dissenting:
I recognize the strong Congressional intent to eradicate the illegal sale of cigarettes in derogation of state tax laws. I further recognize that the defendant Boggs clearly intended to avoid the payment of any applicable state taxes in Michigan. I do not believe, however, that the law of the state of West Virginia, as incorporated by the federal statute, permits a conviction in this case. Therefore, I respectfully dissent.
To meet the federal statutory definition of contraband, the cigarettes in question must fail to bear evidence of the payment of the applicable state tax of West Virginia. 18 U.S.C. § 2341(2). The West Virginia cigarette tax statute, West Virginia Code § 11-17-3, levies an excise tax on the sale of cigarettes in the state. The language is very clear and there is no reason to give it other than its plain meaning. When cigarettes are to be sold in West Virginia, they are subject to the excise tax. When the required tax has been paid, a tax stamp is issued as evidence of that payment. No stamp will be issued unless the applicable tax is paid, .and no tax will be applicable unless cigarettes are to be sold within the state.
The present case was tried on a stipulation of fact, agreed upon by the parties and accepted by the court, that the cigarettes were to be sold in Michigan, not in West Virginia. Therefore, there were no ciga*587rettes for sale in West Virginia and no West Virginia tax applicable to the cigarettes in the possession of the defendant. As there was no applicable West Virginia tax, there was no West Virginia tax stamp required and the cigarettes could not meet the statutory definition of federal contraband.
Congress, when enacting 18 U.S.C. § 2342(a), recognized that there were situations where unstamped cigarettes would not be federal contraband. Specifically mentioned were states, such as Michigan, which do not require tax stamps on packages of cigarettes. See 1978 Cong. & Admin.News, 5532. Although West Virginia provides for tax stamps as evidence of payment of the applicable cigarette tax, it does not require tax stamps on packages of cigarettes not for sale in the state. Therefore, the same rationale would preclude a finding that the cigarettes in the possession of Boggs were federal contraband.
The majority relies heavily on two West Virginia statutes. The first, West Virginia Code § ll-17-19(b)(6), creates a presumption that anyone with a certain number of unstamped packages of cigarettes is presumed to be attempting to avoid paying the taxes due thereon. As conceded by the majority, any presumption in a criminal case must be merely permissive in order to be valid. Any such presumption stands only until destroyed by the facts. The facts in this case, as stipulated by the parties and accepted by the trial court, are that the cigarettes were to be sold in Michigan. Therefore, the statutory presumption is destroyed and can no longer be relied upon by the prosecution or by the appellate court.
The second statute, West Virginia Code § 11-17-20, makes it a misdemeanor to transport through the state certain quantities of unstamped cigarettes without proper documentation, and any cigarettes so transported are state contraband for purposes of this statute. It is clear that the defendant violated this statute and that he could be charged with having committed that state misdemeanor. It is quite a different thing, however, to equate transporting unstamped cigarettes through the state with offering the cigarettes for sale in the state. In fact, I believe this statute makes it undeniably clear that the West Virginia legislature recognized that cigarettes could be transported through the state and not have the West Virginia cigarette tax applicable to them. Therefore, I fail to see how the majority can find any support for its position in this statute.
I feel I must comment briefly on footnote 4 of the majority opinion, which discusses how the defendant “could have stopped at any place in West Virginia and sold the cigarettes had he so desired.” I am concerned to find that the majority attempts to uphold a conviction by surmising what could have happened had the defendant wanted to do something other than what has been stipulated by the parties and accepted by the trier of fact.
Accordingly, in dissent, I express my conclusion that the judgment of conviction should be reversed.