United States v. Richard A. Boggs
775 F.2d 582
4th Cir.
1985
Check Treatment

*1 WIDENER, Before RUSSELL and Cir- TURK, Judges, Judge District cuit Virginia, sitting by the Western District of designation. *2 attached,

WIDENER, Judge: Jartran truck with the trailer and Circuit car, driving Lichnovsky, Boggs’ left their Boggs appeals from his convic- Richard “traveling purpose motel north for the of trafficking in contra- one count of tions on cigarettes in or about the ... in violation of 18 U.S.C. cigarettes band Flushing, Michigan area.” At the nоrth- 2342(a)1 conspiracy and on one count of toll booth ernmost in in viola- to traffic contraband Turnpike, approximately twenty miles error, Finding no 18 U.S.C. 371. tion of Charleston, agents stopped federal south of we affirm. Upon searching both vehicles. the Jartran appellant, and An- Boggs, Richard A. truck, 3,194 agents discovered the car- Lichnovsky, аn unindicted co-con- thony A. cigarettes, tons of none which bore brother-in-law, spirator Boggs’ and Virginia cigarette stamps. Michigan. Flushing, residents of On both state, parenthetically, Boggs that does not 15, 1984, February acting on his or about question appeal validity behalf, Boggs tele- Lichnovsky’s and own Boggs any paper search. did not have Flint, Michigan, to J.T. Dav- phoned from possession showing who had or would Sons, Inc., wholesaler/stamper2 enport a & responsibility assume for the Sanford, Carolina, place an North to cigarette taxes, applicable either in purchase for the excess advance order 3,000 cigarettes. Virginia Michigan time cartons of Some or or еlsewhere. The call, telephone Boggs had prior agents Boggs then arrested and Lichnov- prohib- Lichnovsky shown the federal laws sky trafficking in contraband cigarettes, iting trafficking in contraband rettes. 2341-2346, copy a of which ‍​‌‌​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌‌‌​​​‌​​‌‌​​‌​​‌​‌​​​​​​‌‍18 U.S.C. §§ parties agreed to a trial to the court Boggs possession. had in his On or about upon stipulated facts filed with the district 21, 1984, Lichnovsky withdrew February Upon applying court. law to $15,000in a approximately cash from bank facts, Boggs these the district court found Michigan for the account charges guilty of the contained Counts Boggs had purchasing the that of the indictment. One and Two Davenport Sons. ordered from J.T. & appeal, Boggs raises three issues. On Thereupon, Boggs Liсhnovsky traveled First, car, Boggs argues that because he did together Boggs’ spending south Winston-Salem, night February 21 in intend to sell in West not they 23, 1984, morning, February The next North Carolina. seized on rented a Jartran truck and trailer from a subject to West they were gas proceeded local station and then to J.T. Consequently, Boggs taxes. con- 3,044 Davenport piсk up & Sons to cartons did not come with- tends that $18,- paid cigarettes, they for which in the federal definition of contraband Boggs Lichnovsky 207.80 cash. in 18 rettes contained U.S.C. § hotel, they then returned to their convicted of therefore could night. spent the in con- trafficking conspiring to traffic cigarettes. point his second traband As morning February On first, Boggs closely related to the which is purchase an addi- Boggs left the hotel to was defective in argues that his indictment from anoth- tional 150 cartons it to state each element that failed wholesaler/stamper. He then returned argues charged. He also crimes At around to the hotel in Winston-Salem. verdict. support day, Boggs, driving the noon of the sаme 2342(a). According facts filed in this to the shall be unlawful for 1. 18 U.S.C. It cig- receive, "wholesaler/stamper" is a wholesale a possess, any person ship, transport, or other- whom a state has licensed arette dealer sell, distribute, purchase contraband apply purchase empowered wise rettes. state’s Boggs’ principal ap contention on in question in the State in which peal is that he could not be convicted of found, here Ab- trafficking conspiring to traffic con intent, continues, sent such the State traband because the would not impose an ex- transporting that he was across West Vir cise tax on the either under state ginia subject were not to West law or under the commerce clause. *3 taxes, cigarette and therefore did not come think, however, that the Virgin- West within the definition federal of “contraband ia statutes disclose that West does cigarettes” purposes of 18 U.S.C. have the to apply Cigarette its 2342(a). Section 2341 of Title 18 of the § Act, Tax W.Va.Code 11-17-1 seq., et § United States definеs Code “contraband people Boggs unless the cigarettes” as possess being are legitimately trans- 60,000 quantity a in excess of commerce, ported in excep- which event which payment bear no evidence of the tion is made. State taxes ll-17-19(b)(6) West Code pro- § found, State where such if vides that: such requires stamp, impression, Stаte a “If any person, firm corporation, or who or other placed pack- indication to be is not a wholesaler of products, tobacco ages or other containers of ... possession shall have in his within payment cigarette taxes,____ the state more than 20 packages 2341(2).3 18 U.S.C. § rettes bearing cigarette tax paid indi- Boggs dispute the absence of cia of this possession State ... such shall West tax on the presumed be to be for purpose seized him quantity from or that the seized evading imposed of taxes or 60,000 Rather, exceeded he thereon____” due contends that the use of the “applica- term ble State taxes” the federal A reading fair only this statute can cigarettes” definition of “contraband