Drug Possession with Intent to Distribute- Federal


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Federal Drug Possession with Intent to Distribute- 21 U.S.C. 841

To be convicted of the federal drug crime of drug possession with the intent to distribute, the government must prove the following three (3) essential elements beyond a reasonable doubt: (1) the Accused possessed a controlled substance; (2) the Accused knew that this substance was a controlled substance; and (3) the Accused intended to distribute this controlled substance.

The term “controlled substance” means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of title 21 U.S.C. 812. The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1954.

The term “narcotic drug” means any of the following whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:

(A) Opium, opiates, derivatives of opium and opiates …

(B) A compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates.

(C) A substance (and any compound, manufacture, salt, derivative, or preparation thereof) which is chemically identical with any of the substances referred to in clause (A) or (B).

(D) Cocaine, its salts, optical and geometric isomers, and salts of isomers.

(F) Any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subparagraphs (A) through (E).

The government need not prove the actual amount of the controlled substance.  The government must prove beyond a reasonable doubt, however, that a measurable amount of the controlled substance was, in fact, knowingly and intentionally possessed by the Accused.

It is also not necessary for the government to prove that the Accused knew the precise nature of the controlled substance or narcotic drug that was possessed. The government must prove beyond a reasonable doubt, however, that Accused did know that some type of controlled substance or narcotic drug was possessed.

The term “to possess” means to exercise control or authority over something at a given time. There are several types of possession—constructive, sole, and joint.

“Possession” is considered to be actual when a person knowingly has direct physical control or authority over something. The “possession” is called constructive when a person does not have direct physical control over something, but can knowingly control it and intends to control it, sometimes through another person.

“Possession” may be knowingly exercised by one person exclusively, which is called sole possession or may be knowingly exercised jointly, when it is shared by two or more persons.
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.

In attempting to prove the intent of any person, the government may show, among other things, the purity of the controlled substance, the quantity of the controlled substance, the presence of equipment used in the processing or sale of controlled substances, and large amounts of cash or weapons.

A physician or pharmacist may not be convicted when he or she dispenses controlled substances in good faith to patients in the regular course of professional practice. Only the lawful acts of a physician or pharmacist, however, are exempted from prosecution under the law.

A person is entrapped when that person has no previous intent or disposition or willingness to commit the crime charged and is induced or persuaded by law enforcement officers or by their agents to commit the offense. 

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