I have a case where a search of def's bedroom reveals a medium size baggie with a trace amount of cocaine, a digital scale, smaller unused baggies, a spoon and a ledger. Paraphernalia for smoking marijuana is found in various places around the home as well as a usable quantity of marijuana. Def is currently under indictment for POCS <1g and probation is mandatory. I want to reindict for Man/Del so that SJ time is an option. Has anyone had any luck with prosecuting Man/Del trace cases? Any case law out there? I just see a real fight coming about possessing a trace amount with intent to deliver. However, we all know why there is only a trace amount, he has already delivered it.

Thanks in advance for your advice.

[This message was edited by Cory Crenshaw on 09-03-08 at .]

How are you going to prove he intends to deliver the trace amount?

I have "pled-up" trace cases with "intent to deliver" as part of a plea agreement to State Jail term, that would have otherwise been mandatory probation, but that was where everyone knew the defendant would have been revoked after his first reporting date. I agree with JM, and do not see how you are going to prove intent to deliver with just a trace amount left even though you have scales and a ledger - that goes to the dope he already delivered. But remember, probation can include 90-180 days in the State Jail, or up to 180 days in the County Jail, or up to two years in a community correctional facility.

If you really want to punish the guy and your judge is of a similar mind; put him on probation!

I hear you Jeff. The idea of intent to deliver was being floated around, but we all had the same reservations about proving it with only a trace amount. Thanks again.

Your situation poses the question, intent to deliver when? The statute does not say in the future. Theoretically the residue was part of an amount delivered and thus covered by the prior intent, its just you cannot shake or scrape it all out. But, then there is also the scenario where I have a gram. I form the intent to deliver half of it and keep the rest for personal consumption. We often argue the greater the quantity (especially above one gram), the more likely there was an intent to deliver- based solely on the quantity. That argument would seem to work both ways. You barely have enough to win a possession charge. Some jurors might like to convict of "with intent" on your facts, but I would never count on finding 12 of them on the same jury. Drug busts can never be timed perfectly. Let it go.

Hello, I'm new here and reading this topic prompted me to register and reply. I know I'm going to end up getting stuck on these forums because they're really good, such is life.

Anyway, this is one of the most frustrating things for me on the street. The other items - scale, unused smaller baggies, ledger - all lead a reasonable person to believe what Mr. Doper was intending to do and obviously already HAD done. There was a trace amount for a reason.

It took me a while early on to realize you win some and lose some. Sometimes you have to just let it go and wait for it when it's good.

Hoover, is that you?

Whoever "Hoover" is, no that would not be me.

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Sometimes you have to just let it go and wait for it when it's good.

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When I was fresh out of school, this is something that some seasoned officers taught me. If he's really a bad guy, we'll catch him sooner or later. If this case scares him straight, then we're all winners.

Two recent cases out of Waco shed some light on the relationship between quantity and intent. The interesting thing about Guyton is that the absence of normal things associated with delivery (money, scales, baggies) was taken as evidence of intent. Also, according to CJ Gray, Brooks and Guyton are in irreconcilable conflict. Of course Brooks was a product of the "old" Waco court and the revised decision in Guyton purportedly comes from the "new" court (although Gray accuses Justice Davis of having no right to vote because of the "participating justices" provision of Tex.R.App.P. 50).

Why wouldn't you want to give that guy probation? He'll either straighten out or he won't and he'll get revoked. Surely you have bigger fish to fry.