21 U.S.C. § 846 (2005).
Under section 846, any person who attempts or conspires to commit any drug offense will be punished in the same manner as if he had actually committed the offense. US Attorneys are obligated to bring charges on "the most serious offense that is consistent with the nature of the defendant's conduct, and that is likely to result in a sustainable conviction." US Attorney's Manual, Principles of Federal Prosecution; Selecting Charges - Charging Most Serious Offense, 9-27.300 (Aug. 2002) available here. 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 because the penalties are steeper, and because it is easier to prove a drug conspiracy rather than a section 371 conspiracy.
This is because, as described in United States v. Shabani there is no overt act requirement in the drug conspiracy statute.
United States v. Shabani, 513 U.S. 10 (1994).
This case deals with the question of whether section 846, "the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy." Shabani at 11. Unsurprisingly, the Court concluded that it did not. Id. The defendant was charged with conspiracy to distribute cocaine in violation of section 846. Id. The indictment, however, failed to allege the commission of an overt act in furtherance of the conspiracy, which, the defendant argued, was an essential element of the offense. Id. Certiorari was granted to resolve the conflict among the circuits whether proof of an overt act is required. Id. at 12. The Court determined that the language does not require "that an overt act be committed to further the conspiracy, and [it has] not inferred such a requirement from congressional silence in other conspiracy statutes." Id. at 13. Since 18 U.S.C. § 371 "contains an explicit requirement that a conspirator 'do any act to effect the object of the conspiracy' … Congress' silence in [section] 846 speaks volumes. After all, the general conspiracy statute preceded and presumably provided the framework for the more specific drug conspiracy statute." Id. at 14.
As noted, the a defendant can be punished in the exact same way as an actual completion of the offense. For the punishment of drug possession offenses, please look at our Drug Possession page.
Case Law Dealing With Drug Conspiracies
United States v. Turner, 319 F.3d 716 (5th Cir. 2003).
Turner is an excellent case for describing what the elements of a drug conspiracy case are. To prove that a defendant is guilty of conspiring to distribute illegal drugs, "the Government must prove beyond a reasonable doubt":
- the existence of an agreement between two or more persons to violate narcotics laws,
- knowledge of the conspiracy and intent to join it, and
- voluntary participation in the conspiracy. Turner at 721.
As we noted, the Government does not need to prove an overt act was committed, but the court does point out that "[m]ere presence or association alone" is not sufficient to prove participation in a conspiracy." Id. That said "a court may consider a defendant's presence or association with a conspiracy as evidence of participation along with other circumstantial evidence." Id.
21 U.S.C. § 952 (2005).
- It is a crime under section 952(a) 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. 21 U.S.C. sect; 952(a)
- It is a crime under section 952(b) for a person to import into the United States any nonnarcotic controlled substance found in schedules III, IV, or V.
For the delineation of the drug schedules, please visit our Drug Crimes page.
- The importation ban found in subsection (a) does not apply to crude opium, poppy straw, and coca leaves in amounts that the Attorney General finds to be necessary to provide for medical, scientific, or other legitimate purposes. 21 U.S.C. § 952(a)(1). Furthermore, controlled substances in schedule I and II, as well as narcotic drugs in schedules III, IV, and V, in amounts approved by the Attorney General, are not subject to the ban. Id. § 952(a)(2). The Attorney General must devise regulations for the importation of these drugs.
- The importation ban found in subsection (b) does not apply to nonnarcotic substances that are imported for medical, scientific, or other legitimate uses, and is imported pursuant regulations promulgated by the Attorney General.
Any person who violates section 952 is subject to the penalties found in 21 § 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.
Case Law Dealing With Drug Importation
As a primary consideration, it is important to note that the importation of drugs does not need to be done for distribution of commercial purpose. In one case, the defendant argued, and the government agreed, that he entered the country possessing approximately 14 grams of cocaine intended for his personal use. United States v. Probert, 737 F. Supp. 1006, 1006-07 (E.D. Mich. 1989). The court would not dismiss the indictment because "The offense of importation of a controlled substance in the United States requires proof (1) that the substance was imported; (2) that it was imported knowingly and willfully; and (3) that the defendant willfully associated himself with the importation venture." Id. at 1008. However, the court notes that "[m]ere possession of a controlled substance that is of foreign origin, is insufficient to establish importation. A critical element of the offense is that the defendant import the substance or cause it to be imported." Id.
However, the definition of "import" means "with respect to any article, the bringing in or introduction of such an article into any area of the United States. Therefore, it is unlawful to bring into any Customs territory of the United States from any place outside the United States a controlled substance." Id.
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