STATE PROSECUTING SOME BORDER DRUG CRIMES

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
smugglers.

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.