21 U.S.C. § 841 · C relations

fact · supports In answers to special interrogatories, the jury found that each count involved 50 grams or more of methamphetamine, as charged.

fact · supports Inside was approximately 55 grams of nearly pure methamphetamine.

fact · supports Fiano saw appellant Vera together with Hassan, Adamo and Romero in the back room.

fact · supports Vera then drove the van, which had been provided for the delivery of the drugs, to Posada’s house.

fact · supports Approximately 20 minutes later, Vera and Posada emerged from the shed carrying a box measuring approximately three feet in width and one and a half feet in height which they loaded into the van.

fact · supports In addition, a white powdery substance was seeping out of one of the large boxes found in the van and some of the boxes in the van were “torn and broken.”

rule Rather, knowledge may be proved through inferences based upon surrounding circumstances.

rule Close association with a co-conspirator or mere presence at the scene of the crime is insufficient evidence of knowing participation in a conspiracy.

held A reasonable jury could have concluded beyond a reasonable doubt that the evidence established that Vera knowingly participated in the conspiracy and knowingly possessed and distributed the quaaludes.

fact · supports Moreover, Posada owned the shed in which the boxes were stored.

fact · supports After the boxes were loaded into the van, Posada drove the van by himself to the shopping center where Hassan was waiting and left the van with Hassan.

rule Although there is no direct evidence of Posada’s knowledge, sufficient circumstantial evidence of his knowledge exists.

held Posada’s ownership of the shed where the boxes containing the quaaludes were located and his exercise of dominion and control over the boxes while driving the van to the shopping center clearly supports an inference that he knowingly possessed the boxes containing quaaludes.

fact · supports Vera parked the van next to a shed located by the house. After a brief conversation, Vera, Posada and a third individual entered the shed.

fact · supports Shortly thereafter, Posada drove the van to the same shopping center and left the van with Hassan.

rule Possession may be actual or constructive and may be proved by circumstantial as well as direct evidence.

rule A person who owns or exercises dominion and control over a motor vehicle or residence in which contraband is concealed may be deemed to be in constructive possession of the contraband.

held Viewing the evidence in the light most favorable to the government, it is clear that a reasonable jury could find beyond a reasonable doubt that Posada knowingly participated in the conspiracy and knowingly possessed and distributed the quaaludes.

fact · supports The first two boxes which Vera and Posa-da loaded into the van were approximately three feet in width and one and a half feet in height and were substantially larger than the other boxes placed in the van by Vera and Posada.

fact · supports Inside the van, the agents found two large boxes which were approximately the same size as the two large boxes placed in the van by Vera and Posada and eight smaller boxes.

fact · supports All ten of the boxes found inside the van contained quaaludes.

held Although it is conceivable that some of the boxes loaded into the van by Vera and Posada may have been unpacked or unloaded at Romero’s house, such a possibility does not rise to the level of a reasonable doubt in light of the totality of the evidence.

rule A conviction for possession of a controlled substance in violation of 21 U.S.C. § 841(a)(1) requires proof of knowing possession with intent to distribute (or manufacture or dispense) the substance.

held Prieto-Tejas admitted knowing possession of all the cocaine found in his car, but claimed that it was for his personal consumption and that the evidence failed to establish his intent to distribute.

fact · supports Dusal was driving a 1978 Oldsmobile and Prieto-Tejas, who owned the automobile, was riding in the front passenger seat.

fact · supports When questioned at the checkpoint, Prieto-Tejas told Nichols that the cocaine belonged to him, but denied knowledge of the gun.

held Prieto-Tejas admitted knowing possession of all the cocaine found in his car, but claimed that it was for his personal consumption and that the evidence failed to establish his intent to distribute.

fact · supports Both men were aware of the large amount of cocaine that they carried on the trip.

rule Possession of a narcotic may be actual or constructive, may be joint with others, and may be proved by circumstantial evidence.

held Dusal may be deemed to have been in constructive possession of the cocaine, which he knew of, because such possession may be proved when one “has dominion over or controls the premises or vehicle where contraband is seized.”

fact · supports The bags contained 27.79 grams of 82 percent pure cocaine and 2.89 grams of 73 percent pure cocaine.

fact · supports The evidence suggested that this cocaine was of a purity usually diluted for distribution.

fact · supports The scale had traces of cocaine in the weighing pans and the DEA agent testified that scales of this type are commonly used by those who sell cocaine, but not often by purchasers.

fact · cuts-against Prieto-Tejas testified that he was addicted to cocaine and that at the time of his arrest he had been using up to three or four grams a day for several months.

