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Marijuana Facts
Sale or Distribution of Marijuana
Under the laws of every state, it is a crime to knowingly possess marijuana
with the intent to sell or distribute it. This crime is often referred
to as "possession for sale." However, it is important to note
that many states don't require an actual sale or even an intent to sell
(i.e., exchange for money.) In these states, as under federal law, the
prosecution must prove an intent to distribute marijuana and not necessarily
an intent to sell it.
In order to convict a person of possessing marijuana with intent to sell
or distribute, the prosecution in most states must prove two things: (1)
actual or constructive possession, and (2) the intention to sell or distribute
the marijuana. Unlike the crime of possession, most states do not require
the prosecutor to prove that the person possessed a usable amount of marijuana.
The first element (actual or constructive possession) is the same as that
discussed in the previous section regarding the crime of possession. The
only additional element is the intent to sell or distribute. Prosecutors
often prove intent by demonstrating that an actual sale has occurred.
If the police were not able to catch the defendant actually selling or
distributing marijuana, they will attempt to prove the defendant's intent
with circumstantial evidence. This is often accomplished by showing that
when the police arrested the person they also seized such items as scales,
cash, pay-owe sheets, or numerous baggies filled with small accurately
weighed quantities of marijuana.
The case of Roger Davis, decided by a Virginia court, is representative
of how marijuana-distribution cases are often proven. Roger was at home
when he heard a knock at his front door. The next moment, police officers
with a search warrant were in his home. The officers immediately searched
Roger. Inside his jacket pocket, they found $800 cash but no marijuana.
Feeling scared and intimidated, Roger told the officers that all the marijuana
was downstairs in the basement. The officers searched the basement and
found a white plastic bag containing a little over 6 ounces of marijuana.
They also found a stem from a Cannabis plant, scissors, numerous Cannabis
seeds, two boxes of sandwich baggies, and a box of twist ties. One of
the boxes was found on top of a scale. Near the scale, were some gram
weights and a conversion chart from grams to ounces.
At Roger's trial, a police officer with "extensive training and experience"
in marijuana crimes testified that marijuana is often sold in plastic
sandwich baggies secured by twist ties. In addition, the officer testified
that the typical marijuana cigarette contains approximately .4 gram of
marijuana and that most people who smoke marijuana (but don't sell it)
ordinarily keep less than an ounce of the drug on hand. Therefore, the
officer testified, an amount of 6 ounces was not consistent with personal
use and could only indicate that Roger intended to distribute some of
the marijuana.
The court held that the totality of the evidence, although circumstantial,
was sufficient to support Roger's conviction for possession with intent
to distribute marijuana
In Louisiana, a man was convicted of possession with intent to distribute
marijuana because police found 26 joints in his jacket pocket. (State
v. Tucker [ 1993] 626 SO.2d 707.)
A Virginia court of appeal recently reversed a man's conviction for possession
of marijuana with intent to distribute, because he was found in possession
of slightly less than three quarters of an ounce of marijuana in a single
bag, and because a drug test showed he was positive for THC. The court
held that such evidence was consistent with the man's personal use of
the marijuana rather than with an intent to sell. (The case was close,
because the man was also found with almost $5,000 cash. He explained that
the money was from the country store he operated and the court apparently
believed him, explaining that although his possession of such a large
amount of cash created suspicion, proof of intent to distribute may not
be based on speculation alone.) (Rice v. Com. [VaApp.1993] 429 S.E.2d
879.)
Selling Bogus Marijuana
Almost every state has enacted laws making it illegal to sell a perfectly
legal substance claiming that it is marijuana. The primary purpose of
their laws is to protect undercover narcotics agents who get duped by
sellers of bogus marijuana. As police began running more and more undercover
operations in which they posed as interested buyers of marijuana, they
occasionally were unknowingly sold fake marijuana. The seller was arrested
and charged with distributing marijuana. When the laboratory report revealed
that the substance was not marijuana, but rather some perfectly legal
"green leafy substance," the government had no option but to
dismiss the charges against the seller.
In order to prevent these dismissals, states began enacting laws making
it a crime to agree to sell marijuana and then deliver another substance.
The basic elements of this offense are: (1) agreeing to sell marijuana;
and (2) delivering a legal substance that a reasonable person would think
was marijuana. In most states, the punishment for selling bogus marijuana
is identical to and sometimes greater than the punishment for selling
the same amount of marijuana!
