Possession with Intent to Distribute Marijuana: Not Guilty After Trial

Drug & Narcotics Offenses

 A married couple was charged with Possession with Intent to Distribute Marijuana after Massachusetts State Police discovered a marijuana grow of 67 plants on their property.   State Police team up with the Massachusetts Army National Guard to perform aerial surveillance for outdoor marijuana grows during the summer months.  The operation, known as the Marijuana Eradication Program, involves the use of a military helicopter flying systematically overhead to search for suspected marijuana grows in Massachusetts.  Once a sighting occurs, the air crew contacts police on the ground to notify them of the discovery and to direct them to the location of the suspected grow.

In this case, police observed a suspected marijuana grow from above on the couple’s property.  The air crew alerted the ground crew, which then raided the property with multiple personnel and vehicles.  Police did not have a warrant to enter the property.  The husband voluntarily approached police after seeing them drive onto his property.   Once informed of their purpose and observations, the husband admitted to having marijuana on the property.  Moreover, he advised police that his wife had a Massachusetts medical marijuana card.  Police spoke to the wife and confirmed she was a medical marijuana patient.  However, they discovered a total of 67 marijuana plants dispersed throughout the property.  The plants were growing outdoors, opposed to inside and shielded from the public, as required by MA Department of Health Regulations under the Medical Marijuana Program.  Further, in the officers’ opinion, the quantity of marijuana discovered exceeded the 60-day or 10-ounce limit allowed by law.  This prompted the filing of criminal charges against the couple in Taunton District Court.

The couple retained Massachusetts Criminal Defense Lawyer, John L. Calcagni III, to defend them in this action.  Attorney Calcagni conducted his own investigation that included hiring a helicopter pilot to fly over the couple’s property to recreate the alleged actions and observations of police.  He also filed a motion to suppress challenging the legality of both the flyover of the land and its warrantless entry by police.  The Trial Court denied this motion and the Appeals Court denied a subsequent application for leave to file an interlocutory appeal.   This left the couple with two options: plead guilty, which would result in felony criminal convictions and sentences of probation or proceed to trial.   The couple elected their right to trial, primarily because of their trust and faith in Attorney Calcagni’s trial experience.

On the morning of trial, Attorney Calcagni made a last-minute tactical decision to waive a jury trial and proceed to a bench trial, which involves a judge sitting alone to decide guilt or innocence.  The Commonwealth presented its case, which gave Attorney Calcagni the chance to cross-examine law enforcement witnesses and offer evidence of his clients’ defense: that possession of 67 marijuana plants was protected by the Massachusetts Medical Marijuana Program following passage of a law called “An Act for the Humanitarian Medical Use of Marijuana” in 2012.

Attorney Calcagni offered into evidence a copy of the wife’s medical marijuana card.  He then established his clients were polite, cooperative and non-confrontational with police.  He further established that the 67 plants were not part of an organized or well-developed marijuana grow, but were discovered in multiple clusters throughout the large, multiacre parcel of land in various stages of growth to include clones, seedlings, immature plants and mature plants.  Also, none of the discovered plants had been harvested or yielded any usable marijuana.   Attorney Calcagni also established that though the Medical Marijuana Program limits possession of usable marijuana by patients to a 60-day supply for personal use, which is presumptively 10 ounces, police did not observe or seize any loose, dried marijuana ready for consumption.  This set up the argument that even though the total plants weight exceeded 10 ounces, there was no usable marijuana because the discovered plants had not grown to full maturity or been harvested.

At trial, the Commonwealth failed to call a chemist to establish the chemical or biological composition of the plants seized.  While the police certainly believed the plants were marijuana, they referred to them as “suspected marijuana” in the police report related to this case.  Though the plants were sent off to a laboratory for testing, the Commonwealth chose not to present scientific or expert testimony at trial.  Instead, the prosecution relied solely on the testimony of law enforcement witnesses on this issue.

On cross-examination, Attorney Calcagni also established, through police witnesses, that no evidence of distribution or intent to distribute marijuana existed.   While the Court could infer intent to distribute solely from the quantity of plants discovered, there was no other corroborating evidence.  Police did not discover any scales, packaging materials, prepackaged marijuana, sums of money, firearms or drug ledgers.  Further, police had no information to believe the couple was involved in distributing drugs such as surveillance, controlled drug purchases or information provided by confidential sources.

The Defense presented no evidence in this case.   Attorney Calcagni build his clients’ defense solely by cross-examining prosecution witnesses.  Once the Commonwealth rested, Attorney Calcagni moved for a directed verdict claiming the prosecution failed to present sufficient evidence to establish a criminal conviction.  The Court granted the motion with respect to “intent to distribute” or “distribution” of marijuana but denied the motion regarding the lesser included offense of possessing marijuana.  During closing arguments, Attorney Calcagni raised arguments that the Commonwealth, by not calling a lab expert, failed to establish proof beyond a reasonable doubt that the 67 plants seized from his clients’ property were in fact marijuana.  He was also prepared to argue the points made on cross examination, as described above, to support the affirmative defense that his clients’ growing and possessing marijuana were protected by the Medical Marijuana Program.  The Court agreed by finding the husband and wife both not guilty.