One of the most common federal charges against criminals is federal conspiracy with intent to distribute drugs, which is covered in 21 USC 841 and 21 USC 846 of the Federal Code. If you are facing these serious charges, it is very important for you to understand the laws underlying this statute.
You are facing serious criminal penalties, which will depend upon the drugs involved, your criminal record, and whether you were in a school zone when arrested. You also could be facing a mandatory minimum sentence of up to 10 years.
What the Government Must Prove
To be convicted of drug possession with intent to distribute, the government has to prove the two following things beyond a reasonable doubt:
- That you intended to commit drug possession with intent to distribute
- You did an act that was a major step towards doing that crime
This federal crime requires that you intended to engage in criminal behavior and the performance of criminal acts which make up a substantial step towards committing the offense.
A substantial step has to be something more than just preparing to do the crime. However, it can be less than the last act that was needed before you actually committed the crime of drug possession with the intent to distribute. For the behavior to be able to be punished as an attempt, it has to be essential to the commission of the crime and be of a nature that a reasonable person would conclude beyond reasonable doubt that it was done with a plan to violate the law.
So, for the federal government to prove that you are guilty of conspiracy of attempted drug possession with intent to distribute, it must prove that you engaged in several preliminary steps that make the plan a criminal one.
YouTube Special Feature
Federal prosecutors love to bring conspiracy charges. Yet there are a number of misunderstandings about exactly what federal conspiracy charges require. In this short video, criminal defense attorney Matt Kaiser provides an overview of how federal conspiracy charges work.
Controlled Substances Under Federal Statute
The phrase controlled substances refers to drugs that are included in Schedules I, I, III, IV or V, which is found in part B of 21 USC 812. This term does not refer to spirits or tobacco.
The government does not have to prove the actual quantity of the controlled substance that you possessed. The government has to prove beyond a reasonable doubt that a measurable quantity of the controlled substance was possessed by you.
The government does not need to prove that you knew the exact nature of the drug that was in your possession. However, the government must prove that you did have knowledge that some sort of illegal drug was in your possession.
What Does ‘Possess’ Mean Under Federal Law?
The term ‘to possess’ means to have control over something at a given period of time. Under federal law, there are several types of possession: constructive, sole and joint.
Under the law, possession is considered actual when you knowingly had physical control over something. Possession is known as constructive when you did not have direct physical control over the drug, but you can control it and intend to do so, often through another suspect.
Possession can be exercised by one person alone, while is known as sole possession, or it can be exercised in joint fashion, when shared by two or more suspects.
To possess a drug with intent to distribute means that you possessed it with the intent to deliver or to transfer the possession of the drug to another person.
What is Your Defense?
Your lawyer will look at the circumstances of the arrest, and if the evidence was obtained illegally. Your attorney also will look at why you were charged with possession with intent to distribute at all. In some cases, police made incorrect assumptions, and a good attorney may be able to get your charges reduced or dismissed.