Wednesday, May 30, 2018

Ninth Circuit Cuts Break To Son Of Man Sentenced To Life For Price Label Switching

This post was originally published on Forbes

The Ninth Circuit decision  in the case of Logan Volpicelli is well covered by Carlton Smith guest posting on Procedurally Taxing.  The case is all about time limits and jurisdictional stuff making it what I call lawyerly, so I was inclined to let it pass.  It is such a great story though.

 law enforcement arrests somebody and scoops up money.  The IRS seizes the money.  But what if the money did not really belong to Ferrill Volpicelli, whom a sentencing judge called a "poster child for habitual criminality? Well if the IRS takes your stuff, because of a mistaken belief that the stuff belonged to somebody else who owed taxes, that is called a wrongful levy.  You can ask for the stuff back, but you best be quick about it, because you only have nine months to bring a suit.  But what if you are a minor?

Logan Volpicelli was only 10 when the Reno Police Department turned cashier's checks in the amounts of $4,731.80 and $5,014.75 over to the IRS. Ferrill tried to argue that the cashiers checks traced to a custodial account for his son Logan, but he was not allowed to represent him.  So Logan, as soon as he turned 18 sued to recover the wrongful levy.  And of course the IRS gets to say that he is too late,

 That is where all the lawyerly stuff comes in, we'll get to that, The "poster child for habitual criminality" part had me really intrigued.  If you google Ferrill Volpicelli, you will find lots of references to litigation he is involved in.  His actual crimes really don't seem that impressive.  One of the things he was convicted of , according to his account, related to him having to apply ointment due to a dermatological condition in a very sensitive area.  He was in a public parking lot and it looked like he was doing something that we wouldn't want to discuss on a respectable tax blog. The crime that sent him away on multiple life sentences  just does not strike me as the crime of the century,
A jury in November convicted Volpicelli of eight counts of burglary for switching bar codes from lower-priced items, often electronics, to more expensive goods. He also was found guilty of making counterfeit pricing labels. Authorities said Volpicelli would place a fake labels on goods to purchase them at a reduced cost. He'd then remove the phony label and return the item for a refund at the original, higher price. Detectives said he was making $50,000 to $93,000 a year from the scam.
I must be missing something, because this does not strike me as a crime that merits any prison time at all. It's nasty behavior but there are probably ways to deal with it short of life in prison.  Maybe having your picture posted at all the big box stores forcing you to buy stuff at stores where the people behind the counter have to actually know what they are selling you. Anyway, back to Logan's case.

  The court has to decide whether the nine month limit is "jurisdictional".  If it is jurisdictional then the Court can't even touch the case and Logan is out of luck.  If the limitation is not jurisdictional then it can be "equitably tolled".  Equitable tolling would mean that the court could say "You know what.  In a well run household eleven years olds don't get to decide what to have for breakfast, so maybe we should let the kid finish high school before he has to come into federal court to claim his money" or something like that. The Ninth Circuit ruled that the rule is not jurisdictional, which does not win the case for Logan, but it let's the district judge now consider equitable tolling.

 Here is my ruling.  "Damn it.  His dad got sent away for life for price label switching. Give the poor kid a break."  I would not last long as a judge. Carlton Smith seems to think this case is pretty important as the lower courts have not yet reacted to recent Supreme Court decisions on what is jurisdictional.

1 comment:

  1. Peter

    Did you think I would not notice.

    I like that article, but probably for different reasons than you.

    I think it points to the ongoing case of Kent Hovind's #1 prison convert Shawn Thomas Stuller who was sent away for 20 years after letting Kent Hovind, Rudy Davis, and Paul John Hansen manipulate him to go pro se while he pulled some sovcit stunts.

    In the end, the State was obliged to bring up his HFO (Habitual Felony Offender) status and, instead of getting a few years as offered in a plea deal he turned down), he got 20 years and is now trying to fight that claim ineffectiveness of counsel.

    He's even got someone from your neighborhood (coincidence?) that seems to be trying to secretly finance his appeal and efforts to get his sentence reduced (I don't think he would really like the prospect of getting a trial on a do-over).

    I have sympathies for Shawn's plight, but I don't know what he and his people can do about it.

    Did you see the transcript of his April 2015 proceedings. They seem to pretty much sink his chances of prevailing on appeal, in my opinion. But, what do I know.