Mere Presence Instructions in Drug Trials.

While physical proximity to drugs is a critical piece of evidence in federal drug cases, it does not, and cannot, by itself establish constructive possession, aiding and abetting, or conspiracy. Federal statutes and accompanying case law make clear that while proximity is a relevant factor to consider, it is not dispositive and is not enough to justify a conviction on its own. Instead, for conviction, the prosecution must typically establish more than mere proximity, and they must do so beyond a reasonable doubt. Federal drug defense attorneys are accustomed to navigating the fine distinctions between possession (constructive or actual) and mere presence, and are able to identify opportunities to help their clients avoid convictions in cases that are not built upon sufficient evidence. At the same time, that distinction also means that mere presence does not automatically defeat allegations of possession or complicity in the face of independent evidence of participation. If the government can prove that the defendant played an active role in the underlying criminal conduct, and this evidence is independent of, or supplements the defendant’s mere presence, the fact that the defendant was merely present at the scene is not likely to be an adequate defense on its own. Regarding the “mere presence” jury instruction, whether this is an available tool in a given drug trial, or whether it is entitled to a specific name, depends on the jurisdiction. neither the United States Supreme Court nor the Department of Justice has established a national rule regarding how mere presence instructions should be used in federal drug cases. Instead, individual district courts make their own determinations based on the specific facts at hand and applicable circuit court precedent. Determining whether a mere-presence jury instruction, which will inform the jury that a defendant’s mere presence at the scene of a crime is insufficient for conviction, is appropriate in a given drug trial is one of the ways that defense attorneys provide valuable insights for their clients. This is an area where the knowledge and experience of a seasoned drug defense attorney can matter greatly, as defense attorneys must carefully investigate each case and raise timely and appropriate objections to prevent the jury from misconstruing a defendant’s proximity to drugs as culpability.

How are Custody, Control, and Colorado Complicity Kept Separate?

In federal drug cases, actual possession refers to drugs found in a person’s physical custody, and it does not involve arguments about proximity, possession through an agent, or any other relevant theories of liability. As such, while the concepts of knowledge and control are important, knowledge and control remain relevant in federal drug cases, including when it is clear that the evidence supports actual possession beyond a reasonable doubt. At the same time, for cases involving a drug offense that is more likely to result in constructive possession charges, such as cases involving multiple suspects and drugs found in a shared residence or other location, these concepts will play a key role, but they will take on different meanings and implications in different cases. For instance: - In cases involving constructive possession, the prosecution generally must prove that the defendant either had dominion and control over the drugs, or, in other words, the power and intent to exercise dominion and control over the drugs, or a right to control the drugs, or the possession of drugs through an agent (such as through a child, employee, customer, or friend). This is fundamentally different from what is required for actual possession, and it requires much more of the prosecution than the simple evidence of a person’s physical proximity to drugs.

• When the government has evidence that a defendant has constructive possession of drugs, this may also include a finding that the defendant had control over the premises where the drugs were located. Conversely, where a defendant is alleged to have constructive possession of a large quantity of drugs, but the drugs were discovered in an area that was not under the defendant’s control, this can have significant implications for the defendant’s liability.
• When passengers are found in someone else’s vehicle that also contains illegal drugs, constructive possession will be one of the theories the prosecution will attempt to build on, and defense attorneys will work to dispute it by arguing that the passengers did not have dominion and control over the drugs (and that they did not have actual possession of them as well).
• When individuals are found in the possession of drugs inside someone else’s residence, they may face charges of constructive possession. In these cases, disputing knowledge and control over the drugs can be a valuable defense strategy, and any evidence that the drugs were in plain view or otherwise open to the general public may also help to refute charges of constructive possession.
• A defendant may be charged with a drug offense by being alleged to have aided and abetted the commission of a crime involving drugs. In Colorado, this is a broad theory of liability, and defendants may face a multitude of potential charges including aiding and abetting. According to the U.S. Supreme Court, a defendant’s mere presence at a scene or mere knowledge of the commission of a crime is insufficient to support aiding-and-abetting liability, and a conviction in this scenario may only be permissible if there is independent evidence to show that the defendant actively helped the offense to be committed.

When Does a Mere-Presence Theory Challenge Instructions Rather Than Proof?

