Zi Qiang Chen v. State

KRAUSER, Judge. The Circuit Court for Somerset County convicted appellant, Zi Qiang Chen, of possessing and transporting unstamped cigarettes in violation of Md.Code Ann. (1988, 1997 Repl.Vol., 2000 Supp.), §§ 12-305 and 13-1015 of the Tax-General Article (“T.G.”). It then fined him $3,595, whereupon he noted this appeal. Mr. Chen now urges this Court to reverse his convictions, claiming that T.G. § 12-305 is “of no force and effect” because it does not contain a penalty, and that the evidence does not support his conviction under T.G. § 13-1015.

The former claim is self-explanatory but the latter requires explanation. Section 13-1015, as appellant notes, proscribes willfully transporting unstamped cigarettes. Therefore, according to ¹²⁶ appellant, the State had the burden of proving not only that he intentionally transported the cigarettes in question but that he did so, knowing it to be a violation of the law. That burden, appellant asserts, the State failed to bear.

Because we find no merit to either claim, we shall hold that the absence of a penalty in T.G. § 12-305 does not render that statutory provision a nullity and that the term “willful[ ]” in the context of T.G. § 13-1015 denotes only an intentional and deliberate violation of that provision and does not require that the State prove that appellant knew that what he was doing was illegal. In other words, we decline appellant’s invitation to carve out another exception to the common law rule that “ignorance of the law is no excuse” and that every citizen is presumed to know the law. BACKGROUND Before trial, appellant presented a motion to dismiss and a motion to suppress the evidence. After a hearing, both motions were denied, and this matter proceeded to trial on a statement of the facts presented by the State and agreed to by appellant.

The following is a summary of that statement: On July 11, 2000, agents of the Field Enforcement Division of the Comptroller of the Treasury conducted a surveillance of the Peace Token store in New Church, Virginia, as part of an effort to stem the importation of large quantities of unstamped cigarettes into the State of Maryland. At approximately 4:05 p.m. that day, Agent Kane, one of the surveilling officers, observed a white caravan with North Carolina license plates parked under a wooden canopy, at the rear of the store. According to Agent Kane, this was “a common practice used by individuals when they are picking up large quantities of cigarettes from this establishment and transporting them into the State of Maryland,” because a vehicle parked at that location is not visible from the highway. At approximately 4:25 p.m., Agent Kane observed appellant open the passenger side door of the caravan and “proceed[ ] to move a few items around the passenger’s compartment of the ¹²⁷ vehicle.” After closing and locking the passenger side door of the caravan, appellant went to the rear of the vehicle where he opened the tailgate and removed several large trash bags.

He then entered the rear of the store. At approximately 4:35 p.m., Agent Kane observed appellant leave the rear of the store and reopen the tailgate of the caravan. Upon entering the rear of the vehicle, he began rearranging items inside. Moments later, he left the vehicle and returned to the rear of the store.

There, he picked up a large black trash bag containing approximately two large rectangular objects. “Knowing this is a common method to transport cigarettes,” Agent Kane believed the items in the large black trash bag to be “cases of cigarettes.” At approximately 4:41 p.m., appellant placed the trash bag into the caravan. After climbing into the driver’s seat of the vehicle, he drove away from the Peace Token store, heading north. The agents followed. Twenty minutes later, appellant was observed by the agents pulling into a Royal Farm store.

At approximately 5:20 p.m., appellant left the Royal Farm store with a hand cart containing four boxes, which the agents believed, from the markings on the boxes, to be cases of cigarettes. After taking the boxes to the rear of the caravan, appellant placed them in trash bags. He covered the trash bags with a blanket and then drove across the street to “Dixieland,” an Exxon gas station and “also a discount cigarette establishment.” Several minutes later, appellant left Dixieland and drove north on Route 13. The agents followed appellant as he crossed the Virginia state line into Maryland.