re- having that one possession of more than 20 quires may that before a court find a de- packages unstamped cigarettes pre- guilty fendant of trafficking in contraband sumed to have them available and thus cigarettes, it must first find that the de- intended for sale in West and sub- legal ‍​‌‌​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌‌‌​​​‌​​‌‌​​‌​​‌​‌​​​​​​‌‍duty fendant had а pay cigarette ject to excise tax under taxes in the state in which 11-17-3.4 The de- § found, in this argues, fendant that since it has case, Boggs this argued to the district possessed been court, “... until there is a sale West [in purpose selling rettes “for the of” them in Virginia] there is no violation.” Flushing, Michigan area, about the he argument goes prelimi- that such a would rеsponsible having not be nary finding requires an intent to sell the West thereupon. This 2341(2) 60,000. 3. Section also contains a series stopped of ex- excess of He was 20 miles cepted categories may pos- Charleston, of individuals who gate south of at the last toll on the sess otherwise contraband without the Virginia Turnpike. Although trip cigarettes coming within the defini- north was "for the of" 2341(2)(A)-(D) (1982) (ex- tion. See 18 U.S.C. § Flushing, Michigan, rettes in and around he empting unstamped cigarettes stopped any place Virgin- could have at in West warehousemen, carriers, common and federal ia and sold the had he so desired. officials, others, among or state from definition "ciga- the district court found that the cigarettes"). of "contraband stipulated Because the rettes were available for sale within the state of Boggs did not come within Virginia.” The record does not disclose excepted categories listed in 18 U.S.C. upon whether or not the district court relied 2341(2)(A)-(D), exceptions these are not dis- Act; 17—19(b)(6) Cigarette Tax cer- 11— opinion. cussed further in this tаinly it did not have to. It must be remembered that had in his possession quantity unstamped cigarettes a plausible more were it argument would be 25 L.Ed.2d 174 (1970)). 11-17-20 of the West especially not for This is true in this case Code, part the first of the catchline of Congress, specific which author- has “transportation unstamped cig- which is ity regulate commerce betweеn the provides perti- That section arettes.” States under the has chosen that: part nent regulate cigarette bootlegging traf- by regulating fic transport ciga- very interstate com- “Every person who shall merce which the stamped required by may by provid- as this States rettes contraband, upon public highways ing, ... of its definition of article for thе posses- application shall have his actual States’ of their State own laws. delivery application laws, tickets for such If sion invoices a State’s of her own here, true adopted which shall show the by Congress as Con- complete and exact address of gress’ contraband, name definition of it cannot be seller, consignоr the true name said with reason that a exemption State’s *4 complete exact address of the (that of possessing papers showing the consignee purchaser ... and the true taxpayer name and address of the in anoth- complete name and and exact address of State) is an undue burden on commerce. persоn pay- the who has or shall assume Congress recognized Neither when ap- the tax, ment of the state plication of a State’s own tax laws as a tax, any, point the if of the State at the predicate for a penalty, federal criminal as destination____” of ultimate here, may there be such undue burden very application the mentioned Con- Boggs’ Inasmuch as defense is that he gress. See Western & Southern Ins. transporting cigarettes through was the Life Equalization, Co. v. State Board 451 “for the of” 2070, 2074, U.S. 68 Michigan, required them in he was to have (1980): L.Ed.2d 514 “Our decision does delivery his invoices or tickets however, limit the Congress showing complete the true name and regulate among commerce the several person paid exact address of the who had as it fit. In States sees the exercise of this payment Michigan or assumed state plenary authority, Congress may ‘confe[r] tax. This he has did upon ability the States an to restrict the have. would have they flow of interstate commerce would not perfectly justified imposing upon been ” enjoy.’ otherwise Boggs its excise tax on account of his comply simple failure to with this rather sum, we think the West requirement and unburdensome of West requiring cigarettes statute either subject law to him to criminal these to bear state tax or to hold penalties comply ‍​‌‌​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌‌‌​​​‌​​‌‌​​‌​​‌​‌​​​​​​‌‍for failure to therewith. possessor of such criminal merely requir do not think 5ly resрonsible for failure to see that the ing Boggs possession papers meaning are affixed is within the showing per the name and address of the phrase “applicable cigarette State tax paid Michigan son who had or had 2341(2). es” in 18 U.S.C. § payment assumed its is an undue burden meaning on interstate commerce within the While it is true that the defendant directly question draw into Constitution. See Arkansas Elec. Cooperative Corp. validity of the West statutes as v. Arkansas Pub. Serv. Comm’n, 393-95, against 461 103 S.Ct. measured the commerce clause of 1905, 1917-18, (1983) argued that a con (quoting 1 he has L.Ed.2d Inc., subjecting Church, Virginia law Pike v. Bruce 397 U.S. struction of West 11-17-2(9) position. 5. See W.Va.Code and 11-17- §§ 19(b)(4), example, Boggs apparent one in recognize the defendant provisions to the further as these

