Introduction

Until eliminated as a public health threat during the 20th century, the deadly pathogen “smallpox” was a word that struck terror into the heart of whomever heard it. Today, a new term evokes that response: “fentanyl.” According to the Centers for Disease Control and Prevention, “[a]pproximately 69% of all drug overdose deaths in 2023 involved synthetic opioids other than methadone (primarily reflects illegally made fentanyl),”REF and the Commission on Combating Synthetic Opioid Trafficking reported in 2022 that “[o]verdoses involving illegally manufactured fentanyl are now the leading cause of death for [Americans] ages 18 through 45.”REF A particularly disturbing trend has been the increase in the deaths of minors who use counterfeit pills containing deadly amounts of fentanyl.REF

According to the National Institute on Drug Abuse, 107,941 Americans died because of drug overdoses in 2022, and synthetic opioids other than methadone—principally fentanyl—accounted for 73,838 of these fatalities.REF That is “the equivalent of a packed Boeing 737 crashing every single day.”REF The combination of adverse effects that illicit fentanyl has on the United States—viz., the degradation of our way of life through addiction and death of a large percentage of our population;REF the rise of numerous outdoor drug-abuse “colonies” spread out across the nation;REF the enduring pain suffered by people who have lost loved ones or friends;REF the massive financial costs imposed on our productive capacity, health care services, and criminal justice systems;REF and the murder of hundreds of thousands of people—impacts our economic health as well as our domestic and national security.REF

This Special Report addresses that problem by examining the federal criminal liability of parties who supply the Mexican Transnational Criminal Organizations (TCOs), colloquially known as cartels, with the precursor chemicals necessary to synthesize fentanyl.REF It summarizes why and how fentanyl came to plague the United States; discusses the law governing the responsibility of intermediaries for providing traffickers and street-level sellers with ingredients, equipment, and other items that might be useful in illegal drug synthesization; and examines why parties in the People’s Republic of China (PRC) and Mexico bear responsibility for their participation in the TCOs’ smuggling and distribution operations. The conclusion is this: The parties involved in the knowing production of fentanyl precursors intended for shipment to the Mexican TCOs are liable under U.S. criminal law for their part in the distribution of the illicit fentanyl that is killing thousands of Americans.REF

Fentanyl: A Good Drug that Broke Bad

First developed late in the 1950s by the Belgian chemist Paul Jannssen, fentanyl was approved by the U.S. Food and Drug Administration (FDA) in 1972 as a Schedule II controlled substance under the Comprehensive Drug Abuse Prevention and Control Act of 1970.REF Unlike heroin, which is a product of the poppy plant,REF fentanyl, like every other novel psychoactive substance,REF is a synthetic drug, manufactured entirely in a laboratory from precursor chemicals.REF Given the likelihood (if not certainty) that specific precursor compounds will be used to create illicit controlled substances,REF federal law regulates those chemicals as well as their finished products.REF

The Controlled Substances Act requires the Drug Enforcement Administration (DEA) to include on what it has labeled the Special Surveillance List (SSL) chemicals, along with items such as equipment, that are most often used as precursor chemicals in the illicit production of controlled substances.REF Prepared in consultation with domestic and foreign law enforcement officials, forensic laboratory experts, and other knowledgeable parties, the SSL specifies for parties involved in the manufacture and distribution of chemical compounds the ones with which they should be especially careful because they are commonly used by clandestine laboratories to illicitly manufacture drugs like fentanyl.REF

Drug traffickers will attempt to use unregulated precursor chemicals to manufacture fentanyl,REF along with its analogs and related substances, while evading detection.REF Synthesizing fentanyl does not demand a Ph.D. in organic chemistryREF or a professionally equipped laboratory.REF In fact, some formulation methods are available on the Internet.REF For that reason, the DEA amends the Special Surveillance List as necessary,REF although keeping up with illicit fentanyl “cooks” is no mean feat.REF

