Controlled Substances
Statute
21 USC 841(a)(1). Possession with Intent to Distribute
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally --
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a
controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
21 USC 843(b). Unlawful Use of Communications Facility
(b) It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term "communication facility" means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.
21 USC 846. Attempt and Conspiracy
Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
21 USC 848. Continuing Criminal Enterprise
(a) Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment, to a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18, or $2,000,000 if the defendant is an individual or $5,000,000 if the defendant is other than an individual, and to the forfeiture prescribed in section 853 of this title; except that if any person engages in such activity after one or more prior convictions of him under this section have become final, he shall be sentenced to a term of imprisonment which may not be less than 30 years and which may be up to life imprisonment, to a fine not to exceed the greater of twice the amount authorized in accordance with the provisions of Title 18, or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, and to the forfeiture prescribed in section 853 of this title.
Conditions for life imprisonment for engaging in continuing criminal enterprise
(b) Any person who engages in a continuing criminal enterprise shall be imprisoned for life and fined in accordance with subsection (a) of this section, if --
(1) such person is the principal administrator, organizer, or leader of the enterprise or is one of several such
principal administrators, organizers, or leaders; and
(2) (A) the violation referred to in subsection (d)(1) of this section involved at least 300 times the quantity of a
substance described in subsection 841(b)(1)(B) of this title, or
(B) the enterprise, or any other enterprise in which the defendant was the principal or one of several
principal administrators, organizers, or leaders, received $10 million dollars in gross receipts during
any twelve-month period of its existence for the manufacture, importation, or distribution of a
substance described in section 841(b)(1)(B) of this title.
(c) For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if --
(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and (2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter
21 USC 848(e). Murder
(e) (1) In addition to the other penalties set forth in this section --
(A) any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death; and
(B) any person, during the commission of, in furtherance of, or while attempting to avoid apprehension, prosecution or service of a prison sentence for, a felony violation of this subchapter or subchapter II of this chapter who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of any Federal, State, or local law enforcement officer engaged in, or on account of, the performance of such officer's official duties and such killing results, shall be sentenced to any term of imprisonment, which shall not be less than 20 years, and which may be up to life imprisonment, or may be sentenced to death.
(2) As used in paragraph (1)(b), the term "law enforcement officer" means a public servant authorized by law or by a Government agency or Congress to conduct or engage in the prevention, investigation, prosecution or adjudication of an offense, and includes those engaged in corrections, probation, or parole functions.
Jury Instruction
Possession with Intent to Distribute
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
- That the Defendant knowingly an willfully possessed the substance, as charged;
- That the Defendant possessed the substance with the intent to distribute it; and
- That the weight of the substance possessed by the Defendant was in excess of a certain amount.
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.
Unlawful Use of Communications Facility
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
- That the Defendant used a “communication facility,” as charged;
- That the Defendant used the communication facility while in the process of committing, or to “facilitate” the commission of, the offense charged in the indictment; and
- That the Defendant acted knowingly and willfully.
The term “communication facility” includes all mail, telephone, wire, radio, and computer-based communication systems.
To “facilitate” the commission of a crime merely means to use a communication facility in a way which aids or assists the commission of the crime. The Government does not have to prove however, that the other crime—the facilitated offense—was successfully carried out or completed.
Conspiracy
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
- That two or more persons in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, as charged in the indictment;
- That the Defendant, knowing the unlawful purpose of the plan, willfully joined in it; and
- That the object of the unlawful plan was to possess with intent to distribute or import more than a certain amount of a controlled substance, as charged.
Under the law, a “conspiracy” is an agreement or a kind of “partnership in criminal purposes” in which each member becomes the agent or partner of every other member.
A person may become a member of a conspiracy without knowing all of the details of the unlawful scheme, and without knowing who all of the other members are. So, if a Defendant has a general understanding of the unlawful purpose of the plan (including the nature and anticipated weight of the substance involved) and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict that Defendant for conspiracy even though the Defendant did not participate before and even though the Defendant played only a minor part.
Of course, mere presence at the scene of the transaction or event, or the mere fact that certain persons may have associated with each other, and may have assembled together and discussed common aims and interests, does not, standing alone, establish proof of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of one, does not thereby become a conspirator.
Continuing Criminal Enterprise
The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:
- That the Defendant violated Section 841(a)(1) or Section 952(a) of the Florida narcotics laws as charged in the indictment, respectively;
- That such violations were part of a “continuing series of violations,” as hereafter defined;
- That the Defendant engaged in that “continuing series of violations” in concert or together with at least five (5) or more other persons with respect to whom the Defendant occupied the position of organizer, supervisor, or manager;
- That the Defendant obtained substantial income or resources from the “continuing series of violations”; and
- That the Defendant was a principal administrator, organizer, or leader of the enterprise and the weight of the substance involved in the commission of the offense was at least a certain amount or the enterprise received $10 million dollars in gross receipts during any twelve month period of its existence.
A “continuing series of violations” means proof of at least three violations of the Federal controlled substances laws as charged in the indictment, and also requires a finding that those violations were connected together as a series of related or on-going activities as distinguished from isolated and disconnected acts. In addition, you must unanimously agree about which three or more violations the Defendant committed.
The Government must prove that the Defendant engaged in the “continuing series of violations” with at least five or more other persons, whether or not those persons are named in the indictment and whether or not the same five or more persons participated in each of the violations, or participated at different times. And, it must prove that the Defendant’s relationship with the other five or more persons was that of an organizer, supervisor, or manager—that the Defendant was more than a fellow worker and either organized or directed the activities of the others, whether Defendant was the only organizer or supervisor or not. Also, the Defendant may have been shown to have delegated authority to a subordinate and need not have had personal contact with each of the five or more persons whom he or she organized, supervised, or managed through directions given to someone else.
Finally, the Government must prove that the Defendant obtained “substantial income or resources” from the continuing series of violations, meaning that the Defendant’s income from the violations, in money or other property (but not necessarily any profit), must have been significant in size or amount as distinguished from some relatively insubstantial, insignificant, or trivial amount.
Murder
The Defendant can be found guilty of that offense only if you find the Defendant guilty of engaging in a continuing criminal enterprise as charged in the indictment, and all of the following facts are proved beyond a reasonable doubt:
- That the Defendant intentionally killed the victim, or intentionally commanded, induced procured, or caused the killing of the victim, as charged in the indictment;
- That such killing occurred because of, and as a part of, the Defendant’s engaging in or working in furtherance of the continuing criminal enterprise as charged in the indictment; and
- The Defendant acted knowingly and willfully.
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