cigarettes such clearly payment intended to avoid the Cigarette Tax Act of the West I any applicable Michigan. state taxes in application of an unconstitutional would be believe, that the law of the do not As the discus- Virginia statute. Virginia, incorporated by as state Wеst indicates, agree.6 we do not sion above statute, permits a the federal conviction equally plausible con- An alternate respectfully I dis- this case. construing statute of the federal struction sent. “applicable state language meet the federal definition To “applicable” the word taxes” is to construe cоntraband, question if “applicable” meaning must fail to bear evidence of the were sold the State Virgin- state tax of West not rest our decision on found. We need 2341(2). Virgin- ia. 18 U.S.C. The West ground, however. statute, ia points appeal, other appellant’s As to 11-17-3, an levies excise on the sale was drawn with- question indictment language the state. The statute, think it and we in the terms of give very clear and there is no reason to given The defendant was was sufficient. plain meaning. than its When other required he of that which was notice Virginia, they rettes are to be sold in West jeop- against, and a claim of former defend subject to the excise tax. When the against successful another ardy would be paid, stamp required tax has been a tax same act. We are fur- prosecution for the payment. issued as evidence of that No *5 supports opinion ther that the evidence of applicable the stamp will be issued unless the verdict. applicable paid, tax is .and no tax will be the district court is judgment The cigarettes arе to sold within the unless be state. AFFIRMED. present stipula- case was tried on a The

