I am new on this forum, former member of the old Oshkosh 365 and EAA member since 2 years.

I am airline pilot, flying the B747/400 for CorsairFly, French airline, and proud owner of a Kitfox 5 Vixen and a PZL TS-8 "Bies".

I need your help for a problem with a guy that post some adds on Barnstormer and the Kitfox forum.

The story:

I saw an announcement of Tom Garcia, "topfuel" which offers parts from a kit of Kitfox V. I asked him if he had flaperons and he said yes. He told me that he wanted 550 us $ for both and asked me to pay immediately. As he gave me his address and telephone number, as he is a member on the forum and as it is presented as a former employee of Kitfox airplane and an airplane mechanic, I trusted him.
I paid through Western Union. He then inquired for the transport and told me he will send by DHL. He asked me to pay for transportation for 643 us $.I also paid for by Western Union.

Then, I have had no news and after 10 days, he said that DHL is in charge of my parts. I called DHL and they confirm that they have never received a shipment for me. I say that to Tom and I asked him a track number. No reply again.

After a moment, he said he will refund me. I give him my address. (He had already because he had to send me the flaperons). After several days, I ask him news and its answer was: give me your address, stupid idiot, your address!

He started to insult me. I give him my address again, in case the stupid idiot is not the one we believe and of course, no more news.

I asked a friend of me, pilot of the U.S. Marines corps, with whom I flew over the Afghanistan and who lives not far from Tom to contact Tom to see what happens. No answer...

I asked several times Tom to refund the money and I told him I was going to make a complaint to the court, but nothing happens.

For now, I lost 1250 us $ (shares + WU tax + transport) and I think I dealt with was a crook ...

I asked the police office of Meridian, Idaho to help me and after investigation they told me:


Jacques,

I have investigated your complaint and there is not sufficient evidence for a criminal prosecution under the laws of the State of Idaho. Even if there were sufficient evidence it would be impractical due to the fact that you live in France. Similarly, it is impractical for you to bring a civil action in an Idaho court, as it would cost more than is at issue in this transaction. Tom Garcia has the Flaperons in his possession. I told him that he either had to ship them or refund the money to you, which he said he understands and that he plans to refund the money. However, having said that, he has already failed to refund the money by a given date, so I don’t have much faith in his word. Under the law the Sheriff’s Office cannot compel him to refund the money or to ship the items. The Idaho Attorney General’s Office has some authority to take action in civil matters, so I referred the case to them for review and possible action. The Attorney General’s Office has a copy of your original complaint to the Internet Crime Complaint Center as well as a summary of my findings. My sincere hope is that Garcia returns your money and puts an end to this soon.

Regards,
Detective ----
Ada County Sheriff's Office
CID

Jacques,

Idaho law states that a union of act and intent are required. Garcia's failure to perform; that is, to send the parts, standing alone, is not sufficient evidence to prove he did not intend to ship the parts, which is also written into law. The act is clearly present, as you adeptly demonstrated in your enumeration of the facts, but intent is the problem the state has to overcome. The burden of proof is on the state to prove beyond a reasonable doubt that Garcia never intended to ship the parts. If he did not have the parts there would be sufficient evidence. Receiving money for items one does not possess demonstrates the intent to defraud; that he could not possibly keep the promise to ship the parts and that he lied when he said the parts were on his property. Since he possesses the parts that is not the case, so there is reasonable doubt as to his intent. Another way to show intent is a series of repeated failures to perform or deliver after receiving payment, but that does not exist. There are only two complaints over a period of three years. Changing his name to bypass Barnstormers' restrictions on his use of their web site is underhanded and probably in violation of Barnstormers terms and conditions for use, but it is not criminal in and of itself, so long as he has the parts he offers for sale and does not demonstrate a pattern of non-delivery.

That was a long explanation to say that it would require proof that when he posted the items for sale and subsequently took your money he never intended to send the parts to you. The fact that he did not send them is not sufficient on its own, and other factors that would aid in proving that are absent. He has the parts as advertised. There is not an identifiable pattern of repeated activity that indicates a common scheme to aid in proving intent; however, if he continues in this manner a common scheme could emerge.

Please understand that I am not excusing his actions and certainly he is in the wrong not to ship the parts or refund the money to you, but the case does not fall into the criminal system, which is why I sent it to the Attorney General's Office. The Attorney General has some authority over commerce and the ability to take people into civil court. I wanted to make them aware of Garcia and call to their attention his business practices for possible action now and in the future if Garcia should continue to do business in this manner.

Frankly, even if this were a good criminal case the Prosecuting Attorney's Office would not file it due to the cost of doing so. Over the years I have worked many criminal cases of non-delivery of merchandise that went unfiled for this very reason.

I hope I have addressed your questions satisfactorily.

Regards,
Detective ---- -------
Ada County Sheriff's Office
CID
If one of you has bought the flaperons from this guy, it would help me as the Detective can immediately start a new enforcement vs. Tom Garcia for selling parts more than one time.
Here is what happens with Tommy Garcia, 2495 W. Lake Hazel Rd, Meridian, Idaho 83642 (208) -515-0809


Thank you for your attention and your help.


topfueltom1

Join Date: May 2011
Location: Meridian Idaho
Posts: 2 		Kit fox VIXEN kit for sale



Hello all. I have a never assembled Kit fox VIXEN for sale. Alum landing gear, wheel, tires, brakes, welded-out fuselage, Flaperons, Aluminum window sheet metal, lift strut material, premolded instr panel, WINGS SOLD today so I’m dropping the price. I now will take $6000.00 for all you see plus much much more! There are so many extra I will throw in. View the pictures and then call me at 208-515-0809. Call as late as you want or as early as you want. This kit must go!




topfueltom1

Join Date: May 2011
Location: Meridian Idaho
Posts: 2 		kitfox 4,5,&7 parts



I have (1) new model 4 right hand fuel tank $300.00. (2) sets of powder coated lift struts make offers on each. (1) 2pc model 3 & 4 round cowling in primer $400.00. Call (208)-515-0809 and ask for TOM. Shipping can be arranged or transport half way is an option also.