Title 21 of the US code sections 841 and 846 makes it illegal to possess, possess with the intent to distribute, distribute, or conspire to possess or distribute banned drugs and controlled substances. This blog post will review the basics of possession, intent to distribute, distribution, and conspiracy.
Most federal drug cases involve possession or distribution of large amounts of illegal narcotics. Getting caught with a few ounces of marijuana generally will not result in a federal charge (although it can). Usually, indictments revolve around massive amounts of drugs — in the range of kilograms of cocaine, marijuana, heroin, etc.
Possession with intent to distribute
Prosecutors will seek to prove intent to distribute by showing that the amount of drugs was clearly for more than “personal use.” They will also use testimony from co-conspirators (or others) to prove this charge.
Distribution involves the moving or sale of illegal narcotics to a location or third party. You don’t necessarily need to be caught in the act of transferring a package of drugs from one person to another in order to get charged with distribution or intent to distribute.
According to Title 21 of US Code statute 846, Conspiracy involves an agreement with two or more people to engage in illegal drug-related activities, such as distribution or possession with intent to distribute. There must be at least two people involved (not counting an FBI agent or DEA agent or informant posing as a dealer or criminal partner). In addition, mere planning does not constitute a conspiracy; that is, there must be an actual “overt act” in furtherance of the plan to constitute a conspiracy under the statute.
Conspiracy is often one of the easier charges to prove, as the prosecution does not have to provide as much hard evidence as it does in cases of possession or distribution. Rather, it only needs to be shown that the person charged participated in the scheme or plan to possess or distribute drugs.
Penalties are set forth in part by the U.S. Sentencing Guidelines — which provide judges with benchmarks by which to set terms based on a variety of factors, including:
o Previous criminal history (if any)
o The amount of drugs involved o The depth and breath of the conspiracy o Whether anyone was injured during the commission of a crime
In addition, there are statutory minimums which severely enhance the exposure of those facing federal drug charges. When the guidelines are applied to the statute charging the offense, the statutory minimum will apply unless the guidelines figure is higher than the minimum, in which case the guidelines figure would be the one used.
Defending a Drug Case
A qualified, trial-proven attorney can be immeasurably helpful in terms of structuring your defense and telling you what to do (and, even more importantly, what NOT to do). Federal Criminal Defense is a sub-specialty which requires the services of a seasoned Criminal Defense lawyer familiar with the U.S. Sentencing Guidelines and the Federal Criminal Statues.