Pubdate: Sat, 17 Sep 2005
Source: Boston Globe (MA)
Copyright: 2005 Globe Newspaper Company
Author: Wilson Ring, Associated Press
Bookmark: (Cannabis)


MONTPELIER, Vt. --Late one afternoon last December, a 1995 Cadillac Deville 
driven by Real Gagnon, a Canadian citizen living in Wales, Maine, pulled up 
to the tiny border crossing in Beecher Falls, Vt., court records say.

A Customs and Border Protection agent told Gagnon to pull over so his car 
could be searched. A U.S. Border Patrol agent was called and a 
drug-sniffing dog checked the car.

The dog smelled something and a search by agents turned up 3 1/2 pounds of 
marijuana under the rear seat.

The federal agents then called the Vermont State Police, who arrested 
Gagnon. The case, caught at the border and discovered by federal agents, 
was now a state case.

"The public perception is the feds are cracking down hard on the illegal 
importation of drugs into this country," said Vincent Illuzzi, the 
part-time Essex County state's attorney who prosecuted Gagnon. "In reality 
they are getting all the credit and the states are getting all the work."

It's an issue confronting state prosecutors all along the border with 
Quebec and elsewhere. Prosecutors are devoting scarce state resources to 
prosecute what some say are federal crimes. The issue is frustrating 
judges, too.

In a December 2003, after a hung jury, Vermont District Court Judge Michael 
Kupersmith dismissed drug charges against a man caught at the border in 
Franklin County with 10 pounds of marijuana. Kupersmith said the state 
couldn't afford to do the work of the federal government.

"This court has dutifully expended its resources entertaining the federal 
case," Kupersmith wrote after the one-day jury trial.

Franklin County prosecutors handle an average of almost 33 cases a month 
while federal prosecutors handle an average of a little more than one case 
a month, he wrote.

"It is clear that the federal government has far greater prosecutorial and 
judicial resources to devote to the prosecution of crime than does the 
state of Vermont and that, by contrast, the state criminal caseload is far 
greater," he wrote. "The court is confident that the office of the United 
States Attorney has sufficient resources to ... prosecute this federal 
offense. The state has done its part."

To be sure, Vermont's U.S. Attorney's office is prosecuting a lot of drug 
cases from the border. Thanks in part to increased security following the 
2001 attacks on the United States, the number of seizures is up and federal 
prosecutors are throwing the federal government's weight against big-time 

Vermont's U.S. Attorney, David Kirby, said he sympathized with the state's 
border prosecutors, but said his office had its limitations, too, and 
Kupersmith was wrong.

"We have only so many resources to deal with them," Kirby said. "We have to 
make decisions between the three-and-a-half pound person or trying to get 
the organizers up in Canada of the marijuana trade."

His office might prosecute fewer cases than the county prosecutors, but 
most were far more complicated than the state cases, he said. And drug 
crimes violate state law as well.

Kirby said there were guidelines about the sizes of the seizures needed to 
trigger a federal prosecution, but he wouldn't say what they were.

"We do not have any hard and fast rules," Kirby said. "We review every case 
on a case by case basis."

Illuzzi represents Essex County, Vermont's least populous. He says about 10 
percent of his cases every year are drug cases that originate at the 
county's three border crossings with Quebec.

For Illuzzi, the Gagnon case was unusual because it went to trial. Gagnon 
was convicted after a two-day jury trial in Vermont District Court in 
Guildhall on Aug. 31 of felony marijuana charges. Illuzzi disposes of most 
drug cases without going to trial.

"It's really a federal case," Illuzzi said, pointing out there were eight 
federal agents waiting to testify in the Guildhall courthouse during the 
trial, although not all were called.

Orleans County State's Attorney Keith Flynn, whose territory includes the 
Interstate 91 border crossing at Derby Line, said that so far this year his 
office has had 39 drug cases from the border. His office handles about 800 
total cases a year.

"I think it's important that they be prosecuted. It's hard to put a label 
on it, is it drugs passing through or drugs bound for this county?" he 
said. "There are certainly no free passes to be given at the border."

Most of the cases involve marijuana, but he's had other drug cases as well.

At the current level the cases don't overwhelm Flynn or his deputy. He is 
due to get another deputy at the end of the month, he said. But the number 
of border drug cases his office gets is increasing, he said.

"If we keep on getting substantial increases then we may have to ask what 
sort of burden on our resources that's creating," Flynn said. "Right now 
it's part of the job and it's certainly something that needs to be prosecuted."

Franklin County State's Attorney Jim Hughes had a similar opinion.

"I wouldn't say it's a burden. It just adds to our numbers," said Hughes.

It's an issue in other border states, as well. In New York's Jefferson 
County, District Attorney Cindy Intschert said after arrests, border 
authorities start the phone calls. "Typically there's some communication to 
try to make a determination which prosecuting agency has the better tools 
available, based on the facts and circumstances of the particular case," 
she said.

Factors include which statutes are more appropriate, the amount of drugs 
involved and whether a particular case stretches beyond the county. Someone 
caught at a port of entry with a small drug amount, a misdemeanor 
possession case, might simply be handled in town court, she said.

Gagnon, the Maine man caught in Beecher Falls, is in jail awaiting 
sentencing. He's facing up to five years in prison and then -- because he 
is a Canadian citizen -- deportation and he will be barred for life from 
returning to the United States.

Illuzzi said Gagnon's attorney had filed the paperwork to request a new 
trial. The attorney, Michael Hanley, declined to comment on the case.

Illuzzi said if the federal government wants the state to prosecute border 
cases, then the feds should help out.

"They need to come up with a way to reimburse the state for the impact on 
the criminal justice system," he said.
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MAP posted-by: Elizabeth Wehrman