Dealers face legal challenge with law impossible to obey

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Monday, January 21, 2013

— Phillip G. Robinson is charged with not having a Wisconsin drug tax stamp on the package of cocaine Rock County prosecutors say he planned to sell.

Not having a drug tax stamp is a felony, and it could add six years in prison to his sentence if he's convicted.

The thing is, Robinson couldn't have bought drug tax stamps if he wanted to.

The Wisconsin Department of Revenue no longer sells them. The department has not sold a controlled substance tax stamp since 2004, spokeswoman Laurel Patrick said.

"If you walked in today, you could not buy one," Patrick said.

Robinson, 43, Madison, is accused of possessing and intending to sell 143 grams of cocaine, a felony. A Wisconsin State Patrol trooper reported finding the cocaine in the trunk of Robinson's car when he pulled him over for speeding Dec. 12 on Interstate 90/39 near Janesville.

Robinson last week pleaded not guilty.

His drug tax stamp arrest could be among the last by the Wisconsin State Patrol.

After inquiries by The Gazette, the Wisconsin State Patrol is expected to issue an executive order in the next week or so telling all troopers to stop arresting people for violating the drug tax stamp law, said Sgt. Nate Clark, supervisor of the drug-interdiction initiative with the Milwaukee High Intensity Drug-Trafficking Area.

The Milwaukee HIDTA is made up of several law enforcement agencies, including agencies in Rock County, that focus on stopping large amounts of illegal drugs as they are moved through Wisconsin.

Until inquiries by The Gazette, Clark said he and his colleagues were not aware drug tax stamps are no longer for sale.

After a week or two of research, the agency decided to stop arresting people for failing to buy stamps that are impossible to buy.

"It doesn't seem to be an effective use of our resources and time," Clark said. "This (the sale of tax stamps) was done as a Department of Revenue initiative. Law enforcement was supporting the Department of Revenue. Since they're not interested anymore, we have no incentive to enforce the law for them."

The law's history

The drug tax stamp law has a murky history. Enacted in 1989, the law was declared unconstitutional in 1997. In State v. Hall, defense attorneys convinced the Wisconsin Supreme Court that the law forced people to incriminate themselves.

Legislators amended the law, but in 2004 a federal appeals court addressed the legitimacy of the law in a different way.

In that case, a Wisconsin man named Stephen Dye was arrested in 1994 on charges of felony cocaine possession and violating the tax stamp law. After executing a search warrant, police seized 11.9 grams of cocaine, according to online court documents.

Days after the arrest, the state froze Dye's assets and later took $4,896 from his bank account as a means of collecting the tax.

Dye argued that the law violated the double jeopardy clause of the U.S. Constitution, which prohibits prosecuting the same crime with multiple charges, according to court documents.

The federal appeals court determined the drug tax was so severe it constituted criminal punishment as opposed to a tool to collect tax revenue.

"This case is analogous to those where a defendant is sentenced to both a fine and imprisonment when the statute allows only a fine or imprisonment," the court's decision states.

The ruling didn't declare the statute unconstitutional, but it did take away any mechanism for the state Department of Revenue to collect the drug tax, Clark said.

"They took that ability away, so the Department of Revenue could no longer get its cash," he said.

Leverage for prosecution

In Dane County, no one has been charged with violating the tax stamp law since 2005, according to Dane County Clerk of Courts records. In Brown County, the charge hasn't been used since the 1990s.

In Rock County, the charge is used as a tool for getting suspects to plead to drug possession charges, District Attorney David O'Leary said.

In 2012, 28 people were charged with violating drug tax stamp law, according to court data obtained by The Gazette.

Some were charges referred by police, often state troopers, according to court documents. In other cases, the district attorney's office charged violation of the tax stamp law although police did not make an arrest on that charge.

No one was convicted of the felony. Rather, the charge typically is dropped as part of plea negotiations, O'Leary said.

The charge is lawful and is a tool prosecutors use to get defendants to plead to felony drug possession charges, O'Leary said.

"The point is to use whatever leverage the state has," he said.

Use of the charge appears to vary, according to court documents.

In December, for example, Pamela K. Gander, 51, of 1611 E. Road Eight, Edgerton, was charged with a number of drug possession felonies.

Also arrested was Brendan Mades, 18, who lived in the same home. Last week, he was charged with possession of marijuana with intent to deliver and possession of drug paraphernalia.

Police executed a search warrant at the home on the southwestern shore of Lake Koshkonong after getting complaints Gander was selling drugs from the home to high school students. Deputies seized between 250 and 300 grams of marijuana and a small number of Adderall pills from the home, according to the complaint.

In addition to the other drug charges, Gander and Mades are charged with not having drug tax stamps.

But in a similar case charged last week, two Clinton men and an Illinois man accused of marijuana and LSD crimes were not charged with violating the drug tax stamp law.

Randall D. Alewine, 29, of 421 Church St., Clinton, is charged with possession with intent to deliver more than 1,000 grams of marijuana as well as attempting to possess LSD with intent to deliver, according to the criminal complaint filed Tuesday.

In the same case, Anthony G. Schabow, 20, of 408 Allen St., Clinton, is charged with delivering marijuana and LSD, possession of marijuana and possession of drug paraphernalia. Justin M. Bergeron, 32, Hainesville, Ill., is charged with party to possession of marijuana with intent to deliver, possession of marijuana and possession of drug paraphernalia.

Alewine is accused of accepting U.S. mail shipments of marijuana from California for local distribution. Bergeron paid Alewine $200 to accept the shipments, and Bergeron had been picking up the packages from Alewine's house, according to the complaint.

'Definitely problematic'

The drug tax stamp law remains on the books in Wisconsin. Clark said state Department of Transportation officials will consider working with legislators to have the statute removed. Charging people with a law they can't follow is "ludicrous," Clark said.

Robert Henak agrees. Henak is a Milwaukee attorney who worked on the 1997 constitutional challenge. He has a collection drug tax stamps from around the nation. Most of the people who purchased the Wisconsin stamps were stamp collectors or attorneys, Henak said.

"Neither the drug tax law itself nor the criminal statute for failure to pay the tax has been declared unconstitutional," Henak said. "However, any assessment of the drug tax would bar the prosecution of that person for possession of the drugs."

Henak said it is not appropriate to charge people for violating a law with which they can't comply.

"It's definitely problematic if you are charged with something it is impossible to comply with," Henak said. "It's a significant due process problem because you could not in any way comply.

"It's like saying it's illegal to drive down the road unless you have a pound of magic pixie dust."

Last updated: 8:01 am Monday, April 29, 2013

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