ORDER ON MOTION TO DISMISS AS A DE MINIMIS
has filed a motion to dismiss the charge brought by the State
as a de minimis infraction pursuant to 17-A M.R.S A Section
12. Defendant is charged with Class B Unlawful Trafficking of
Scheduled Drugs, 17-A M.R.S.A Section 1103(1-A)(A) by
accomplice liability, Title 17-A M.R.S A. Section 57(3)(A).
For the following reasons the motion is denied.
was held on November 30, 2016. Sworn testimony was received
from Josh Caldwell, MDEA Agent Seeley and Fran Capell.
Evidence also included a recording of the controlled buy
conducted on December 21, 2015 and of the interview by Agent
Seeley of the Defendant conducted February 2, 2016.
December of 2015 Caldwell was working with MDEA as an
informant in drug activity. David Rowland had becomethe
subject of their focus as a suspected drug/Methamphetamine
dealer. A controlled buy was arranged for Caldwell to
approach Rowland to buy meth. Caldwell contacted Rowland and
arrangemnts were made for Caldwell to go to Rowland's
home on December 21, 2015 to purchase a quantity of meth.
Caldwell was fitted with an electronic recording/transmitting
time Rowland was living at 211 Access Highway in Limestone.
When Caldwell went there it was not anticipated or expected
anyone else would be there. Caldwell was the sole focus of
this particular controlled buy. However, when Caldwell
arrived at the home, the Defendant was also present. In fact,
the Defendant's mother, Fran Capell, who lived away at
the time, owned the home. So others including her children
and their acquantances lived there. The Defendant was at the
home on some regular basis, but "came and went"
depending largely on her status with her boyfriend. In
December of 2015, although not living there consistently, the
Defendant did stay there on occasions and knew Rowland was
selling drugs from the home and using some portion of the
proceeds to help pay the home expenses. She was present
during some of Rowland's drug transactions.
Caldwell arrived at the 211 Access Highway home, he knocked
on the door, was told to enter and entered into the living
room. Rowland and the Defendant were sitting on one side of a
an "L" shaped sectional sofa. Caldwell sat on the
other side. A coffee table was positioned in front of the
some brief small talk, Rowland asked Caldwell if he had a
jar, to package the meth in that Rowland was selling him.
Caldwell responded he did not have ajar. The Defendant
responded "bummer." Caldwell then indicated he had
some cellophane in which to place the meth. The Defendant
stated something to the effect of "how about a lollipop
topic of the lollipop wrapper, Caldwell could not recall ever
seeing it in the Defendant's hand or possession.
Caldwell's best recollection of the lollipop wrapper is
first seeing it on the coffee table when the Defendant
mentioned it as a means for packaging the meth being sold.
then placed a quantity of meth onto the lollipop wrapper and
wrapped it up. Caldwell asked if that would work better than
cellophane, which he had brought with him. Rowland handed the
meth to Caldwell. Caldwell then said something about
"..I'm just going to wrap it in this." Caldwell
then wrapped the lollipop wrapper holding the meth in the
cellophane he had brought with him. Caldwell paid Rowland
$50. Just before leaving the Defendant asked Caldwell
"..you want a beep to put it in?". Agent Seeley
testified a "beep" is a term for a pipe used to
smoke meth, but Caldwell testified he thought the Defendant
was referring to ajar. He declined because he did not want to
carry anything that bulky.
Defendant never handled the meth or money being exchanged.
The exchange of meth and money was solely between Rowland and
Caldwell. The Defendant remained seated on the sofa during
the entire exchange. And as previously indicated, there is no
evidence she ever handled or held the lollipop wrapper.
Caldwell testified he could not even recall seeing the
Defendant eating or holding a lollipop while he was there.
evidence produced at the hearing included the Defendant's
admissions made to Agent Seeley at the February 2, 2016
interview of her drug use and having some history of
trafficking in drugs(10 -20 times), some of which may have
been conducted in the home at 211 Access Highway. She did not
describe the December 21, 2015 sale as one of the drug deals
she conducted. The Defendant also introduced to evidence
a legal opinion by Barbara Taylor, Esq. of the Immigrant
Legal Advocacy Project. Her opinion indicates the Defendant,
who is a Canadian citizen with legal U.S. resident status
(green card) is likely to face deportation consequences with
a trafficking conviction.
analysis whther to dismiss a charge as a de minimis
infraction starts with the predicate or assumption that the
defendant is technically guilty of the charge. So we will
begin with a brief analysis of the underlying charges.
person is guilty of unlawful trafficking in a scheduled drug
if the person intentionally and knowingly trafficks in what
the person knows or believes to be a scheduled drug and which
is in fact a scheduled drug. 17-A, M.R.S.A. 1103(1-A)
Alternatively, a person may be guilty of unlawful trafficking
in scheduled drugs as an accomplice if the State proves
beyond a reasonable doubt that with the intent of promoting
or facilitating the crimes of unlawful trafficking in
scheduled drugs, the Defendant aided or attempted to aid or
agreed to aid another person in the ...