Drug Possession- FEDERAL


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Federal Drug Possession- 21 U.S.C 844

To be convicted of the federal drug crime of drug possession, the government must prove the following three (3) essential elements beyond a reasonable doubt: (1) the Accused knowingly and intentionally possessed a controlled substance; (2) at the time of such possession, the Accused knew that this substance was a controlled substance; and (3) the Accused did not possess the controlled substance pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional practice.

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 that was possessed. The government must prove beyond a reasonable doubt, however, that Accused did know that some type of controlled substance was possessed.
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 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.

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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