Distribution Charges for Giving Drugs Away.

What does the federal law say about the act of giving drugs away?

Federal law prohibits knowingly or intentionally distributing controlled substances under 21 U.S.C. § 841. While the term “distribution” is most often used to refer to transactions involving payment, federal law recognizes the potential harm of transactions involving illegal drugs of any kind, regardless of compensation. When prosecutors are seeking to establish distribution, the payment side of the transaction does not need to be a factor. For example, a distributor can be charged with distributing drugs without selling them to the recipient.

What charges and penalties can drug distributors face under federal law?

As a general matter, federal drug distribution charges are felonies. While distribution charges under 21 U.S.C. § 841 are generally categorized as felonies, the specific level of the offense depends on factors such as the governing law, the quantity of substances involved, the recipient’s age, and the transfer’s circumstances. Distribution offenses under the Controlled Substances Act are federal felonies with penalties that vary according to the substance, quantity, and applicable subsection, and a drug distributor can face mandatory minimum prison time if they distribute a larger quantity of drugs.

What constitutes the act of distributing drugs in Illinois?

Under Illinois law, the term “distribute” takes on a similar meaning. To “distribute” a controlled substance is defined as “to deliver a controlled substance,” but this excludes “administration” and “dispensing.” While administration and dispensing are often associated with legitimate medical or pharmacy work, Illinois law also specifies that “distribute” includes “the delivery of a controlled substance” (720 ILCS 570/102(r)). Because this definition includes “any person,” a drug distributor can still be held criminally liable even if they do not receive compensation for the drug transfer.

Can drug distributors be charged for one-sided transfers under Illinois law?

Because Illinois law defines delivery as the actual, constructive, or attempted transfer of possession of a controlled substance, with or without consideration, a distributor cannot claim that the law does not cover one-sided transfers. Illinois law recognizes that one-sided transfers are just as likely to occur as sales, and prosecutors can pursue distribution charges even if the transfer involved no payment or exchange of goods.

How can prosecutors infer intent when no sale occurred?

Can distributing be charged under federal law without evidence of a sale?

Yes, 21 U.S.C. § 841 prohibits possessing a controlled substance with intent to distribute. Thus, federal prosecutors can pursue charges even if they cannot find evidence of a past or attempted sale.

How do prosecutors prove a distributor’s intent?

To secure a drug distribution conviction, prosecutors must prove intent to distribute beyond a reasonable doubt. In most cases, distributors’ intent cannot be established through direct evidence, such as a confession. Instead, prosecutors build a case through circumstantial evidence. These types of evidence may include:

• Quantity of a controlled substance;
• Packaging materials;
• Sales communications; and,
• Possession of cash.

Can the quantity of a controlled substance prove distribution intent on its own?

While quantity alone can support an inference of distribution intent, it is circumstantial evidence of a distributor’s intent. Therefore, in many drug distribution cases, prosecutors support the inference of intent by citing additional facts such as the presence of packaging materials, sales communications, and/or the possession of cash.

What packaging materials can support an inference of distribution intent?

Drug distribution allegations frequently include references to the defendant’s possession of packaging materials. Items like scales, vacuum sealers, baggies, multiple-package quantities of drugs, and multi-dose units can all be used to infer distribution intent.

Can communications about selling drugs be used to support an inference of distribution intent?

If federal prosecutors obtain a defendant’s phone, they may find texts and emails that refer to selling drugs. These communications can allow prosecutors to infer distribution intent. This includes any communications from the recipient requesting drugs, as well as the distributor’s responses to the request.

Can cash be used to support an inference of distribution intent?

Cash, especially if found in a defendant’s residence or vehicle, can be used to support an inference of distribution intent. In these cases, prosecutors will argue that the cash is evidence of the defendant’s ongoing drug distribution operations. Cash in small denominations is particularly suspect, as it can be an indicator of how the defendant sold the drugs.

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Which state penalties show why the same giveaway can range from a lower-level felony to life imprisonment?

What does New Jersey’s statutory drug sentencing structure look like?

Under the statutes of New Jersey, the degree of a distribution offense varies based on the substance involved, the quantity of the substance, the method of transfer, and other factors. As a result, if a defendant distributes more than five ounces of heroin, the offense will be classified as a first-degree crime. However, if the defendant distributes less than one-half ounce of heroin, the offense is classified as a third-degree crime. Similarly, under current New Jersey law, distributing one ounce or less of marijuana is subject to a written warning for a first offense and is a fourth-degree crime for a second or subsequent offense. Note that New Jersey provides this example to clarify the law’s focus on the nature and quantity of the illicit substances involved in the transaction.

How does Michigan penalize unlawful delivery or manufacture of a controlled substance?

Michigan’s drug sentencing guidelines are also illustrative of why a single “giveaway” can lead to dramatically different consequences in different jurisdictions. For example, under Michigan Compiled Laws § 333.7401, the penalty for the unlawful delivery or manufacture of a controlled substance can vary drastically. For example, if the defendant is convicted of delivering 1,000 grams or more of a mixture containing a Schedule I or II narcotic drug or a specified cocaine-related substance, he or she could face life imprisonment. The defendant could also face a fine of up to $1,000,000, which could impose a crippling financial burden for years to come. In contrast, if the defendant is convicted of delivering 450 grams or more but less than 1,000 grams of a mixture containing a Schedule I or II narcotic drug or a specified cocaine-related substance, the maximum sentence is 30 years’ imprisonment.

As these examples illustrate, when is it most likely that giving drugs away will be charged as a felony distribution offense?

As these examples illustrate, giving drugs away is more likely to be charged as a felony distribution offense when the following circumstances are present:

• The transfer involves a large quantity of a controlled substance;
• The transfer involves a substance with high abuse potential (e.g., a Schedule I or II drug);
• The transfer occurs in a drug-free zone (e.g., near a school, church, or hospital); or,
• The recipient of the controlled substance is a minor.

Why might a giveaway be prosecuted federally, and what federal penalties can follow?

What drugs does the federal law cover?

Federal drug distribution law applies to all controlled substances, which are classified under 21 U.S.C. § 812 as having abuse potential. These substances are placed into five schedules (Schedule I through V), ranging from Schedule I substances with a high abuse potential to Schedule V substances that generally have a limited potential for abuse or addiction.

What are the penalties for a federal drug distribution charge?

If facing a federal drug distribution charge, the specific penalties you could face are described in 21 U.S.C. § 841(b). These penalties vary by drug type and quantity, and they include:

• Mandatory minimum imprisonment
• Fines
• Supervised release

When does the federal government pursue drug distribution charges?

The federal government generally pursues drug distribution charges when the criminal charges involve:

• Interstate conduct
• Crimes committed on federal property
• Drug operations with a large scope
• Investigations conducted by federal agents and prosecutors

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 888 348 8028.