A common question that frequently arises for a Boston criminal defense lawyer is: does a defendant have to be present at the scene of the drug transaction to be convicted of drug distribution?

A Massachusetts court of appeals decision recently answered this question in Commonwealth v. Mgaresh. The court held that if a defendant is aware of the transaction and in control of transaction, the defendant does not need to be physically present at the time of distribution.

In 2009, an undercover police officer contacted the defendant and arranged to purchase $200 of cocaine. When the detective arrived at the location, he met a women who was on the phone with the defendant during the transaction.The transaction of 1.95 grams of cocaine was completed and the detective arrested the woman..

After the arrest, the defendant went to the police station to bail out the dealer. The detective identified him as the person who had arranged the purchase of the cocaine. While defendant was at the police station, the police called the number that the detective had used earlier. After some questioning and observing the defendant’s cell phone, the police verified this was the cell phone used to arrange the cocaine purchase.

The defendant was not arrested at the police station, but was later charged with distribution of cocaine in a school zone in violaton of G.L c.94C sections 32A and 32J. The jury convicted Mgaresh even though he was not physically present at the time of the cocaine sale. The court stated to prove distribution of cocaine, the Commonwealth had to establish that the defendant knowingly or intentionally distributed the cocaine. Distribute means to deliver other than by administering a controlled substance. G.L.c 94C section 1. Deliver is defined as transfer, whether by actual or constructive transfer, a controlled substance to another.

The court held that this could validly be considered distribution because Mgaresh knowingly and constructively delivered the cocaine. Mgaresh’s actions in the courts eyes constituted constructive transfer because of the knowledge of the sale and Mgaresh had the ability and intent to exercise control over the cocaine. Because Mgaresh directed the detective where to get the cocaine and was on the phone with Joseph during the sale, the court felt this was enough to show control. The court ruled Mgaresh was simply working through Joseph and was the actual person controlling the sale. Furthermore, the court ruled that under joint venture, Mgaresh was knowingly working with Joseph in the sale of the cocaine. Since Mgaresh knew of the crime, was the one who set up the sale and was the one who facilitated the sale, Mgaresh could be guilty for his participation in the crime.

Although the court ruled that a defendant who is not present at the time of the drug sale can be guilty of drug distribution, it suggested that this is limited to people who are knowingly, and actively involved in the sale. Commonwealth v. Mgaresh seems to show that had Mgaresh not been actively making the sale, it would not have found that he had constructively delivered the drugs. It suggests that if a defendant is not aware that drugs are being sold or are not the person who initiated the sale of the drugs, then a defendant cannot be convicted for distribution of narcotics if they are not present at the time of sale. This case was very clear that Mgaresh was the person who was controlling the transaction between Joseph and the officer. However, when it is not so clear, a conviction of a person who is not present at the site of the sale will be much mor difficult.