McIntosh v. People, 57 V.I. 669

McIntosh, a corrections officer, was charged with possession with intent to distribute and introducing a narcotic into a prison after marijuana was found in his possession at Golden Grove Correctional Facility.
Evidence included a Ritz Crackers box at intake containing three objects later identified as marijuana; two were seized later and tested positive for marijuana.
Trial occurred in Feb. 2008; McIntosh testified that he intended to surrender the items to supervisors and that the box originally contained a DVD player.
The jury found McIntosh guilty on both counts; he was sentenced to three years’ imprisonment on each count, to run concurrently, plus a $5,000 fine and a five-year special parole term.
The court later issued a nunc pro tunc order granting credit for pretrial detention time; the judgment did not specify which conviction carried the fine and special parole.
On appeal, the People conceded the two offenses were based on one singular act, triggering the issue under Section 104 of Title 14 regarding punishment for the same act under multiple statutes.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for possession with intent to distribute	McIntosh possessed marijuana with intent to distribute.	McIntosh lacked sufficient evidence of intent to distribute and claimed he intended to turn it over to supervisors.	Sufficient evidence supported intent to distribute.
Omission of lesser included offense instruction	Trial court should have instructed on simple possession as a lesser included offense.	No requirement to instruct absent timely request; plain error if any.	No plain error; no reasonable ground for simple possession verdict given the evidence.
Validity of Section 666 and vagueness/standing	Section 666 is valid and not unconstitutionally vague; McIntosh challenges vagueness and standing.	McIntosh lacks standing to challenge vagueness and contends Section 666 could be vague as applied to him.	Section 666 not vague as applied; McIntosh lacks standing to challenge vagueness.
Section 104 double jeopardy issue and remand procedure	McIntosh was convicted of two offenses for a single act; custodial sentence should be addressed under Section 104.	There is a need to decide which conviction to stay to avoid punishing for the same act twice.	Remand to decide which conviction to stay; if the active conviction is reversed, stay/dismiss the other accordingly.

United States v. Lacy, 446 F.3d 448 (3d Cir. 2006) (elements of possession with intent to distribute)
Johnson v. United States, 302 F.3d 139 (3d Cir. 2002) (circumstantial evidence can support intent to distribute)
Durham v. United States, 743 A.2d 196 (D.C. 1999) (distribution to another person qualifies as unlawful distribution)
Bradley v. State, 665 S.E.2d 428 (Ga. App. 2008) (jury may infer distribution from intent and circumstances)
State v. Anderson, 626 N.W.2d 627 (Neb. Ct. App. 2001) (analysis of related statutes with differing penalties)
Ferguson v. United States, 623 F.3d 627 (8th Cir. 2010) (serious problem of drugs in prison supports deterrence rationale)
Rodriguez, 961 F.2d 1089 (3d Cir. 1992) (quantity can support an inference of distribution)
Miknevich, 638 F.3d 178 (3d Cir. 2011) (Eighth Amendment proportionality review guide)