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JD
JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience:  Over 11 years of practice in litigation including 10 years as a state prosecutor
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what is trespass and possession of a controlled substance

Customer Question

what is trespass and possession of a controlled substance?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  JD replied 5 years ago.
Were you charged by the military? Are you to appear in state or federal court?
Customer: replied 5 years ago.

My son was the one charged. I am retired Army and since he is a fulltime student, he has a family member military ID. He did not have his ID with him when he was picked up. As far as I know, I am thinking he is to appear in a federal court since the letter states, United States of America versus my son. This is his first time before a federal judge.

Expert:  JD replied 5 years ago.
I was afraid of that. I'm not very experienced with this type of matter so I'll opt out and see if someone else take over.
Customer: replied 5 years ago.
Thank you for reviewing this question. If there is anyone who can answer, please do. He has changed his life around since the incident. He is not the same person that he was at the time of his arrest.
Expert:  JD replied 5 years ago.
I have found the applicable law. Can you tell me if this is simple possession?
Expert:  JD replied 5 years ago.

18 U.S.C.S. § 1382. Entering military, naval, or Coast Guard property

Whoever, within the jurisdiction of the United States, goes upon any military, naval, or Coast Guard reservation, post, fort, arsenal, yard, station, or installation, for any purpose prohibited by law or lawful regulation; or

Whoever reenters or is found within any such reservation, post, fort, arsenal, yard, station, or installation, after having been removed therefrom or ordered not to reenter by any officer or person in command or charge thereof--

Shall be fined under this title or imprisoned not more than six months, or both.

............................

 

§ 844. Penalty for simple possession

(a) Unlawful acts; penalties. It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this title or title III. It shall be unlawful for any person knowingly or intentionally to possess any list I chemical obtained pursuant to or under authority of a registration issued to that person under section 303 of this title [21 USCS § 823] or section 1008 of title III [21 USCS § 958] if that registration has been revoked or suspended, if that registration has expired, or if the registrant has ceased to do business in the manner contemplated by his registration. It shall be unlawful for any person to knowingly or intentionally purchase at retail during a 30 day period more than 9 grams of ephedrine base, pseudoephedrine base, or phenylpropanolamine base in a scheduled listed chemical product, except that, of such 9 grams, not more than 7.5 grams may be imported by means of shipping through any private or commercial carrier or the Postal Service. Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $ 1,000, or both, except that if he commits such offense after a prior conviction under this title or title III, or a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $ 2,500, except, further, that if he commits such offense after two or more prior convictions under this title or title III, or two or more prior convictions for any drug, narcotic, or chemical offense chargeable under the law of any State, or a combination of two or more such offenses have become final, he shall be sentenced to a term of imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $ 5,000. Notwithstanding the preceding sentence, a person convicted under this subsection for the possession of a mixture or substance which contains cocaine base shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $ 1,000, if the conviction is a first conviction under this subsection and the amount of the mixture or substance exceeds 5 grams, if the conviction is after a prior conviction for the possession of such a mixture or substance under this subsection becomes final and the amount of the mixture or substance exceeds 3 grams, or if the conviction is after 2 or more prior convictions for the possession of such a mixture or substance under this subsection become final and the amount of the mixture or substance exceeds 1 gram. Notwithstanding any penalty provided in this subsection, any person convicted under this subsection for the possession of flunitrazepam shall be imprisoned for not more than 3 years, shall be fined as otherwise provided in this section, or both. The imposition or execution of a minimum sentence required to be imposed under this subsection shall not be suspended or deferred. Further, upon conviction, a person who violates this subsection shall be fined the reasonable costs of the investigation and prosecution of the offense, including the costs of prosecution of an offense as defined in sections 1918 and 1920 of title 28, United States Code, except that this sentence shall not apply and a fine under this section need not be imposed if the court determines under the provision of title 18 that the defendant lacks the ability to pay.

(b) [Repealed]

(c) "Drug or narcotic offense" defined. As used in this section, the term " drug, narcotic, or chemical offense" means any offense which proscribes the possession, distribution, manufacture, cultivation, sale, transfer, or the attempt or conspiracy to possess, distribute, manufacture, cultivate, sell or transfer any substance the possession of which is prohibited under this title.

 

.......................................

 

§ 844a. Civil penalty for possession of small amounts of certain controlled substances

(a) In general. Any individual who knowingly possesses a controlled substance that is listed in section 401(b)(1)(A) [21 USCS § 841(b)(1)(A)] in violation of section 404 [21 USCS § 844(b)(1)(A)] in an amount that, as specified by regulation of the Attorney General, is a personal use amount shall be liable to the United States for a civil penalty in an amount not to exceed $ 10,000 for each such violation.

(b) Income and net assets. The income and net assets of an individual shall not be relevant to the determination whether to assess a civil penalty under this section or to prosecute the individual criminally. However, in determining the amount of a penalty under this section, the income and net assets of an individual shall be considered.