When facing the possibility of federal drug charges, defendants should not expect federal prosecutors to prove, or even allege, that they handled drugs. Often in conspiracy charges, prosecutors need only show, for example, a defendant’s failure to avoid illegal contact between a customer and a supplier. More commonly, prosecutors will rely on evidence like quantity, packaging, cash, or communications in order to support their claims. At the same time, in cases involving drugs found in the defendant’s vicinity or nearby, the evidence may be insufficient for prosecutors to move forward with charges. While these prosecutors will do everything possible to preserve the case, it may still make sense to raise a “mere presence” theory of liability that challenges the prosecution’s proof without ever presenting defense evidence. With a mere-presence theory, the argument is that, even if all the evidence is true, the defendant’s presence alone doesn’t support the charges. There are several important distinctions that separate the issue of “mere presence” in federal drug cases from other issues. To begin with, the issue of mere presence is different from that of suppressing evidence. When evidence is suppressed, that means the court found that the prosecution gathered the evidence improperly, and as a result, the evidence cannot be used. With mere presence, the fact that the defendant was present is not necessarily an illegal gathering of evidence; rather, it simply doesn’t prove culpability.

Similarly, the issue of mere presence is different from challenging a proposed jury instruction. The reason to challenge an instruction may be that the instruction misstates a relevant law. In the mere-presence theory, the argument is that, even if the proposed instruction is accurate, the evidence gathered by the prosecution still isn’t enough for a conviction.

Another distinction is that mere presence is not an affirmative defense. An affirmative defense is one that is generally assumed to be true once it has been proven, meaning it justifies a certain legal result regardless of the truth of the prosecution’s allegations. With a mere-presence theory, however, the issue at hand is whether the prosecution’s evidence raises reasonable doubt.

Ultimately, the mere-presence argument has a powerful potential: if successful, it allows a defendant’s trial attorney to persuade the jury that the prosecution is not entitled to a conviction based on evidence of mere presence alone.

Which Investigation and Preservation Steps Fit a Mere-Presence Defense?

Federal drug defense counsel may have a variety of investigative steps to take in criminal cases. These steps are either a subject of specific guidelines (or court rules), such as the National Legal Aid and Defender Association (NLADA) Guidelines, or the specific details of the case make it crucial to address certain questions. Two examples of relevant guidelines include Guideline 4.1, which instructs counsel: “The duty to investigate exists regardless of the client’s admissions or statements to defense counsel or others or of facts constituting guilt, or the client's stated desire to plead guilty.” and Guideline 4.1, which requires attorneys to “independently verify a client’s statements and conduct an independent investigation to find and use all relevant facts to the extent possible..... This investigation should include seeking information about potentially relevant witnesses, physical evidence, locations, and expert knowledge.”

Guideline 4.2 and Guideline 4.1 are similarly relevant here. NLADA Guideline 4.1 addresses independent investigation, and Guideline 4.2 addresses formal and informal discovery; neither guideline contains the quoted affirmative-defense language.

In addition to these and similar guidelines, defense attorneys in drug cases should seek to:

• Investigate the specific drug offense(s) in question in order to understand the elements of these offenses. This will allow defense counsel to make informed determinations regarding the theory (or theories) that will most effectively counter the prosecution’s theory of liability.
• Use relevant case law and statutory authority in their jurisdiction in order to determine whether a mere-presence theory is likely to support a valid defense based on the specific evidence at hand.
• Use any relevant case law, statutes, or other authorities, including relevant jury instructions, in order to determine whether a request for a specific jury instruction is appropriate. If so, defense counsel must request this instruction at the appropriate stage in order to preserve an instructional objection in the event of an unfavorable verdict. NLADA Guideline 7.7 addresses jury-instruction practice generally; it does not advise that, in all drug cases, counsel must request a mere-presence instruction.
• Request all relevant and potentially relevant discovery from the government as early as possible. This will allow defense counsel to use information such as witness statements and forensic reports in order to assess how effective a mere-presence theory might be in a given drug trial.

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If agents have contacted you, the order matters: counsel first, answers second. Spodek Law Group has been practicing since 1976 and defends federal matters nationwide, coast to coast, from offices in New York, Brooklyn, Queens and Los Angeles. Call 888 348 8028.