9-100.001
The Controlled Substances ActGenerally
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 Chemicals21 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 Conspiracy21 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
Forfeitures21 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. Prosecutors are encouraged to
include forfeiture offenses in all drug indictments. Contact the
Asset Forfeiture and Money Laundering Section for further
information.
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 Customs Service (USCS)
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 USCS 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 USCS 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 USCS 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 USCS 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 warranted, and forward such a written
request, signed personally by the USA, to the DEA, FBI or USCS
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. Since the sample retained under the
standard procedure will be largetwice the amount required for
maximum mandatory minimum penalties for all substances other than
marijuanaprosecutors 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 USCS 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, to be sent to the Chief of the Narcotic and Dangerous
Drug Section, Criminal Division. 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. The USCS' policy, however, provides
for the commencement of destruction unless the USCS' SAC receives
a copy of the decision letter from the AAG granting the appeal
within 90 days of USCS' denial notice.
A copy of the appeal request should be sent to the SAC and must
be received before the 30-day appeal period has elapsed.
[updated April 1998]
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.
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