Completed drug sale or attempt?
On the pages of my website, I have repeatedly given examples from judicial practice in cases of drug trafficking. And the point is not that I, as some have already thought, specialize in this kind of criminal cases. Most likely, we can talk about the high prevalence of such cases in the practice of investigative authorities, the low quality of the investigation and the reluctance of the courts to delve into all the circumstances of the case, to listen and give a proper assessment to the well-founded arguments of the defense. Numerous errors, and often purposeful actions of investigators, when the investigator deliberately overstates the qualifications of the actions of the accused, blaming their sale instead of illegal possession of drugs, instead of preparation or attempted illegal sale - a completed crime, when instead of one episode of criminal activity, the actions of the accused are divided into Several separate crimes lead to the fact that the accused appears before the court as a completely asocial type, who has turned drugs into a trade and his life’s work.
The task of the defense, which, as my legal practice shows, I very often have to face, is to present to the judge in a brief, clear and accessible form all the errors, inconsistencies, and contradictions in the position of the investigative authorities. Principled judges who delve into all the circumstances of the case, are critical of unsubstantiated statements, unverified facts, conjectures and conjectures of the investigation, giving a proper assessment of violations of criminal procedural legislation that occur in almost every similar case, as a rule, take measures to correct errors made in stage of the investigation, as a result of which the actions of the convicted are qualified in accordance with the provisions of the General and Special Parts of the Criminal Code of the Russian Federation, clarifications of the highest judicial authorities, and the imposed punishment meets the requirements of legality and justice. The most striking, indicative and significant examples of the adequate position of the courts of first instance in imposing punishment, correcting incorrect qualifications in cases related to drug trafficking are given by me on the website for general use in similar cases.
This case is a continuation of the story that was described in the website article “Sentence with a punishment below the lowest limit (Article 64 of the Criminal Code of the Russian Federation).”
As already indicated, the person convicted of three episodes of drug sales in a significant (2 completed episodes) and large amount (attempted sale) was sentenced under Article 64 of the Criminal Code of the Russian Federation in the form of 7 years and 6 months of imprisonment.
Not agreeing with either the qualifications or the imposed punishment, the defense filed an appeal, in which, in addition to arguments about the lack of proof of the guilt of the convicted M.P.A., it was also pointed out that his two episodes of selling narcotic drugs on a significant scale were incorrectly classified as completed crimes.
The circumstances of these two episodes were absolutely identical: M.P.A. under unknown circumstances, acquired two quantities of narcotic drugs in a significant amount, and then placed these drugs in two caches in a forested area. Both caches were discovered by police officers, the drugs were seized, and M.P.A. two episodes of completed sale of narcotic drugs in a significant amount were charged. At the same time, the position of the investigation and the state prosecution for a person inexperienced in the intricacies of criminal law looked somewhat contradictory: there was no direct transfer of drugs to the final buyer, moreover, the drugs were eventually confiscated from the same place where the defendant allegedly buried them, but his actions this was qualified as a completed sale, that is, as if the drugs were handed over to the purchaser.
In this case, the prosecution referred to the provision of paragraph 13.1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 15, 2006 No. 14, which stated that the actual receipt by the purchaser of narcotic drugs is not necessary to qualify the sale as a completed crime. It is enough for the distributor to complete all the necessary steps to transfer the illegal substances to the purchaser.
To support its position, the prosecution presented the defendant’s phone number, which contained photographs of “stash caches” with geolocation coordinates. This, according to the prosecution, was enough to conclude that the illegal sale was completed.
To refute the prosecution's arguments, the defense presented data that the contents of the defendant's smartphone, firstly, do not allow establishing whether the defendant himself took the indicated photos of the caches with geolocation coordinates, or received these photos from a drug seller, intending to purchase the specified funds for his own needs . Secondly, information about sending these photos to the drug buyer was not received either during the investigation or in court. Accordingly, the imaginary purchaser himself was not identified. Third, the defense presented compelling evidence that at least some of the data was placed on M.P.A.'s phone. after the phone was seized from M.P.A. by police officers.