At approximately 5:45 p.m., they stopped his vehicle in Somerset County, Maryland. After identifying himself, Agent Kane explained to appellant that he believed that appellant was transporting cigarettes into Maryland. He asked appellant “if he had cigarettes in his vehicle.” Appellant replied, “yes, I have cigarettes.” But when asked if he had any paperwork permitting him to ¹²⁸ transport the cigarettes, appellant stated, “I speak little English but I have cigarettes.” Agent Kane asked appellant to get out of his vehicle. Standing at the rear of the vehicle with appellant, Agent Kane again asked appellant “if he had any form of paperwork allowing him to transport his load of cigarettes.” Appellant replied, “I don’t understand, I have cigarettes.” When the agents requested permission to look inside his vehicle, appellant responded by nodding his head up and down several times.

Appellant stated, “the cigarettes are in the car.” Opening the tailgate of appellant’s vehicle, agents found a blanket covering several large black trash bags. Inside the bags were numerous cases of cigarettes bearing Virginia tax stamps. They placed appellant under arrest for transporting and possessing unstamped cigarettes and then transported him to the Maryland State Police barrack in Somerset County. A search of appellant’s vehicle uncovered 7,190 packs of various brands of cigarettes.

The statement of facts concluded with the following synopsis of appellant’s testimony: The defendant would testify that he was traveling through the State of Maryland on his way to another state when he was stopped by the Maryland agents. And his testimony would further be that at no time were the cigarettes intended for use, distribution or sale into or within the State of Maryland. Before addressing the merits of appellant’s claims, a review of the history of the statute at issue, known as the “State Tobacco Tax Act” and now contained in Title 12 and portions of Title 13 of the T.G. Article, provides a helpful context in which to consider his claims. The State Tobacco Tax Act In 1958, the Maryland General Assembly enacted the State Tobacco Tax Act (the “Act”). 1958 Md. Laws ch. 1, § 4.

The Act added thirty-four new sections to then Article 81 (Revenue and Tax) of the Maryland Annotated Code of 1957. Md. ¹²⁹ Ann.Code (1957, 1958 Supp.), Art. 81, §§ 414-47. The Act, among other things, imposed “a tax to be paid and. collected ... on all cigarettes used, possessed or held in the State of Maryland.” Id. at § 414. To evidence such payment, the Act required that stamps be “affixed by the first vendor or user who [had possessed said cigarettes]____” Id. at § 420.

Persons found selling or possessing unstamped cigarettes, who did not fall within an enumerated exemption, such as certain “wholesaler^]” or “consumer[s],” were subject to a fine or imprisonment or both. Id. at § 446. In 1961, the legislature revised the Act and added new sections to it. 1961 Md. Laws ch. 669, § 2. Among the revisions made was that § 446, which had previously both prohibited the possession and sale of unstamped cigarettes and imposed a penalty for violating that prohibition, was divided into two sections: § 438(a), which defined the acts prohibited, and § 463(a), which set forth the penalty for committing those acts.

Also, the legislature added language to § 463(a), imposing a penalty: a fine “not more than $1000.00 or imprison[ment] for not more than one year, or both ...” for the “willful[ ]” and “knowingf ]” possession of unstamped cigarettes. 1 And it enacted § 455, which prohibited, and imposed a penalty for, the transport of unstamped cigarettes without the appropriate invoices or delivery tickets on the roads and highways of Maryland. In 1988, Article 81 was repealed “in its entirety and substantial portions [including those sections dealing with the Act] were transferred into the concurrently enacted Tax-General Article.” Rossville Vending Mach. Corp. v. Comptroller of Treasury, 97 Md.App. 305 , 313 n. 5, 629 A.2d 1283 (1993)(citing 1988 Md. Laws ch. 2). As a result, Article 81, § 438(a), prohibiting the possession of unstamped cigarettes, became T.G. § 12-305; Article 81, § 463(a), containing the penalty provision for § 438, became T.G. § 13-1014; and Article 81, § 455, which prohibited and imposed a penalty for ¹³⁰ the transport of unstamped cigarettes on the roads of Maryland, became T.G. § 13-1015.

