Providing or Possessing Contraband in Prison is a crime under both New York State and federal law. Under New York State law, this charge is called Promoting Prison Contraband is codified under New York Penal Sections Law 205.20 and 205.25. Under federal law. this charge is called Providing or Possessing Contraband and it is codified under 18 U.S.C. Section 1791. Importantly, providing or possessing contraband in federal prison can be prosecuted under both federal or New York State criminal law.

18 U.S. Code § 1791 Providing or Possessing Contraband in Prison

Section 1791 of Title 18 contains two different charges relating to Providing or Possessing Contraband in Prison. Specifically, these two charges are:

  1. Providing or attempting to provide an inmate with a prohibited object in violation of a statute or a rule or order issued under a statute;
  2. Being an inmate of a prison, making possessing, obtaining or attempting to make or obtain a prohibited object.

Thus, this charge punishes those who introduce or attempt to introduce contraband into prison as well as the inmates who possess it.

Sentencing and Penalties for Providing or Possessing Contraband in Federal Prison

Providing or Possessing Contraband in Federal Prison has different penalties depending on the nature of the contraband introduced (or attempted to be introduced) into federal prison or possessed in a federal prison by an inmate. These sentencing maximums are explained below:

6 Month Maximum

The maximum term of imprisonment for items specified in subsection (d)(1)(G) is 6 months. These items are defined as any other object that threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual. This section applies to items not specifically listed in sections (d)(1)(A) through (d)(1)(F).

1 Year Maximum

The maximum term of imprisonment for items specified in subsections (d)(1)(D), (d)(1)(E), and (d)(1)(F) is 1 year. These items include:

  • A controlled substance (other than a controlled substance referred to in subparagraph (A), (B), or (C) of this subsection),
  • An alcoholic beverage;
  • Any United States or foreign currency; AND
  • A phone or other device used by a user of commercial mobile service in connection with such service.
What is considered a controlled substance?

The definition of the term “controlled substance” for the smuggling or possessing contraband in federal prison charge comes from the Controlled Substances Act, specifically 21 U.S.C. Section 802.

The term “controlled substance means” a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of Section 802 of the Controlled Substances Act. Importantly, the following are not considered to be controlled substances:

  • Distilled spirits,
  • Wine,
  • Malt beverages, or
  • Tobacco.

5 Year Maximum

A five year maximum term of incarceration applies to prison contraband listed in subsection (d)(1)(B). These items include:

  • Marijuana or a controlled substance in schedule III, other than a controlled substance referred to in (d)(1)(C),
  • Ammunition,
  • A weapon (other than a firearm or destructive device), or an object that is designed or intended to be used as a weapon or to facilitate escape from a prison.
What is considered ammunition?

The term “ammunition” is defined as ammunition, or cartridge case, primers, bullets, or propellent powder designed for use in any firearm.

10 Year Maximum

A 10 year maximum term of imprisonment applies to items specified in subsection (d)(1)(A). Items punishable by a 10 year maximum period of incarceration include:

  • A firearm or a destructive device; AND
  • A controlled substance in schedule I or II, (with the exception of marijuana and those controlled substances referred to in subparagraph (d)(1)(C).
What is considered a firearm?

The definition of “firearm” for the purposes of smuggling or possessing contraband in federal prison includes:

  • Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;
  • The frame or receiver of any such weapon;
  • Any firearm muffler or firearm silencer; OR
  • Any destructive device.

Importantly, antique firearms are not considered firearms. Antique firearms are those that were manufactured prior to 1898.

What is considered a destructive device?

Similar to the “firearms” and “ammunition” definitions, the definition of “destructive device” also comes from 18 U.S.C. Section 921. Destructive device includes any of the following:

  • Any explosive, incendiary or poison gas,
  • Bomb, grenade, rocket having a propellant charge of more than 4 ounces,
  • Missile having an explosive incendiary charge of more than one-quarter ounce,
  • Mine,
  • Any type of weapon (other than a shotgun or a shotgun shell that is generally recognized suitable for sporting purposes) which may be readily converted to expel a projectile by the action or explosion of other propellant, and which has any barrel with bore of more than 1/2 inch in diameter; AND
  • Any combination of parts either designed or intended or use in converting any device into any destructive device.