The court of first instance did not take into account the above arguments and decided that M.P.A. For his part, he carried out all the actions to transfer the drugs to the purchaser and completely duplicated the plot of the charges from the indictment in the court verdict. Accordingly, the qualification of actions of M.P.A. remained the same.
The verdict of the Kuntsevsky District Court of Moscow regarding M.P.A. was appealed to the Moscow City Court, where the arguments of the defense lawyer's appeal regarding incorrect qualification were fully satisfied. The panel of judges agreed with the defense that the communication of information about the location of the placed bookmarks did not occur, this information was not brought to the attention of the acquirers, as a result of which the actions of M.P.A. for two episodes of illegal sale of narcotic drugs in a significant amount (clause "b" part 3 of article 228.1 of the Criminal Code of the Russian Federation) were reclassified as attempted illegal sale of these drugs (part 3 of article 30, clause "b" part 3 Art. 228.1 of the Criminal Code of the Russian Federation), appointed M.P.A. the punishment for the totality of three crimes was reduced by 1 year to 6 years 6 months of imprisonment.
Appeal ruling of the Moscow City Court with reclassification of two episodes of sale of narcotic drugs (clause “b”, part 3, article 228.1 of the Criminal Code of the Russian Federation) to attempted sale (part 3, article 30, clause “b”, part 3, article 228.1) Criminal Code of the Russian Federation) narcotic drugs (extracts):
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Added 04/12/2019 | Litigation practice, Criminal cases
Criminal liability under 228.1 of the Criminal Code of the Russian Federation
In turn, Article 228.1 of the Criminal Code of the Russian Federation, first of all, provides for liability for the illegal sale of narcotic drugs.
Sales refers to the transfer of a narcotic drug to another person by any means. This can be a sale, donation, exchange, lending, etc.
Illegal sale of narcotic drugs is a much more socially dangerous act than their acquisition and storage, which is emphasized by the severity of the punishment provided for in this article, which, according to Part 5 of Art. 228.1 of the Criminal Code of the Russian Federation reaches life imprisonment.
Illegal production and sale of drugs is punishable by imprisonment for up to 20 years. In some cases, the court may impose a sentence of life imprisonment.
| Time limit under Art. 228.1 | Deprivation of liberty |
| Without aggravating circumstances | from 4 to 8 years |
| Sales in pre-trial detention centers, administrative buildings, sports, educational and transport facilities, through the media and the Internet | from 5 to 12 years |
| By a group of persons by prior conspiracy, in a significant amount | from 8 to 15 years |
| By an organized group, on a large scale, using official position, to a minor | from 10 to 20 years |
| In a particularly large size | from 15 to 20 years, for life |
Unlike the possession of narcotic drugs during their sale, the law does not establish a minimum amount of the substance , therefore, for the sale of even a small amount of a drug you can receive up to eight years of actual imprisonment.
Criminal liability under Article 228 of the Criminal Code of the Russian Federation
Article 228 of the Criminal Code of the Russian Federation provides for criminal liability, first of all, for the illegal acquisition and storage of narcotic drugs without the purpose of sale.
When a person is accused of purchasing and storing drugs, it is understood that the seized drug was with him for his own consumption, and not for the purpose of sale, that is, transfer to another person.
The severity of the punishment depends on the size (quantity) of the drug.
A significant amount, as provided for in Part 1 of Article 228 of the Criminal Code of the Russian Federation, implies punishment from a fine of up to 40 thousand rubles to imprisonment for up to three years.
