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Law & Schriener, LLC Aug. 10, 2023

What Is Considered Possession, Sale, Distribution And Intent To Distribute?

All of those terms are defined by statute, in the case law, and also in jury instructions. Generally speaking, these definitions are uniform between federal and state. I practice both federal and state court in Missouri and Illinois and possession, for example, has relatively similar definitions. The jury instructions, for example, which tell the jury what facts must be found in order to find that the defendant possessed a substance. Missouri also has statutory definitions of that term. Missouri’s criminal code provides that possession can be actual or constructive, joint or sole. Actual possession occurs if a person has an object in hand or in a pocket or near at hand, as long as the person knows the object is there and has the ability to exercise control over that object.

For example, if you picked up somebody else’s jacket to run outside and take the dog for a walk and there was a bag of cocaine in the pocket of that jacket and you have no way of knowing it, that would arguably not be sufficient evidence that you possessed it because almost every crime has an element knowledge that you are committing the crime. In other words, you cannot be found guilty of committing a crime by mistake.

Constructive possession, on the other hand, can arise out of someone’s right to exercise control over objects which are in a separate location from where the person himself is. A separate room of the home, for example, or in an automobile. Again, however, there must be evidence that the person was aware that the object was in that location and that he or she had the right to exercise control over the object. What is not required, on the other hand, is proof of ownership. So, someone can have actual possession of something, and be legally liable for that possession, even if he or she does not own the object. Constructive possession is what you have over things that your knowledge of and the right to control.

Trafficking or distribution, similarly, do not necessarily have to involve the exchange of money. Distribution can be based upon the gift of an object or the leaving of that object with someone else for safe-keeping. Distribution can also result from the exchange of drugs for something else of value, a gun, for example.

“Delivery” is defined in the state of Missouri as the actual, constructive, or attempted the transfer from one person to another of drug paraphernalia or of a controlled substance or an imitation controlled substance, whether or not there was any kind of agency relationship, and includes a sale.

Oftentimes, the intent to distribute in drug cases is proved by circumstantial evidence such as the presence of baggies, the presence of a scale, the manner in which the drugs are packaged, or the presence of large amounts of cash or guns. Again, the amount of drugs alone can be circumstantial evidence of the intent to distribute if it is considered to be more than what would constitute an amount for personal use. Law enforcement witnesses may testify to their expertise in drug investigations which, they may say, gives them knowledge of what amount is a personal use amount and what is not. It is important for a defense attorney to be prepared to deal with these types of circumstantial evidence by extensive preparation and skillful cross-examination.

What Is Drug Trafficking?

Title 18 Section 841(a) of the federal criminal code lists as “prohibited acts”

“Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally:

  1. to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or

  2. to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.”

Missouri defines first-degree trafficking as “When a person knowingly distributes, delivers, manufactures, produces or attempts to distribute, deliver, manufacture or produce different types and amounts of drugs.” First-degree trafficking is a class B felony, which carries the statutory range of punishment of not less than 5 years and not more than 15. Drug trafficking second degree in Missouri is when a person knowingly possesses or has under his or her control purchases or attempts to purchase or brings into the state different amounts and types of drugs.

Both of those can be impacted by prior convictions, just as in the federal system. If you have a prior conviction or more than one, Missouri classifies you as a prior or persistent offender, which can enhance your potential penalties up by one grade. However, those prior convictions, similarly to the federal system, must be properly pleaded and proved. It is important for your defense lawyer to be watchful and attentive to the manner in which the prosecution pleads prior convictions, and the proof of those convictions that are offered.

For more information on Possession, Sale, Distribution Of Drugs, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling today.


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