August 12, 2022

Volume XII, Number 224

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Federal Criminal Drug Counterfeiting Defense

Introduction: What is Drug Counterfeiting? 

Selling fake drugs may subject you to criminal liability under 21 U.S.C. § 331. Section 331 makes it illegal to sell a misbranded or adulterated drug in interstate commerce. The sale of counterfeit drugs must involve interstate commerce. If you sell a counterfeit drug and it crosses state lines, you will have violated this section. For instance, if you buy aspirin in New York and sell it as codeine in New Jersey, then you may be convicted under the federal counterfeit drug statute. In addition, 18 U.S. Code § 2320 – trafficking in counterfeit goods or services – may also apply. This section makes it a federal crime to traffic goods or services and then knowingly use a counterfeit mark in connection with the good or service. An example of a federal crime includes an individual creating a counterfeit drug that replicates a genuine drug, or selling fake drugs. Conduct under this statute includes possessing, manufacturing and then promoting and selling the counterfeit drug to the public.

You may also face liability for criminal fraud under 18 U.S.C. 1001. This section makes it illegal to knowingly and willfully falsify or cover up a material fact; make a materially false or fraudulent statement, or make or use false writing or document knowing that it is false. An example of criminal fraud includes telling a buyer that the product is a powerful painkiller when in fact it is a combination of baby aspirin and vitamins, and you know this. The above sections also apply to black market transactions. For instance, if you tell someone they are buying heroin when you know it is a combination of flour and caffeine, you just knowingly made a materially false statement. This article explains drug counterfeiting, definition, penalties, and tips for choosing a law firm.

Penalties for Drug Counterfeiting 

Selling counterfeit drugs or fake drugs can lead to significant penalties. Under 21 U.S.C. §§ 331 and 333, if you are convicted of selling counterfeit drugs across interstate commerce and you had no intent to mislead, you face a fine of up to $1,000 and a sentence of one year or less imprisonment, or both. On the other hand, if you are convicted of selling counterfeit drugs across interstate commerce and you had the intent to mislead, you face a fine of up to $10,000 and up to three years imprisonment, or both. Each sale you conduct is a separate offense—meaning that if you intentionally sell a counterfeit drug to 20 people, you face charges for 20 separate accounts. This amounts to 60 years imprisonment and a $200,000 penalty. 

Also, if charged with criminal fraud under 18 U.S.C. § 1001 and convicted, you could face up to five years imprisonment and/or fines of not more than two times the gross gain or loss from the counterfeit drug sale. In addition to penalties and jail time, these charges may lead to loss of your medical license or driver's license, termination from your employment, difficulties finding another job, loss of your immigration visa, difficulty securing a home to buy or rent, and a permanent criminal record for being a drug offender. Because of this possibility, it is important to retain a federal criminal defense attorney experienced in federal counterfeiting defense. This will give you the best defense and chance of a successful outcome. 

“Several years ago, the DOJ announced efforts to expand the scope and extent of its federal investigations into suspected criminal activity as well as to increase both the charges brought and the penalties for violating federal law. Further, many counterfeiting charges require intent to defraud. Without this intent element, you cannot be found guilty. Only an experienced team can tackle this challenge and provide you with a strong defense.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Four Steps to Take When Choosing Criminal Defense Lawyers 

1. Make sure the law firm is focused on federal criminal law. You must be wise when choosing a criminal defense attorney because it can mean all the difference. Now is not the time to go with a junior attorney or the attorney who offers lower costs. Do not choose an attorney who claims to have a good understanding of counterfeiting defenses but who does not have a successful track record. Grand jury subpoenas and investigations are serious matters. Serious matters demand the services of a serious defense team—a defense team with a proven track record in successfully defending clients against federal counterfeiting charges. 

2. Pick a law firm with an intricate knowledge of federal counterfeiting. You would not choose a doctor who does not fully understand your medical condition. You would choose the best medical professional for a serious medical condition. Do the same with your criminal defense attorney. A good attorney can find loopholes and exceptions in the law and argue them in your favor. A good attorney will go the extra mile for you. Your attorney should be able to answer questions such as their knowledge of federal counterfeiting, defenses available, their track record of success, federal trial court experience, and experience in federal criminal law. 

3. Ask about your attorney´s success rate. An attorney is only as good as the results they obtain. It is important to have an honest attorney-client relationship so make sure to get an honest answer when asking your attorney about their success rates in cases similar to yours. A good attorney is often able to keep federal criminal matters out of the news by ending the federal investigation early on. A successful track record includes obtaining the following results for clients:

  • Quashing federal subpoenas;

  • Getting clients acquitted at trial;

  • Dismissing the entire indictment; 

  • Avoiding criminal charges and penalties altogether; and

  • Getting sentences of probation over charges that often call for several years’ imprisonment.

4. Pick a law firm that is dedicated and committed to your case. A good law firm demonstrates dedication and open communication to its clients. Your attorney should be committed to fighting for you. It is often easy to tell whether your attorney truly wants to help you or whether they just want to make money from handling your case. Assess the sincerity of your attorney. Similarly, you must be able to freely talk to your attorney. Without open and continuous communication channels, many clients become anxious about the next stages in the investigation. 

Conclusion

Drug counterfeiting charges are not to be taken lightly. Charges of criminal drug counterfeiting crimes can be devastating to an individual's career. Not only can such charges lead to criminal penalties and jail time, but they could also result in the permanent loss of your ability to practice medicine, thereby destroying your reputation. It is therefore critical to retain an attorney that is experienced in federal counterfeiting crimes legislation, delivering strong defenses, and vigorously defending their clients against criminal charges and prosecutions.

Oberheiden P.C. © 2022 National Law Review, Volume XII, Number 48
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About this Author

Nick Oberheiden Criminal Defense Attorney Oberheiden PC
Federal Criminal Defense Attorney

Dr. Nick Oberheiden focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation. He has defended clients in PPP Loan Fraud cases and COVID-19 investigations. Nick also directs internal corporate investigations and he leads defense teams in whistleblower actions, corporate defense cases, as well as cases involving national security and elected officials.

Clients from more than 45 U.S. states have hired Nick to seek effective protection against government...

888-680-1745
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