For a large amount, liability already arises under this article, punishable by imprisonment for a term of three to ten years with or without a fine of up to 500 thousand rubles, etc.
| For the acquisition, storage, production of narcotic drugs without the purpose of sale | Deprivation of liberty | Additional measures |
| To a significant extent | up to 3 years* | fine up to 40 thousand rubles, compulsory / corrective labor, restriction of freedom up to 3 years |
| Large size | from 3 to 10 years | fine up to 500 thousand rubles, restriction of freedom up to 1 year |
| In a particularly large size | from 10 to 15 years | fine up to 500 thousand rubles, restriction of freedom up to 1.5 years |
*imprisonment is not a mandatory punishment
If the amount is particularly large, the person is charged under Part 3 of Art. 228 of the Criminal Code of the Russian Federation, according to which the term of actual imprisonment can range from 10 to 15 years with or without a fine of 500 thousand rubles, etc.
Lack of evidence indicating intent to sell
The Supreme Court of the Russian Federation has long expressed its position on the relative features that a criminal case must contain in order to qualify the actions of the accused as an attempt to sell narcotic drugs.
As stated in the Resolution of the Plenum of the Supreme Court dated June 15, 2006 No. 14 (as amended on May 16, 2022) “On judicial practice in cases of crimes related to narcotic drugs, psychotropic, potent and toxic substances”, on intent to Sales may be evidenced - if there are grounds - by the acquisition, production, processing, storage and transportation of these substances by a person who does not use them, as well as the quantity (volume), placement in packaging convenient for transfer, the existence of an appropriate agreement with consumers, etc. (clause 13).
Based on the practice that has developed today, when detaining a person who has a sufficiently large amount of a narcotic substance on him, the investigator often decides to initiate a criminal case for attempted sale of narcotic substances (Article 228.1 of the Criminal Code of the Russian Federation), and not simple storage of them. In case of attempted sale, criminal liability is much more serious.
Let me give you an example from my own legal practice. My client was stopped by patrol officers to check his documents, as he aroused suspicion among law enforcement officers. During the personal search, it was revealed that the detainee was carrying a package of mephedrone. After calling the investigative team, seizing the substance, receiving explanations from the detainee and delivering him to the police department, a criminal case was opened under Part 3 of Art. 30, paragraph “g”, part 4, art. 228.1 (attempted sale of narcotic substances on a large scale) of the Criminal Code.
During a search of the accused’s place of residence, nothing prohibited was found - no devices indicating preparation for the sale of drugs, no records or telephone numbers of alleged buyers or accomplices, photographs, etc.
Based on the results of the investigation, the reclassification of the case to another - less serious - article of the Criminal Code, unfortunately, did not happen. The investigation, confirming its version with evidence collected in the case, argued that the accused had the intention of selling narcotic substances, which was interrupted due to circumstances beyond his control. In the criminal case brought to court, evidence of the attempted sale included: a personal search report, in which the detainee explained that he planned to sell narcotic substances; testimony of witnesses - two operational officers and two witnesses, who stated that the detainee explained his intention to sell a prohibited substance, as well as magnets that were seized from the detainee and were in the same package as mephedrone.
Meanwhile, within the meaning of the law, the mere quantity of a narcotic drug found on the accused and the given circumstances (a confession obtained in violation of the law about the intention to sell narcotic substances, which the detainee wrote under the dictation of police officers) do not irrefutably indicate the presence of intent to sell, taking into account specific circumstances of the case. In addition, the testimony given in the absence of a defense lawyer during a personal search was not confirmed by the accused at the court hearing, and they are not reflected in the verdict.
As stated in Part 3 of Art. 14 of the Code of Criminal Procedure of the Russian Federation, all doubts about the guilt of the accused, which cannot be eliminated in the manner established by the Code, are interpreted in his favor. However, when considering the case, the court of first instance did not take into account a single contradiction in the case materials and interpreted all the inaccuracies made during the investigation in favor of not the accused, but the accused.
