Page 35 - TPA Journal January February 2025

Having now brought into play this additional evi- possession of a thing, possession is joint.
dence that the panel did not mention, we address . . . .
the overriding question of sufficiency. The jury The word “knowingly,” as that term has been used
was properly instructed in accordance with the from time to time in these instructions, means that
applicable pattern jury instructions and well-set- the act was done voluntarily and intentionally, not
tled Fifth Circuit law, particularly our circuit’s because of mistake or accident.
mere presence instruction. No party challenged
any of those instructions at trial or on appeal. It is reasonable to infer that a person ordinarily
intends the natural and probable consequences of
The court charged as follows: his knowing acts.
To “possess with intent to distribute” simply
means to possess with intent to deliver or transfer The jury may draw the inference that the accused
possession of a controlled substance to another intended all the consequences which one standing
person, with or without any financial interest in in like circumstances and possessing like knowl-
the transaction. edge should reasonably have expected to result
from any intentional act or conscious omission.
Intent to distribute may be inferred from posses- Any such inference drawn is entitled to be consid-
sion of an amount of controlled substance that is ered by the jury in determining whether or not the
too large to be used by the possessor alone. But a government has proved beyond a reasonable
quantity that is consistent with personal use does doubt that the defendant possessed the required
not raise such an inference in the absence of other criminal intent.
evidence.
The jury answered, in the affirmative, the ques-
Mere presence at the scene of a crime and knowl- tions (1) whether the defendants were guilty of
edge that a crime is being committed are not suf- possession with intent to distribute and (2)
ficient to establish that a defendant either directed whether the amount was 100 kilograms or more.
or aided and abetted in the crime unless you find
beyond a reasonable doubt that the defendant was There is ample evidence from which the jury
a participant and not merely a knowing spectator. could find possession with intent to distribute. The
second part is easier: Once the jury finds posses-
“Possession,” as that term is used in the instruc- sion, and further finds an amount above the statu-
tions, may be one of two kinds: actual possession tory threshold, it can (but is not required to) draw
or constructive possession. A person who know- the inference of intent to distribute. This rule of
ingly has direct physical control over a thing, at a law—that possession of large enough quantities is
given time, is in actual possession of it. sufficient, by itself, to prove intent to distribute—
is so embedded in Fifth Circuit precedent as to be
A person who, although not in actual possession, beyond cavil.
knowingly has both the power and the intention, at
a given time, to exercise dominion or control over The government repeatedly argued that this case is
a thing, either directly or through another person all about possession, and that is so. And that is the
or persons, is in constructive possession of it. reason we have juries.

Possession may be sole or joint. If one person Much is made of whether the process of rearrang-
alone has actual or constructive possession of a ing the bundles in the car, to allow room for the
thing, possession is sole. passengers to occupy that vehicle, qualified as
“possession” as the court carefully instructed the
If two or more persons share actual or constructive jury. It was for the twelve jurors to consider all the

Jan.-Feb. 2025 www.texaspoliceassociation.com • (512) 458-3140 35