In early July 2018, we covered an incident where a liberal activist opponent of Republican Congressman Tom Reed (NY-23) was caught taking a campaign lawn sign. The sign had a GPS tracking device hidden in it, which enabled the Reed campaign to track it back to Gary McCaslin’s home.

The Reed campaign put the tracking device in the sign because of problems with people removing Reed’s signs. The sign in question was an “Extreme Ithaca Liberal” sign, part of a campaign theme Reed has used to great success for multiple election cycles against his liberal challengers. We discussed the incident and the history of the “Extreme Ithaca Liberal” campaign in our post, “Extreme Ithaca Liberal” yard signs disappear, perp caught by embedded tracking device (#NY23).

The incident received widespread local and national coverage because of the use of the GPS tracking device.

While most of the news coverage focused on the alleged theft of the sign, the criminal charge of petit larceny related only to the GPS tracking device.

When Reed’s campaign manager Nick Weinstein requested McCaslin return the tracking device, McCaslin refused and said he was keeping it. McCaslin dared Weinstein to call the police. It was all caught on video:

“You found the sign. I’m keeping the tracker. You call the police then. I’ll be right here.

Weinstein did call the police, who arrested McCaslin and charged him with petit larceny relating only to the alleged theft of the GPS tracking device:

That on July 2nd, 2018 at about 06:41 p.m., the above named defendant did commit the offense of Petit Lerceny at State Route 352 in the town of Corning, County of Steuben, State of New York, TO WIT, Gary A. McCasUn did steal property consisting of one gps tracker that was placed inside a campaign sign. This is all contrary to the provisions of the statute in such case made and provided

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The supporting Deposition by Weinstein focuses on the refusal to return the GPS device:

… On 07105/’2018 at about 02:00 p.m., I was checking my gps tracker that I had placed in a campaign sign for Congressman Reed and noticed it had moved from the location it was placed. I had placed multiple campaign signs in the area of State Route 362 in the Town of Coming near the Intersection of Main Street and Gibson. No one had permission to move the signs other than my staff and when I checked the location of the gps, I did not recognize the address where the gps tracker was. I then drove to said location which was at 8 Grannan Drive in the City of Corning and rang the door bell of this address. I then observed a male answer the door and recognized him to be Gary McCaslin. I asked him if he had taken the campaign signs and he admitted he had them. I asked him to retum the signs and after going back into his house, he turned over one campaign sign to me. As I walked away from the house, I realized the gps tracker that I had placed in the campaign sign was no longer there. I rang the door bell a second time, and after initially denying any knowledge of the tracker, he admitted to possessing it but refused to return it. He then suggested that I call the police.

McCaslin just pleaded Not Guilty to the charge in court and his lawyer filed a Motion to Dismiss (pdf.)(full embed at bottom of post).

The key defense is that McCaslin, after initially refusing to return the GPS device, tried to return it but the police arrested him before he could do so:

10. At set forth in greater detail below, shortly after Mr. Weinstein left Rev. McCaslin’s home, Rev. McCaslin attempted to return the device to Congressman Reed as he did not want bring about unnecessary problems, but was unsuccessful because Congressman Reed’s campaign office was closed and a staffperson at Congressman Reed’s constituent office told Rev. McCaslin that the constituent office could not become involved with campaign matters.

11. Rev. McCaslin intended to turn the device over to proper authorities, but was arrested at his home before he had the opportunity to do so.

The motion further alleges no intent to steal the sign, but rather, an attempt to clean up campaign sign clutter on the roadside:

27. As with his decision to retrieve the lone Max Della Pia sign, Rev. McCaslin did not intend to steal property belonging to the Democratic candidates, Congressman Reed, or whoever placed the sign reminding people to vote. Instead, his intention was to clear the area along the highway of abandoned political clutter nearly a week after the Democratic primary had taken place.

McCaslin further argues that because the sign was on state property without a permit, it was effectively abandoned property and he could have not be charged with stealing abandoned property:

36. Accordingly, the “Extreme Ithaca Liberal” sign, knowingly and illegally placed on state land without a permit by Congressman Reed or his campaign, can be considered nothing other than intentionally abandoned property.

37. Moreover, after the sign was intentionally placed on state land without a permit, it was rendered ownerless, as NYDOT had the legal authority to remove and dispose of it at any time without violating Congressman Reed’s property rights.

This argument about the location and placement of the sign seems irrelevant because McCaslin is not charged with stealing the sign. As to the GPS device, McCaslin argues:

40. In the accusatory instrument, Rev. McCaslin is charged with “stealing one gps tracker that was placed inside a campaign sign” on July 2, 2018. The accusatory instrument is both legally and factually insufficient because there is no basis set forth therein whatsoever that Rev. McCaslin was aware of the GPS tracking device’s existence when he retrieved the abandoned, illegally placed “campaign sign”.

41. In fact, it was not until later, when Rev. McCaslin attempted to separate the signs from their wire stands in order to dispose of them that he felt a bulge in the “Extreme Ithaca Liberal” sign, and, upon inspection, discovered a peculiar item, shown below and also attached as Exhibit “G”.

