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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

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  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...