Fentanyl is far more potent than the baseline analgesic morphine—50–100 times more powerful—because fentanyl more easily crosses the blood–brain barrier.REF Some fentanyl analogs and related substances are far more powerful still. For example, sufentanyl is 500 times more powerful than morphine, and carfentanil, an elephant tranquilizer, is 10,000 times more potent than morphine.REF Think of those numbers this way: While a miniscule amount of fentanyl can kill a person, a mere speck of carfentanil will have the same effect.REF

When produced by legitimate pharmaceutical companies and prescribed by a licensed physician, fentanyl can be used safely for therapeutic purposes.REF Because of its rapid onset and short duration, anesthesiologists use it during surgery as a sedative. Because of its powerful analgesic effect, oncologists prescribe it in its patch format as a painkiller for end-stage cancer patients. Fentanyl can alleviate suffering when properly used by a licensed physician.

But fentanyl can also be an effective killer when used outside medical care because it can produce respiratory depression, sometimes completely and instantly.REF Some dealers intentionally mix powdered fentanyl with heroin, cocaine, or methamphetamine as a less expensive dilutant or for its additional “kick;” other dealers add it negligently by failing to sanitize a workspace where “baggies” are prepared.REF Whatever the reason, the result can prove deadly. A miniscule amount of fentanyl, perhaps just 10–15 grains—grains, not grams—can prove instantly fatal.REF The upshot is this: Fentanyl has killed more of our fellow citizens, often unwittingly, than many hearts can bear.REF

Fentanyl is an attractive product for traffickers and smugglers. Synthesizing it in a laboratory is less expensive and time-consuming than planting and growing poppies for heroin manufacture, waiting for the plants to mature, protecting the growing fields during that period, manufacturing and transporting the final product, and smuggling it into this country—all without tipping off law enforcement.REF Because of its great potency,REF only a small quantity of fentanyl is necessary, allowing traffickers to ship the drug to parties in the United States via the U.S. mail system or private carriers.REF Individual small packages that do not call attention to themselves are difficult to identify as part of the billions of letters and packages sent to the United States, particularly if the final leg of their shipment originates in a nation that is friendly to ours such as Canada.REF As a result, those packages can hide in plain sight like individual snowflakes in a blizzard.REF Another approach has been to ship the final product to Mexico, where the TCOs use established distribution routes to smuggle the drug across our southwest border and then transport it to local distributors.REF

In 2019, however, Xi Jinping, President of China and General Secretary of the Chinese Communist Party (CCP), agreed with then-President Donald Trump to take steps to prevent the shipment of illicitly manufactured fentanyl to this nation.REF As a result, Chinese companies shifted their approach to fentanyl trafficking. They abandoned manufacturing and smuggling the finished product into Mexico for retransmission into the United States in favor of shipping fentanyl’s precursor chemicals to Mexico, where the TCOs use them to synthesize the final product anywhere that a moderately talented chemist can put together a makeshift or “low rent” laboratory that is quite unlike the ones used by legitimate pharmaceutical companies.REF In effect, some Chinese companies use what pool players call a “two-cushion double” (viz., a shot in which the cue ball bounces the object ball off two cushions before the latter falls into a pocket).REF The effect on Americans is the same, however, regardless of the number of intermediate steps involved in fentanyl smuggling. Fentanyl remains deadly in the United States—the third of the three nations in this mercantile system for illicit drugs—whether it is synthesized in China or in Mexico.REF

That raises some issues that did not arise when Chinese companies themselves manufactured fentanyl and the TCOs were only finished-product smugglers. The reason is that some precursors also have legitimate uses in the synthesis of noncontraband compounds. The shipment of only precursor chemicals therefore raises a question that would not arise in the case of contraband: Can the government hold criminally liable—as co-conspirators with illicit fentanyl traffickers or accessories to their illegal scheme—parties who only manufacture and transport fentanyl precursor chemicals that are not themselves deemed contraband?

