It happens all the time. Someone thinks they can make a quick buck selling aspirin as oxy. If the drugs aren’t really drugs and no one gets hurt, it seems the action would be legal. However, that is wrong. The drugs may be fake, but the charges are real.
Counterfeit Drug Laws
Federal and state laws prohibit the sale of what’s known as “counterfeit drugs.” For federal law to apply, the sale of the counterfeit drug must involve interstate commerce. For example, if you purchased the aspirin in Texas, and traveled across state lines to Arizona to sell the drugs, you might be convicted under the federal counterfeit drug law. Regardless of whether you cross state lines to sell the drug, state counterfeit drug laws will apply.
Criminal Fraud Charges
In addition to violating counterfeit drug laws, you may also be charged with criminal fraud. According to 18 U.S.C. 1001, it is illegal to knowingly and willfully:
- falsify, conceal or cover up a material fact;
- make any materially false fictitious, or fraudulent statement or representation; or
- make or use any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.
In other words, if you tell someone that the white powder in the bag is heroin, and they purchase it, but you know that it is really white flour, you have knowingly made a materially false statement about what is in the bag.
Proving Criminal Fraud
It is not enough to show that you made a false statement. In order to prove a charge of criminal fraud, the government must prove that you intentionally made the false statement about the drug that you knew was untrue.
The government must also prove that the false statement concerned a fact of significance to the transaction. In this case, if the buyer relied on your statement that the powder was heroin because the buyer wanted to purchase heroin, then the statement is material.
Penalties for Criminal Fraud & Counterfeit Drugs
If you are convicted of criminal fraud, you may face a sentence of up to five years in prison.
A conviction for the sale of a counterfeit drug involving interstate commerce with no intent to defraud or mislead may land a person a sentence of one year or less in prison and/or a fine of up to $1,000.
On the other hand, if you are convicted for selling a counterfeit drug involving interstate commerce with intent to defraud or mislead, you may face a sentence of not more than three years in prison, a fine of not more than $10,000, or both.
On top of that, each individual sale can be treated as a separate violation, punishable by the maximum sentence. This means that if you sell a fake drug to 10 people, you can be charged with 10 separate counts and face up to 30 years in prison and up to $100,000 in fines.
Defending Fake Drug Sale Charges
The charges for selling fake drugs can be steep. Therefore, it’s important to have an experienced criminal defense attorney on your side to offer your best defenses.
Lack of Knowledge
A critical element of the government’s fraud charges is knowledge. If you did not know the drug you were selling was fake, then you had no knowledge. Without knowledge, there can be no fraud. Of course, you may still be faced with charges for selling a real controlled substance.
Lack of Intent
If you made a statement without the intent to mislead someone, then there is no fraud. In other words, if someone wanted to ask you if you had Oxycontin and you told them no, that you only had Advil, then there would be no fraud.
Lack of Intent? Not a Defense to Counterfeit Drug Sales
Even if you prove lack of intent to defraud, you may still be charged with selling a counterfeit drug, in violation of federal law. It is illegal to sell any ingestible substance represented as a pharmaceutical.
Contact Oberheiden, P.C. Today
The experienced criminal defense attorneys and former federal prosecutors at Oberheiden, P.C. fight vigorously to help clients avoid conviction and minimize the consequences of being arrested for drug-related offenses. Our firm has two former federal prosecutors in addition to experienced defense counsel. We handle federal drug crime cases nationwide. Contact Lynette or Nick to get your answers. To schedule your free consultation, call 866-603-4540 or contact us online today.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.