Federal Drug Manufacturing Laws: 21 USC 841
Since the 1980s, the United States has waged a “war on drugs,” with the principle focus on destroying the commerce of the drug trade. The government seeks to cut off the supply of drugs and money to drug cartels. One of the key aspects of this is to aggressively prosecute manufacturing, distributing, or possessing with intent to manufacture or distribute drugs. This means that if you are arrested for manufacturing drugs in California, not only are you facing criminal charges for violating a number of California laws, you could also potentially face prosecution under federal law.
Federal Laws Prohibiting Manufacturing Controlled Substances
Federal laws prohibiting drug manufacturing are found in Chapter 21 of the U.S. Code, section 841 (21 USC 841). It is a very long and complex law that covers many aspects of the drug trade. It includes crimes for the setting of “boobytraps” on the premises where the drugs are manufactured or stored.1 Because of the length and complexity of the statute, we will restrict this article to the crimes in subsection (a) of the law, which concerns manufacturing a controlled substance, or of a counterfeit substance that the person intended to pass off as a drug.
Under this federal law, it is a crime to knowingly or intentionally:
- Manufacture, distribute, dispense (or possess with intent to manufacture, distribute, or dispense) a controlled substance; or
- Create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.2
“Knowingly or intentionally” refers to your state of mind at the time you acted. Under this law, you must know that you are manufacturing a controlled or counterfeit substance, or you must have intended to do so.
Prosecution for Federal Drug Manufacturing Crimes
Unlike state crimes, which are prosecuted by a district attorney, a United States Attorney prosecutes federal offenses. In order for you to be convicted of violating federal drug manufacturing laws, the U.S. Attorney must prove several elements beyond a reasonable doubt. These elements include:
- You manufactured, distributed, or dispensed a controlled substance (or possessed with intent to manufacture, distribute, or dispense a controlled substance); OR
- You created, distributed, or dispensed a counterfeit substance; or possessed with intent to distribute or dispense, a counterfeit substance; AND
- You did one or more of these acts knowingly or intentionally.
Punishment for Violating 21 USC 841
If you are convicted for a first offense, the penalties you face are dependant upon 1) the type of controlled substance involved, and 2) the quantity of the controlled substance you manufactured. The length of the sentence and the fine you face generally increases with the amount of the controlled substance(s) you manufactured.
If you are convicted of manufacturing controlled substances amounting to the following quantities, you face a maximum sentence of 40 years in federal prison and a fine of up to $5,000,000 as an individual (or $25,000,000 as a group or organization):
(i) Heroin: 100 grams or more
(ii) Cocaine or ecgonine: 500 grams or more
(iii) Cocaine (base): 28 grams or more
(iv) Phencyclidine (PCP): 10 grams or more of phencyclidine (PCP), or 100 grams or more of a mixture or substance containing a detectable amount of phencyclidine (PCP)
(v) Lysergic acid diethylamide (LSD): 1 gram or more
(vi) N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide: 40 grams or more of a mixture or substance containing a detectable amount of or 10 grams or more of a mixture or substance containing a detectable amount of any analogue
(vii) Marijuana: 100 kilograms or more, or 100 or more plants regardless of weight
(viii) Methamphetamine: 5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers
However, if someone dies as a result of the use of these substances, your sentence can be increased to a maximum of life in federal prison.
For increased quantities as listed below, you face an increased sentence of 10 additional years to an additional sentence of life in prison, and fined up to $10,000,000 for individuals ($50,000,000 as a group or organization):
(i) Heroin: 1 kilogram or more
(ii) Cocaine or ecgonine: 5 kilograms or more
(iii) Cocaine (base): 280 grams
(iv) Phencyclidine (PCP): 100 grams or more of phencyclidine (PCP), or 1 kilograms or more of a mixture or substance containing a detectable amount of phencyclidine (PCP)
(v) Lysergic acid diethylamide (LSD): 10 grams or more;
(vi) N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide: 400 grams or more of a mixture or substance containing a detectable amount of or 100 grams or more of a mixture or substance containing a detectable amount of any analogue
(vii) Marijuana: 1,000 kilograms or more, or 1,000 or more plants regardless of weight
(viii) Methamphetamine: 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers
Possible Defenses to Federal Drug Trafficking Charges
You had no knowledge that the drug was a controlled substance
Your knowledge and intent are key components of the charge that you manufactured controlled substances in violation of federal law. For example, if you were employed in a drug manufacturing plant but were under the impression that the drugs were being manufactured for legal pharmaceutical distribution, you should not be convicted of federal drug manufacturing.
Misconduct by law enforcement officers
As with any criminal case, it is important to the prosecution that the police acted according to proper procedure. From the moment you are arrested, you should hire an attorney to review the events leading up to your arrest, and the police’s conduct both during and after your arrest. For example, if the controlled substances were seized without a search warrant, the substances may not be able to be legally used as evidence in your case. A skilled attorney may be able to have your case dismissed entirely if there has been a violation of your constitutional rights.
You were entrapped by law enforcement officers
Similar to police misconduct, entrapment is an affirmative defense under which you claim that you would not have committed the crime if not for the conduct of the officers.
Suppose you have a significant amount of credit card debt and a past history of illegal drug manufacturing. Desperate for money, you ask everyone you know if they know of any side jobs available to make some honest money. Your friend, with knowledge of your dark past, introduces you to an acquaintance that he believes to be a powerful business man. The man offers you a large business proposition involving illegal drug manufacturing for a great financial reward. You decline, but the man insists. After much deliberation, you decide to take the deal in desperation of clearing your financial debt. Weeks into manufacturing the controlled substances, you discover that the business man is an undercover cop and has set you up. You are arrested and are now being charged with federal drug manufacturing.
Under these facts, you had no predisposition to commit a crime, and had not considered committing a crime until suggested by the undercover police officer. This may be the basis of an entrapment defense, and can be used as an effective defense in your case.
Frequently Asked Questions on Federal Drug Manufacturing
- What if, during the manufacture a legal drug, I mistakenly created an illegal substance?
In a situation like this, it will depend on what you intended to do. If you intended to make a substance that was legal, but you somehow mistakenly created a controlled substance, you would not be liable because you never intended to break the law, and you did not knowingly create the controlled substance.
- Have I broken federal law if I only manufactured enough for personal use?
You cannot be found guilty of federal manufacturing of a controlled substance if you did not manufacture more than is prohibited under federal law. However, you could be convicted under California law.
- Do the drugs have to be manufactured and transported across state lines for the crime to become federal?
No. You can be prosecuted for federal crimes even if the crime took place entirely within California.
Contact Wallin & Klarich If You Have Been Charged Federal Drug Manufacturing Crimes
If you or a loved one is facing state or federal criminal charges related to drug manufacturing, it is critical that you speak to an experienced criminal defense attorney as soon as possible. At Wallin & Klarich, our attorneys have over 30 years of experience successfully defending people like you who have been accused of violating federal laws. Let us help you, too. We are committed to providing you with the personal attention you deserve, and to helping you overcome this difficult situation.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in federal criminal defense near you, no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
2. 21 U.S.C. § 841, subsection (a).↩