When Jared Brandt, co-owner of Donkey & Goat Winery, went to do inventory shortly after he fired three employees suspected of stealing wine, he discovered nine empty boxes that had been taped up to look as if they were full.
The empty boxes were hidden on the bottom rows of pallets stacked with 55 cases of wine, according to Brandt, who made the discovery in October 2014. Among the missing wines were numerous bottles of 2005 Broken Leg Pinot Noir, made from a vineyard in the Anderson Valley the year his oldest daughter was born.
“It had sentimental value because it was 12 to 17 bottles of my daughter’s birth year and it’s gone now,” said Brandt. The wine was worth about $700, he said.
Brandt’s testimony about the empty boxes came during a four-day preliminary hearing in Alameda County Superior Court from Jan. 25-29 to determine whether there was probable cause to hold three former employees over for trial. In the end, Judge C. Don Clay determined that Zachary Gomber, 29, who worked for Donkey & Goat on and off for three years, should face two felony counts of embezzlement and receiving stolen property. Clay ruled that Kate Sylvan, who worked in the tasting room once a week for just five months, should also face a felony count of receiving stolen property. But he dismissed the felony embezzlement charge against Morgan Hall, once Donkey & Goat’s tasting-room manager and part-time bookkeeper. Instead, Judge Clay determined that Hall should just face a misdemeanor count of receiving stolen property.
The judge denied a motion to suppress evidence (bottles of wine) that were taken by Berkeley police from Sylvan’s car. All three were ordered to return to court for arraignment Feb. 11.
In addition to the testimony by Brandt and his wife, Tracey Brandt, about their discovery in 2014 that thousands of dollars of wine was missing from the winery, the prosecution based its case on inventory records, testimony from a fellow worker, the results of a police search warrant, and surveillance videos taken in September 2014 that allegedly showed Gomber and Hall taking wine without permission from the winery at 1340 Fifth St.
The main question at the center of the hearing was what wine the three employees were entitled to as part of their employment at Donkey & Goat, and what wine they may have taken without permission. The prosecution contended that Gomber and Hall embezzled wine and Sylvan knew about it. The defense attorneys contended that their clients had a right to the wine found in their possession.
When the Brandts first discovered that a significant amount of wine was missing, they went to the Berkeley Police Department in the summer of 2014 and reported that around 223 cases of wine were not accounted for. A more refined check of the inventory brought that number down to 137 cases. In December 2014, the Alameda County District Attorney charged Gomber and Hall with embezzlement and receiving stolen property. Sylvan was also charged with the latter. The missing wine was worth around $70,490.
But at the preliminary hearing, Jeanette Tan, the accountant for Donkey & Goat, testified that further calculations had reduced the winery’s “shrinkage,” leading her to believe that 74 cases were actually missing, although she also said she could not be totally sure of that number.
The four lawyers representing the three defendants repeatedly called the Brandts’ accounting methods into question. The attorneys suggested that the missing wine was due to the winery’s sloppy procedures — not wrongdoing on the part of their clients.
Even though police discovered nine bottles of Donkey & Goat wine in Hall’s home on Tamalpais Road in Berkeley on Dec. 23, 2014, and another seven bottles from the home Gomber and Sylvan shared in Richmond, and 33 bottles in Sylvan’s car, the attorneys suggested those wines had been part of the payment the trio had received for their work. The attorneys pointed out that every full-time Donkey & Goat employee was allowed to take home four bottles of wine a month. Volunteers, like Sylvan, who helped bottle wine, were given wine as a thank you. In addition, Gomper was gifted at least three cases for his work as a harvest intern in 2013, his lawyer, Frank Leidman, said. It was also common to take wine known as “first and last,” as samples, he said. [The term stands for the first and last bottles bottled which tend to have excess sediment so they are not put on the retail market.]
“What you have here is a diatribe by the Brandts,” Leidman said in court. “There is no evidence of theft … We contend that the taking of first and last wine and allotted wine was permissible.”
Nadim Hegazi, the assistant district attorney at the preliminary hearing, argued that there was a pattern of Gomber and Hall taking things without permission from Donkey & Goat. In 2013, the pair stole two six-packs of beer from the winery, said Hegazi, which Gomber and Hall both admitted under oath at a recent hearing at the Employee Development Department, he said.
Hegazi showed a series of surveillance video clips from September 2014 that showed Gomber and Hall in the Donkey & Goat tasting room after everyone else had gone home for the night. (One clip included Sylvan as well.) In one of those clips, dated Sept. 18, 2014, Hall loads some bottles of wine into boxes and takes them out the door. Another clip shows both Gomber and Hall carrying a bottle of wine and leaving the winery. Another clip, dated Sept. 26, 2014, shows Hall putting eight bottles of wine into a box and leaving.
Tracey Brandt testified that neither Gomber nor Hall documented that they took those bottles of wine and she did not believe they had permission to take the wine. Brandt also said that she became concerned about the spike in “shrinkage” in wine from the winery in the summer of 2014. On July 21, she sent an email to all of the employees to remind them of Donkey & Goat’s policies about taking free wine. Every bottle taken needed to be logged on the “sample pull,” sheet, she wrote.