This Special Report focuses on the criminal responsibility of the parties in that chain of events. They will principally be found in China, but some might reside in Mexico too. The Supreme Court of the United States addressed the criminal responsibility of that two-cushion double shot decades ago, and it might need to do so again now.

The Legal Responsibility for Manufacturing or Selling Items Used in a Crime

General Principles of Conspiratorial Liability. The legal responsibility of parties who knowingly engage in illicit drug trafficking is well settled. Numerous federal and state laws forbid the importation, manufacture, distribution, and possession of illicit drugs,REF and the case reports are filled with descriptions of successful prosecutions for conduct undertaken both domesticallyREF and beyond our shores.REF For example, the distribution of heroin has been an offense under federal law since the Harrison Narcotics Tax Act of 1914.REF It remains so today,REF and every state punishes its distribution or possessionREF as well as conspiracy to traffic in that drug.REF Thus, knowledge that heroin is contraband is so often and widely communicated and so well known among the public today that no reasonable adult could believe otherwise.REF

The government can prove a party’s involvement in illegal drug trafficking, including joining a conspiracy to engage in that conduct, in several ways: by the eyewitness testimony of an undercover law enforcement agent or a former participant who has become a prosecution witness,REF through statements made by a co-conspirator during the course of and in furtherance of the conspiracy,REF by a videotape or audiotape of a transaction or other incriminating conduct,REF or by circumstantial evidence.REF In fact, contrary to what we hear on television, circumstantial evidence is commonly used because “most conspiracies are clandestine in nature,” making it difficult for the government “to present direct evidence of the agreement.”REF Being “sympathetic to this problem,” the federal courts have ruled that the government and jury may “rely on inferences drawn from the course of conduct of the alleged conspirators.”REF In the Supreme Court’s words, “[t]he proof, by the very nature of the crime, must be circumstantial and therefore inferential to an extent varying with the conditions under which the crime may be committed.”REF

Proof of criminal responsibility through circumstantial evidence becomes a more complicated matter, however, when the substance at issue is not heroin or another well-known article of contraband. An automobile dealership does not become a party to a bank robbery by selling a car to someone who, unbeknownst to the seller, intends to use it as the getaway car. By contrast, loaning your car to someone who asks you to use it in a bank robbery getaway does make you a willing participant in a conspiracy to commit a robbery (or aiding and abetting itREF). The reason is that, with full knowledge of its intended use, you have freely contributed an instrumentality of the crime to the perpetrators. You are as guilty of that bank robbery as are the people who enter the bank and execute their plan.

The further removed from the final product a chemical substance is, the weaker the connection to illegality is. Plastic sandwich bags are used to transport food as well as “rocks” of crack cocaine. Razor blades are used for shaving as well as separating powdered cocaine into inhalable lines. Indeed, the larger the number of entirely legitimate uses for a particular widget, the more difficult it is to deem it a characteristic article used in drug trafficking. Just as drug traffickers use cell phones to communicate with suppliers, bankers, and distributors, law enforcement officers and the public use cell phones for all the myriad uses they now have in our lives.REF Grocery stores do not become parties to the illegal drug trade by selling foodstuffs to traffickers even though food is essential to life. The relationship between a cell phone or food and drug trafficking is far too attenuated and the number of people who purchase it without any involvement in crime too immense to justify the inference that a grocer has sought to further the goals of traffickers simply by selling them that product.

