Leonardo Angiulo: Legally Speaking, What is Intent to Distribute?

Monday, January 20, 2014

Leonardo Angiulo, GoLocalWorcester Legal Contributor

There are few legal terms in the public lexicon more popular than “circumstantial evidence.” And in some drug cases, especially possession with intent to distribute cases, it is the circumstances that can make all the difference. In the case of marijuana, the circumstances may determine whether a person gets a civil citation for an amount under one ounce or a criminal charge for intending to sell some pot. When it comes to narcotics, having a single bag for personal use is a misdemeanor, but bringing that same bag down the street to exchange for cash is a felony . While these cases may seem simple, proving exactly what a person was thinking at a particular time can be as difficult as it sounds for the government. More often than not it is the circumstantial evidence that will make or break a case.

The model jury instruction for circumstantial evidence uses direct evidence as a contrast to make the difference clear. Direct evidence is given by a witness and is about the fact that is to be proved. For example, an undercover officer testifying that a defendant had exchanged an amount of cocaine for cash. Circumstantial evidence, on the other hand, are other facts observed by a witness that a jury is asked to draw reasonable inferences from. A common fact pattern in marijuana cases is a large amount being seized and things like scales and glassine baggies being found in close proximity.

When the government asks a jury to form inferences of guilt, they are also asked to follow certain guidelines during the deliberative process. The jury instruction on http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury-instructions/criminal/pdf/3100-definitions-inferences.pdf" target="_blank">inferences requires that the jury first have evidence that they find believable. Then, if they choose to, the jury is instructed to apply their experience to the facts that they believe to be true using little steps in reasoning to form conclusions that they find reasonable and warranted based on the evidence. Whether there is sufficient evidence to form proof beyond a reasonable doubt is a separate question that must be answered by each jury; each inference may, however, be a link in the chain used by that jury in making its determination.

In the case of drug violations, the intent of the person allegedly possessing the controlled substance is often the main question of fact to be determined. As you can imagine, it isn't often that an officer is approached on the street and asked “excuse me sir, would you care to purchase some marijuana? I happen to have some here in my jacket pocket.” Sometimes, an officer will not become aware of the amount possessed or the manner in which it is packaged until after a search takes place. The case of Commonwealth v. Humberto H., 466 Mass. 562 (November 26, 2013) is an example of how circumstances may, or may not, add up to an unlawful intent on the part of a defendant. In that case a juvenile was stopped on his way into school because he smelled like he had just smoked pot and the officer searching him found five small “dime” bags of marijuana in his pocket. The juvenile was later charged with possession with intent to distribute and the complaint was thrown out prior to arraignment by a judge for failure to establish probable cause.

The Supreme Judicial Court looked at the facts of Humberto H. and decided as a matter of law that the evidence presented did not add up to sufficient proof of an intent to distribute. The finding was based on certain factual and procedural failings, but centered on the question that nothing proved a shift in the juvenile's mindset from consumption to distribution. Especially considering the juvenile smelled strongly of burnt marijuana at the time of his arrest. In comparison, the case of Commonwealth v. Sepheus, 82 Mass. App. Ct. 765 (November 21, 2012) used the circumstances of an arrest to find even a small amount of a controlled substance supported an inference of intent to distribute.

In Sepheus, the court considered the arrest of a person found with three individually packaged rocks of crack cocaine weighing in total less than half a gram, along with about $300 in cash, and no implement for consuming the substances. That evidence, in conjunction with behavior consistent with distribution by the defendant and the reputation of the geographical area in which he was arrested, was used to support a judge's finding of guilt for possession with intent after a jury waived trial. The Massachusetts Appeals Court affirmed the judgment, citing the previously mentioned testimony in support of its opinion, that the inference of intent was reasonable, possible and based on more than mere speculation. Interestingly this opinion is currently scheduled for http://www.mass.gov/courts/sjc/amicus/amicus-announcements.html" target="_blank">further appellate review and a final decision is still pending.

Specific intent crimes, like drug offenses, are compelling because they don't necessarily punish for what a person did. Instead, they punish for what a person plans to do or might do with the item in their pocket. And since illegal drug distribution rings don't necessarily have plainly advertised retail centers, like a legitimate pharmacy, law enforcement must use their observations and experience in an effort to prove the illegal mindset. As the cases of Humberto H. and Sepheus show us, however, exactly what it takes to prove such a case as a matter of law is an ever evolving thing.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].