The Drug Enforcement Agency (DEA) was created in 1973 in an effort to end interagency law enforcement rivalries, provide a focal point for coordinating federal drug enforcement efforts, place a single administrator in charge of federal drug law enforcement, and establish the DEA as a superagency to provide the momentum needed to coordinate all federal efforts related to drug enforcement. Like both the Vietnam and Iraq wars, the war on drugs has lasted longer and cost more than expected. More than thirty years after beginning, the failed drug war is still raging on. Federal drug crime investigations and prosecutions are often very are complex and always carry the possibility of severe punishments. It is imperative that that anyone charged with a federal drug crime have an aggressive experienced lawyer who is not afraid to truly fight the case. We honestly believe that too many people faced with federal drug charges timidly choose not to fight questionable cases. The legal professionals at the Law Offices of Roderick C. White are not afraid to aggressively fight any case.

Federal drug laws are enormously complex and are located in Title 21 of the United States Code where the numerous various illegal drugs are categorized into one of five “schedules.” The five schedules have the following characteristics:

Schedule I

• The drug or other substance has a high potential for abuse.
• The drug or other substance has no currently accepted medical use in treatment in the United States.
• There is a lack of accepted safety for use of the drug or other substance under medical supervision.
• Examples of Schedule I substances include heroin, lysergic acid diethylamide (LSD), marijuana, ecstasy, and methaqualone.

Schedule II

• The drug or other substance has a high potential for abuse.
• The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
• Abuse of the drug or other substance may lead to severe psychological or physical dependence.
• Examples of Schedule II substances include morphine, phencyclidine (PCP), cocaine, methadone, and methamphetamine.

Schedule III

• The drug or other substance has less potential for abuse than the drugs or other substances in schedules I and II.
• The drug or other substance has a currently accepted medical use in treatment in the United States.
• Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.
• Anabolic steroids, codeine and hydrocodone with aspirin or Tylenol, and some barbiturates are examples of Schedule III substances.

Schedule IV

• The drug or other substance has a low potential for abuse relative to the drugs or other substances in Schedule III.
• The drug or other substance has a currently accepted medical use in treatment in the United States.
• Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in Schedule III.
• Examples of drugs included in schedule IV are Darvon, Talwin, Equanil, Valium, and Xanax.

Schedule V

• The drug or other substance has a low potential for abuse relative to the drugs or other substances in Schedule IV.
• The drug or other substance has a currently accepted medical use in treatment in the United States.
• Abuse of the drug or other substances may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in Schedule IV.
• Cough medicines with codeine are examples of Schedule V drugs.

Federal drug crimes are generally characterized into the four categories:

1. DRUG POSSESSION 21 U.S.C. § 844 & 841 (with intent to distribute or mere possession)
2. DRUG CONSPIRACY 21 U.S.C. § 846
3. DRUG IMPORTATION 21 U.S.C. § 952(a)
4. DRUG MANUFACTURING 21 U.S.C. § 856

1. DRUG POSSESSION 21 U.S.C. §§ 841 & 844

21 U.S.C. § 844 makes it is a crime for a person to knowingly or intentionally possess a controlled substance. Mere possession is punished by imprisonment for not more than 1 year, a fine of at least $1,000, or both.

21 U.S.C. § 841 criminalizes what is typically known as “possession with intent to distribute,” while section 844, deals only with “mere possession.” Possession with intent to distribute is the most common federal drug crime. 18 U.S.C. § 841(a)(1) makes it a crime for anyone to knowingly or intentionally possess a controlled substance with intent to distribute it. Essentially, the Government must prove the following beyond a reasonable doubt:

• that the individual charged knowingly possessed the controlled substance;
• that the substance was in fact a controlled substance;
• that the individual charged actually possessed the substance with the intent to distribute it; and
• the alleged quantity of the controlled substance.

To “possess with intent to distribute” simply means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction. Possession may be either actual or constructive. A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it. Possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.

The word “knowingly,” means that the act was done voluntarily and intentionally, not because of mistake or accident. Knowledge may be implied if a person deliberately closed his eyes to what would otherwise have been obvious to him. Knowledge cannot be implied merely by demonstrating negligence, carelessness, or foolishness.

There are four ranges of punishment for a drug crime depending on what schedule the drug belongs to, and the quantity of the substance. Furthermore, if any deaths occur or any firearms are present during the drug scheme, the sentence can be enhanced. The four ranges for punishment are:

• 10 years-life (20 to life, if death or serious injury results from the use of the substance, or if the defendant has a prior final felony drug conviction; life if death or serious bodily injury occurs from the use of such substance, and the defendant has a prior final felony conviction), a fine of up to $4 million (up to $8 million if the defendant has a prior final felony conviction), or both. If the defendant has two prior final felony drug convictions, the defendant will be sentenced to mandatory life imprisonment.
• 5-40 years (20 to life if death or serious bodily injury results from the use of the substance; 10-life if the defendant has a prior final felony drug conviction, and mandatory life in such circumstances if death or serious bodily injury occurs), a fine of up to $2 million (up to $4 million if the defendant has a prior final felony conviction), or both.
• 0-20 years (20 to life if death or serious bodily injury results from the use of the substance; 0-30 if the defendant has a prior final felony drug conviction), a fine of up to $1 million (up to $2 million if the defendant has prior final felony drug conviction), or both.
• 0-5 years (0-10 if the defendant has a prior final felony drug conviction), a fine of up to $250,000 (up to $500,000 if the defendant has a prior final felony drug conviction), or both.