42. At that time Rev. Mccaslin was not sure what, if any, action should be taken, as he questioned the legality of placing a device such as the one above inside of a sign, and what responsibility he had to investigate and/or return it to either Congressman Reed or some type of authorities.

43 . Within approximately one hour of Mr. Weinstein’s vis it to Rev. McCaslin’s home on July 5, 2018, Rev. McCaslin and a friend went to both Congressman Reed’s campaign headquarters and his constituent office in order to return the device, as he did not want to cause unnecessary legal problems.

44. However, Congressman Reed’s campaign office was locked and appeared to be closed, and a staff person at his constituent office told Rev. McCaslin that the constituent office was not permitted to become involved in campaign-related matters.

45. Al that point Rev. McCaslin revised his plan, and intended to turn the device over to the Steuben County Board of Elections in Bath, New York.

46. He never had that chance. At about 8:30 pm, while at home with Annie in their home located in a residential section of the City of Corning, Rev. McCaslin answered a knock at the door, and discovered two Corning City Police Officers along with a Steuben County Sheriff’s Deputy on his porch. Even though Mr. McCaslin immediately surrendered the GPS tracking device, he was placed under arrest, handcuffed, and taken to the Steuben County jail where he was processed and released.

The motion then presents the legal basis for dismissal.

First, it argues there was no intent to deprive the Reed campaign of the GPS device at the time the sign was taken, because McCaslin didn’t know the GPS device was in the sign initially. As to the refusal to return the sign, McCaslin argues that was a merely temporary deprivation of property and cannot constitute petit larceny:

52. This Court should also reject any attempt by the prosecution to amend the accusatory instrument in order to charge Rev. McCaslin with committing a crime on July 5, 2018, when he initially refused surrender the GPS device to Mr. Weinstein instead of on June 2, 2018. A person does not commit larceny when he temporarily deprives an owner of his property. Indeed, “[t]he mens rea element of larceny is simply not satisfied by an intent to temporarily take property without the owner’s permission.” (People v Drouin, 143 A.D.3d 1056, 1057 [3d Dept 20161).

53. There is no factual basis to allege Rev. Mccaslin intended to permanently deprive Congressman Reed of his GPS tracking device when he refused to surrender it to Mr. Weinstein on July 5, 2018. To the contrary, he went to Congressman Reed’s campaign and constituent offices to return the device hours before his arrest – something Congressman Reed knew or should have known before Rev. McCaslin was arrested.

Factually, that’s hard to square with the video where McCaslin refused to return the GPS device and said the Reed campaign will need to call the police. There certainly seem to be enough facts (“I’m keeping the tracker”), at the motion stage, to support probable cause of an intent to permanently deprive the Reed campaign of the tracking device, so this would be an issue for trial.

The fact that McCaslin changed his mind, after caught by the Reed campaign and after initially refusing to return the GPS device, should not be a legal defense. A New York Court of Appeals (the highest state court) sustained the conviction of a shoplifter for petit larceny even though the shoplifter never left the store. People v. Gasparik, 1980, 102 Misc.2d 487, 425 N.Y.S.2d 936, affirmed 52 N.Y.2d 309, 438 N.Y.S.2d 242, 420 N.E.2d 40, reargument denied 53 N.Y.2d 797, 439 N.Y.S.2d 1030, 422 N.E.2d 596. Addressing the three cases before it, the Court wrote:

Under these principles, there was ample evidence in each case to raise a factual question as to the defendants’ guilt.7  In People v. Olivo, defendant not only concealed goods in his clothing, but he did so in a particularly suspicious manner. And, when defendant was stopped, he was moving towards the door, just three feet short of existing the store. It cannot be said as a matter of law that these circumstances failed to establish a taking.8

In People v. Gasparik, defendant removed the price tag and sensor device from a jacket, abandoned his own garment, put the jacket on and ultimately headed for the main floor of the store. Removal of the price tag and sensor device, and careful concealment of those items, is highly unusual and suspicious conduct for a shopper. Coupled with defendant’s abandonment of his own coat and his attempt to leave the floor, those factors were sufficient to make out a prima facie case of a taking.

In People v. Spatzier, defendant concealed a book in an attaché case. Unaware that he was being observed in an overhead mirror, defendant looked furtively up and down and aisle before secreting the book. In these circumstances, given the manner in which defendant concealed the book and his suspicious behavior, the evidence was not insufficient as a matter of law.

Here, at least at the initial stage, McCaslin should not be able to obtain dismissal just because, after being caught, he decided to return the property, any more so than the shoplifter who returns the property when caught inside the store entrance can claim he never intended to permanently deprive the store of the property. That should be an issue for the jury.

