18 U.S. Code § 36 - Drive-By Shooting
Drive-by shootings are violent acts that pose significant risks to public safety and well-being. Under normal circumstances, these crimes are typically prosecuted at the state level.
However, when such offenses intersect with federal drug laws, such as the Controlled Substances Act and the Controlled Substances Import and Export Act, drive-by shooting becomes a federal matter, punishable under Title 18 U.S. Code 36
If convicted under this statute, the penalties are severe. You could face up to 25 years in prison. If your conduct results in the death of another, the penalty could be life imprisonment, or, in some cases, even the death penalty applies. These are not light consequences, underscoring the seriousness of the offense.
Title 18 U.S.C. 36 says, "(a) Definition.-In this section, "major drug offense" means-
(1) a continuing criminal enterprise punishable under section 408(c) of the Controlled Substances Act (21 U.S.C. 848(c)).
(2) a conspiracy to distribute controlled substances punishable under section 406 of the Controlled Substances Act (21 U.S.C. 846) section 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 963) or
(3 ) an offense involving major quantities of drugs and punishable under section 401(b)(1)(A) of the Controlled Substances Act (21 U.S.C. 841(b)(1)(A)) or section 1010(b)(1) of the Controlled Substances Import and Export Act (21 U.S.C. 960(b)(1)).
(b) Offense and Penalties.-
(1) A person who, in furtherance or to escape detection of a major drug offense and with the intent to intimidate, harass, injure, or maim, fires a weapon into a group of two or more persons and who, in the course of such conduct, causes grave risk to any human life shall be punished by a term of no more than 25 years, by fine under this title, or both.
(2) A person who, in furtherance or to escape detection of a major drug offense and with the intent to intimidate, harass, injure, or maim, fires a weapon into a group of 2 or more persons and who, in the course of such conduct, kills any person shall if the killing-
(A) is a first-degree murder (as defined in section 1111(a)), be punished by death or imprisonment for any term of years or life, fined under this title, or both; or
(B) is a murder other than a first-degree murder (as defined in section 1111(a)), be fined under this title, imprisoned for any term of years or life, or both."
What is a Federal Drive-by Shooting?
18 U.S.C. 36 specifically identifies drive-by shooting as a federal crime when it is committed "in furtherance or to escape detection of a major drug offense."
For purposes of this law, the term, a major drug offense refers to specific violations of the Controlled Substances Act and the Controlled Substances Import and Export Act, namely:
- A continuing criminal enterprise (organized crime).
- A conspiracy to distribute controlled substances or
- An act involving major quantities of drugs.
In this context, a violation of 18 U.S.C. 36 occurs when an individual, with the intention of intimidating, harassing, injuring, or maiming, fires a weapon into a group of two or more people.
This intersection of drive-by shootings and federal drug violations underscores the federal government's unwavering commitment to curbing organized crime and large-scale drug trafficking operations. It's a clear message that public safety is a top priority.
Notably, while this crime is referred to as "drive-by shooting," the law itself does not limit its scope to the use of a vehicle when firing into a crowd. Rather, it refers to any act of firing into a group in the context of a major drug violation, regardless of whether the perpetrator was in a vehicle at the time.
What Must Be Proven to Convict?
To procure a conviction under 18 U.S.C. 36, federal prosecutors must establish the following elements of the crime beyond a reasonable doubt:
- Act of Firing: You fired a weapon into a group of two or more persons.
- Intent: The intent behind the action was to intimidate, harass, injure, or maim.
- Furtherance of Criminal Activity: The act was committed in furtherance of, or to escape detection of, another criminal activity, particularly those related to federal drug laws.
- Resulting Harm or Risk: The shooting caused a grave risk to human life or resulted in death.
What are Related Federal Laws?
18 U.S. Code Chapter 2 Aircraft and Motor Vehicles has several federal statutes related to this law, including the following:
- 18 U.S.C. 31 - Definitions.
- 18 U.S.C. 32 - Destruction of aircraft or aircraft facilities.
- 18 U.S.C. 33 - Destruction of motor vehicles or motor vehicle facilities.
- 18 U.S.C. 34 - Penalty when death results.
- 18 U.S.C. 35 - Imparting or conveying false information.
- 18 U.S.C. 36 - Drive-by shooting.
- 18 U.S.C. 37 - Violence at international airports.
- 18 U.S.C. 38 - Fraud involving aircraft or space vehicle parts in interstate or foreign commerce
- 18 U.S.C. 39 - Traffic signal preemption transmitters.
- 18 U.S.C. 39A - Aiming a laser pointer at an aircraft.
- 18 U.S.C. 39B - Unsafe operation of unmanned aircraft.
- 18 U.S.C. 40 - Commercial motor vehicles required to stop for inspections.
- 18 U.S.C. 40A - Operation of unauthorized unmanned aircraft over wildfires.
What are the Penalties?
The penalties for violating U.S.C. 36 are quite severe. If you're convicted of this crime, you can expect the following penalties:
- Imprisonment: Up to 25 years for causing grave risk to human life.
- Life Imprisonment or Death: If the firing of the weapon results in death, the penalties escalate to "any number of years to life" in prison. If the act constitutes first-degree murder, prosecutors can even seek the death penalty.
- Fines: Substantial fines may also be imposed alongside imprisonment.
What are the Common Defenses?
Despite the high stakes involved with a criminal charge under 18 U.S.C. 36, a skilled federal criminal defense attorney can still employ various defense strategies to counter these charges. Some common defenses include the following.
Lack of Intent
Proving intent is crucial for a conviction under 18 U.S.C. 36. The defense may argue that you did not have the required intent for a conviction (e.g., you didn't intend to harass, intimidate, injure, or maim anyone or that you were neither furthering nor attempting to conceal a drug offense.
This defense could involve showing that the discharge of the firearm was accidental, for example, or that some other intent was involved.
You Were Not the Shooter
Given the nature of drive-by shootings, identifying the actual perpetrator can be challenging. Your attorney may argue "mistaken identity" in this case, showing that you were not the person who fired the weapon.
This may be proven through such tactics as producing alibi witnesses, eyewitness testimony, or challenging the reliability of forensic evidence.
No Drug Connection
Remember, a drive-by shooting must be connected to federal drug trafficking to violate 18 U.S.C. 36. Hence, the defense can argue the absence of any link to federal drug laws.
This would involve disproving the prosecution's claim that the shooting was related to the manufacture, distribution, or trafficking of controlled substances. In this case, you might still be prosecutable under state laws but not federal ones.
Constitutional Violations
The defense may argue that your constitutional rights were violated during the investigation or arrest.
This could include unlawful search and seizure (Fourth Amendment), coerced confessions (Fifth Amendment), etc. If these violations are proven, any evidence obtained through these violations must be suppressed, possibly resulting in a dismissal of the charges.
Contact our federal criminal defense law firm for additional information. Eisner Gorin LLP has offices in Los Angeles, California.
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