Appeals Court Upholds Cigarette-Smuggling Verdict Citing 'Seinfeld' Episode

Kramer and Newman couldn't get away with cashing in on differences in state laws and neither can an Indiana gas station manager, a federal appeals court said.

The 7th U.S. Circuit Court of Appeals in Chicago on Monday upheld Daryl Harper's conviction on conspiracy and other federal charges stemming from a cigarette smuggling operation that netted hundreds of thousands of dollars.

According to court records, Harper sold cigarettes at his BP Amoco station in Hammond to partners who then illegally resold them for profit across the state line in Chicago, where taxes were as much as 75 cents higher.

Appeals court Judge Michael Kanne noted in his ruling the conspiracy's resemblance to a 1996 episode of the television series "Seinfeld."

"Kramer and Newman devised a similar scheme to capitalize on Michigan's higher deposit for soda bottles and cans by using a postal truck to transport recyclables gathered in New York for return in Michigan," he wrote. "Alas, the plan was foiled by a fanatical auto mechanic in possession of Jerry's car and JFK's golf clubs."

Trouble is — at least in the real-life case — such moneymaking plans, called tobacco diversion, are illegal.

Some of Harper's partners used counterfeit coupons to increase their profit margin, the court said.

One of the partners, Abdelhakin Al Najjar, called Abdul in court records, "became the biggest customer at Harper's store by a wide margin. ... Abdul was submitting so many coupons they could not fit in the cash register," Kanne wrote.

On one day alone, Al Najjar used more than $25,000 worth of coupons to buy some 1,700 cartons of cigarettes, court records said. The scheme unraveled in 2002 when a file clerk at the company's coupon processing center in Houston noticed the fakes.

Harper, of Robbins, Ill., was sentenced in September 2005 to more than five years in prison and ordered to pay restitution totaling more than $1 million. Al Najjar and his wife pleaded guilty to their roles in the scheme. Al Najjar received a 21-month sentence and his wife was placed on two years of probation.

Harper appealed, arguing among other things that his sentence was too harsh because he was not the conspiracy's supervisor and there were fewer than five participants.

The appeals court disagreed, saying that "the defining feature of the conspiracy was Harper's misuse of his authority as a manager of a business to perpetuate the fraud."

The Associated Press left a message seeking comment Monday night a phone number listed under Harper's name in Robbins.