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A man and his fiancée were charged and arrested with possession of cocaine with the intent to distribute. Both Defendants appealed their convictions on the grounds that the government did not prove that a transfer occurred because the Defendants did not intend to give the narcotic to a third person, rather, they solely intend to jointly possess the narcotic.
When two individuals jointly possess a narcotic, absent further evidence that the individuals wanted to give the narcotic to a third individual, the two individuals have not intended to distribute the narcotic.
Walter Swiderski and his fiancée, Martiza De Los Santos bought twenty-one grams of a substance containing cocaine from a government informant. Both, Swiderski and De Los Santos, were arrested and charged with possession with the intent to distribute the cocaine. The judge instructed the jury that the term distribute can “mean that you could give it away. You could give it to a friend of yours or even to your fiancée.â€
Whether a statutory transfer has occurred between the Defendants, who were in joint possession of a controlled substance simultaneously.
No, statutory transfer has not occurred between the Defendants, who were in joint possession of a controlled substance simultaneously.
Congress has intended to provide severe penalties for crimes involving commercial trafficking and distribution of narcotics. When an individual(s) possesses a narcotic, either individually or jointly, with the intent to share, only a personal drug possession has occurred. When one has an intent to distribute the narcotic to another individual, rather than for personal use, there is further distribution, which must be penalized according to Congress’ intent, harshly. Here, the Government has not shown that the couple intended to further distribute the cocaine, but rather, that the couple intended to jointly share the cocaine. Further, the judge’s instructions to the jury did not constitute harmless error because he specifically stated that sharing with ones’ fiancée is a distribution. Therefore, the court remanded the case for an entry of judgment consistent with their opinion and for a resentencing for the crime of simple possession.