U.S. v. Elshenawy, 85-1540

• Decision Date: 23 September 1986
• Docket Number: No. 85-1540,85-1540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elsayed Akef ELSHENAWY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 856

801 F.2d 856

UNITED STATES of America, Plaintiff-Appellee, v. Elsayed Akef ELSHENAWY, Defendant-Appellant.

No. 85-1540.

United States Court of Appeals, Sixth Circuit.

Argued June 3, 1986.

Decided Sept. 23, 1986.

Kenneth R. Sasse, Federal Defender Office, Detroit, Mich., Miriam L. Siefer, Rafael C. Villarruel (argued), for defendant-appellant.

John N. Thompson, Jr. (argued), Detroit, Mich., for plaintiff-appellee.

Before KEITH and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

BOGGS, Circuit Judge.

Appellant, Elsayed Akef Elshenawy, was charged with "knowingly" possessing contraband cigarettes, in violation of 18 U.S.C. Sec. 2342(a). Elshenawy filed a pre-trial motion to construe the statute, and the district court ruled that the statute does not require the government to prove that the defendant knew that payment of state cigarette taxes was required, or knew that taxes had not been paid. Subsequent to the ruling, Elshenawy entered a conditional guilty plea under Fed.R.Crim.P. 11(a)(2), preserving for appeal the issue of whether 18 U.S.C. Sec. 2342(a) requires the government to prove that a defendant knew about the taxing requirement. For the reasons set forth below, we hold that the statute does not place such a requirement on the government, and we thus affirm Elshenawy's conviction.

Appellant was charged with violating 18 U.S.C. Sec. 2342(a), which provides as follows: "It shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes." "Contraband cigarettes" are defined as follows:

a quantity in excess of 60,000 cigarettes which bear no evidence of the payment of applicable state cigarette taxes in the State where such cigarettes are found, if such State requires a stamp, impression, or other indication to be placed on packages or other containers of cigarettes to evidence payment of cigarette taxes.

18 U.S.C. Sec. 2341(2).

Elshenawy does not dispute that he was in possession of far more than 60,000 cigarettes, that the cigarettes bore no evidence that taxes had been paid, or that the cigarettes were found in Michigan, a state that requires a stamp on cigarette packs as evidence of payment of taxes. Furthermore, he admits that he knew that the cigarettes in his possession bore no indicia and that he assumed that no state taxes had been paid. ¹ The sole issue on appeal is whether the government is required to prove beyond a reasonable doubt that Elshenawy knew (1) that the cigarettes in his possession were required to be taxed and (2) that the taxes had not been paid.

In support of his contention that 18 U.S.C. Sec. 2342(a) requires proof that the defendant knew that the cigarettes in his possession were required to be taxed, Elshenawy relies primarily on Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). In Liparota, the defendants were charged with violating 7 U.S.C. Sec. 2024(b), which provides that one who "knowingly uses, transfers, acquires, alters, or possesses [food stamps valued over $100] in any manner not authorized by this chapter shall ... be guilty of a felony." The Supreme Court held that this language required the government to prove that a defendant knew that food stamps came into his possession in an unauthorized manner.

Liparota, however, can be distinguished from the instant case by the subtle but significant difference in the language of the statutes involved. Section 2024(b), 7 U.S.C., addresses the knowing use, etc. of food stamps "in any manner not authorized by this chapter [of the United States Code]." This statute thus emphasizes the connection between knowledge and the manner of authorized use. In contrast, 18 U.S.C. Sec. 2342(a) forbids the knowing possession, etc., of contraband cigarettes, which are defined in a different statutory section. The definition of "contraband cigarettes" in that other section (18 U.S.C. Sec. 2341(2)) does not depend upon the actor's state of mind or degree of knowledge. Rather, the definition of "contraband cigarettes" depends only upon the absence of indicia of state tax payment and location in a state requiring such indicia.

We believe that three other Supreme Court cases--United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), United States v. International Minerals and Chemicals Corp. 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971), and United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943)--are more relevant than Liparota to the issue in the present case. Freed dealt with a statute, 26 U.S.C. Sec. 5861(a) (1964), which made it unlawful for any person "to receive or possess a firearm which is not registered to him." The Freed Court held that this statute did not require "specific intent or knowledge" by the defendant that a firearm in his possession was unregistered. 401 U.S. at 607, 91 S.Ct. at 1117.

Similarly, in International Minerals, the defendant was charged with "knowingly" failing to indicate on the appropriate papers that he was transporting a "corrosive liquid," in violation of an Interstate Commerce Commission regulation. The Court ruled that this regulation did not create an exception to the general rule that ignorance of the law is no excuse. Rather, the Court noted that, in regard to dangerous or obnoxious products, "the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation." 402 U.S. at 565, 91 S.Ct. at 1701-02. The defendant knew that he was carrying a corrosive liquid, though not that he was violating an ICC regulation.

Finally, in Dotterweich, a corporate officer was charged with interstate shipment of adulterated and misbranded drugs of which he disclaimed knowledge. The Dotterweich Court concluded that:

The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct--awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in...