The FTO designation has also unlocked a suite of substantive terrorism offenses that prosecutors can use––nationwide—to fight the cartels. This implication is even more powerful than the expanded surveillance authorities that accompany the designation. These statutes impose crushing criminal liability on cartel members and anyone perceived to support them
Historically, the prosecution of cartels relied on drug trafficking offenses. These bread and butter criminal statutes focused on the act of manufacturing and distributing drugs. For example, 21 U.S.C. § 841(a)(1) penalizes the “distribution, manufacturing, and possession with intent to distribute controlled substances.” Larger amounts correspond to greater criminal penalties. Generally, a trafficker under this statute faces a mandatory minimum of five years in prison upon conviction.
For more serious conspiracies, prosecutors reach for the “Drug Kingpin Statute.” This crime is satisfied if the defendant oversees a drug trafficking conspiracy of more than five people. It has a mandatory minimum of 20 years.
With both of these offenses, the government must show very specific conduct to support the offense. That conduct relies on involvement in a drug conspiracy; that is, hands-on action to support the distribution of illegal drugs. Terrorism offenses need not be nearly as specific.
The FTO designation theoretically opens up several statutes to prosecutors, but one in particular acts as a sledgehammer for anyone involved in cartel activities.
18 U.S.C. § 2339B makes it a crime to provide “material support” to an FTO. Specifically, a person violates the statute if he knowingly provides any material support to an organization that the Executive Branch has designated as an FTO pursuant to 8 U.S.C. § 1189. Material support is defined to include any property, service, training, expert assistance, or personnel.
Because material support is defined so broadly, criminal liability can attach with almost any association with an FTO. This means that any person or organization who provides any service to a person who they know (or should know) to be a cartel member is liable under the statute. Theoretically, this could be something as simple as giving a taxi ride to someone you know is a cartel member.
Once liability attaches, the penalty is severe. While § 2339B does not impose a mandatory minimum, material support of terrorism is often accompanied by a sentencing enhancement under the federal sentencing guidelines. For a first-time offender (and absent any other considerations), this “terrorism enhancement” brings the guideline range for a § 2339B conviction to 17.5–21.8 years.
Empowered by this statute, federal prosecutors can now through the book at anyone with a cartel association. This has even more powerful implications for pleadings and cooperation than it does for convictions and sentencings. For instance, a federal prosecutor can indict a low-level cartel member under § 2339B and use the statute’s strict penalties to force that low-level member to cooperate. His cooperation can assist in rolling up a more senior member, who in turn can be forced to cooperate. Thus, this statute gives the U.S. government strong criminal tools to help fight broader criminal conspiracies.
But this sledgehammer raises fundamental concerns about justice. If a 17-year-old second-generation American knows that his local street gang is getting its methamphetamine from the Sinaloa cartel, he is very likely guilty of providing material support to a foreign terrorist organization under § 2339B. But should we really call this child a terrorist? Is it right to give him a de facto minimum sentence of five years in federal prison?[1] As Americans, are we comfortable putting him in federal prison until he’s almost 40 years old?[2]
As the law stands, our justice system is perfectly within its rights do so.
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