Friday, March 21, 2014

Possession or Possession with Intent to Deliver?

Police seize 373 pot plants

"Police have arrested a New York City man for allegedly possessing about 373 marijuana plants in a Tobyhanna residence and stealing $15,000 worth of electricity.

Wood faces charges of possession with intent to deliver, unlawful possession of a controlled substance, possession of drug paraphernalia and theft of services. Bail was set at $100,000."

Although 373 pot plants is a good indication someone is doing more than recreational use, there is no bright line that distinguishes when someone is producing narcotics for personal use or to distribute. That is a determination that ultimately must be made by a jury as the fact finder. It is certainly possible that someone with a large supply may be using it for his or herself only, just as it is possible for someone with a relatively small supply to be selling it to others. The amount of narcotics held by a person does not by itself determine whether the person intended to distribute it to others or to

The most difficult cases are those that fall in the middle. Where there's just enough present to support a finding either way. In those cases, the Jury must ultimately determine what the person's intentions were. This can be problematic for both the Prosecution and the Defense. How can you prove what was in someone's mind at the time of the offense? Generally circumstantial evidence is all that is available one way or the other.

Police and Prosecutors may overcharge someone in that middle range. Although the burden of proof is on the government to prove the person intended to distribute the narcotics it often unfortunately comes down to the defendant having to prove his innocence. There is no formal standard as to how to prove the intent to distribute, but common factors include:

Whether the person was employed. If not employed how did he or she generate sufficient income to live?
The person's own narcotic use. Does the amount found in his or her possession correlate to an amount that he or she would use on a regular basis?
The professionalism of the grow or production operation. Is the lab or greenhouse expensive and indicative of someone spending great sums of money to produce it?

None of these factors are determinative on their own, but they are matters a jury can consider to answer the question of what was in the defendant's mind.

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