The
defendants are nonsupervisory employees of the Keweenaw Bay Indian Community
(KBIC). Police stopped them as they
drove a KBIC-owned truck pulling a utility trailer from the tribe’s reservation
in Baraga to the tribe’s gas station in Marquette. Inside the trailer were 56 boxes of cigarettes. The prosecution charged the defendants with
violating MCL 205.428(3), which provides that “[a] person who possesses,
acquires, transports, or offers for sale contrary to this act 3,000 or more
cigarettes” is guilty of a five-year felony.
The prosecution alleges that the defendants acted “contrary to this act”
by transporting cigarettes without the transporter’s license required by MCL
205.423(1). The district court bound the
defendants over for trial, reasoning that the prosecution must prove that the
defendants knew they were transporting cigarettes, but need not prove that they
knew they were doing so “contrary to this act[.]” The circuit court upheld the district court’s
ruling and denied the defendants’ joint motion to quash. The circuit court also denied the defendants’
motion to dismiss based on their claim that the Tobacco Products Tax Act (TPTA)
failed to provide sufficient notice that they were required to obtain a
transporter’s license. The Court of
Appeals affirmed in a 2-1 unpublished opinion.
The Supreme Court has ordered
oral argument on the application to address: (1) whether MCL 205.428(3) requires proof
that the defendants knew they were transporting cigarettes in a manner
“contrary to” the TPTA, MCL 205.421 et seq., see
generally Rehaif v United States, 588 US ___; 139
S Ct 2191 (2019); Rambin v Allstate Ins Co, 495
Mich 316, 327-328 (2014); (2) whether nonsupervisory employees fall within
the definition of “transporter” under MCL 205.422(y); and (3) if so, whether
the TPTA’s definition of “transporter” satisfies due process by putting the
defendants on fair notice of the conduct that would subject them to punishment,
see People v Hall, 499 Mich 446, 461 (2016).