How, then, do we decide what facts make someone a partner in crime? Two Supreme Court decisions are particularly relevant. Each one addresses the proof necessary to establish participation in a conspiracy when the evidence relates to an article of commerce that can be used for good or ill.REF

The Supreme Court’s Decisions in Falcone and Direct Sales. The first decision is United States v. Falcone.REF There, the government sought to convict parties (“jobbers or distributors”) who had sold sugar, yeast, and cans to some people who used them to distill liquor illegally. Even though some of the sellers knew that their products would be used for bootlegging, the Court found that the evidence was insufficient to convict the sellers of conspiring to distill alcohol illegally.REF The Court found that “[t]he evidence respecting the volume of sales to any known to be distillers is too vague and inconclusive to support a jury finding that respondents knew of a conspiracy from the size of the purchases,” even assuming that (an issue the Court did not decide) “the knowledge would make them conspirators or aiders or abettors of the conspiracy.”REF

By contrast, in the second case, Direct Sales Co. v. United States,REF a registered drug manufacturing company and licensed wholesaler sold morphine to John Tate, a physician, in quantities far greater than any physician would prescribe in the ordinary course of medicine.REF Some of the other physicians who overprescribed morphine previously had been convicted of drug trafficking. The federal government had advised Direct Sales four years before charging the company that “it was being used as a source of supply by convicted physicians,” but Direct Sales continued its profitable program of quantity sales to physicians like Tate.REF The Supreme Court found that evidence sufficient to prove that Direct Sales had conspired with Tate to distribute morphine illegally.REF The Court also concluded that the Direct Sales case was materially different from Falcone for several reasons.

The Court began with the proposition that Falcone did not create a “sweeping insulation” from responsibility for any party who sells goods to a buyer with an “illegal and known intended use.”REF The Falcone case “comes down merely to this,” the Court explained: “[O]ne does not become a party to a conspiracy by aiding and abetting it, through sales of supplies or otherwise, unless he knows of the conspiracy; and the inference of such knowledge cannot be drawn merely from knowledge the buyer will use the goods illegally.”REF The facts in Direct Sales “show much more than the evidence did” in Falcone.REF The articles in Falcone “were articles of free commerce, sugar, cans, etc.” that could be resold without any restriction, registration, or other limitation once the seller parted company with them.REF “When they left the seller’s stock and passed to the purchaser’s hands, they were not in themselves restricted commodities, incapable of further legal use except by compliance with rigid regulations, such as apply to morphine sulphate,”REF distribution of which was regulated by the Harrison Narcotic Tax Act of 1914.REF Just as “[g]angsters, not hunters or small boys, comprise the normal private market for machine guns,” morphine “addicts furnish the normal outlet for morphine which gets outside the restricted channels of legitimate trade.”REF

That difference in clientele and product—“like that between toy pistols or hunting rifles and machine guns”—was critical for two reasons.REF One was that, while “[a]ll articles of commerce may be put to illegal ends,” not all “have inherently the same susceptibility to harmful and illegal use.”REF The other reason was that not all articles of commerce “embody the same capacity, from their very nature, for giving the seller notice the buyer will use them unlawfully.”REF But some do. “[N]arcotic drugs, machine guns and such restricted commodities” have an “inherent capacity for harm” and are “restricted” for that reason. Those differences in the nature of the products make “a difference in the quantity of proof required to show knowledge that the buyer will utilize the article unlawfully.”REF

To be sure, not every sale of a restricted item, the Court wrote, would prove the existence of a conspiracy.REF “But this is not to say that a seller of harmful restricted goods has license to sell in unlimited quantities, to stimulate such sales by all the high-pressure methods,” or to subvert the “restrictions” imposed on the sale of dangerous goods, because the markets for the two types of products are materially different.REF The “difference in the commodities”—goods that may be freely sold without restriction versus ones that are highly regulated and whose limited distribution is enforced by the criminal law—“has a further bearing upon the existence and the proof of intent.”REF When there are “black markets for dope,” a jury may find that “the supplier not only knows and acquiesces, but joins both mind and hand with him to make its accomplishment possible.” REF Proof of the existence of “such a system, working in prolonged cooperation with a physician’s unlawful purpose to supply him with his stock in trade for his illicit enterprise,” the Court reasoned, poses “no legal obstacle to finding that the supplier not only knows and acquiesces, but joins both mind and hand with him to make its accomplishment possible.”REF In that setting, a jury may take “[t]he step from knowledge to intent and agreement.”REF Why? Because “[t]here is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation.”REF

