Ninth Circuit on Intent to Distribute

A federal trial court handling a trial on charges of possession of methamphetamine with intent to distribute should have given a jury instruction on the lesser included offense of simple possesion where the quantities of the drug seized could rationally have been thought to be for personal use, the Ninth Circuit held today in United States v. Hernandez, No. 05-50920.

Hernandez was seized at a border crossing with the equivalent of 111.3 grams of pure methamphetamine. The trial court refused to instruct on simple possession. The Ninth Circuit found this to be error that was not harmless. It noted that "the government presented no evidence, other than the methamphetamine itself and expert testimony, to establish an intent to distribute. Drugs by themselves, in quantities that could rationally be thought by the jury to be for personal use, without other evidence of intent to distribute, are not enough to exclude a jury instruction on a lesser included offense."

The court went on:

True, Hernandez did not present affirmative evidence that he possessed the methamphetamine for personal use. But that is not Hernandez’s burden. It is the government’s burden to prove beyond a reasonable doubt that Hernandez had the requisite intent to distribute. The government did present expert witness testimony on the drug’s purity, quantity, and dollar value,4 which were high for personal use, but the government did not produce testimony on whether Hernandez personally had an intent to distribute the methamphetamine. It would not be irrational if a jury had concluded that Hernandez was returning from a buying trip to Mexico, and his intent was to stockpile his reserves of methamphetamine for personal use, rather than distribution. Additionally, there was no corroborating physical evidence. When Hernandez was arrested the drugs were not individually cut or packaged for sale; the government produced no evidence that Hernandez had precursor chemicals, glassware, cutting agents, scales, firearms or weapons, or other typical items associated with drug trafficking. Even if it is more probable that a drug distribution was intended by Hernandez, we cannot say that a rational jury could not have concluded that Hernandez possessed the methamphetamine for personal use. The government did not show that the jury’s only option on the evidence was to find intent to distribute beyond a reasonable doubt.