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United States of America v. Tralvis E. Edmond. No. 13-1718.   (7th Cir. 2014)

  1. A jury found Tralvis Edmond guilty of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1). Prior felony convictions for robbery, battery, and distribution of heroin made Edmond a career offender, see U.S.S.G. § 4B1.1(a), and the district court calculated a guidelines imprisonment range of 210 to 262 months.guidelines sentence, and the district court concluded that 84 months was appropriate. Edmond filed a notice of appeal.
  2. Police in Chicago executed a search warrant at an apartment where Edmond was known to stay several nights a week. The officers discovered 2 loaded guns, 3 grams of heroin divided among 14 packets, 8 grams of cocaine, and several documents corroborating Edmond’s use of the apartment, including his social security card, receipts, and bills. Edmond was not present at the time (though his girlfriend and their children were), so the officers entered an investigative alert for him in a computer database. A few months later Edmond was arrested for a traffic offense and taken to a Chicago police station for processing.
  3. At trial the government called the police officers who found the guns and foil packages (which were all together in a tinted plastic bag), and a chemist who identified the contents as heroin. The government also called as an expert an agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives, who opined that the amount of heroin—which he valued at $100 in bulk and $140 if the foil packages were sold separately—was consistent with a distributable quantity. The agent surmised that the heroin probably was not for personal use because street-level dealers in Chicago typically get 12 to 14 foil packets at a time from mid-level dealers and keep them together in a plastic bag like the one found in the apartment.
  4. On the heroin count (intent to distribute), the government’s evidence is not as strong and might have been problematic if not for Edmond’s explanation for having the 14 foil packets. Edmond said that he was holding the drugs for a neighborhood dealer who had threatened harm if he refused.
  5. The judge gave the government’s proposed jury instruction saying that intent to distribute may be inferred “from possession of a quantity of a controlled substance larger than is needed for personal use.” Yet this language may not fully conform to this circuit’s view about when intent to distribute may be inferred from drug quantity alone. Language in some of our cases states that any quantity above that for personal use can support an inference of intent to distribute, see United States v. Turner, 93 F.3d 276, 288 (7th Cir. 1996) (quantity “larger than needed for personal use” allows inference); United States v. Curry, 79 F.3d 1489, 1498-99 (7th Cir. 1996) (same), but we also have stated as the standard that a “substantial” amount of drugs is needed to raise that inference, see United States v. Corral-Ibarra, 25 F.3d 430, 436 n.4 (7th Cir. 1994); United States v. Tanner, 941 F.2d 574, 586 (7th Cir. 1991); see also United States v. Madera-Madera, 333 F.3d 1228, 1233 (11th Cir. 2003) (“significantly large quantity”); United States v. Boyd, 180 F.3d 967, 980 (8th Cir. 1999) (“large quantities”). The government’s expert testified that 3 grams of heroin is a distributable quantity because a typical dosage is 1/4 to 1/3 of a gram, yet the agent also conceded on cross-examination that a heroin user might have that much of the drug on hand for personal use. So the inference is weak, whether it arises from possession of a substantial quantity of drugs or simply from an amount that is “larger than needed for personal use.” Edmond possessed only 9 to 12 times the typical dosage, and the expert did not say how many times in a day the average heroin addict uses or how many doses he is likely to have on hand.
  6. When Edmond was interviewed about his possession of the heroin, he did not say it was for personal use or even that he is a heroin user. Rather, he said that he was holding it for the dealer it belonged to, which implies that he intended to return—to distribute—the dealer’s stash when he came calling. See United States v. Tingle, 183 F.3d 719, 727 n.3 (7th Cir. 1999) (explaining that “distribute” means to deliver). Transferring possession of a controlled substance, even without remuneration, is distribution. United States v. Gilmer, 534 F.3d 696, 702 (7th Cir. 2008); United States v. Larkins, 83 F.3d 162, 167 (7th Cir. 1996); United States v. Coady, 809 F.2d 119, 124 (1st Cir. 1987). Thus, Edmond’s intent to distribute the packaged heroin is evident from his confession.  AFFIRMED.

BY:  Chicago Federal Criminal Defense Attorney Michael J. Petro