Atop that, the Court decided, “there is also a ‘stake in the venture’ which, even if it may not be essential, is not irrelevant to the question of conspiracy.”REF Direct Sales’ “stake” was in profiting from this venture, “which it knew could come only from its encouragement of Tate’s illicit operations.”REF In effect, Direct Sales and Tate were partners, the former serving as a distributor and the latter as a dealer. “In such a posture the case does not fall doubtfully outside either the shadowy border between lawful co-operation and criminal association or the no less elusive line which separates conspiracy from overlapping forms of criminal cooperation.”REF

Finally, in the eyes of the law, Direct Sales and Tate were co-conspirators in the illegal distribution of morphine even though they never met and never formally agreed to become partners in crime. Under the facts of that case, their agreement, even though only “tacit,” was sufficient to render Direct Sales fully liable for conspiracy.REF “Not the form or manner in which the understanding is made, but the fact of its existence and the further one of making it effective by overt conduct are the crucial matters.”REF

The lower courts have elaborated on the Supreme Court’s decisions in Falcone and Direct Sales. For example, the circuit courts have concluded that the government need not prove that a party knows all the details of the conspiracy or the entire crew of co-conspirators; knowledge of the “essentials of the conspiracy” is sufficient.REF To establish that knowledge, the government can rely on facts—buttressed by a healthy dose of “common sense”REF—such as repeated bulk sales of highly regulated or illegal products, the limited number of lawful uses for a product, characteristics (such as a pungent odor) of an illegal drug manufacturing facility, and others—from which a jury can infer a party’s knowledge of a conspiracy’s goal and willingness to join it.REF Finally, jurors and courts may draw reasonable inferences as to what drug traffickers know from the nature of the business in which they are involved. For example, smugglers deal with mid-level traffickers who in turn sell to retail distributors, so the smugglers know what will happen to their products.REF

Legal Responsibility for Manufacturing, Smuggling, or Distributing Fentanyl Precursor Chemicals

With those principles in mind, we can now examine what we know about the production, shipment, and use of fentanyl precursor chemicals and the equipment (such as pill presses) used to disguise that drug as an ordinary, safe pharmaceutical.REF It turns out that, given the widespread nature of the fentanyl problem in America, the culpability of the higher-ups in the chain, from manufacturing fentanyl’s precursor chemicals to their shipping to Mexico to their synthesization into the final product to their street-level distribution, might be even clearer than it would be for the lower-level workers in that process.

Application of Falcone and Direct Sales to Production, Distribution, and Use of Fentanyl’s Precursor Chemicals. The Supreme Court’s Falcone and Direct Sales decisions teach us valuable lessons about what types of basic facts permit the inference that a party is aware of and joins in a conspiracy to create, smuggle, and sell fentanyl. The following subparts examine what we know about the role of fentanyl’s precursor chemicals as well as the production, smuggling, and distribution of the final product. It is doubtless the case that the United States intelligence and law enforcement communities know far more about those steps than what is described below, which is based on government and international reports, research by scholars, and media accounts of the fentanyl trade. Nonetheless, even publicly available information shows that upstream parties are criminally liable for participating in fentanyl trafficking.

Precursor Chemicals Used Only to Synthesize Fentanyl. Fentanyl precursors are often “ready-made building blocks created from common industrial chemicals.”REF Think of them as cookie batter. Just as you can bake cookies from scratch but the premixed batter saves you time, so too some immediate fentanyl precursors make it easier to synthesize the final product by allowing you to skip some early steps in the process.REF That batter is relevant when determining what a reasonable buyer and seller knew about the product at issue and the uses to which it could be put. In any event, because even remote precursors can be modified and combined to produce fentanyl, all antecedent compounds (within reason) can supply evidence of the intent to synthesize illicit fentanyl.

