Anna was 26 and adorable. Worked hard for her family of five. They live in the part of town where you can afford to have a house that sleeps five. Plus grandparents. Plus Uncles and Aunts. Plus cousins. Plus cousins’ cousins. And Anna was born in the Philipines. Everyday Anna would catch the bus from her side of the island into Waikiki to work in the tourist industry. Not a great job, but a real one. One that helped support her family.
And Anna was in love.
Anna had a boyfriend in The Philippines. A boyfriend who she loved. A boyfriend who proposed and was now a Fiance. A boyfriend who she had worked with to file paperwork to get a Fiance visa so he could come to Hawaii to get married. Paperwork that was now in Limbo, because Anna had one more thing: a criminal case.
See, on her last trip her grandmother gave her gifts, omiyage, to bring back to the extended family in Hawaii. One gift for uncle, one for mom, one for dad. One for enough other people to add up to ten. Each gift? A pack of Filipino Marlboro cigarettes. Did I say a pack? I meant a carton. Each one wrapped in twice with a nametag attached. Love, Grandma.
Grandma never though this would get Anna stopped at the border coming in.
And Anna told the Customs agent exactly what she had, like seven cartons of cigarettes. And the customs agent told her she’s not allowed to take so many into the U.S. And Anna said okay. And then the customs agent gave her one carton back. The Carton for Uncle, mom was not going to receive her cigarettes. And Anna thought it was over.
And the the Attorney General’s office called. And they told her “you better go get an attorney, because if you don’t we’ll arrest, you, put you in jail, and then you’ll have to put up thousands of dollars to bail out.” So Anna went to three different attorneys, two told her to plead out. But one or two referred her to me. See, the other attorneys didn’t realize why Anna was refusing, under any circumstances, to plead guilty.
Anna, was in love.
Any guilty plea could destroy her Visa application for her boyfriend. Actually, as I remember it, she had to finish her green card first. I came in after this paperwork was already in process. But no one could guarantee that, if Anna pled guilty, even to no jail, a deferral, a minor fine, whatever, that her fiance could still move to America. She got a lot of “ifs”, “maybes” and, “mmmmm”s. Those don’t make a Defendant feel safe. And she could care less about a conviction, the love of her life was the only thing she could think about.
And did I mention, this was a felony. The Attorney General of the State of Hawaii’s stance is that declaring to the customs agent that you have more than one carton of cigarettes to bring into the country, and then surrendering them to the customs agent is punishable by up to five years in jail. According to the Attorney General’s office.
My job was to make the judge think otherwise.
So why did the State take such a hard line on this? Remember that billion dollar amount I spoke about above. It turns out, the settlement that Cigarette companies worked out with each individual state included a clause that said the companies ONLY have to pay if the State enforces certain laws. Smelling a vast revenue stream, States could only roll over to pass these laws fast enough. Basically, the cigarette companies dictated the Laws states would pass to protect these cigarette companies against outside “illegal” cigarettes from entering the market.
By paying this money, Marlboro and the rest insured their oligopoly. In every state.
And oh yeah, the Cigarette companies have oversight. They can demand a statistics on which laws were passed, and how many people were prosecuted under these laws. And the state was running in fear, that without any prosecutions, the cigarette companies would choose to not pay the money, embroiling the state in further legal costs. If I’m not mistaken this was already beginning in other states. So everybody who brought five or more cartons in, and surrended them at the customs counter (where my understanding is, they are supposed to) was charged by the State. Everyone.
And so far, everyone had pled guilty, gotten a deferral. Hawaii got their prosecution statistics. And then came Anna. And she brought me.
Our plan was this: avoid trial to preserve the Deferral option as long as possible. And then institute a one-two punch. This is a common technique I use. But it’s sort of the opposite of the jab-haymaker that is the standard approach. I start with the arguments that sound worse and hurt more.
In this case, prosecutorial misconduct, improper motives, fiduciary interest. All the things I could get to show that the State simply should not charge these people. I think we even threw in pre-emption and jurisdiction, as Federal law should govern anything up to and including the customs table. If the judge agrees with all this, it can open an entire can of worms for the Attorney General and these laws at all. Because these laws are locally instituted nationally, it could make national news. And the judge would be saying the State cannot earn the massive amount of money from the settlement agreement.
I don’t believe judges decide solely based on extraneous issues, the way certain attorneys do. But really, how could they not pay attention to it.
I went deep into the the history of the cigarette laws, present evidence of the lobbying. The yearly report of the State committee whose whole job it is to keep track of what happens with these funds. The fact that these funds actually provide the money to pay the salary of this attorney general.
Said another way, if these funds went away, this prosecutor would not have a job. She better prosecute these laws and hope the Cigarette companies don’t freeze the funds.
That was the “one”, then came the “two”. The two was a deminimis motion. A standard motion in drug cases, but not one often used in this context. Basically that she had such a low amount of cigarettes, it wasn’t a big deal. Also the fact that she brought them into the country/state for such a short amount of time. Again, not a big deal.
The one that stupefied the judge is that, on her way out of customs, the customs agent goes “Hey, wait. You get to keep one! Here, take this one!” How could bringing ten cartons be an issue, if ten people could bring in ten cartons. He was a little incredulous.
But this was the safe way out for everybody. The judge could deny my first motion to dismiss as the rantings of a lunatic attorney, but insulate against an appeal by granted the same result, a dismissal, for the safer, cleaner reason of just “it was so minor, nevah mattah. Small kine”.
So of course that’s what happened…
And Anna got her green card. And she got her visa. And she got married.
And her Grandmother sends back cookies as gifts instead!