9-100.001
The Controlled Substances Act—Generally
|
This chapter contains Department of Justice policy that applies
to the investigation and prosecution of offenses involving
violations of the Controlled Substances Act, which is found in
Title 21, United States Code. Specific questions regarding
controlled substances offenses may be addressed to the Narcotic and
Dangerous Drug Section, Criminal Division.
9-100.010
Scheduling of Controlled Substances and
Listed Chemicals—21 U.S.C. §§ 812; 813; 802(34)
and (35)
|
The Controlled Substances Act establishes penalties and
controls for each schedule. It also contains a now out-dated list
of controlled substances and listed chemicals. For the current
schedules, see 21 C.F.R. Part 1308 (controlled substances), 21
C.F.R. Part 1300.01 (anabolic steroids) and 21 C.F.R. Part 1310
(listed chemicals). See the Criminal
Resource Manual at 1868.
[updated April 1998]
9-100.020
Attempt and Conspiracy—21 U.S.C. § 846; 963
|
Section 846 of Title 21 prohibits conspiracies and attempts to
violate any substantive offense established by Subchapter I
of Title 21 ("Control and Enforcement")—in other words, Section
846 makes it a crime to conspire to violate or attempt to violate
any substantive offense set forth in 21 U.S.C.
§§ 801-904. Analogously, Section 963 of Title 21
prohibits conspiracies and attempts to violate any substantive
offense established by Subchapter II of Title 21 ("Import
and Export")—in other words, Section 963 makes it a crime to
conspire to violate or attempt to violate any substantive offense
set forth in 21 U.S.C. §§ 951-971.
The general conspiracy statute (18 U.S.C. § 371) may
not be used to charge a conspiracy involving those sections. See
Principles of Federal Prosecution,
USAM 9-27.300 ("Except as hereafter
provided, once the decision to prosecute has been made, the
attorney for the government should charge, or should recommend that
the grand jury charge, the most serious offense that is consistent
with the nature of the defendant's conduct, and that is likely to
result in a sustainable conviction").
[updated April 1998]
9-100.030
Death Penalty for Controlled Substances
Offenses
|
The death penalty shall not be sought without prior written
authorization of the Attorney General. See the
USAM 9-10.000 for Department
guidelines regarding the death penalty.
9-100.040
Forfeitures—21 U.S.C. §
853
|
Title 21 U.S.C. § 853 provides for the forfeiture of property,
profits, and other rights obtained through or used in the commission of
felony drug offenses. Except in rare cases, prosecutors are required to
include forfeiture allegations in all drug indictments where the defendant
has identifiable assets that are forfeitable. Contact the Asset Forfeiture
and Money Laundering Section for further information.
[updated May 2010]
9-100.100
Controlled Substance Destruction Procedures
|
This section sets forth the responsibilities of United States Attorneys'
Offices (USAO) with respect to drug evidence destruction. See 28 C.F.R.
§ 50.21.
Each USAO should designate a Drug Evidence Destruction Coordinator
(DEDC). This coordinator should preferably be an attorney familiar with the
prosecution of narcotics cases and related evidentiary issues. The
coordinator will work closely with Drug Enforcement Administration (DEA),
Federal Bureau of Investigation (FBI) and United States Immigration and
Customs Enforcement (ICE) counterparts to ensure that the evidentiary value
of the drug evidence is preserved for later use in court. In addition, the
coordinator will be responsible for monitoring legal problems, providing
advice, and ensuring that the FBI, DEA and ICE 60-day notices are forwarded
to the appropriate attorney.
When the USAOs receive the 60-day notice, it should be forwarded to the
attorney assigned to the case (and to the DEDC) to determine the appropriate
response. The prosecutor may want to contact the DEA, FBI or ICE agent in
charge of the case to get the agent's assurance that sufficient photographic
documentation of the evidence is or will be available prior to destruction.
Furthermore, if the evidence is marijuana, the prosecutor is encouraged to
consult with the case agent to make sure that the evidence was accurately
weighed and the weighing method was adequately documented for use in court
proceedings. Once the appropriate reviews and consultations are complete,
the prosecutor may take one of the following actions:
- Send a written response to the case agent before the 60-day time period
elapses permitting sampling and destruction to proceed (NOTE: The Department
encourages prosecutors to do this as soon as possible for cases where there
is no basis for an exception request. This will permit DEA, FBI or ICE to
begin the sampling and destruction process in less than 60 days, providing
laboratory analyses are completed.); or
- Permit the 60-day time period to elapse, at which point the DEA, FBI
or ICE case agent will authorize sampling and destruction with no further
notice to the USAOs once laboratory analyses are completed; or
- Determine that an exception request is wananted, and forward such a
written request, signed personally by the USA, to the DEA, FBI or ICE
Special Agent-In-Charge (SAC). It must be received before the expiration
date of the 60-day time period.
NOTE: The use of exception requests should be severely limited. In any
case in which the USA requests an exception from the SAC, the burden will
be on the prosecutor to show the particular circumstances or factors that
would adversely affect the government's case. Because the sample retained
under the standard procedure will be large—twice the amount required
for maximum mandatory minimum penalties for all substances other than
marijuana and liquid phencyclidine (PCP)—prosecutors are strongly
discouraged from filing an exception request on the grounds that the full
seizure is needed for jury appeal or other purely strategic purposes.
If the DEA, FBI or ICE SAC denies the exception request to preserve the bulk
evidence, the USA will be so notified in writing. The exhibit will be
retained for 30 days from the date of the denial notice before sampling and
destruction are authorized.
The USA may choose to abide by the SAC's decision or may appeal the
decision to the Assistant Attorney General (AAG), Criminal Division. Appeals
should be sent directly to the Chief of the Narcotic and Dangerous Drug
Section, Criminal Division and must include a completed appeal form
(Criminal Resource Manual 1873)
and the required supporting documentation. All appeals should be transmitted
to NDDS electronically.
A copy of the appeal request should be sent to the DEA, FBI or ICE SAC
and must be received before the 30-day appeal period has elapsed. Once an
appeal is filed, the evidence will be maintained intact until the appeal is
decided, provided that the DEA or the FBI is notified of the appeal within
30 days of the denial notice. ICE's policy, however, provides for the
commencement of destruction unless the ICE SAC receives a copy of the
decision letter from the AAG granting the appeal within 90 days of the ICE
denial notice.
[updated February 2009]
9-100.200
Procedures Relating to Expungement of
Criminal Records Pursuant to 18 U.S.C. § 3607
|
For procedures relating to the expungement of criminal records
pursuant to 18 U.S.C. § 3607 (formerly codified at 21
U.S.C. § 844(b)), see
USAM 3-16.110(C).
[updated March 2001]
9-100.500
Narcotic Addict Rehabilitation Act of
1966
|
The (Pub.L. No. 89-793) recognizes the fact that narcotic
addicts, including those who violate Federal criminal laws, are
medical problems and should receive treatment rather than mere
punishment. The Narcotic Addict Rehabilitation Act established
several different but related types of commitment procedures, all
of which contain both institutional and aftercare provisions.
Although this act remains in effect, due to lack of appropriation
and other reasons it is not utilized to the extent to which it was
in the years immediately following its enactment. Other programs
are also available to addicted defendants who are sentenced under
regular sentencing provisions. See the
Criminal Resource Manual at 1870 for
further discussion of this Act.
| | | | | | | | | | | | | | | | | | | | | | | |