to understand these issues, just the ability to think critically and apply specific facts to specific laws and precedents. And many attorneys don't agree any way. Nor do judges, for that matter. That's why we have an appeals process. Even the Supreme Court rarely agrees unanimously. The law is never cut and dried.
Anyway, I didn't come here to argue with Swingtone or anyone else -- especially when I don't have all the facts of a particular situation. Maybe I should have just kept my mouth shut. I will now.
No, I appreciate what you have to offer, and I'm sure the OP does, too, though it probably would have helped if you had prefaced your original post with, "I'm an attorney...."
A friend works for a jewelry store that sells high-end jewelry and diamonds. It buys a lot of estate (used) and antique jewelry from estate sales and from people who come to the store. Every month, the police department comes to the store to check store records of merchandise bought from private sellers. They compare it to their list jewelry reported stolen. The store is responsible for providing names and addresses of the people who sell the stolen merchandise. Unless there are other factors involved, as long as the store had no knowledge of the nature of the sale, its responsibility goes no farther than that. The store does, however, hold high-end jewelry for as long as seventy-two hours in order to appraise it and to check whether it is a stolen item if something seems fishy about the sale. This almost always thwarts the sale of stolen merchandise. On a few occasions stupid crooks have agreed to the evaluation period, and were arrested as soon as they came to pick up the check for the merchandise.
Because the store subscribes to a database of stolen jewelry, its record for buying jewelry which has been reported stolen is almost nonexistent. I can't believe that Sam Ash doesn't check databases for stolen equipment. If a store repeatedly buys stolen merchandise--- even unwittingly, it becomes subject to frequent visits from the police.
I am surprised that Sam Ash would even get involved in a deal with the woman who stole the OP's horns.
Armed with the information supplied by the police, sam Ash, and the purchasers of your instruments, you are in an excellent position to press charges against the woman. I am not by any means an expert in this area, but based upon what my friend has told me, I am confident that you will at least recover the money that she got for selling the instruments, and you may be in a position to compensate the people who bought them when you buy them back. You need to get a lawyer to write a letter to Sam Ash informing the store that you intend to press charges against the seller, and press charges against the store if it does not supply you with the name of the buyers. The police should also provide you with the names of the buyers.
If you have reported the instruments as stolen with a database other than the local police, you still have a leg to stand on.
The remarkable thing about my mother is that for 30 years she served us nothing but leftovers. The original meal has never been found.
- Calvin Trillin
But OTOH, how do you know that she would testify that she removed the horns from his parents' house? Maybe she would lie about that, too, especially since she hasn't proven herself to be the honest type. I mean, c'mon, she already lied about the OP being dead!
So maybe it wouldn't be such a bad idea to look through those files, photo albums, after all....
Well, I am definitely out of my depth at this point. I wish you the best of luck!
In reality, I certainly sympathize with stolenMKVI...and would probably go and grab my property regardless of the consequences...
As far as her testimony about not taking the sax....Sam Ash will have records of the transaction, and she will be linked to that specific sax. She would then probably be compelled by the court to offer some explanation of how she came to own it, and yes, she could commit perjury and lie about that. But that's where stolenMKVI can come in hopefully, with some kind of proof, like you mentioned.