T.G. § 12-305 provides that, “[ujnless otherwise authorized under this title, a person may not possess, sell, or attempt to sell unstamped cigarettes in the State.” 2 Its penalty provision, T.G. § 13-1014(a), provides that “[a] person who willfully possesses, sells, or attempts to sell unstamped ... cigarettes in the State in violation of Title 12 of this article is guilty of a misdemeanor....” 3 And T.G. § 13-1015 provides that “[a] person who willfully ... transports within, this State cigarettes ... on which the tobacco tax has not been paid in violation of Title 12 of this article ... is guilty of a felony....” 4 I We shall first consider appellant’s contention that the charge of possessing unstamped cigarettes in violation of T.G. § 12-305(a) is “of no force and effect” because that section “carries no penalty.” T.G. 12-305(a) provides: Possession or sale of unstamped cigarettes. — Unless otherwise authorized under this title, a person may not possess, sell, or attempt to sell unstamped cigarettes in the State. Because T.G. § 12-305(a) contains no penalty, appellant reasons, “there can be no crime and thus, no conviction.” Admittedly, T.G. § 12-305(a) does not contain a penalty for possessing unstamped cigarettes, but T.G. § 13-1014(a) of the same article does. Consequently, the absence of a penalty in T.G. § 12-305(a) does not render that statutory provision a nullity or appellant’s actions lawful. ¹³¹ In support of the proposition that the absence of a penalty in T.G. § 12-305(a) renders it “of no force and effect,” appellant cites United States v. Evans, 333 U.S. 483 , 68 S.Ct. 634 , 92 L.Ed. 823 (1948). In that case, Evans was accused of concealing and harboring aliens in violation of § 8 of the Immigration Act of 1917, 8 U.S.C. § 144 .

Specifically, the Act states: That any person ... who shall bring into or land in the United States ... [or shall attempt to do so] or shall conceal or harbor, or attempt to conceal or harbor, or assist or abet another to conceal or harbor in any place ... any alien not duly admitted by an immigrant inspector or not lawfully entitled to enter or to reside within the United States under the terms of this Act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not exceeding $2,000 and by imprisonment for a term not exceeding five years, for each and every alien so landed or brought in or attempted to be landed or brought in. Evans, 333 U.S. at 483-84 , 68 S.Ct. 634 (quoting 8 U.S.C. § 144 ). Evans moved to dismiss the charges against him, claiming that the indictment “did not charge a punishable offense.” Id. at 484, 68 S.Ct. 634 . “He argued that although the statute provided for two different crimes, one landing or bringing in unauthorized aliens, and the other concealing or harboring such aliens, punishment was prescribed in terms only for the former crime.” Id. Agreeing with this argument, the United States District Court granted his motion to dismiss.

On appeal, the United States Supreme Court concurred, stating: The Government in effect concedes that in terms the section prescribes no penalty for concealing or harboring. But it argues that inclusion of them as offenses becomes meaningless unless the penalty provision, in spite of its wording, is construed to apply to them as well as to bringing in or landing. In other words, because Congress intended to authorize punishment, but failed to so, probably as a result of oversight, we should plug the hole in the statute. To do ¹³² this would be to go very far indeed, upon the sheer wording of the section.

Id. at 487-88, 68 S.Ct. 634 . In contrast to Evans, however, the Act expressly imposes a penalty for possession of unstamped cigarettes, but in a different section of the T.G. Article. That section is T.G. § 13-1014(a) and it provides: (a) Offense; penalties — In general. — (1) A person who willfully possesses, sells, or attempts to sell unstamped or improperly stamped cigarettes in the State in violation of Title 12 of this article is guilty of a misdemeanor. (2) If the number of unstamped or improperly stamped cigarettes that a person possesses, sells, or attempts to sell is 30 cartons or less, the person on conviction is subject to a fine not exceeding $500 or imprisonment not exceeding 3 months or both.