20 Year Maximum

A 20 year maximum term of incarceration applies to items listed in (d)(1)(C). Specifically, this high maximum applies to:

  • A narcotic drug;
  • Methamphetamine, its salts, isomers, salts of its isomers;
  • Lysergic acid diethylamide; AND
  • Phencyclidine.
What is considered a Narcotic Drug?

The definition of “narcotic drug” that applies to the smuggling or possessing contraband in federal prison comes from the Controlled Substances Act of 1970. The definition is codified in Section 802 of Title 21 of the United States Code.

The term narcotic drug includes any of the following, “whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:”

  • Opium, opiates, derivatives of opium and opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation.
  • Poppy straw and concentrate of poppy straw.
  • Coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed.
  • Cocaine, its salts, optical and geometric isomers, and salts of isomers.
  • Ecgonine, its derivatives, their salts, isomers, and salts of isomers.
  • Any compound, mixture, or preparation which contains any quantity of any of the substances referenced above.
Examples of Narcotic Drugs

The following are examples of narcotic drugs:

  • Hydromorphone,
  • Methadone,
  • Meperidine,
  • Oxycodone,
  • Fentanyl,
  • Morphine,
  • Opium,
  • Codeine,
  • Hydrocodone.products containing not more than 90 milligrams of codeine per dosage unit, AND
  • Buprenorphine.

Frequently Asked Questions Regarding Possessing Contraband in Federal Prison

When Are Prison Contraband Cases Prosecuted by the Feds and When Does the State Take over?

Possession or smuggling of contraband into a prison is a crime under both New York State and federal law. Importantly, 18 U.S. Code § 1791 does not apply to all all prisons, because the definition of “prison” is rather narrow. Specifically, the definition includes:

  • All federal detention, correctional or penal facilities, AND
  • Any prison, institution or facility in which person are held pursuant to a contact, agreement or direction of the Attorney General.

Is the Sentencing for Possessing Contraband in Federal Prison Consecutive or Concurrent to Other Charges?

Possession or Smuggling of Prison Contraband is consecutive (meaning after after the other sentence) in the following situations:

  1. Sentence imposed for possession or smuggling of contraband, which is a controlled substance, is consecutive to sentence to the possession of a controlled substance. For example, if the Court imposes a 6 month sentence for possession of marihuana, and 6 months for possession or smuggling of marihuana into a federal facility, the total sentence imposed will be 12 months.
  2. Sentence imposed for a violation of 18 U.S.C. Section 1791 by an inmate of the prison is consecutive to the sentence being served by the inmate at the time the violation is committed. For example, let’s say an inmate is serving a 60 month sentence and the judge imposes a 12 month sentence for possession of contraband in a federal prison. The inmate will serve 72 months, because the 12 month sentence will be consecutive to the original sentence.

What is the Statute of Limitations for Smuggling or Possessing Contraband in Federal Prison?

The statute of limitations for smuggling or possessing contraband in federal prison is five years. That means, from the time of the incident, the Government has five years to bring charges against you.

What Should I Do If I Find Out That I Am Under Investigation for Smuggling Contraband Into Federal Prison?

If you find out that you are being investigated for bringing contraband into federal prison, you need to retain an attorney immediately. Do not speak to law enforcement or agree to any meetings with the agents until you consult an attorney. Even if you believe you will be able to talk your way out of the situation. Even if you believe you are innocent of these accusations.

If law enforcement contacts you about an investigation involving smuggling or possessing contraband in federal prison, obtain their contact information. A business card or a photo of the business card is best. Then, tell the agents your attorney will contact them shortly. Do not give them any information, except for your name. Then, contact us immediately to schedule a consultation.

Contact Top Rated Federal Defense Attorneys Today

If you or a loved one is being investigated or has been arrested for providing or possessing contraband in federal prison, you need experienced federal criminal defense counsel. Call us at 212-729-9494 or contact us today for your free initial consultation to find out if we are the right firm for you.