fact · supports Construed most favorably to him, his testimony would indicate that his total income was at the most $2,000 per month.

rule Intent to distribute a controlled substance may generally be inferred solely from possession of a large amount of the substance.

rule The purity and value of the substance also are relevant to the possessor’s intent to distribute.

held Therefore, a reasonable factfinder could infer either that he did not use a large amount and intended to sell a portion of the cocaine, or that he did consume large amounts and also sold cocaine to supplement his income in support of his expensive habit.

held The presence of the scale in addition to the quality and quantity of the cocaine and Prieto-Tejas’s testimony concerning his cocaine use support a finding of his intent to distribute.

fact · supports Moreover, government witnesses testified that in the search of defendant’s house they seized over 15 pounds of high-quality marijuana, which had a street value of over $35,000.00, hand scales suitable for weighing and measuring quantities of marijuana, growing lamps, and a book describing how to grow marijuana.

fact · supports For instance, the government introduced at trial the marked money used by the government informant to purchase marijuana from defendant on November 20, 1991.

fact · supports The government also introduced defendant’s own admission that he gave the government informant a bag of marijuana and that he used to share marijuana with friends.

rule Moreover, the government could satisfy its burden of establishing that defendant knowingly or intentionally possessed marijuana with intent to distribute it through the inferences drawn from evidence such as the quantity of the marijuana involved, United States v. Faymore, 736 F.2d 328, 333 (6th Cir.), cert. denied, 469 U.S. 868, 105 S.Ct. 213, 83 L.Ed.2d 143 (1984), the estimated street value of the marijuana, id., the purity of the marijuana, United States v. Blake, 484 F.2d 50, 58 (8th Cir.1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974), and other evidence which would support the inference that the marijuana was not intended to. be used for personal use.

held In satisfying its burden of establishing that defendant knowingly or intentionally possessed the marijuana with the intent to distribute it, the government introduced, through the testimony of several witnesses, evidence which inferred that the marijuana possessed by defendant was not for his personal use.

fact · supports The government offered expert testimony at trial indicating that the suspected substance had tested positive for cocaine base. In trial testimony, Mr. Hishaw admitted that the substance was crack cocaine.

fact · supports Sergeant Alvarado felt two hard objects in Mr. Hish-aw’s crotch and asked him for permission to retrieve them. Mr. Hishaw agreed, and Sergeant Alvarado discovered what he believed to be several large rocks of crack cocaine.

fact · supports He further admitted that he had possessed crack cocaine on July 10, 1998.

fact · supports According to the chemist, each of the seven baggies contained a caked substance that tested positive for cocaine base and that weighed the following amounts: 5.5 grams, 6.4 grams, 6.5 grams, 6.5 grams, 6.5 grams, 6.5 grams, and 6.7 grams.

rule In our view, as long as the defendant’s sentence falls within the maximum established by statute, Apprendi does not foreclose consideration of drug quantities beyond the offense of conviction.

held Thus, Mr. Hishaw’s 360 month sentence on his § 841 conviction falls within that statutory maximum.

held Accordingly, we conclude that in light of his admission that he possessed cocaine base and the fact that his sentence fell within the statutory maximum sentence for the drug quantity proved by the government at trial, Mr. Hishaw was not prejudiced by the failure to submit the question of drug quantity to the jury.

fact · supports Petitioners Richard L. Chapman, John M. Schoenecker, and Patrick Brumm were convicted of selling 10 sheets (1,000 doses) of blotter paper containing LSD, in violation of § 841(a).

fact · supports The ten sheets of blotter paper carrying the 1,000 doses sold by petitioners weighed 5.7 grams; the LSD by itself weighed only about 50 milligrams, not even close to the one gram necessary to trigger the 5-year mandatory minimum of §841(b)(1)(B)(v).

fact · supports The LSD crystals are inside of the paper, so that they are commingled with it, but the LSD does not chemically combine with the paper.

rule So long as it contains a detectable amount, the entire mixture or substance is to be weighed when calculating the sentence.

rule The term does not include LSD in a bot-tie, or LSD in a car, because the drug is easily distinguished from, and separated from, such a “container.”

held We think that the blotter paper used in this case, and blotter paper customarily used to distribute LSD, is a “mixture or substance containing a detectable amount” of LSD.

held We hold that the statute requires the weight of the carrier medium to be included when determining the appropriate sentence for trafficking in LSD, and that this construction is neither a violation of due process nor unconstitutionally vague.