Doll is model in Net case

Buyer claiming fraud seeks ability to sue where purchaser lives

Suit may have wide effect

June 05, 2000|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

What the Allegany County woman wanted was what she says was described in e-mails as a mint-condition collection of 95 Barbie dolls. What she says she got for $6,140, after e-mail and telephone negotiations with the seller in Georgia, were about 38 Barbies in poor condition.

The 1998 Barbie doll deal is at the center of a legal storm over whether Maryland can prosecute an out-of-state seller in a deal that involved the Internet.

"This decision by the Court of Appeals in Maryland could have wide-ranging effect on Internet fraud in Maryland," said William D. Roessler, deputy state's attorney in Anne Arundel County. "If a case is not actionable in Maryland, then Maryland buyers are going to have to go to these other states to pursue criminal action."

The case will be argued today before the state's highest court.

"Their hair is out of shape. They're dirty," said Debbie Amyot, a serious collector of the Mattel Corp.'s best-known doll. "They're jammed in the boxes. Some have two different shoes."

One, a "Wizard of Oz" Dorothy worth $300 if never unboxed, was in such pathetic shape that an appraiser valued it at $5, she said. "If you saw them, you would cry," she said.

When efforts to get a refund failed, Amyot and her husband, Mark, turned to police. The charge of theft by deception against seller Mary Jean Cain never went to trial.

Lawyers for Cain won in the lower courts, which ruled that the charges could not be brought in Maryland. But Maryland prosecutors disagree and are pursuing the appeal. They fear that barring such charges would signal open season on Maryland consumers.

"A person in California could open up a Web site and take orders and never deliver the goods and feel comfortable that no criminal action could be taken unless the victims came to California to charge him," Roessler said.

Experts say thefts that involve the Internet are proliferating with the volume of remote shopping. Consumer complaints of online schemes increased sixfold from 1997 to 1998, according to Internet Fraud Watch, a private consumer group.

Buyers use search engines to find items around the globe. Thieves bait victims with bogus offers, experts say. While Web trading sites have an interest in the integrity of buyers and sellers using them, the operators are not necessarily liable if a deal sours.

Anne Arundel County authorities are investigating a complaint from an Annapolis man who wanted an artist's easel listed by a Massachusetts seller on an auction site. The buyer is out $600 and the seller vanished without sending the easel, said Clifford Stoddard, assistant state's attorney and white-collar crime specialist.

He said he has gotten restitution for consumers on several recent complaints by warning out-of-state sellers that he can prosecute them in Maryland or send the information to officials in their home state.

But the option of a local prosecution for Maryland victims is more convenient for Marylanders who believe they were defrauded. They might not chase after a seller halfway across the country because the telephone, travel and time would top what they might recoup.

"There should be jurisdiction at either end of the theft, that's what our view is. The theft occurred when the check was sent from Maryland and when the merchandise arrived," Stoddard said.

The state attorney general's office agrees.

"The result of the crime occurred here," said deputy chief of the criminal appeals division Kathryn Grill Graeff, who will argue the Barbie doll case.

"The jurisdiction where the person is defrauded may have more interest in pursuing the crime. It may be that both states have jurisdiction. We're not saying that only one state has jurisdiction," she said.

Georgia authorities had little interest in the Barbie doll case, she said.

But defense lawyers say that if a crime occurred, it was outside Maryland.

If Cain took Amyot's money, she did not do it in Maryland, they argue. Whatever Cain's intent was, she did not have that intent in Maryland. Where the result took place and where the person claiming to be victimized lives is not a part of the alleged offense, said Nancy S. Forster, assistant public defender representing Cain.

"Theft by deception, if that occurred at all, all of those acts occurred in Georgia. If the state is going to allege that my client never had 95 Barbie dolls in mint condition -- that all occurred in Georgia, that didn't occur in Maryland," Forster said.

Dominic R. Iamele, former president of the Maryland Criminal Defense Attorneys Association, agreed.

"I don't think the theft occurs until the dolls are shipped and the money is received," he said of the allegations. "I think all the significant stuff happens in Georgia."

He compared it to a hypothetical Delaware contractor accused of not honoring a contract in Maryland. "If he did work in Maryland, he can't be charged in Delaware," Iamele said.

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