Fentanyl conspiracy charges were filed this week after federal grand juries in Mississippi and North Dakota charged two Chinese nationals and their American and Canadian associates with allegations of importing and distributing fentanyl, fentanyl analogues, and other drugs. I completely understand the government’s focus on fentanyl (it is indeed a dangerous drug), but these indictments may be a step too far.
The indictment in Mississippi charges Xiaobing Yan, a Chinese national, with two counts of conspiracy to manufacture and distribute controlled substances and their “analogues” for unlawful importation, along with seven counts of manufacturing and distributing those substances for unlawful importation (under federal law, an “analogue” to a controlled substance is a substance that is “substantially similar” to a controlled substance). A related indictment from North Dakota charges Jian Zhang, of China, and eight American and Canadian citizens with two conspiracy charges – conspiracy to import and conspiracy to distribute fentanyl and fentanyl analogues.
These cases involve several different types of drug crimes, including drug conspiracy charges and “substantive” drug offenses. Under 21 U.S.C. § 959, a person can be convicted if the government can prove that the person was involved in the manufacture and/or distribution of controlled substances for purposes of “unlawful importation.” For this charge, the government would have to prove that the person knowingly agreed to or did in fact manufacture and/or distribute illegal substances and that the person specifically intended, knew, or had “reasonable cause to believe” the substances would be “unlawfully imported” into the United States.
Under 21 U.S.C. § 841, a person can be convicted if the government can prove that the person “knowingly or intentionally” manufactured, distributed, or dispensed, or possessed with intent to manufacture, distribute, or dispense a controlled substance or its analogue within the United States. To obtain a conviction, the government would have to not only prove that the substances in question were illegal, but that the person knew the nature of the drugs they allegedly agreed to manufacture and distribute.
There are special issues in fentanyl cases that most defense lawyers won’t recognize. Our firm has been involved in several of these cases recently and we have identified strategies to effectively challenge these allegations in some cases.
Drug conspiracy charges, including cases involving fentanyl, require that the government identify the chemical structure and weight of the substances seized. Because the government has the burden to prove the illegality of the substances seized and that the defendants knew or should have known the substances would be illegally imported and distributed, individual lab analysis can be crucial to a defense against drug charges. This is especially true in these cases, where drugs were allegedly manufactured in China before they passed through multiple hands across multiple countries before distribution in the U.S.
We have retained expert toxicologists to independently test the alleged fentanyl, fentanyl analogue and U-47700 in one of our current cases because we believe the pills seized in that case do not contain the chemicals and drugs the government’s lab reports suggest. We have also been successful in challenging these charges for substances that were not properly classified as Schedule I drugs at the time of the alleged offense. And in cases where the exact type of controlled substance is uncertain, we have used experts to help us keep the applicable federal sentencing guidelines calculated at the lowest possible level.
Our firm has extensive experience in handling major drug conspiracy cases, and we are on the cutting edge of defending these new fentanyl and fentanyl analogue cases. With our success in federal criminal cases, and access to qualified experts, we have both the knowledge and resources necessary to challenge these incredibly serious cases.
If you or someone you know has been charged in a federal fentanyl case, or if you believe you may be the target or subject of one of these drug conspiracy investigations, feel free to contact me to discuss the case in complete confidence.