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Government failed to prove man intended to sell unstamped cigarettes in Indiana

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The 7th Circuit Court of Appeals Tuesday reversed the denial of a man’s motions for judgment of acquittal on a charge that he brought cigarettes from Kentucky to sell in Indiana without paying an Indiana tax on them. The government couldn’t show that Haitham Mohamed intended to sell the 1,170 packs of cigarettes in Indiana.

A Speedway police officer pulled Mohamed over in June 2012 after he ran a red light. Mohamed’s van contained 23,400 cigarettes he purchased in Kentucky and they did not contain Indiana tax stamps. State law requires a tax on all cigarettes sold, used, consumed, handled or distributed within the state. He was indicted with one count of knowingly transporting and possessing contraband cigarettes in violation of the Contraband Cigarette Trafficking Act.  

Mohamed filed a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, which the District Court denied. A jury convicted him of the charge.

Mohamed only challenged that the portion of the cigarette trafficking charge that says the government has to prove beyond a reasonable doubt that the cigarettes were shipped, transported, received, possessed, sold, distributed or purchased under circumstances in which Indiana law requires the cigarettes to bear the tax stamps.

“Because Indiana does not tax all cigarettes possessed within the state, the government needed to prove more than Mr. Mohamed’s possession of unstamped cigarettes in Indiana to convict him of violating the CCTA. Rather, the government needed to prove that Mr. Mohamed possessed the cigarettes for the purpose of selling, using, consuming, handling, or distributing them within Indiana in order to establish that they were subject to Indiana’s cigarette tax,” wrote Judge Amy J. St. Eve of the U.S. District Court, Northern District of Illinois, who was sitting by designation.
 
“We are not persuaded that Mr. Mohamed’s violation of Indiana’s requirements for transporting unstamped cigarettes over Indiana highways alone is sufficient to support his conviction for violation of the CCTA. I.C. 6-7-1-24(d) creates a presumption that a person (apart from the three listed exceptions) possessing more than 1,500 cigarettes not bearing Indiana tax stamps has the cigarettes available and intended for sale within the state. The jury instructions, however, made no mention of the presumption, and the government never argued at trial that it applied. Had the government actually relied on the presumption at trial, Mr. Mohamed may have elected to present evidence rebutting the presumption, rather than rest his defense without presenting affirmative evidence. Thus, unlike in (United States v. Boggs, 775 F.2d 582 (4th Cir. 1985)), the government cannot use the presumption to its advantage on appeal. Without the benefit of the presumption, the government has not presented sufficient evidence to allow a reasonable trier of fact to determine that Mr. Mohamed intended to sell, distribute, or otherwise dispose of the cigarettes within Indiana,” she continued.

The government’s evidence at trial was not sufficient to show that Mohamed intended to sell the cigarettes in Indiana. Without this evidence, his conviction cannot stand. The judges remanded the case, United States of America v. Haitham Mohamed, 13-2368, with instructions to enter the judgment of acquittal.
 

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  1. Hello currently just withdrew from laporte county drug court and now I have lost the woman I love which also was in drugcourt and was put in jail without a,lawyer presentfor her own safety according to the judge and they told her she could have a hearing in two weeks and now going on 30days and still in jail no court date and her public defender talks like he,s bout to just sell her up the river.

  2. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  3. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  4. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  5. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

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