TURK, Judge, dissenting: District fact, agreed upon by parties the and tion of court, accepted by the that the recognize strong Congressional I the in- ciga- Michigan, to be sold in not in West illegal to eradicate the sale of tent Therefore, no tax I there were derogation rettes in of state laws. line, applied the Along appellant whether or not the district court ‍​‌‌​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌‌‌​​​‌​​‌‌​​‌​​‌​‌​​​​​​‌‍the same contends arriving presumption application presumption W.Va.Code at its conclusion. of the 11-17-19(b)(6) appeal presume that when the record on does in this case is unconstitutional § 684, Wilbur, interpretations law Mullaney disclose which of two under v. 421 U.S. 95 S.Ct. not 1881, (1975), applied, pre one of which was because the the district court 44 L.Ed.2d 508 proof other of which sumption the de violative of the the shifts the burden of prosecution’s its inter was that the district court intended fendant on one element of the requirements establishing Virginia pretation comply namely, with the that West Stanton, Mаckey required stamps See v. 586 tax on the the Constitution. tax laws denied, 1126, Cir.1978), (7th County cert. 444 question. Court Ulster F.2d 1130 In 882, 172, (1979); 140, 2213, Allen, 112 County 100 S.Ct. 62 L.Ed.2d 442 U.S. 99 S.Ct. 60 (1979), McDonnell v. American Leduc Petrole the Court stated that the see also L.Ed.2d 777 Ltd., 1170, (2d Cir.1972) ums, any presumption’s 456 F.2d 1188 ultimate test of constitution (if J., dissenting part) (Hays, concurring ality presumption and undermines is whether appeal disclose what rule of responsibility the ulti record on the factfinder’s to find appellate applied, court beyond law district court a reasonable doubt based on mate facts 156, correctly ap presume that district court at Id. at 99 S.Ct. at should the facts adduced trial. law) cases). (citing applicable we requires plied a court 2224. This determination judge mandatоry presump that if the district considered analyze permissive conclude and 2224; presumption at all in this case he considered differently. at tions See id. at (3d. presumption. permissive and thus valid as a at 997 McCORMICK ON EVIDENCE preparation 1984). in the of this mandatory presumption We hasten to add that which ed. The presump opinion finding jury we have never considered court removes fact from a invalid, permissive any and valid may other than its permissive presumption be tion while a however, record, sense. valid. It is not clear from the Virginia rettes for West ferent thing, sale no to equate transport- tax applicable ing unstamped through the state possession rettes in defendant. with offering the for sale in the no fact, As there was state. I believe this statute makes tax, there was no West tax stamp it undeniably clear that the West required could not meet legislature recognized could definition of federal contra- transported through the state and not band. Virginia cigarette appli- Therefore, cable to them. I fail to see how enacting Congress, when 18 U.S.C. the majority can find support for its 2342(a),recognized that there were situa- position in this statute. unstamped cigarettes tions where would Specifically be federal contraband. I feel I must briefly comment on foot- states, Michigan, mentioned were note 4 majority opinion, which dis- require pack- which do not cusses how the defendant “could have ages Cong. & Ad- See stopped at any place in West min.News, Although sold the had he so desired.” I provides tax stamps pay- am concerned to find that majority tax, applicable cigarette ment of the it does attempts uphold a conviction surmis- require packages ing happened what could have had the de- rettes not for sale in the state. fendant wanted to do something other than preclude the same rationale would a find- what has been ing that the in the accepted by trier of fact. Boggs were federal contraband. dissent, Accordingly, express I my majority heavily relies on two West judgment conclusion that the of conviction first, statutes. The should be reversed. ll-17-19(b)(6), a presump- creates anyone tion that with a certain number of

unstamped packages pre- attempting

sumed paying to be to avoid *6 by

taxes due thereon. As conceded any

majority, presumption in a criminal merely permissive case must be in order to WATERS, Appellee, ‍​‌‌​‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌‌‌​​​‌​​‌‌​​‌​​‌​‌​​​​​​‌‍Gilbert Any presumption be valid. such stands only destroyed by until facts.

facts in stipulated by this the MASSEY-FERGUSON, INC., Appellant. accepted court, the trial arе No. 84-1882. were to sold in Michi- gan. presumption the statutory United Appeals, States Court of destroyed longer and can no be relied Fourth Circuit. upon by prosecution appellate Argued April court. Decided Oct. statute, The second 11-17-20, makes it a misdemeanor to 6, 1985. Dec. Rehearing Denied through transport quanti- the state certain unstamped prop- ties of without documentation, so

transported pur- state contraband

poses of statute. It is clear

defendant violated this statute charged having

could be with committed quite

that state misdemeanor. It is a dif-