Whether proof of possession with intent to distribute requires showing control over drugs beyond mere touching, and whether deportation of a material witness precludes fair trial when government asks jury to disbelieve witness's summary testimony

QUESTIONS PRESENTED FOR REVIEW Martin Moncada, Victor Campos, Karin Castro, and Castro’s daughter walked into the United States on December 23, 2020. The next morning they stood by the highway and flagged down a car. The young man driving the car later dropped them at a roadside park and asked them to get out and wait, promising to return for them. He did. His car was now filled with wrapped bundles. Moncada and Campos rearranged the bundles so the four travelers could wedge themselves back into the car to keep their ride. Down the road, the car was stopped by police. The young man wasn’t quite 18, so the government did not prosecute him for the bundles, which contained marijuana. Instead, it charged Moncada and Campos with possessing marijuana with the intent to distribute it. Moncada told the arresting agents the story of the journey. So did Campos. The government did not charge Castro. They did deport her before she could be interviewed, deposed, or subpoenaed by a defendant. At trial, the government acknowledged through its witnesses that Castro’s story of the journey was in accord with the men’s defense, but it asked the jury to doubt her story that its witnesses had recounted. The jury found the men guilty. This case presents two important questions, a possession question that has now divided the circuits and a question concerning the ii government’s responsibility not to deport a witness it knows has evidence material and favorable to the defense. The issues presented are: 1. Whether, for purposes of the Controlled Substances Act, proof of possession with intent to distribute requires a showing of control over the drugs, rather than mere touching of someone else’s drugs. 2. Whether, when the government has deported a witness who has material evidence favorable to the defendant, that evidence can be deemed cumulative if the government admits a summary of the deported witness’s testimony and then asks the jury to disbelieve that summary.