“We began to think we had an internal theft problem,” Tracey Brandt testified. “There weren’t that many ways wine could go missing.”
About two hours after that email, Tracey Brandt saw a text flash up on Gomber’s phone, which was laying on a desk at the winery, she testified. It was from Kate Sylvan, who was in a relationship with Gomber. The text said: “How in the hell did Tracey know about the Mourvèdre?” she testified.
Tracey Brandt testified that she took the text message to mean that Sylvan and Gomber had stolen some of the winery’s Mourvèdre.
Shock at what happened with trusted employees
At one point, all three of the defendants were trusted employees, said Tracey Brandt, particularly Gomber who was like a family member. Gomber first came to work at Donkey & Goat as a harvest intern in fall 2011. He then went to New Zealand to work the grape harvest and on his return was hired as a cellar-hand in August 2012. He was the winery’s first full-time employee and he helped with all aspects of the winemaking, from going up to the vineyards to look at how grapes were maturing, to crushing grapes with his feet, to caring for the wine while it aged in barrels.
The Brandts helped Gomber in other ways, according to Tracey Brandt. They lent him $800 to get an apartment and later forgave the loan, she said. Gomber was arrested for a DUI in February 2013, but the Brandts let him remain at the winery. They permitted him to work a reduced schedule so he could complete his 170 hours of community service at Berkeley Youth Alternatives and Habitot Children’s Museum, she said.
Hall first came to work at Donkey & Goat as a harvest intern in 2013. In November she was hired full-time. She worked part time managing the tasting room and part-time doing bookkeeping. Hall and Gomber also made their own wines using Donkey & Goat’s facilities.
Sylvan, who was attending UC Berkeley, was hired in 2014 to work the Sunday shift at the tasting room. She also babysat the Brandts’ two daughters on occasion, according to Tracey Brandt.
The three became close friends and went on ski and bike trips together, Tracey Brandt testified. Sylvan and Gomber also lived together in a romantic relationship.
After the Brandts suspected the trio of taking wine without permission, they fired the three of them at the same time on Sept. 28, 2014. A short time later, Gomber filed a suit claiming unemployment. His application was denied.
December 23, 2104 search warrants
On Dec. 23, 2014 at 7:30 a.m., Berkeley police acted on a warrant to search Hall’s home (which she shared with roommates) on Tamalpais Road in the Berkeley hills, according to Det. Essex Combong. Hall was not at home at the time, but police searched Hall’s bedroom and the garage and found 30 bottles of wine, which they removed from the home, Combong testified.
Berkeley police were concerned that Hall’s roommate might call her and Hall, in turn, would call Gomber to warn him that police might be coming, Combong said. He went to a magistrate to get a search warrant for Gomber’s home on Santa Cruz Avenue in Richmond. He got a warrant at 11:05 a.m., according to court records. While Combong was doing that, two Berkeley detectives drove to Richmond to stake out the house to ensure Gomber did not try to get rid of any evidence.
When they arrived, the detectives parked their car about a half block away from Gomber’s house. They used binoculars and saw a man who looked like Gomber outside his home. He alternately smoked and talked excitedly on the phone, according to Det. Alex McDougall. He then saw a woman exit the house and go pull her car up in front, said McDougall. The woman was Sylvan.
Gomber then carried three white boxes to the car, a tan Volvo 240 station wagon. They looked like wine boxes and McDougall thought Gomber was trying to dispose of evidence. Gomber went back inside his house but Sylvan drove away with the boxes, according to McDougall. The detective pulled her car over a few blocks away shortly after 10:30 a.m., asked her to get out of the car, and then put handcuffs on her. Sylvan then made a series of spontaneous statements that Judge Clay later said influenced his decision to have her stand trial for receiving stolen property.
Sylvan “said something like ‘I didn’t want to do this,’” McDougall testified. “Then she said ‘I didn’t have anything to do with this,” said McDougall. Finally she said, “I just live with Zach. I’m not part of this,” ending with “we didn’t do anything wrong.”
Police recovered 33 bottles of wine from the car and seven bottles from under Gomber’s bed. The Brandts later examined the bottles and said many of them had been stolen.
Sylvan’s attorney, Gregory J. Thoming, argued unsuccessfully that the recovered bottles should not be admitted into evidence because police had not obtained a search warrant to search her Volvo. But Judge Clay denied the motion, stating that Det. McDougall had the legal right to stop her car because he had good reason to believe she was tampering with evidence.
After Gomber was arrested, he told police he had moved the wine because he was “afraid,” but he did not expand on that, according to Combong. He also told police that he had the right to the wine since it was payment for his work at the winery.
Hegazi characterized Gomber’s actions differently: “There is a pattern of taking property that didn’t belong to him,” he told the judge.
Related:
Donkey & Goat workers face wine theft charges (10.05.15)
Grape harvest comes to Berkeley at Donkey & Goat (10.01.12)
A natural approach: Berkeley’s Donkey & Goat winery (06.02.11)
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