Possession of Controlled or Counterfeit Substances With Intent to Distribute

In the Southern California Federal Courts, the United States Central District of California, federal prosecutors will frequently charge people with violations of 21 U.S.C. § 841(a)(1), commonly referred to as Possession With Intent to Distribute. Anyone who is found in possession of a large amount of counterfeit or controlled substances could be charged with this crime, which is a more serious offense than possession of controlled substances (a/k/a street drugs) for personal use. Penalties for violation can be up to life in prison depending on the amount and type of drugs seized.

First, the defendant knowingly possessed a controlled substance such as methamphetamine, cocaine, marijuana, or heroin.

And second, the defendant possessed it with the intent to distribute it to another person.

The prosecution doesn’t need to prove the amount or quantity of the controlled substance, it only needs to prove that there was a measurable or detectable amount. This is a very low bar, however after the case of Apprendi v. New Jersey, 530 U.S. 466 (2000), the Ninth Circuit has held that where the amount of drugs is so much that it would increase the penalties for possession, a jury would need to determine whether the defendant actually had that specific amount of drugs. See United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir. 2000). It also does not matter if the defendant knew the substance was a specific controlled substance, as long as they know it was a controlled substance.

A person is stopped by police for having a broken tail light. Officers approach the vehicle and see through the window that there are large bags full of a powdery white substance. Based on this, they search the car and find scales, multiple cell phone, a box of new, empty plastic baggies, a large amount of currency, and they test and discover that the substance they found is cocaine. Based on all of the above, they could charge someone with Possession with Intent to Distribute because the items found during the search suggest that the substances were held for sales as opposed to personal use.

However, in the same scenario, if someone is pulled over and searched but the officers only find a small amount of methamphetamine and a pipe, it is unlikely they could be convicted of Possession with Intent to Distribute because there are no ‘indicia of sales’, in other words, items that would indicate the person possessed the methamphetamine to sell it.

Related offenses include:

• 21 U.S.C. § 841(a)(1) – This same statute can also be used when someone possesses a controlled substance with the intention of distribution or manufacture of controlled substances
• 21 USC § 844 – Simple Possession
• 21 USC § 848 – Continuing Criminal Enterprise - “Drug Kingpin Statute”
• California Health and Safety Code Section 11351, Possession for Sale
• California Health and Safety Code Section 11379.6, Manufacturing Controlled Substances
• California Health and Safety Code Section 11352, Transportation for Sale of a Controlled Substance

Prosecutors need to prove that the Defendant knows the substance is a controlled substance to convict. Mistake of fact would be a defense in situations where the defendant did not know that the substance they possessed was a controlled substance, even if they were mistaken. If the prosecution cannot prove knowledge, someone who possesses what they believe is a box of powdered laundry detergent could not be convicted even if the substance is later found to be methamphetamine.

Also, a lack of specific intent would be a valid defense to this crime. The prosecution needs to prove that the defendant possessed the drugs in question with the specific intent to distribute it to others, in other words, for sale. If the drugs were possessed for personal use, even if there are large quantities of the substance, it would not be illegal under this statute.

The government also needs to prove that the substance they seized specifically named on the controlled substance federal drug schedules. If it’s not specifically listed on the Federal Drug Schedules, the government also needs to prove that the defendant knew that the substance is treated the same as a drug listed on the federal drug schedules or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." See McFadden v. United States, 135 S. Ct. 2298 (2015).

Statutory maximum generally is 20 years

There is a five year mandatory minimum and maximum of 40 years (21 USC 841(b)(1)(B)) if someone is found in possession of:

• 5 grams or more of actual meth
• 28 grams or more of crack
• 50 grams or more of a mixture containing meth
• 40 grams or more of fentanyl
• 100 grams or more of heroin
• 10 grams or more of PCP
• 500 grams or more of cocaine
• 1 gram or more of LSD
• 100 kilogram or more of marijuana (or 100 or more plants)

There is a ten year mandatory minimum and a maximum of life in prison (21 USC 841(b)(1)(A) if someone is found in possession of:

• 50 grams or more of actual meth
• 280 grams or more of crack
• 500 grams or more of a mixture containing meth
• 400 grams or more of fentanyl
• 1 kilogram or more of heroin 
• 100 grams or more of PCP
• 5 kilograms or more of cocaine 
• 10 grams or more of LSD
• 1000 kilogram or more of marijuana (or 1,000 or more plants)

Penalties also can be increased if defendant has a prior felony drug conviction or is a career offender (meaning they have been convicted of two or more felony drug offense or crimes of violence).

There is a twenty year mandatory minimum if death or serious bodily injury results from use of the drug.

Enhanced penalties are also possible for distribution to individuals under 21 (21 USC § 859) or distributions near schools, playgrounds, youth centers, arcades, pools, and public housing (21 USC § 860).

Possession With Intent to Distribute is a serious offense. Federal law in this area is much more severe than California law. If you or a loved one have been arrested for or charged with Possession With Intent to Distribute, it is critical that you discuss your case with a knowledgeable federal criminal defense lawyer as soon as possible. As a former Deputy District Attorney with over 14 years of prosecutorial experience, Michael Kraut understands how to effectively defend clients charged with drug offenses and works hard to ensure his clients receive the best defense possible.

For more information about Federal Drug charges, and to schedule your free consultation, contact Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.