Farrelly Kalafat PC Blog & Case Results

Monday, July 29, 2013

Farrelly PC Client Found Not Guilty of Marijuana Distribution Charges

By: Sean Farrelly

On July 22, 2013, a Farrelly PC client was found not guilty of possession with intent to distribute (PWID) marijuana.  The government's evidence showed that my client was in possession of 19 zips (or little baggies) of marijuana, totaling 12 grams of marijuana.  The government had virtually zero additional evidence to prove that my client was possessing the marijuana with the intent to distribute it.  A government expert witness, Detective Thomas of the Metropolitan Police Department, testified that based purely on the packaging of the marijuana, it was his expert opinion that the client intended to distribute the marijuana.  

During cross examination, I was able to get the detective to concede that 12 grams of marijuana is consistent with personal use.  Further, the detective acknowledged that most individuals engaged in the distribution of drugs have cash and a cell phone on their person, neither of which was recovered from my client.  

Judge Harold Cushenberry, who presided over the trial, relied upon those facts, as well as the fact that no one observed my client engaged in any behavior consistent with drug distribution prior to his arrest, to find my client not guilty. 

This case is a great example of what we DC drug lawyers refer to as "over papering."  Without going into too much detail, papering is basically the process by which prosecutors receive arrest paperwork from police officers and make decisions on whether or not to charge someone, and if they elect to charge, what charges to file.  "Over papering" is when a prosecutor has enough facts to establish a particular criminal offense but instead of stopping there and simply charging someone with the crime they have evidence to support, they also charge the person with a greater offense, one that they do not have the evidence to support.

In this case the government had the evidence to support a charge of simple possession of marijuana.  By charging my client with possession with intent to distribute marijuana they "over papered" the case and charged my client with a crime that any seasoned prosecutor should have known was not provable beyond a reasonable doubt.  The over papering led to hours of additional time at trial, including the need to have a detective from MPD testify (which I am sure resulted in a few hours of overtime pay for the detective coming directly from DC taxpayer's pockets).  

Sadly, this type of thing happens all the time, particularly with drug crimes in DC.  It is not the way the system is meant to work.  Individuals should be accused of and charged with crimes that the government has evidence to support.  Not crimes that the government believes the person may or may not have committed based on a sliver of evidence.  When I worked as a prosecutor for the DC government I always had reasonable doubt in the back of my mind, especially when I was papering.  I just don't think a lot of other prosecutors can say the same thing.

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