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Can possession of DMT-containing plants or fungi be prosecuted as manufacturing under 21 U.S.C. § 841 or § 846?
Executive summary
Possession of a plant or fungus containing DMT can trigger federal drug-manufacturing or possession-with-intent charges under the Controlled Substances Act (CSA) because 21 U.S.C. § 841 criminalizes “manufacture” and “possess with intent to manufacture, distribute, or dispense” of controlled substances and § 846 criminalizes attempts and conspiracies to commit those offenses [1] [2]. How prosecutors apply those statutes to plants or fungi that contain DMT depends on statutory definitions, proof of intent or steps toward distribution/manufacture, and prosecutorial discretion — matters courts and practitioners treat fact-specifically [3] [4] [5].
1. The statutory baseline: manufacture, intent, and attempt
The CSA’s core prohibition makes it unlawful to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance” absent authorization (21 U.S.C. § 841) [1] [3]. Separately, § 846 covers attempts and conspiracies to commit CSA offenses, meaning steps short of completed manufacture can still be charged [2]. Multiple legal summaries and court materials emphasize that prosecutors must prove the defendant’s mental state (knowledge and intent) and, for attempts, that the defendant took substantial steps toward the crime [4] [5].
2. Plants/fungi with DMT: statutory coverage and interpretive gaps
The texts of § 841 and related materials discuss “controlled substances” and “listed chemicals” but do not in the supplied sources explicitly say how whole plants or fungi that contain a controlled compound are treated in every circumstance [1] [3]. Practitioners note prosecutors may pursue manufacturing or possession-with-intent charges where the government can link the plant material to an intent to extract, prepare, or distribute the active compound; however, the available sources do not provide a definitive rule about raw plants or fungi per se [5] [6]. Therefore: prosecutorial practice and case law become decisive, and those specifics are not contained in the current reporting set (not found in current reporting).
3. Proof of intent and the prosecution’s burden
Federal practice materials and defense writings stress the prosecution must prove intent to manufacture or distribute — possession alone is insufficient for § 841 manufacturing counts; circumstantial evidence (quantity, paraphernalia, steps toward extraction/packaging) is often used to infer intent [4] [7]. Defense sources highlight common defenses: arguing personal use, lack of distribution paraphernalia, or no substantial step toward manufacture [7] [6]. The supplied guides underscore that intent and substantial steps are core contested elements in federal prosecutions [4] [5].
4. Attempt and conspiracy exposure for cultivation or processing
Because § 846 applies the § 841 penalties to attempts and conspiracies, someone cultivating, harvesting, or processing plants to obtain DMT could be charged even if no finished extract exists — if the government proves a substantial step or an agreement to commit the offense [2]. Sentencing and charging practice treat attempts/conspiracies seriously; mandatory minimum frameworks and guideline applications can apply similarly to completed offenses [2] [8].
5. Enforcement realities: prosecution choices and evidentiary thresholds
Criminal-defense and prosecutorial guides in the provided collection emphasize that federal prosecutors make charging decisions on available evidence and expected proof of intent; large-scale operations more readily attract § 841/§ 846 charges, while borderline or private cultivation may see state law or diversion instead [6] [9]. The materials show federal statutes are broadly written and aggressively prosecuted, but they do not give a line-by-line rule for DMT-containing botanical matter [9].
6. What the sources explicitly don’t say — limits of the record
The supplied sources do not furnish federal court opinions specifically resolving whether mere possession of plants or fungi that contain DMT, without extraction steps or distribution evidence, always meets the statutory elements of “manufacture” or “possess with intent to manufacture.” They also do not cite a precedent squarely on plants/fungi with DMT (not found in current reporting). Absent those decisions in this collection, the practical answer depends on fact patterns, proof of intent/substantial steps, and prosecutorial charging choices [1] [4] [5].
7. Bottom line for readers and contested viewpoints
Statutorily, federal law criminalizes manufacture and possession with intent and treats attempt/conspiracy similarly, so possession of DMT-containing plants or fungi can be prosecuted under §§ 841 and 846 when the government can connect the botanical material to intent or substantial steps to make or distribute DMT [1] [2]. Defense sources stress that intent is an element that can defeat such prosecutions in close cases [7] [6]. The supplied materials present competing emphases: prosecutors point to broad statutory reach and aggressive enforcement [9]; defense commentators focus on the need to prove intent and on factual defenses [7] [6].
If you want, I can search for federal or circuit opinions that have tested these questions with DMT-containing plants or provide sample defense strategies and charges from recent case law (current search results do not include such opinions).