Sealed indictments were lodged in December 2008. State Court of Appeals has ruled that Cayugas couldn't be prosecuted for selling to non-Indians.
Joan Rozelle puts cartons of cigarette into a bag for a customer at the LakeSide Trading convenience store in Union Springs in 2007. A month after the state Court of Appeals ruled that the Cayuga Indian Nation couldn't be prosecuted for selling tax-free cigarettes to non-Indians, the Cayuga Indian Nation wants a court to dismiss sealed indictments filed against the Nation in 2008.
The Cayuga Indian Nation filed a court motion today to block Cayuga County from prosecuting the nation, its leaders and employees for selling tax-free cigarettes to non-Indians.
In county court, lawyers for the nation asked Judge Mark Fandrich to dismiss sealed indictments that were lodged against the Cayugas in December 2008 but never opened.
The Cayugas largely based today’s request on last month’s decision by the state Court of Appeals, which ruled the counties could not prosecute the nation for selling tax-free cigarettes to non-Indians at its LakeSide Trading stores in Union Springs and Seneca Falls.
On May 11, the state’s highest court said the stores are on qualified reservation land under state tax law and barred any prosecution for tax evasion because the state does not have a system in place to collect the tax. The nation also cited another court ruling in its motion.
“The district attorneys should voluntarily consent to the dismissal of the indictments and end this costly taxpayer-financed charade,’’ Daniel French, a Syracuse lawyer who represents the nation, said.
Last month, county District Attorney Jon Budelmann said he intended to continue prosecuting the case despite the decision from the appeals court. Budelmann said at the time that he did not believe the ruling precluded him from prosecuting the nation for possessing untaxed cigarettes with the intent to sell them to non-Indians.
Fandrich scheduled arguments to be heard on July 13, French said.
The LakeSide Trading Store on Route 89 in the Town of Seneca Falls.
Later today, French said, the Cayugas would file a similar motion in Seneca County where similar indictments were handed up in December 2008. Seneca County District Attorney Barry Porsch, however, said last month he would not continue prosecuting the case in his county because of the unfavorable appeals court ruling. Porsch was not in office when the indictments were lodged.
In their motion, the Cayugas said the appeals court decision bars any prosecution for both the possession and sale of untaxed cigarettes. The nation also asked judges in both counties to toss the indictments without opening them or arraigning anyone who was charged in the indictments.
“Indeed, the only purpose the unsealing of the indictments and arraignment of the defendants would serve would be to expose them to public derision for ‘crimes’ they have not committed and for which they can not be prosecuted,’’ the nation’s motion states.
The nation, a leader whose identity was not disclosed and an unnamed employee were charged in the indictments, according to the motion.
The Cayugas also asked for the return of about $200,000 in cigarettes, business computers and records that were seized in a November 2008 tax raid by both counties. The counties have held the goods as evidence in their tax-evasion cases against the nation.
In their motion, the Cayugas said their cigarettes, business computers and records should be returned because they said they can not be considered as evidence because of the appeals court ruling. The nation intends to sue the counties for $500,000 in damages because the Cayugas said the cigarettes are worthless because their expiration date has passed.
You can reach Scott Rapp at srapp@syracuse.com or 289-4839