“A Lazy Hazy Weekend”: An Ounce Of Weed Alone Is Insufficient To Prove Possession With Intent To Distribute.

Travis McRae v. United States (decided November 3, 2016). 

Players: Associate Judges Glickman and Thompson, Senior Judge Ferren. Opinion by Judge Glickman.  Robin Earnest for Mr. McRae. Trial Judge: Anita Josey-Herring.
 

Facts: Mr. McRae was standing outside of an apartment building with several other men when the MPD gun recovery unit pulled up.  Mr. McRae ran into the building, through an apartment, and out the back door.  An officer chased him but could not keep up. However, the officer did find Mr. McRae’s discarded jacket and in one of the pockets, there was 4/5 of an ounce of marijuana.  Police searched the apartment that Mr. McRae ran through and found a digital scale and ziplock bags of varied size and color.  Drug expert Detective George Thomas testified that the scales and bags are often used for drug dealing, but usually not for dealing marijuana, and that although 4/5 of an ounce of marijuana has a street value of over $200, it was not unusual for a person to purchase that much weed for personal consumption.  Det. Thomas also said that the weed that police found in McRae’s jacket was not packaged in a way that indicated it would later be distributed.

Issue: Was the evidence sufficient to prove that Mr. McRae possessed the marijuana with the intention of distributing it?

Holding: No. Because there was no direct evidence of distribution or of Mr. McRae’s intent to distribute, the government had to rely on inferential evidence.  While normally, evidence of a quantity of drugs that “exceeds supply for personal use” or packaging “in a manner indicative of further distribution” can carry the government’s burden of proof, here, “that sort of evidence was strikingly absent.”  There was no evidence that the weed was packaged in a way that indicated distribution rather than personal use, and the quantity of marijuana was within the realm of that purchased for personal use, even if it was unlikely that it could all be smoked in one “lazy hazy weekend.”  The paraphernalia in the apartment did not change this calculus because the government’s expert testified that the paraphernalia found is often used in connection with other drugs, not weed, and it is perfectly possible for a dealer of one type of drug to personally use marijuana.  DH

Read full opinion here.