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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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