Hypothetically speaking, suppose you are in college and your friend calls you up and says, “hey man, a couple of my friends and I are going to be hanging out tonight and we’d like to smoke a little weed, would you mind getting some for us?” Suppose further that you actually do this. Then when you show up at your friend’s place and you give him the marijuana that you just bought for him, it turns out that one your friend’s friends is an under cover police officer and he places everyone under arrest, including you. In fact, not only are you under arrest, but you are charged with selling the marijuana. Are you guilty? Under those facts, you are probably not guilty in New York of selling the marijuana.
The reason that is true is because New York has a very progressive defense entitled “agency.” Basically, if you are involved in a transaction for illegal drugs, you are not guilty of selling the drugs if the government fails to prove beyond a reasonable doubt that you were merely acting as an agent of the buyer in that transaction. In other words, your involvement in that transaction is not that of a seller, but rather as someone who is working for the buyer to purchase the illegal drugs. In that context, you would still be guilty of possessing the illegal drugs and you may even be guilty of criminal facilitation. But you are not guilty of selling the drugs. So if person A goes up to person B and gives him some money and asks him if he can go get some drugs, then person B goes and gets the drugs and gives them to person A, then person B is an agent of the buyer, not a seller.
This defense usually comes up in the context of a “buy and bust” operation. I have previously written how these operations work and have criticized why they have little effect on targeting actual drug dealers. But basically, an under cover cop finds a person who looks like a drug addict and gives him money and asks him to go get him drugs. The addict then gets the drugs and keeps some for himself as consideration for his role. Other cops then come and arrest the addict and accuse him of being a dealer. He is then indicted and at trial, his lawyer asserts that he was not a dealer, but was an agent of the buyer. Whether his lawyer ultimately prevails depends on how the jurors evaluate his role. The factors that a jury must assess in determining whether a person is an agent of the buyer are as follows:
- prior to the transaction, whether the arrested person and the buyer (here the under cover) were known to each other and had a relationship,
- whether the buyer, and not the person arrested, first suggested the transaction,
- whether the person arrested did nothing to promote the transaction,
- whether the person didn’t receive any benefit from the sale and any benefit that was received was incidental to it,
- whether someone other than the person arrested controlled the transaction, and
- whether the person did not at any point possess the substance with the intent to sell it.
This is not a dispositive list so jurors can also look at other factors. However, these are the factors that jurors are instructed to focus on in determining whether a person has a viable agency defense. Factors that suggest the person was not an agent include the buyer and the arrestee didn’t know each other, the arrestee touted the quality of the drug, etc.
So in the first hypo mentioned at the beginning of this post, it is likely that an agency defense would prevail because the college marijuana buyer knew the arrestee, he brought up the transaction, and there’s no evidence that the arrestee benefitted from the transaction. He was literally doing a favor for a friend. However, with the under cover hypo, it is a little more tricky because the under cover and the arrestee didn’t know each other prior to the deal and the only reason the addict helped the under cover was because he wanted some of the drugs. Whether he prevails ultimately will depend on the jury.
Agency is not a defense in many jurisdictions and it certainly isn’t one under federal law. And a successful defense may still lead to a conviction for possessing the drugs. However, the defense can and sometimes does work in contexts where the details of the transaction are murky.