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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. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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