Source: cases/21usc841/f-supp-3d-225-274-us-v-tiangco.case
Case source: https://www.neochart.com/catalog/cases/f-supp-3d/volume_225/0274_01/index.html
It also encompasses “constructive possession,” ie., “dominion and control” in the sense of “the ability to reduce an object to actual possession.”
Viewing the facts through the lens of Boney, I find that Ms. Tiangco retained dominion, control, and the ability to reduce the package to possession. She thus remained in constructive possession of the package while it was in New Jersey.
To “distribute” a drug is to “deliver” possession of it to another.
The statutory definition of "delivery,” however, encompasses an "attempted” transfer.
A delivery from Tiangco to the New Jersey UPS personnel occurred in New Jersey. An attempted delivery to Tiangco’s brother occurred in New Jersey.
So intent to distribute would be a permissible, indeed nearly inescapable, inference.
There was overwhelming evidentiary support for the jury’s answer of “yes” to that question, and Ms. Tiangco does not directly challenge it in this motion.
Under Uribe, because possession with intent to distribute is a continuing offense, venue is proper along the way until the package arrives at its destination.
Venue as to Count 2 therefore was properly laid in New Jersey.
casedsl 1 case /f-supp-3d/225/0274-01 name United States v. Tiangco cite 225 F. Supp. 3d 274 (2016) court United States District Court for the District of New Jersey date 2016-12-05 url catalog/cases/f-supp-3d/volume_225/0274_01/index.html source ir/caselaw/f_supp_3d_225.jsonl sha1=85c955c438443d99ef93125a439e71811c531b97 chars=48361 law 21usc841 (a)(1),(b)(1)(A) role applied posture criminal; jury convicted on § 846 conspiracy (Count 1) and § 841 distribution / possession with intent to distribute 50 g+ methamphetamine (Count 2); defendant's post-trial motion for acquittal (Rule 29) or new trial (Rule 33) denied by the trial judge result claimant-won element possession : satisfied [proved] scope procedural variant constructive/package-in-transit-with-common-carrier count Count 2 (April 29, 2014 UPS shipment from Nevada to New Jersey) theory constructive possession continuing in the forum district (second ground for venue, after the continuing-offence ground) fact @18845..19007 [supports] | The surveillance video, in color and of good quality, showed that Ms. Tiangco and a companion sealed and dropped off that package at the counter of the UPS store. fact @19032..19148 [supports] | In a text message dated April 30, 2014, Tiangco sent Freehauf the package’s UPS tracking number, 1C10598X0190432694. fact @19484..19667 [cuts-against] | As the request of the federal agents, however, UPS detained the package at their distribution hub in Tinton Falls, New Jersey. The agents in New Jersey picked up the package from UPS. rule @22205..22351 | It also encompasses “constructive possession,” ie., “dominion and control” in the sense of “the ability to reduce an object to actual possession.” held @28062..28299 | Viewing the facts through the lens of Boney, I find that Ms. Tiangco retained dominion, control, and the ability to reduce the package to possession. She thus remained in constructive possession of the package while it was in New Jersey. gloss The carrier is treated as the shipper's agent: the sender keeps constructive possession until actual delivery, and government interception/control of the parcel does not divest it (following Boney, 2d Cir.). Decided in order to place the possessory offence in the forum district for venue. element act.distribute : satisfied [proved] scope procedural variant delivery/shipment-by-commercial-courier-intercepted-before-addressee count Count 2 theory delivery to the carrier / attempted transfer to the addressee inside the forum district (further ground for venue, partly in a footnote) fact @17953..18207 [supports] | On April 27-29, 2014, the agents intercepted a series of text messages between Tiangco and Free-hauf that indicated she was sending a couple of ounces of methamphetamine to Freehauf in New Jersey, via a shipment to her brother in Long Branch, New Jersey. fact @20131..20228 [cuts-against] | Because the package was intercepted, it never reached its addressee, Alain Ti-angco, or Freehauf. fact @29915..30158 [supports] | Rather, Ti-angco committed the drugs to a courier service, an intermediary she chose for the very purpose of having the package delivered to Long Branch, New Jersey (although it only got as far as the UPS facility in Tinton Falls, New Jersey). rule @21608..21675 | To “distribute” a drug is to “deliver” possession of it to another. rule @44088..44173 | The statutory definition of "delivery,” however, encompasses an "attempted” transfer. held @30424..30570 | A delivery from Tiangco to the New Jersey UPS personnel occurred in New Jersey. An attempted delivery to Tiangco’s brother occurred in New Jersey. gloss Alternative to the possession theory, again decided only to locate the offence for venue: handing drugs to an unwitting carrier is itself a "delivery" (no scienter needed for the recipient), and the attempted transfer to the addressee counts as distribution under § 802(8); no sale or exchange required. element intent-to-distribute : satisfied [proved] scope hypothetical variant inferred/quantity-inconsistent-with-personal-use-plus-supplier-testimony