Distribution and Possession With Intent

Many federal drug prosecutions involve 21 U.S.C. §841. This statute makes it a crime to knowingly or intentionally manufacture, distribute, or possess with the intent to distribute a controlled substance.

To convict a defendant of possession with intent to distribute under 21 U.S.C. §841, the government is required to prove the following three elements beyond a reasonable doubt:

1. The defendant possessed narcotic drugs. To satisfy this element, it must be proven that the material was, in fact, the particular type of drug. “Actual possession” means having physical control of an item or material on one’s person. However, proof of actual possession is not required as long as the government can prove an ability and intent to exercise control over the object. Possession can be sole, but it may also be joint when more than one person has the ability and intention of exercising control. When joint possession is an issue, as it often is in federal drug cases, factors that can be considered include proximity to the substance, financial negotiations, and the defendant’s relationship with the person who had physical possession of the drugs. Evidence that a defendant was near or around drugs, standing alone, is not enough to satisfy this burden. It is, however, a factor to consider. Where two or more people have shared ownership or control over a place, such as an apartment, there must be some evidence that the defendant knew that drugs were present there and intended to exercise control over them. While evidence that a defendant was the only person who had ownership or control over a place is significant, it is not conclusive.

2. The defendant knew that he possessed narcotic drugs. To satisfy this element, the government must prove that a defendant’s possession was not a result of carelessness or mistake. It must prove that the defendant knew that the material was a narcotic drug. However, the government does not have to prove that a defendant knew the precise nature of the drugs. If a defendant knew that he possessed any kind of narcotic drugs, that is enough.

3. The defendant had the intent to distribute the narcotic drugs. Evidence of this intent typically involves large quantities of drugs and the presence of firearms or packaging paraphernalia.

To convict a defendant of distribution under 21 U.S.C. §841, the government must prove the following two elements beyond a reasonable doubt:

1. The defendant distributed narcotic drugs. To “distribute” an item or material means to deliver it. Delivery can be actual, but it may also be attempted or constructive. In other words, the government does not have to prove that an actual drug sale took place. It can satisfy this element through evidence of activities that advanced the eventual sale (such as making guarantees as to a product’s quality, negotiating, etc.). The government must prove that there was some real involvement in a transfer.

2. The defendant did so knowingly. Again, this means that there was no mistake or negligence.

Penalties under Section 841 vary depending on a number of factors including the type and amount of drug and the defendant’s record. By and large, there are 5-year minimum prison sentences for first offenses and 10-year minimums for second and subsequent offenses.

Stephen Neyman, a Boston attorney, has been handling drug cases in federal and state courts for more than 20 years. It is critical to have that kind of experience on your side when up against the substantial resources of the federal government. Call the Law Offices of Stephen Neyman, P.C. at 617-263-6800 or contact us online today.