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Court Allows Drug Trafficking Trial

June 1, 1999

WASHINGTON (AP) _ The Supreme Court today let Kentucky prosecute two men on drug-trafficking charges after having required them to pay a tax on the drugs.

The court, without comment, turned away an appeal in which Joseph Nicholson and Robert Bird said their prosecutions, following payment of the drug tax, would unlawfully punish them twice for the same crime.

Nicholson and Bird were arrested in 1995 by Lexington-Fayette Urban County police and charged with trafficking in a controlled substance. Police had seized a small amount of powder cocaine.

Using information provided by the police, state revenue officials assessed a tax, penalty and interest on the cocaine of about $4,000 for Nicholson and $6,000 for Bird.

Kentucky law levies an annual tax on controlled substances, due at the time someone possesses a drug. The tax rate is two times the drugs’ market value. People can pay the tax anonymously and receive a tax stamp to be attached to the drugs.

If police seize drugs from someone and a tax stamp is not attached, the seizure is reported to revenue officials who assess the tax. That’s what happened to Nicholson and Bird.

After paying the tax, the two men asked a state judge to dismiss the cocaine-trafficking charges on grounds the prosecution would subject them to double jeopardy, which the Constitution’s Fifth Amendment prohibits.

The judge dismissed the charges, basing the decision on a 1994 Supreme Court ruling that barred Montana from forcing drug offenders to pay a tax in addition to criminal penalties.

A state appeals court agreed, but the Kentucky Supreme Court ruled that Nicholson and Bird could be prosecuted on the cocaine charges.

Unlike the Montana drug tax, Kentucky’s highest court said, the Kentucky levy is more tax than punishment and is due regardless of whether a person has been arrested on criminal charges.

In the appeals acted on today, lawyers for Nicholson and Bird said the drug tax and criminal prosecution both seek to punish the same conduct.

The cases are Nicholson vs. Kentucky, 98-1297, and Bird vs. Kentucky, 98-1331.

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