count 2009 Missouri traffic-stop seizure (uncharged episode; intrinsic evidence of the Count 1 846 conspiracy, not Count 2) fact @12515..12653 [supports] | They heard evidence that a typical user would consume a gram or less, and that it would take one person perhaps a year to consume a pound. fact @12684..12830 [supports] | They heard testimony that Ms. Tiangco was then a regular distributor of supplier Javier Diaz’s product in pound quantities, of which this was one. fact @12954..13126 [supports] | They heard her own post-arrest statement admitting that she took (stole, she said) the package because she wanted to make some money to redeem herself in her mother’s eyes. held @13158..13243 | So intent to distribute would be a permissible, indeed nearly inescapable, inference. gloss Arises from an evidentiary objection (prosecutor's reference to "possess with intent to distribute" for an episode that ended in a state simple-possession plea). For Count 2 itself the judge says only that intent evidence "was more than adequate" and sets it aside. element quantity : satisfied [proved] variant threshold-found-by-jury/special-interrogatory count Count 2, (b)(1)(A) 50 g methamphetamine tier fact @2174..2301 [supports] | In answers to special interrogatories, the jury found that each count involved 50 grams or more of methamphetamine, as charged. fact @19762..19827 [supports] | Inside was approximately 55 grams of nearly pure methamphetamine. gloss Jury finding by special interrogatory; the roughly 55 g parcel is the only Count 2 quantity evidence the opinion recites. The finding is not challenged and the judge states no holding on it, hence no held line. element quantity : satisfied [proved] role background count Count 1 (21 U.S.C. 846 conspiracy-wide quantity, 50 g tier) variant threshold-found-by-jury/special-interrogatory held @15889..16043 | There was overwhelming evidentiary support for the jury’s answer of “yes” to that question, and Ms. Tiangco does not directly challenge it in this motion. gloss The held sentence concerns only the conspiracy-wide quantity on the 846 count (the 841(b)(1)(A) threshold reached through 846), so it is background for 841. The same special-interrogatory finding is quoted in the Count 2 block. Weight of the 2009 Missouri seizure (about a pound, per supplier's testimony and a photograph) did not need to be found. element x-venue : satisfied [law] scope procedural variant continuing-offense/drugs-shipped-by-courier-into-forum-district count Count 2 theory venue in the District of New Jersey as a district into which a continuing offence continued (18 U.S.C. 3237(a)) fact @22507..22619 [cuts-against] | The government concedes that all of Ms. Tiangco’s physical actions with respect to Count 2 took place in Nevada. fact @25305..25494 [supports] | Ms. Tiangco sealed and deposited a package with UPS for delivery in New Jersey. This process was underway and ongoing, within the State of New Jersey, until the agents diverted the package. rule @25495..25653 | Under Uribe, because possession with intent to distribute is a continuing offense, venue is proper along the way until the package arrives at its destination. held @30790..30852 | Venue as to Count 2 therefore was properly laid in New Jersey. gloss Venue is proved by a preponderance and was also submitted to the jury; the judge treats it as a legal dispute on uncontested facts. Distinguishes Tingle (7th Cir.): a completed hand-to-hand distribution in district 1 does not give venue where a third party later redistributes. element knowledge : not-reached element substance : not-reached element aiding : not-reached gloss 18 U.S.C. § 2 is cited in Count 2, "probably superfluously"; no accomplice analysis. misfit The § 841 elements (possession, distribution) are decided only as the vehicle for a VENUE question: where the offence was committed. `scope procedural` now keeps those blocks and x-venue out of the instance count, but the real holding is a relation "locus of element X determines venue" that the notation cannot express. misfit Count 2 is charged in the alternative (distribute OR possess with intent) and the court upholds it on both, plus alternative legal theories for each (continuing offence vs constructive possession; delivery to carrier vs attempted transfer); `theory` names each route, but scope is single-valued (these blocks are procedural AND alternatives of one another; procedural was chosen) and blocks cannot be linked as OR-alternatives. misfit Two different standards of proof coexist (elements beyond reasonable doubt, venue by preponderance), and the posture mixes Rule 29 sufficiency with Rule 33 new-trial review; a single [basis] tag flattens this. misfit The intent-to-distribute discussion concerns an uncharged-as-substantive 2009 episode used as intrinsic evidence of the § 846 conspiracy (a different statute), examined only to reject a prejudice objection to the prosecutor's wording. `scope hypothetical` is the nearest value (nobody charged that episode under § 841 here), but it is really an evidentiary / new-trial ruling. misfit The judge "dispense[s] with an overall statement of the evidence", so most elements of the conviction (knowledge, substance) have no discussion; other holdings (Rule 404(b) intrinsic evidence, voir dire on transgender bias, spillover prejudice) are outside the statute.