(c) Prior conviction. A civil penalty may not be assessed under this section if the individual previously was convicted of a Federal or State offense relating to a controlled substance.

(d) Limitation on number of assessments. A civil penalty may not be assessed on an individual under this section on more than two separate occasions.

(e) Assessment. A civil penalty under this section may be assessed by the Attorney General only by an order made on the record after opportunity for a hearing in accordance with section 554 of title 5, United States Code. The Attorney General shall provide written notice to the individual who is the subject of the proposed order informing the individual of the opportunity to receive such a hearing with respect to the proposed order. The hearing may be held only if the individual makes a request for the hearing before the expiration of the 30-day period beginning on the date such notice is issued.

(f) Compromise. The Attorney General may compromise, modify, or remit, with or without conditions, any civil penalty imposed under this section.

(g) Judicial review. If the Attorney General issues an order pursuant to subsection (e) after a hearing described in such subsection, the individual who is the subject of the order may, before the expiration of the 30-day period beginning on the date the order is issued, bring a civil action in the appropriate district court of the United States. In such action, the law and the facts of the violation and the assessment of the civil penalty shall be determined de novo, and shall include the right of a trial by jury, the right to counsel, and the right to confront witnesses. The facts of the violation shall be proved beyond a reasonable doubt.

(h) Civil action. If an individual does not request a hearing pursuant to subsection (e) and the Attorney General issues an order pursuant to such subsection, or if an individual does not under subsection (g) seek judicial review of such an order, the Attorney General may commence a civil action in any appropriate district court of the United States for the purpose of recovering the amount assessed and an amount representing interest at a rate computed in accordance with section 1961 of title 28, United States Code. Such interest shall accrue from the expiration of the 30-day period described in subsection (g). In such an action, the decision of the Attorney General to issue the order, and the amount of the penalty assessed by the Attorney General, shall not be subject to review.

(i) Limitation. The Attorney General may not under this subsection [section] commence proceeding against an individual after the expiration of the 5-year period beginning on the date on which the individual allegedly violated subsection (a).

(j) Expungement procedures. The Attorney General shall dismiss the proceedings under this section against an individual upon application of such individual at any time after the expiration of 3 years if--
(1) the individual has not previously been assessed a civil penalty under this section;
(2) the individual has paid the assessment;
(3) the individual has complied with any conditions imposed by the Attorney General;
(4) the individual has not been convicted of a Federal or State offense relating to a controlled substance; and
(5) the individual agrees to submit to a drug test, and such test shows the individual to be drug free.

A nonpublic record of a disposition under this subsection shall be retained by the Department of Justice solely for the purpose of determining in any subsequent proceeding whether the person qualified for a civil penalty or expungement under this section. If a record is expunged under this subsection, an individual concerning whom such an expungement has been made shall not be held thereafter under any provision of law to be guilty of perjury, false swearing, or making a false statement by reason of his failure to recite or acknowledge a proceeding under this section or the results thereof in response to an inquiry made of him for any purpose.

.......................

 

I will supplement this as needed. Please reply if you need more information.

Customer: replied 5 years ago.
The court order did not specify simple possession or another type of possession. It just stated possession. He was charged by the state of Georgia with possession of a controlled substance before and after this charge. One charge was expunged off his record. According to the info sent, does this mean the Attorney General can dismiss the charges if he cannot pay or does not have the means to pay?
Expert:  JD replied 5 years ago.

Under SectionXXXXXcan waive fines, court costs, and costs of prosecution if the defendant does not have the ability to pay. That is not dismissal of the charges it is simply waiving certain financial aspects of the conviction.

 

Under Section 844a (c), I do not think your son will qualify for the alternative civil penalty since he has a prior record (even though it is expunged it will very likely disqualify him).

 

He needs an attorney. If he is not financially able to hire an attorney, he should contact the federal public defender's office and inquire about their representation. They may not work with him until his arraignment date but it doesn't hurt to ask.

 

Please reply if I can assist further.

 

________________________

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JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience: Over 11 years of practice in litigation including 10 years as a state prosecutor
JD and 9 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.
Thank you for helping me to see clearly. I will certainly encourage my son to get a federal public defender.
Expert:  JD replied 5 years ago.
Please let me know if I can assist further.
Customer: replied 5 years ago.
Thank you for your time. My son did not have to pay a fine, but he is serving 10 days in jail. He decided to go this route.
Expert:  JD replied 5 years ago.

I hope it all works out for you both. In cases where I see people who have been charged multiple times with possession, I always begin talking to them about rehabilitation options. I don't know if that is appropriate for your son, but I thought I should mention it. The overall goal of simple possession laws is rehabilitation but the system does a terrible job of it. Most people who successfully end a narcotic addiction do so on their own... not as the result of criminal sanctions.

 

Good luck.

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