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Defending a Federal Narcotics Case 

In order to properly defend a federal narcotics indictment, you and your attorney must have an intimate knowledge of the statute that you are being tried under.  Most federal narcotics crimes are prosecuted under The Controlled Substance Act, 21 U.S.C. § 841. 

The Controlled Substance Act 

The Controlled Substance Act (“CSA”) establishes federal drug policy in the United States.  It regulates the manufacture, importation, possession, use, and distribution of certain substances.  Below, we will take an in-depth look into the exact words used in the statute and their meaning. 

21 U.S.C. § 841 – Prohibited acts A

Federal narcotics crimes are most commonly prosecuted under 21 U.S.C. § 841. 

Controlled Substances – 21 U.S.C. § 841(a)(1) 

Section (a)(1) of this statute makes it unlawful to: 

  1. Manufacture; 
  2. Distributeor  
  3. Dispenseor  
  4. Possess 

With intent to: 

  1. Manufacture; 
  2. Distribute; or 
  3. Dispense 

controlled substance. 

Counterfeit Substances – 21 U.S.C. § 841(a)(2) 

Section (a)(2) of this statute makes it unlawful to: 

  1. Create; 
  2. Distribute; or 
  3. Dispense; or 
  4. Possess 

With intent to: 

  1. Distribute; or 
  2. Dispense 

counterfeit substance. 

What’s the Definition of “Manufacture?” – 21 U.S.C. § 802(15)

According to 21 U.S.C. § 802(15), the term “manufacture” means the: 

  1. Production;
  2. Preparation; 
  3. Propagation; 
  4. Compounding; or 
  5. Processing. 

Of a drug or other substance, either directly or indirectly.  This includes: 

  1. Extraction from substances of natural origin; or  
  2. Independently by means of chemical synthesis; or 
  3. By a combination of extraction and chemical synthesis. 

This also includes any: 

  1. Packaging or repackaging of such substance; or 
  2. Labeling or relabeling of its container. 


This term does not include the: 

  1. Preparation; 
  2. Compounding; 
  3. Packaging; or 
  4. Labeling 

Of a drug or other substance in conformity with applicable State or local law by a practitioner dispensing such drug or substance in the course of his professional practice.  The term “manufacturer” means a person who manufactures a drug or other substance. 

What’s the Definition of “Distribute?” – 21 U.S.C. § 802(11) 

According to 21 U.S.C. § 802(11), the term “distribute” means to: 

  1. Deliver (other than by administering or dispensing)… 

A controlled substance or a listed chemical.  The term “distributor” means a person who delivers a controlled substance or listed chemical. 

What’s the Definition of “Dispense?” – 21 U.S.C. § 802(10) 

According to 21 U.S.C. § 802(11), the term “dispense” means to: 

  1. Deliver 

A controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of a practitioner. This includes: 

  1. Prescribing; and 
  2. Administering 

Of a controlled substance.  This also includes the: 

  1. Packaging; 
  2. Labeling; or  
  3. Compounding 

Necessary to prepare the substance for such delivery.  The term “dispenser” means a practitioner who delivers a controlled substance to an ultimate user or research subject. 

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Penalties for Violating 21 U.S.C. § 841 

The typical maximum on a federal drug case is 20 years imprisonment.  However, the Controlled Substance Act does have a “death penalty enhancement provision.” 

CSA “Death Penalty Enhancement Provision”

If there is serious physical injury or death that occurs as a result of the drug distribution the minimum is 20 years and the maximum is imprisonment for life. This additional penalty is commonly called the death enhancement period.” 

This death penalty enhancement also results in much higher federal guidelinesTherefore, one of the ways that defense attorneys are able to put the client in a better position – in regard to plea offers – is to try to defeat this death enhancement. 

The Blanch Law Firm Partner, Elena Fast, on Death Penalty Enhancements: 

What Must the Prosecution Prove in Order for the Death Penalty Enhancement to Apply? 

What the prosecution must prove in order for the death enhancement to apply is that the drugs that were distributed by the defendant were an independent cause of a victim’s death. 

For example, if someone is charged with distribution of heroin and an individual dies as a result of consuming that distributed heroin. 

What if the Heroin is the Only Thing in the Decedent’s System? 

If the heroin is the only thing in the decedents (victim’s) system when prosecutors are analyzing the decedent’s toxicology reportthe death enhancement would apply because the heroin would be deemed an independently sufficient cause of that individual’s death. 

What if there are Multiple Substances in the Decedent’s System? 

On the other hand, using that same example, if there are multiple substances in the decedent’s system – let’s say heroinxanax, and a high level of alcohol – in that situation, it becomes much harder for the government to prove that it was the heroin that led to somebody’s death rather than the combination of these substances. 

How Do You Effectively Represent a Defendant Facing a Death Penalty Enhancement? 

What defense attorneys do in these types of cases is try to get as much evidence as they can about the decedent’s death certificate, the autopsy reportand the blood work of the deceased individual in order to determine whether or not the specific drug that their client is charged with distributing is: 

(1) the only thing in the decedent’s systemor  

(2) ithere a combination of substances in the decedent’s systemor  

(3) another explanation for the cause of death. 

What if the Deceased Individual Had a Pre-Existing Condition?  

In some casesthe decedents may have a pre-existing condition which may have made them more vulnerable or susceptible to health or medical complications. 

For example, if the decedent had a heart defect it may be found that the dose of the heroin that appears in the decedents system is so low that, absent the decedent’s heart defect, the heroine alone would be insufficient to cause the individual’s death.   

In that situationthe death enhancement cannot be proved at trial because a jury is unlikely to find beyond a reasonable doubt that it was the heroin that was the cause of death. 

If that were to happen, a defense attorney would be in a good position to negotiate a plea with the prosecutor without thdeath enhancement. 

Supreme Court Opinion on Penalty Enhancements Under the Controlled Substance Act 

Burrage v. United States, 571 U.S. __ (2014) 

Burrage is the Supreme Court case which held that a defendant cannot be liable for penalty enhancement under the penalty enhancement provision of the Controlled Substance Act… UNLESS the use is a “but-for cause” of the death or injury.

What is a “But-For Cause?” 

The “but-for” test is a test is used in criminal law to determine “actual causation.” 

The test asks, “but for the existence of A, would B have occurred?” 

If the answer is yes, then A is the “actual cause” of B.

Opinion of the Court: 

The opinion of the Court was written by Justice Scalia. 

This decision was based on the specific text found in 21 U.S.C. § 841(b), the federal law requiring heightened sentences for drug sales causing death or serious bodily injury.

According to the Court, 21 U.S.C. § 841(b) requires that the death “results from” the sale of illegal drugs.  In this case, since the decedent was found to have multiple drugs in his system, the heroin sold by the defendant could not be considered an independently sufficient cause of death.

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Federal drug-related charges may involve complex legal issues, but our federal drug lawyers are here to help defend those individuals facing charges or under investigation by the DOJ, FBI and/or DEA.

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