The opinion of the court was delivered by: Hurley, Senior District Judge
By letter motion dated March 17, 2010, Rodney Morrison ("Morrison" or "defendant") "request[s] reconsideration of this Court's rulings denying Mr. Morrison's previous motions seeking dismissal of Count Two on the ground that it was a violation of due process to prosecute him under a federal statute that incorporated a violation of New York Tax Law § 471 as a necessary element." (Def.'s Mar. 17, 2010 Letter at 1.) For the reasons provided infra, defendant's motion for reconsideration is granted and, upon reconsideration, Count Two of the indictment is dismissed.
Familiarity with the facts and procedural background is presumed. Thus, the Court states only those facts necessary for disposition of the instant motion.
By indictment filed on July 11, 2006, defendant was accused of multiple crimes, but was found guilty of only two by a jury verdict returned on May 1, 2008, to wit, Count Two, a RICO conspiracy charge under 18 U.S.C. § 1962(d) with the goal of the conspiracy being to sell cigarettes lacking valid New York State tax stamps as alleged in Racketeering Acts Five through Eighty in violation of N.Y. Tax Law § 471 and 18 U.S.C. § 2342(a),*fn1 and Count Eight charging defendant with the illegal possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1).
Count Two, the RICO conspiracy Count, is the subject of the current motion for reconsideration, as it has been for the numerous earlier reconsideration motions.*fn2
STANDARD FOR RECONSIDERATION "The standard for a motion for reconsideration is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or [factual] data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court. The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." United States v. Morrison, 2007 WL 4326796, at *1 (E.D.N.Y. Dec. 7, 2007)(citations and internal quotation marks omitted). See also United States v. Matos, 2009 WL 2883054, at *2 (E.D.N.Y. Sept. 3, 2009); United States v. Basciano, 2008 WL 905867, at *1 (E.D.N.Y. Mar. 31, 2008).
BASIS FOR CURRENT RECONSIDERATION MOTION, AND POSITIONS OF PARTIES
As proffered by defense counsel: The changed circumstance that occasions the instant application is that a newly issued decision of the United States Court of Appeals for the Second Circuit ("Second Circuit") rejects key findings made by this Court in the denial of the earlier motions. That decision is now controlling authority. In City of New York v. Golden Feather Smoke Shop, Inc.,  F.3d , 2010 WL 724707 (March 4, 2010)("Golden Feather") . . . the Second Circuit certified questions regarding New York Tax Law §§ 471 and 471-e to the New York State Court of Appeals ("Court of Appeals"). The Second Circuit's published opinion is grounded on the conclusion that the applicability of the State's cigarette taxation scheme to reservation cigarette sellers is "unsettled" pending a definitive ruling by the Court of Appeals. That holding, and the supporting analysis of the Second Circuit, negate the central conclusions, and thus the final result, of this Court's determination that Mr. Morrison's due process rights were not violated because Tax Law § 471 gave him "fair notice" of the illegality of his conduct. As a result, upon reconsideration we seek dismissal of Count Two. (Def.'s Mar. 17, 2010 Letter at 1 (footnote omitted).)
In opposing defendant's application, the government notes that "N.Y. Tax Law § 471-e, at issue in Cayuga [Indian Nation of New York v. Gould, 884 N.Y.S.2d 510 (4th Dep't 2009)] and to some extent in Golden Feather, has never been relied upon in the criminal matter before this Court, where the defendant has been found guilty of violations of the CCTA [the Contraband Cigarette Trafficking Act] and N.Y. Tax Law § 471 up through 2004." (Gov't's Mar. 26, 2010 Letter in Opp'n at 1-2.) The government also argues that [a]s for the Second Circuit's recent decision to certify a question about N.Y. Tax Law § 471, that order is not, as the defendant desperately claims, a "holding" or other judicial determination of the Court -- let alone a holding in conflict with this Court's previous rejections of the defendant's dismissal motions. As the Second Circuit said, at page 18 of its order, certification of questions of law is possible pursuant to its Local Rule 27.2 and a complimentary rule of the New York State Court of Appeals, 22 N.Y.C.R.R. §500.27(a) allowing for the certification of questions of law to the latter court, "[w]henever it appears . . . that determinative questions of New York law are involved in a case pending before [a federal appellate court or the U.S. Supreme Court] for which no controlling precedent of the Court of Appeals exists. . . ." (Id. at 2 (quoting 22 N.Y.C.R.R. § 500.27(a)).)
As noted, defendant was convicted of a RICO conspiracy under Count Two, the goal of which was to sell the contraband cigarettes listed in Racketeering Acts Five through Eighty in violation of N.Y. Tax Law § 471 and 18 U.S.C. § 2342.
Section 18 U.S.C. § 2342(a) is part of the Contraband Cigarette Trafficking Act ("CCTA"), 18 U.S.C. §§ 2341 et seq., and provides:
It shall be unlawful for any person knowingly to ship, transport, receive, possess, sell, distribute, or purchase contraband cigarettes or contraband smokeless tobacco.
18 U.S.C. § 2342(a). Contraband cigarettes are defined in § 2341 as follows: a quantity in excess of 60,000[*fn3 ] cigarettes, which bear no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found, if the State or local government requires a stamp, impression, or other indication to be placed on packages or other containers of cigarettes to evidence ...