2. DRUG CONSPIRACY 21 U.S.C. § 846

21 U.S.C. § 846 makes it a federal crime for any person to attempt to or conspire to commit any federal drug offense. Violations will be punished in the same manner as if the individual had actually committed the offense. For a more in depth discussion of conspiracy, please visit our Conspiracy page. Furthermore, federal prosecutors are obligated to bring charges on “the most serious offense that is consistent with the nature of the defendant’s conduct. This means that given the choice between seeking a conspiracy indictment for drug trafficking, federal prosecutors will choose 21 U.S.C. § 846 rather than 18 U.S.C. § 371 (the more general federal criminal conspiracy statute) because the penalties are steeper, and because it is easier to prove a drug conspiracy rather than a section 371 conspiracy. Unlike under the general conspiracy statute, 18 U.S.C. § 371, the government need not prove an overt act by the defendants in furtherance of a drug conspiracy.

In order to convict for a drug conspiracy the Government must prove each of the following beyond a reasonable doubt:

• That two or more persons, directly or indirectly, reached an agreement to violate a federal controlled substance law;
• That the person charged knew of the unlawful purpose of the agreement;
• That the person charged joined in the agreement willfully, that is, with the intent to further its unlawful purpose; and
• That the overall scope of the conspiracy involved at least the alleged amount of the controlled substance.

A “conspiracy” is an agreement between two or more persons to join together to accomplish some unlawful purpose. It is a kind of “partnership in crime” in which each member becomes the agent of every other member.

A person may become a member of a conspiracy without knowing all the details of the unlawful scheme or the identities of all the other alleged conspirators. It is enough that the Government prove that the person charged understood the unlawful nature of the plan or scheme and knowingly and intentionally joined in that plan or scheme on at least one occasion, that is sufficient to convict him for conspiracy even though the defendant had not participated before and even though the defendant played only a minor part.

The Government does not have to prove that the alleged conspirators entered into any formal agreement, or that they directly stated between themselves all the details of the scheme. Similarly, the government need not prove that all of the details of the scheme alleged were actually agreed upon or carried out. Nor must it prove that all of the persons alleged to have been members of the conspiracy were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives.

However, mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator.

Nevertheless, the Government must only prove that the person charged conspired to possess with intent to distribute some controlled substance, but need not prove that the defendant knew which particular controlled substance was involved.

An individual convicted in a federal drug conspiracy can be punished in the same manner as if the offense had actually been completed. For the punishment of drug possession offenses, please look at our Drug Possession discussion above.

3. DRUG IMPORTATION 21 U.S.C. § 952(a)

Under 21 U.S.C. § 952(a) it is a crime for a person to import into the United States any controlled substance in schedule I or II, or any narcotic drug in schedules III, IV, or V. Essentially, the government must prove to following:

• That the substance alleged is actually a controlled substance within the meaning of the law;
• That the person charged brought a controlled substance into the United States from a place outside the United States;
• That the person charged knew the substance he was bringing into the United States was a controlled substance;
• That the defendant knew that the controlled substance would enter the United States; and
• The alleged quantity of the controlled substance.

The word “knew” implies that the person charged must not have accidentally or mistakenly brought the controlled substance in to the United States. Knowledge may sometimes be implied if a person deliberately closed his eyes to what would otherwise have been obvious to him. Knowledge cannot be implied merely by demonstrating negligence, carelessness, or foolishness.

Violations of section 952 is subject to the penalties found in 21 U.S.C. § 960(b). The list of penalties is long and complicated, and it depends on the amount and type of the drugs that the defendant possesses. For more information on penalties for drug possession, please visit our Drug Possession page.

4. DRUG MANUFACTURING 21 U.S.C. § 856

21 U.S.C. § 856 makes it a crime for anyone to knowingly open or maintain any place for the purpose of manufacturing, distributing, or using any controlled substance. Any person who violates this section can be sentenced to a term of imprisonment of not more than 20 years or a fine of not more than $500,000, or both, or a fine of $2,000,000 for a person other than an individual.

Maintaining a place means that over a period of time, the defendant directed the activities of and the people in the place. The government is not required to prove that the drug activity was the primary purpose of defendant’s opening or maintaining a place, but instead must prove that drug activity was a significant reason why defendant opened or maintained the place.

21 U.S.C. § 856 is entitled “Establishment of Manufacturing Operations” but has been more appropriately dubbed the “crack house law” because it has historically been used to prosecute owners and operators of locations where crack routinely used and sold. More recently, section 856 has been used to prosecute nightclub owners or single-event activities promoters such as Raves.