91-0468 - Illegal Drug Stamp

 

BEFORE THE UTAH STATE TAX COMMISSION

_____________________________

XXXXX )

Petitioner : FINDINGS OF FACT,

: CONCLUSIONS OF LAW,

v. : AND FINAL DECISION

COLLECTIONS DIVISION OF THE : Appeal No. 91-0468

UTAH STATE TAX COMMISSION : Tax Type: Drug Stamp

Respondent :

__________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for a formal hearing on XXXXX. Paul F. Iwasaki, Presiding Officer, heard the matter for and on behalf of the Commission. Present and representing the Petitioner was XXXXX, Attorney at Law. Present and representing the Respondent was XXXXX, Assistant Utah Attorney General.

Based upon the evidence and testimony presented at the hearing, the Tax Commission hereby makes its:

FINDINGS OF FACT

1. The tax in question is illegal drug stamp tax.

2. The date in question is XXXXX.

3. On the above mentioned date, and pursuant to negotiations held between Sergeant XXXXX of the Salt Lake County Sheriff's Office, who at that time was acting in an undercover capacity, and an individual identified as XXXXX, an agreement was made for XXXXX to purchase from Sergeant XXXXX, XXXXX kilos of cocaine.

4. The parties met in a room in a local hotel. At that time XXXXX provided XXXXX with XXXXX in cash. The $$$$$ was payment for the first kilo of cocaine. XXXXX took possession of XXXXX kilos of cocaine with the understanding that he would pay for the remaining XXXXX kilos at a later date.

5. During the course of the negotiations XXXXX had stated that XXXXX was the "money man".

6. After XXXXX took possession of the XXXXX kilos of cocaine and left the hotel room he was arrested in the hallway by other police officers.

7. The Petitioner was arrested approximately forty (40) minutes later by police officers. The Petitioner was driving the vehicle which XXXXX had been seen arriving at the hotel in.

8. XXXXX had stated to police officers and prosecutors that the Petitioner had provided all the money for the drug transaction.

9. As a result of the incident, the Petitioner was charged in Federal District Court with knowingly and intentionally attempting to possess with the intent to distribute XXXXX of cocaine to which he pled guilty.

The Petitioner entered a plea of guilty to Attempted Possession of a Controlled Substance with the Intent to Distribute.

10. The cocaine in question did not have the required drug stamps affixed to it.

CONCLUSIONS OF LAW

A dealer may not possess any marijuana or controlled substance upon which a tax is imposed by Title 59, Ch. 19, of the Utah Code unless the tax has been paid on the marijuana or controlled substance as evidenced by stamp or other official indicia. (Utah Code Annotated 59-19-104(2)).

"Dealer" means a person who, in violation of Utah law, manufactures, produces, ships, transports, or imports into Utah or in any manner acquires or possesses more than 42 1/2 grams of marijuana, or seven or more grams of any controlled substance. (Utah Code Annotated 59-19-102(2)).

DECISION AND ORDER

In the present case, the issue to be decided by the Commission is whether or not a person who is not in actual possession of a controlled substance in violation of Drug Stamp Tax Act may otherwise be found in violation of that act as a party to the offense.

The requirement to purchase an affixed drug stamp is imposed only upon "dealers" as that term is defined in the drug stamp tax act. Utah Code Ann. 59-19-102(2) defines dealer as "a person who, in violation of Utah law, manufacturers, produces, ships, transports, or imports into Utah or in any manner acquires or possesses more than . . . seven or more grams of any controlled substance . . .". Thus, under the act, mere possession of the controlled substance is not sufficient in and of itself to be a violation of the act. The possession must be one which is unlawful under Utah law. It must, therefore, be determined whether the Petitioner's action in the present case be sufficient so as to find him in violation of Utah law.

Section 58-37-2(27) of the Utah Controlled Substances Act states:

"possession" or "use" means the joint or individual ownership, control, occupancy, holding, retaining, belonging, maintaining, obtaining . . . of controlled substances and includes individual, joint, or a group possession . . . . For a person to be a possessor or a user of a controlled substance, it is not required that he be shown to have individually possessed, used, or controlled the substance, but it is sufficient if it is shown that he jointly participated with one or more persons in the use, possession, or control of any substances with the knowledge that the activity was occurring.

Section 76-2-202of the Utah Criminal Code provides that:

"every person, acting with mental state required for commission of offense who directly commits the offense, who solicits, request, commands, encourages, or intentionally aides another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct."

From the two above cited statutory provisions, it is clear that a person not in actual unlawful possession of a controlled substance maybe held criminally liable as a party to the offense with another individual who is in actual unlawful possession of a controlled substance.

In the present case, although the evidence presented showing the Petitioner's participation in the offense was slight, the corroboration of the evidence in addition to the Petitioner's lack of evidence to the contrary, was sufficient to sustain a finding that the Petitioner was in unlawful offense. The corroborating factors relied upon in this decision include the fact that the Petitioner was seen with the party who actually purchased the cocaine immediately prior to the transaction, and also the fact the Petitioner entered a guilty plea to the charge of attempted possession of a controlled substance as a result of this incident.

The Petitioner, through his counsel, next argued that if the Petitioner were found to be in violation of Utah Law with the respect to the possession of the cocaine in question, the maximum amount of cocaine which he could be found to possess would be one kilogram. It was the Petitioner's position that he agreed to purchase XXXXX of cocaine instead of all XXXXX kilos and therefore his liability should be limited to the XXXXX.

The Commission is not persuaded by the Petitioner's argument that his liability should be limited to XXXXX of cocaine in light of the complete lack of evidence of any facts to substantiate that claim.

Based upon the foregoing, the Tax Commission finds that Petitioner did unlawfully possess the controlled substances in question as party to the offense and therefore was subject to the requirements of the Illegal Drug Stamp Act and affirms the determination of the Collection Division. It is so ordered.

DATED this 20th day of November, 1991.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

R. H. Hansen Roger O Tew

Chairman Commissioner

Joe B. Pacheco S. Blaine Willes

Commissioner Commissioner