Charles Holliman was sentenced to five years probation and fined $500
for selling a third of an ounce of fake marijuana. Mr. Holliman unwittingly
approached an undercover police officer in a bar and asked him if he wanted
to buy some marijuana. The happy officer jumped at the offer and about
an hour later Mr. Holliman returned with a small manila envelope which
the officer later testified contained a "greenish brown leafy substance
which contained seeds." The officer, believing he was purchasing
marijuana, paid Mr. Holliman $30, received the envelope, and immediately
arrested Mr. Holliman. When the police crime lab determined that the substance
was not marijuana but rather an unidentified plant material, the government
dropped the charges of selling marijuana and replaced them with charges
of selling a "simulated controlled substance." Mr. Holliman
was convicted. (Holliman v. State [TexApp. 1985] 692 S.W.2d 120.)
(6) miniature spoons with level capacities of one-tenth cubic centimeter
or less;
(7) chamber marijuana pipes;
(8) carburetor marijuana pipes;
(9) electric marijuana pipes;
(10) air-driven marijuana pipes;
(11)chillums;
(12) bongs;
(13) ice marijuana pipes or chillers;
(14) wired cigarette papers; or
(15) cocaine freebase kits.
Even if the marijuana pipe is not listed above, it can still be considered
"paraphernalia" if other factors show that it is likely to be
used with marijuana or if it was specifically designed for such use. When
determining whether a particular unlisted product is "paraphernalia,"
courts are instructed to examine:
(1) instructions, oral or written, provided with the item concerning its
use;
(2) descriptive materials accompanying the item which explain or depict
its use;
(3) national and local advertising concerning its use;
(4) the manner in which the item is displayed for sale;
(5) whether the owner, or anyone in control of the item, is a legitimate
supplier of like or related items to the community, such as a licensed
distributor or dealer of tobacco products;
(6) direct or circumstantial evidence of the ratio of sales of the item(s)
to the total sales of the business enterprise;
(7) the existence and scope of legitimate uses of the item in the community;
and
(8) expert testimony concerning its use.
For awhile, the only noteworthy exemption to the paraphernalia ban pertained
to "any item that, in the normal lawful course of business, is imported,
exported, transported, or sold through the mail or by any other means,
and traditionally intended for use with tobacco products, including any
pipe, paper, or accessory." Such items are not considered "paraphernalia."
Knowing this, many paraphernalia sellers adopted the tactic of placing
a disclaimer in the store window or on advertisements, stating something
along the lines of: "These products are designed and intended for
use only with tobacco products."
In 1994, however, a decision by the United States Supreme Court put an
end to this tactic, and made it practically impossible to legally sell
many of the traditional marijuana tools. The Court explained the meaning
of the phrases "designed for use" and "primarily intended
for use" in the statutory definition of paraphernalia. (See the first
paragraph of the Federal paraphernalia statute.) According to the rule
set down by the Court, an item is "designed for use," as drug
paraphernalia "if it is principally used with illegal drugs by virtue
of its objective features, i.e., features designed by the manufacturer."
Items that meet the "designed for use" standard therefore constitute
drug paraphernalia irrespective of the knowledge or intent of one who
sells or transports them.
The Court went on to examine the phrase "primarily intended for use
with controlled substances," and specifically addressed the question
of whose intent is relevant, the seller's or the buyer's. The Court held
that the phrase "primarily intended for use with a controlled substance"
refers to a product's likely use by the buyer rather than to the seller's
state of mind. The Court reasoned that the purpose of a seller of drug
paraphernalia is to sell his product; the seller is indifferent as to
whether that product ultimately is to be used in connection with illegal
drugs or otherwise. The Court noted that the knowledge standard in this
context simply requires an awareness on the seller's part that customers
in general are likely to use the merchandise to ingest illegal drugs.
In short then, this 1994 case did away with the tactic of selling marijuana
paraphernalia with a tobacco-use disclaimer. Under the Court's interpretation
of the federal law, it doesn't matter what disclaimer a seller makes.
The seller violates the federal law by selling any device which a reasonable
person would know is likely be used to ingest marijuana or some other
illegal drug. (Posters N Things, Ltd. v. US [1994] 114 S.Ct. 1747.)
Pipes As Paraphernalia
How have courts distinguished Marijuana pipes from pipes
used to smoke tobacco? Suffice it to say that even judges can tell the
difference. In one case in Washington, D.C., for example, a man was convicted
of possessing an illegal marijuana pipe largely because it was "equipped with
an air vent," and because the bowl contained marijuana residue. In
an Indiana case, a man was convicted of possessing drug paraphernalia
because he was caught with a small green and silver pipe "similar
to common marijuana pipes, given its size and the
presence of a screen to filter marijuana seeds and stems."
Marijuana Hydro Growing
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