(3) If the number of unstamped or improperly stamped cigarettes that a person possesses, sells, or attempts to sell is more than 30 cartons, the person on conviction is subject to a fine not exceeding $1,000 or imprisonment not exceeding 1 year or both. (Emphasis added.) The question of whether T.G. § 12-305 should be construed in conjunction with T.G. § 13-1014(a) was resolved by this Court over 30 years ago in Cornish v. State, 6 Md.App. 167 , 251 A.2d 23 (1969). There, we held that § 438 and § 463 of Article 81, the predecessor provisions of T.G. §§ 12-305 and 13-1014, respectively, were to be so construed. That case provides compelling precedent for us now to do the same with the successor provisions of § 438 and § 463, T.G. §§ 12-305 and 13-1014(a).

In Cornish , the defendants were convicted of possessing unstamped cigarettes in violation of § 438 of Article 81, and sentence was imposed pursuant to § 463 of the same article. In affirming those convictions, we stated: “In conjunction with Section 463, Section 438, under which appellants ¹³³ were convicted, makes it unlawful (with certain enumerated exceptions not here pertinent) to possess untaxed cigarettes in this State.” Cornish, 6 Md.App. at 171 , 251 A.2d 23 . Moreover, it “is a general rule of statutory construction that statutes that deal [as the statutory provisions do here] with the same subject matter, share a common purpose, and form part of the same general system are in pari materia and must be construed harmoniously in order to give full effect to each enactment.” Murphy v. State, 100 Md.App. 131, 135 , 640 A.2d 230 (1994). Nonetheless, appellant counters that there is an important difference between T.G. § 13-1014 and its precursor, § 463.

Section 463 refers to § 438(a), appellant points out, but T.G. § 13-1014 does not refer to T.G. § 12-305(a). Indeed, § 463 states: (a) Any person who shall wilfully and knowingly sell unstamped or improperly stamped cigarettes upon which tax has been imposed by this subtitle and any person who shall wilfully and knowingly have in his possession any unstamped or improperly stamped cigarettes except as allowed in this subtitle, or any person who shall violate any other provision of § .(38(a) of this subtitle, shall be guilty of a misdemeanor and upon conviction shall be fined not more than $1000.00 or imprisoned for not more than one year, or both.... Md.Code Ann. (1965 Cumm. Supp.), Article 81, § 463.

(Emphasis added.) In addition, appellant observes that the “new § 13-1014 deleted the word knowingly from former § 463(a) and deleted the broad penalty language in § 463(a) covering ‘any other provision of Section 438(a).’ ” Appellant therefore concludes that in replacing § 463 with T.G. § 13-1014, “the legislature created a statute that criminalizes only the wilful possession of unstamped cigarettes and fails to provide a penalty for non-wilful possession of unstamped cigarettes” or, in other words, T.G. § 12-305. We disagree. Although T.G. § 13-1014 does not refer specifically to T.G. § 12-305(a), it states that it covers “[a] person who willfully ¹³⁴ possesses ... unstamped or improperly stamped cigarettes in the State in violation of Title 12 of this article...And since T.G. § 12-305 is the only section of that title that prohibits the unlawful possession of unstamped cigarettes, it is clear that T.G. § 13-1014 is intended to cover acts proscribed by that section. The fact that the term “willfully” appears in T.G. § 13-1014 but not in T.G. § 12-305 does not prevent this Court from concluding that term was also intended to apply to T.G. § 12-305, a point similar to the one made by the Supreme Court in Ratzlaf v. United States, 510 U.S. 135 , 114 S.Ct. 655 , 126 L.Ed.2d 615 (1994), a case we shall discuss at greater length later in this opinion.

Briefly, in Ratzlaf the defendant was charged with willfully violating an anti-structuring provision of a banking statute. That statute, 31 U.S.C. § 5324 (1994), provided: No person shall for the purpose of evading the reporting requirements ... with respect to such transaction — ... “(3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions.” The criminal enforcement provision, 31 U.S.C. § 5322 , which sets forth the penalties for violating that statute, stated that “ ‘[a] person willfully violating this subchapter [ 31 U.S.C. § 5311 et seq.] or a regulation prescribed under this subchapter ... shall be fined____Ratzlaf,