What Counts as Drug Trafficking?

"Trafficking" sounds like large-scale smuggling, but legally it can cover much smaller activity, including selling to a friend or possessing enough drugs to suggest sales.

Conduct that can be trafficking

Under federal law it is a crime to knowingly manufacture, distribute, dispense, or possess with intent to distribute a controlled substance (21 U.S.C. 841). State laws are similar and often add weight-based trafficking offenses. Conduct can include:

• Selling or delivering drugs, even without profit
• Possessing amounts above a trafficking threshold
• Transporting drugs across state lines
• Manufacturing or cultivating
• Agreeing with others to do any of these (conspiracy)

Evidence of intent to distribute

Large quantities, packaging, scales, cash, multiple phones, ledgers and messages about sales are commonly used to prove intent, even without a recorded sale.

Federal mandatory minimums

21 U.S.C. 841(b) sets mandatory minimum prison terms based on drug type and quantity. For example:

Minimums increase with prior serious drug convictions or when death or serious injury results. A "safety valve" lets judges sentence below the minimum for certain lower-level defendants who meet strict criteria (18 U.S.C. 3553(f)).

Conspiracy

Under 21 U.S.C. 846, people who agree to traffic drugs face the same penalties as the underlying offense, and quantities handled by the whole conspiracy can be attributed to members when foreseeable.

Firearms

Possessing a gun in connection with drug trafficking can add a separate consecutive mandatory sentence. See weapons charges.

Defenses

• Unlawful searches and wiretaps
• Lack of knowledge or intent to distribute
• Entrapment by government agents
• Weak informant testimony
• Disputed drug weight or lab analysis

What to do

These are among the most serious drug charges. Do not talk to investigators or co-defendants about the case. Cooperation agreements and plea decisions have major consequences and should be made only with a criminal defense lawyer, ideally one with federal experience.

Sources

1. Cornell Law School LII: 21 U.S.C. 841, Prohibited acts A
2. Cornell Law School LII: 21 U.S.C. 846, Attempt and conspiracy
3. Cornell Law School LII: 18 U.S.C. 3553(f), Limitation on applicability of statutory minimums (safety valve)