Submitted: May 8, 2013
Upon Defendants' Motion to Dismiss and for Judgment of Acquittal DENIED
Barzilai K. Axelrod, Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for State of Delaware.
Eugene J. Maurer, Esquire, Wilmington, Delaware, Attorney for Defendant Sayel Ghabayen.
Robert M. Goff, Jr., Esquire, Wilmington, Delaware, Attorney for Defendant Marco S. Hassan.
Eric M. Davis, Judge
Defendants Sayel Ghabayen and Marco S. Hassan were arrested on September 2, 2012 during a routine traffic stop by Officer Neal Strauss of the Delaware River and Bay Authority ("DRBA"). The State subsequently indicted Mr. Ghabayen and Mr. Hassan on charges of Attempt to Evade or Defeat Tax under 30 Del. C. § 571 (Count I); Conspiracy Second Degree, under 11 Del. C. § 512, as to Attempt to Evade or Defeat Tax charge (Count II); Possession of Untaxed Tobacco Products under 30 Del. C. § 5342(a) (Count III); and Conspiracy Third Degree, under 11 Del. C. § 511, as to Possession of Untaxed Tobacco Products (Count IV). The State also charged Mr. Hassan with Driving a Vehicle While License is Suspended or Revoked under 21 Del. C. § 2756(a).
On April 15, 2013, Mr. Ghabayen moved to dismiss (the "Motion to Dismiss") the charges pending against him. The Court docketed the Motion to Dismiss on April 16, 2013. Subsequently, Mr. Hassan joined in the Motion to Dismiss. Prior to trial, the State entered nolle prosequis on Counts I and II. The Court held a non-jury trial on Counts III, IV and V on April 16, 2013. At the end of the State's case, Mr. Hassan and Mr. Ghabayen also moved for a judgment of acquittal (the "Motion for Judgment").
As the Motion to Dismiss was filed the day before trial, docketed the day of trial and raised issues relating to application of the Commerce Clause of the United States Constitution, the Court allowed the State an opportunity to file a written response to the Motions. The Court also allowed Mr. Hassan and Mr. Ghabayen to file replies to any papers filed by the State. The State filed its State's Response to Defendants' Motion to Dismiss (the "Response") on April 30, 2013. Mr. Hassan filed Defendant Hassan's Reply to State's Response to Defendants' Pre-trial Motion to Dismiss and Defendant Hassan's Renewed Motion for Judgment of Acquittal on May 7, 2013. Mr. Ghabayen filed a letter in response on May 8, 2013.
After a review of the record, the applicable authorities, and the legal arguments and factual presentation in the papers and at trial, the Court DENIES the Motion to Dismiss and the Motion for Judgment.
Through the Motions, Mr. Hassan and Mr. Ghabayen challenge the State's indictment of them under 30 Del. C. § 5342(a) ("Section 5342(a)"). The Motions make many arguments but basically assert that, under the circumstances of their arrest on September 2, 2102, application of Section 5342(a) would be an impermissible use of the State's taxation power. The State counters by contending that Section 5342(a) is a possession statute that works in conjunction with other provisions to aid in the enforcement of Delaware's tobacco product tax, and that the evidence is clear that Mr. Hassan and Mr. Ghabayen possessed contraband tobacco products in violation of the statute.
The Court held a hearing on the Motions and a trial on April 16, 2013. The State called only one witness, Officer Strauss of DRBA. Mr. Hassan and Mr. Ghabayen did not call any witnesses but did cross-examine Officer Strauss. The facts contained in this Opinion come from the testimony provided by Officer Strauss and the exhibits admitted into evidence at trial. As an initial determination, the Court finds Officer Strauss to be a credible witness.
On September 2, 2012, Officer Strauss was positioned northbound on Interstate 295 when he observed a gray 2002 Jeep Cherokee. Officer Strauss was in his patrol car, which patrol car was equipped with an in-car video recording system or MVR. The Jeep Cherokee had Virginia license plates. Officer Strauss observed the Jeep Cherokee make a lane change across a solid line at ...