Source: law/21usc846.law
law 21usc846 cite 21 U.S.C. § 846 title Attempt and conspiracy to commit controlled-substance offenses url https://www.neochart.com/catalog/federal/title_21/section_846/title21_sec846_e7d23d085614/846_attempt_and_conspiracy_any_person_who_attempts_or_conspi_0001/index.html address catalog/federal/title_21/section_846/title21_sec846_e7d23d085614/846_attempt_and_conspiracy_any_person_who_attempts_or_conspi_0001/index.html source ir/usc/title21.jsonl#title21_sec846 sha1=4491f435c6577fe8f20cb5f869bf5c6af3477e3e chars=394 claim 846-conspiracy : object-offense & agreement & knowledge & intentional-joinder & !withdrawal-limitations gloss Judicial construction of conspires, not a statutory enumeration: agreement to commit an offense in this subchapter, knowledge of its unlawful objective, and intentional joining/participation are required. Participation means joining, not a separate overt act. Agreement must include at least two genuine conspirators; a government agent feigning agreement cannot alone supply the second party. claim 846-attempt : object-offense & attempt-intent & substantial-step gloss Attempt separately requires intent to commit the identified object offense plus a substantial step strongly corroborating that intent. The conspiracy no-overt-act rule does not eliminate attempt's conduct requirement. Completion is unnecessary. element object-offense : and name Identified offense in Subchapter I text @66..114 | to commit any offense defined in this subchapter xref 21 U.S.C. § 841(a) | Common objects include knowing/intentional manufacture, distribution, dispensing or possession with intent; identify the actual object and required culpability. variant distribution/agreement | Agreement to distribute controlled substances; successful distribution is not required. variant possession-with-intent/attempt | Intent to possess a controlled substance for distribution plus strongly corroborative conduct. gloss Import/export conspiracies under section 963 are not automatically section 846 offenses. Drug type/quantity and defendant-specific penalty findings require the object statute and applicable circuit rules; none is imposed here as a universal element of all section 846 offenses. element agreement : and name Agreement of two or more persons to the unlawful object text @56..65 | conspires rule /us/513/0010-01 @8339..8491 | In order to establish a violation of 21 U. S. C. § 846, the Government need not prove the commission of any overt acts in furtherance of the conspiracy. rule /f3d/927/0446-01 @19732..19862 | agreement to violate the drug laws need not be express or formal. A tacit or mutual understanding among the parties is sufficient. not-required Overt act in furtherance of the conspiracy (Shabani); a formal or express agreement (Potter). variant tacit/circumstantial | Mutual understanding may be inferred from coordinated conduct, repeated distribution-level purchases and context; guilt still requires proof beyond reasonable doubt. variant express/coordination | Planning about sourcing, distribution, funding or shared proceeds can demonstrate a common objective. gloss A buyer-seller transaction alone does not establish agreement to a further distribution conspiracy. Repetition/quantity and coordinated dealings can support the inference; no mechanical transaction-count rule is asserted. element knowledge : and name Knowledge of the unlawful agreement and objective text @56..65 | conspires rule /f3d/933/0501-01 @20686..20872 | The elements of a drug distribution conspiracy are "(1) an agreement to violate drug laws ... ; (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy." gloss Knowing that others commit drug crimes does not itself establish that this defendant chose to join. Culpability as to the substance follows the chosen object offense; general association with offenders is insufficient. element intentional-joinder : and name Knowing and voluntary participation in the agreement text @56..65 | conspires rule /f3d/927/0446-01 @19358..19594 | So whether phrased as two elements or three, a conviction under § 846 requires an agreement to violate the drug laws, the defendant's knowledge of the agreement, and the defendant's decision to voluntarily join (or "participate in") it. gloss Potter reconciles two- and three-part formulations. Participation distinguishes intentional joinder from mere presence; it cannot resurrect the overt-act requirement rejected by Shabani. Separate knowledge and volition are required, without an additional universal act requirement. constraint genuine-common-agreement(agreement, intentional-joinder) : Joining an actual common unlawful undertaking requires more than dealing solely with an informant or knowing other offenders rule /f3d/921/0951-01 @9860..10078 | Although two or more people must agree to form a conspiracy, an informant cannot count toward that requirement: "[T]here can be no indictable conspiracy involving only the defendant and government agents or informers." gloss Leal applies the Tenth Circuit interdependence formulation: participants must advance a shared criminal objective. Separate agreements linked only through an informant were not one conspiracy. Other circuits express the common-objective rule through agreement/joinder; this constraint does not nationalize the Tenth Circuit's four-item instructions. element attempt-intent : and name Intent to commit the identified object offense text @44..52 | attempts rule /f2d/693/0838-01 @6023..6262 | the requisite elements of attempt are (1) an intent to engage in criminal conduct, and (2) conduct constituting a “substantial step” towards the commission of the substantive offense which strongly corroborates the actor’s criminal intent. gloss Judicial interpretation supplies the attempt test missing from enacted text. Intent must target the particular object, including intent to distribute where that is the object; awareness that a transaction might occur is insufficient. element substantial-step : and name Conduct beyond preparation strongly corroborating intent text @44..52 | attempts rule /f2d/525/0881-01 @11448..11647 | In making that determination, we recognized that in order to be guilty of an attempt, the objective conduct of the defendant must strongly corroborate the firmness of the defendant’s criminal intent. variant preparation/insufficient | Joyce found travel, available money and preliminary dealings insufficient on its record when the defendant refused the proposed purchase before a substantial step. variant objective-corroboration/equivocal | Oviedo reversed where selling a nonnarcotic substitute and other acts were equivocal under the Fifth Circuit test; intent alone cannot supply the act. gloss These are circuit-specific applications, not universal rules that travel never suffices, abandonment excuses an already completed attempt, or sham drugs always make attempt impossible. Assess intent and step together in context. not-required Successful commission of the substantive offense; the substantial step must nonetheless be proved. element penalty : and name Object-offense penalty incorporation text @115..259 | shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy. gloss Consequence after offense proof, not a universal extra liability conjunct. The 1988 amendment replaced the earlier maximum-only formula. Use current object-offense penalty law and offense-date rules; this node supplies no blanket quantity-attribution rule. defense withdrawal-limitations : defense name Withdrawal before the applicable limitations period effect bars-liability Bars prosecution when timely raised and established; withdrawal alone does not undo a completed conspiracy. text @56..65 | conspires xref 18 U.S.C. § 3282(a) | Ordinarily five years for noncapital offenses, subject to applicable statutory exceptions and tolling. rule /us/568/0106-01 @6767..6977 | Withdrawal also starts the clock running on the time within which the defendant may be prosecuted, and provides a complete defense when the withdrawal occurs beyond the applicable statute-of-limitations period. rule /us/568/0106-01 @4417..4556 | Establishing individual withdrawal was a burden that rested firmly on the defendant regardless of when the purported withdrawal took place. gloss Smith, 568 U.S. 106, 110-14 (2013), is judicial interpretation applied to section 846 and RICO conspiracies, not an exception written into section 846. Defendant bears withdrawal by a preponderance; affirmative disavowal/defeat of the conspiracy is required, not mere inactivity. Government still must prove a timely continuing conspiracy when limitations is raised. The formula negates this combined time-bar defense, not withdrawal standing alone; termination, tolling, waiver, and offense-specific limitations must be assessed separately.