As noted in the verdict, under circumstances not established by the investigation, at an unspecified time, while in an unspecified place, the accused entered into a criminal conspiracy with an unidentified person. They distributed among themselves the roles in the planned crime as follows: an unidentified person must find drugs and provide them to the accused for the purpose of subsequent sale to persons prone to using such substances, while informing the accused through the Internet site of the location and receipt of prohibited substances. The accused, having received narcotic drugs from an accomplice, must perform the function of a “pawnbroker” – i.e. place these substances in hiding places and inform the accomplice of the coordinates of the hiding places. The accused, having received a message from an accomplice about the location of the “bookmark”, discovered and took from there 199.1 g of a substance containing a narcotic drug (mephedrone). He illegally kept this drug on his person until his arrest and subsequent seizure by police officers.
At the same time, the accused consistently argued that he intended to keep the found drugs for personal consumption, since he was dependent on stimulants - this was confirmed by the forensic examination carried out in the case. Also, the lack of intention to sell drugs was indicated by the fact that the seized substance was not packaged, but was in a complete package. In addition, no packaging items or tools were found at the defendant’s place of residence.
As a result, the defendant was found guilty and sentenced to 10 years in a maximum security colony. Based on the results of the consideration of the appeal, the sentence was left unchanged, and the complaint was not satisfied. I filed a cassation appeal, which took an extremely long time to be considered. By that time, the defendant had already arrived in the colony, where the prisoners urged him to change his position on the case, citing the fact that when considering a cassation appeal, one must admit guilt, repent, ask to commute the sentence, and one should not even dream of retraining. The most difficult part of the work on this case was not in developing a position, preparing and submitting petitions, countless preparations for interrogations in court and drawing up complaints, but in keeping the client calm and explaining to him why reclassification is possible, but demands for mitigation of punishment by confessing guilt in something that he actually did not commit will not lead to the desired result: in this case, the term determined by the court is the lowest “bar” of punishment provided for the acts incriminated to him.
The cassation appeal presented the same arguments that the courts of first and appellate instances did not take into account - in particular, that the alleged accomplices of the accused were not identified; during the search, in principle, nothing was found that could be important to the case; The narcotic substance seized during the arrest was not packaged and the accused voluntarily handed it over. In addition, the accused systematically used drugs, was in a state of drug intoxication when arrested, gave explanations from dictation while drunk and immediately admitted guilt in terms of possession of narcotic substances.
The prosecutor's office, in turn, was taciturn. The prosecutor asked that the complaint be dismissed and that the sentence be left unchanged, since the court of first instance assessed the evidence correctly and rendered a reasonable verdict.
Having considered the complaint, the Second Cassation Court of General Jurisdiction changed the verdict in terms of qualification of the actions of the convict and came to the conclusion that the evidence provided indicates that the convict was guilty of illegal possession of narcotic drugs without the purpose of selling them on a large scale, i.e. in committing a less serious crime - under Part 2 of Art. 228 of the Criminal Code, which was correctly indicated in the cassation appeal.
The cassation noted that the version of the convicted person, which testifies only to the illegal possession of a narcotic drug without the purpose of sale, has not been refuted. In addition, the verdict does not provide evidence confirming that the accused had the intent to sell a narcotic drug, entered into a criminal conspiracy with a person not identified by the investigation, distributing criminal roles among themselves in the planned crime - the sale of a narcotic drug.
As a result, the punishment was reduced to six years in a general regime colony due to a change in the category of the crime from especially serious to serious, and conditions were also created for earlier filing of an application for parole.
As the judicial panel for criminal cases of the Second CCJ correctly pointed out, the court of first instance, in the presence of such a significant number of unidentified circumstances, ignored the requirements of Art. 14 of the Code of Criminal Procedure and interpreted all the inaccuracies against the accused. At the same time, the intent to sell these substances may be evidenced - if there are grounds for this - by the acquisition of prohibited substances, their manufacture, processing, storage, transportation by a person who does not use them, the quantity, placement in packaging convenient for transfer, as well as the existence of an appropriate agreement with consumers.
In conclusion, I would like to emphasize that the principal chose the right position, which he was able to carry through to the end of the case, maintaining composure.