McCaslin’s lawyer alludes by to a possible attempt to amend the charge. It’s unclear to what she’s referring, but it might be that one possible reading of the charge is that  the theft of the GPS tracker took place at the time the sign was taken, as opposed to the time of the refusal to return the GPS tracker. The charge doesn’t say that explicitly. McCaslin, claiming he didn’t know there was a tracker at the time he took the sign, could argue that there are no facts showing probable cause at that moment. It might be prudent for the prosecution to clarify this timing issue in an amended charge, if it wants to pursue the case, to remove any alleged lack of clarity.

Finally, McCaslin asks the court to use its inherent power to dismiss criminal charges in the interest of justice (emphasis added):

57. Here, there is no showing that Rev. McCaslin intended to commit a criminal offense at any point. He, like many residents of Steuben County, does not like seeing political clutter laying around on public property after an election. Rev. McCaslin was simply acting as a good citizen to keep our highways clean. Any attempt to further inconvenience him through this prosecution would result in a gross miscarriage of justice, further damage to Rev. McCaslin’s reputation and a significant waste of time and money for the Court system and prosecutors.

The motion also seeks disqualification of the District Attorney and appointment of a special counsel, since the prosecutor once worked for Reed and has contributed to Reed’s campaign.

The Elmira Star Gazette reports on the court proceeding, Attorney asks for dismissal of charge in Reed campaign sign case:

McCaslin appeared in Town of Corning Court on Monday, along with Elmira attorney Christina Sonsire, who is representing McCaslin with Ithaca lawyer Ray Schlather.

Sonsire filed a motion with the court asking that the charge be dropped, or that if it is allowed to stand, to appoint a special prosecutor.

“This entire situation strikes at the heart of our democratic system of government,” Sonsire said. “Gary McCaslin has been an outspoken, yet respectful, critic of Congressman Reed for years. However, that does not mean the government can grossly overreach in this manner where no crime has been committed.”

According to paperwork filed with the court by Sonsire, McCaslin was driving on Route 352 just east of Corning six days after the June 26 Democratic congressional primary when he noticed numerous campaign signs had been abandoned on state property.

On closer inspection, McCaslin noticed these signs included two in support of candidate Max Della Pia, one in support of candidate Linda Andrei, one reminding people to vote, and a fifth that said ‘Extreme Ithaca Liberal.”

Most of the signs were lying on the ground in a pile. McCaslin retrieved all of the signs in an effort to remove political clutter from the side of the road as the election had been held almost a week prior, Sonsire said.

McCaslin later discovered the GPS tracking device in the “Extreme Ithaca Liberal” sign after Weinstein tracked the device to his house and asked for it to be returned.

McCaslin refused to return the device, according to Weinstein, but later decided to turn it in to Reed’s campaign headquarters.

When he found the campaign office to be closed, McCaslin said he planned to turn the GPS device over to the Steuben County Board of Elections, but that several police officers showed up at his house and took him into custody before he had a chance to follow through…

WETM reports:

Nick Weinstein, Campaign Manager for Tom Reid for Congress, said they had dozens of campaign signs stolen from a spot in Corning. Weinstein decided to put GPS trackers on the signs to find out who was stealing them. Weinstein said the GPS tracked one of the stolen signs to McCaslin’s home. According to Weinstein, McCaslin returned the sign but not the GPS tracker. McCaslin was charged in early July for petit larceny.

“That’s not someone who is picking up garbage on the side of the road,” Weinstein sad. “That’s someone who had an agenda.”

Weinstein also was quoted in the Elmira Star Gazette:

“It is important for people to realize that we simply wanted our signs and tracker returned,” Weinstein said in a statement. “After dozens of our signs were taken, I placed a single GPS tracker inside a sign and caught three people stealing them. The first two, when confronted, simply returned the signs without any drama, allowing us to put them back up. Gary McCaslin did not and instead refused to return the GPS tracker and told us to call the police.”

Weinstein added if McCaslin admits to taking the GPS tracker and publicly calls for people affiliated with his protest group to stop taking campaign signs, he would support a dismissal of the charge.

The case is now in the hands of the court system, he said.

McCaslin’s attorney Christina Sonsire spoke about the case outside the courthouse:

I emailed McCaslin’s attorney with questions regarding the defense:

… it seems that your main argument goes to the location of the signs and the lack of intent to steal the signs given location and placement. If I understand the case, though, Mr. McCaslin is not charged with stealing the sign. Rather, the sole criminal charge relates to the GPS tracking device. How does the discussion of the location and appearance of the signs relate to the GPS device once Mr. McCaslin knew he had the GPS device and is on tape refusing to hand it back to Reed’s campaign manager. What difference does it make at that point whether Mr. McCaslin intended originally to steal the sign?

McCaslin’s attorney declined to comment other than to state:

I believe the motion papers we filed lay out our position succinctly. Unfortunately I have client coming in right now on another matter and I will be tied up for the rest of the afternoon.

This may not be the case of the century, but it’s likely in the future that “Extreme Ithaca Liberals” who oppose Tom Reed will be more reluctant to remove Reed’s campaign signs, including the Extreme Ithaca Liberal signs.

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Gary McCaslin Motion to Dismiss Tom Reed (R-NY23) Campaign Sign Theft Charge by Legal Insurrection on Scribd