Use of a Communication Facility to Facilitate a Drug Felony (Title 21 U.S. Code 843(b))
Title 21 U.S. Code § 843(b) is a federal statute that criminalizes the knowing or intentional use of a "communication facility"—such as a phone, the internet, or mail—to commit, cause, or facilitate a drug felony.
In an era of digital connectivity, this law is frequently used by federal prosecutors to add multiple charges to drug trafficking indictments, significantly increasing a defendant's potential prison time.
If you are under investigation or facing charges for using a communication facility to facilitate a drug crime, immediate legal intervention is essential.
At Eisner Gorin LLP, our experienced federal criminal defense attorneys are well aware of the strategies of federal prosecutors not only to convict under this statute, but also to "stack" offenses to generate more prison time.
We will fight on your behalf to mitigate these risks and help you build a strong defense. Call us today at (818) 781-1570 or contact us here. We defend drug trafficking and sales cases in federal court.
What Is the Use of a Communication Facility to Facilitate a Drug Felony?
This federal offense occurs when an individual knowingly uses a device like a telephone, radio, or the mail system to make the commission of a separate federal drug felony easier or possible.
The statute is designed to target the logistical and planning aspects of drug crimes that rely on modern communication tools.
The specific language of 21 U.S.C. § 843(b) makes it unlawful for any person to "knowingly or intentionally" use any communication facility in committing, causing, or facilitating the commission of any felony.
This applies to felonies defined under Subchapter I (Control and Enforcement) or Subchapter II (Import and Export) of the Controlled Substances Act.
To put it simply, if a communication device is used as part of a federal drug crime, a separate federal charge can be brought for the use of that device.
What Is Considered a "Communication Facility?"
Under U.S.C. § 843(b), a communication facility refers to a wide range of communication types, many of which are connected to federal infrastructure.
It includes "any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds."
Examples of covered instrumentalities include:
- Mail and postal services
- Telephones, including landlines and cellular phones
- Wire communications, such as telegraphs or money wiring services
- Radio systems
- All forms of internet-based communications, including email, social media platforms, and encrypted messaging apps like Signal or WhatsApp
Essentially, any tool used to transmit information in furtherance of a drug felony can be classified as a communication facility under this law.
A DEA pharmacy audit is a regulatory inspection conducted by the Drug Enforcement Administration to ensure that pharmacies comply with federal controlled substance laws.
What Does "Facilitate" Mean Under the Law?
In the context of this statute, to "facilitate" means to make the underlying drug crime easier or less difficult to commit.
The communication method in question need not be essential for the crime to be committed. It only needs to have assisted in the process in some way.
For example, a text message that confirms the time for a drug deal facilitates the crime by helping coordinate the illegal transaction.
What Must the Prosecution Prove to Secure a Conviction?
To secure a conviction, the government must prove beyond a reasonable doubt that the defendant used a specific communication facility, did so knowingly and intentionally, and that this use was intended to facilitate a federal drug felony.
The prosecution must successfully establish three distinct elements to convict you under this statute:
- Use of a Communication Device: The prosecution must show that a device covered by the statute, like a phone, email, or social media, was used. Evidence may include phone records, texts, emails, or posts.
- Facilitating a Drug Felony: The government must prove the communication was tied to a federal drug felony, such as intent to distribute, drug trafficking conspiracy, or illegal importation of controlled substances.
- Specific Intent: You must have knowingly used the device to further a drug crime. Accidental calls or messages without knowledge of their connection to a crime wouldn't qualify.
What Is Charge Stacking?
Charge stacking occurs when a statute, such as U.S.C. § 843(b), treats each instance of a crime as a separate offense.
Prosecutors use this to bring a count for every call, text, or email related to the crime, increasing the potential for lengthy prison sentences.
Federal law, under 21 U.S.C. § 952, prohibits the unauthorized importation of controlled substances and certain precursor chemicals.
What are the Penalties for Using Communications Facilities to Facilitate Drug Crimes?
A violation of U.S.C. § 843(b) carries a maximum prison sentence of 4 years per count, which doubles to 8 years if the defendant has a prior felony drug conviction. These penalties, when combined with charge stacking, can lead to substantial prison sentences.
Standard Penalties:
- Imprisonment: A term of up to 4 years in federal prison for each count.
- Fines: The court may also impose significant financial penalties as defined under Title 18 of the U.S. Code.
- Supervised Release: A period of court supervision that follows release from prison.
Enhanced Penalties for Prior Convictions:
If the defendant has a prior final conviction for another violation of this section or for any felony under U.S. law related to narcotic drugs, marijuana, or depressant/stimulant substances, the maximum penalty per count increases to 8 years in prison.
What Defenses Can Be Raised Against These Charges?
An experienced federal defense attorney can challenge a § 843(b) charge on several grounds.
Defenses often focus on challenging the defendant's intent, the existence of an underlying felony, or the legality of the evidence obtained by law enforcement.
Specific defenses we may use include:
- Lack of Intent: A primary defense is arguing that the defendant did not knowingly facilitate a drug crime. For instance, they may have been unaware of the illicit purpose of the conversation, believed the transaction was legal, or were coerced.
- No Underlying Felony: If the prosecution cannot prove the underlying drug offense, the § 843(b) charge cannot stand. The defense may argue that the communication was a joke, involved a substance not federally controlled, or that a conspiracy never existed.
- Illegal Search and Seizure: Evidence is often obtained through electronic surveillance. If law enforcement acquired wiretaps or text message data without a valid warrant or probable cause, a defense attorney can file a motion to suppress the evidence under the Fourth Amendment. If successful, the illegally obtained evidence is inadmissible.
- Innocent Conversation or "Puffery": The defense can argue that the communication was too vague or constituted mere boasting without any real criminal intent. If the conversation did not concretely facilitate a crime, it may not meet the legal standard.
How Our Firm Can Help
Federal prosecutors often leverage U.S.C. § 843(b) charges to pressure defendants into plea bargains, threatening stacked sentences. Our firm understands these tactics and is skilled at dismantling the prosecution's case.
In high-exposure cases with extensive electronic evidence, such as phone logs and wiretaps, we use a multi-lawyer review system. This team approach ensures a structured second opinion on defense strategy and a thorough analysis of all evidence.
We provide comprehensive representation at every stage of the federal legal process.
This includes challenging the initial wiretap application during the pre-trial phase, filing motions to suppress evidence, and negotiating with prosecutors to minimize exposure to stacked sentencing.
Our goal is to protect your rights and secure the most favorable outcome possible. Do not face the complexities of the federal justice system without skilled legal help.
If you are charged with using a communication facility to facilitate a drug felony, contact Eisner Gorin LLP today at (818) 781-1570 or reach out through our contact page for a consultation.