The best proof is the possession of precursors that have no known legitimate use other than the production of fentanyl. In 2024, the United Nations International Narcotics Board (UNINCB), “an independent and quasi-judicial control organ, established by treaty, for monitoring the implementation of the international drug control treaties,”REF prepared a list of 153 fentanyl-related substances with no known legitimate medical use.REF Accordingly, depending on the context, the production or distribution of precursors used exclusively, or perhaps even primarily, to synthesize illicit fentanyl can justify the inference that the seller and buyer were engaged in the criminal enterprise of manufacturing that drug.

Precursor Chemicals Used to Synthesize Illicit Fentanyl but Also for Lawful Purposes. If you have chemicals with legitimate and highly desirable uses, the case becomes a more difficult one to prove. One factor that troubled the Supreme Court in Falcone was that the items at issue, such as “sugar, yeast or cans,”REF were ordinary “articles of free commerce” that could be sold and resold without any restriction, registration, or other limitation.REF Also, the “jobbers or distributors” who sold those items were not employees of or the exclusive suppliers to “the distiller defendants.”REF Only “some” of those products wound up with bootleggers.REF

In Falcone, the Court was troubled—quite properly—by the prospect that the sale of goods or merchandise that could be used for a host of entirely lawful uses would render a legitimate business official guilty of conspiring to manufacture and distribute bootleg alcohol even if the seller knew that the buyer had a reputation as a bootlegger. In some (perhaps many) such instances, deeming the sale of an innocuous item of commerce—say, a flashlight or bottled water—to someone suspected of breaking the law as tantamount to willfully joining a criminal enterprise could criminalize the sale of an extraordinarily large number of ordinary products. That would extend the criminal law much further than any reasonable person could justify. For such reasons, the Supreme Court drew a line in Falcone and Direct Sales to exclude parties that society would not ordinarily deem criminals. In the Court’s words in Falcone, “one who without more [knowledge of the conspiracy] furnishes supplies to an illicit distiller is not guilty of conspiracy even though his sale may have furthered the object of a conspiracy to which the distiller was a party but of which the supplier had no knowledge.”REF

That being said, the government’s burden of proof is not Sisyphean. The Direct Sales decision allows a jury to consider the totality of the facts and circumstances surrounding a transaction when it decides the guilt or innocence of a party accused of becoming a member of a criminal enterprise.REF Other factors can help to prove that a seller was a willing participant in a conspiracy rather than an unwitting dupe.

Marketing Efforts Designed to Enable a Purchaser to Synthesize Fentanyl Illicitly. Highly incriminating evidence can come in the form of the marketing efforts some companies use to disguise and sell their chemicals. For example, some Chinese companies make it easy to prove that they are complicit in the manufacturing and trafficking of illicit fentanyl by “openly market[ing] their wares as ingredients for illicit drugs,” by “provid[ing] molecular diagrams of fentanyl precursors,” or by offering “instructions on how to chemically tweak [their products] to get them ready to be synthesized into fentanyl.”REF Those companies are essentially taunting the United States to do something to stop them while knowing that the Chinese government will not take action against them. Brazenly advertising how purchasers can use a company’s precursors to manufacture illicit fentanyl or daring American law enforcement authorities to stop those sales certainly qualifies as highly probative evidence of guilt.

Steps Taken to Disguise the Nature of the Product Shipped to Known Drug Traffickers for the Illicit Manufacture of a Deadly Drug. The disguised shipment of fentanyl precursor chemicals to organized criminal enterprises known to synthesize, smuggle, and distribute the finished product is a simple and straightforward type of proof that can demonstrate knowledge of wrongdoing. The proof can come in the form of fraudulent documents such as shipping manifests, bills of lading, and payment records; use of multiple sources to obtain smaller amounts of the same chemicals; transshipment of chemicals through more than one country; transshipment of packages through multiple freight forwarders and other middlemen to “‘launder’ its origination point”; changes in transshipment routes; use of false identities for the shipper and recipient; mislabeling of fentanyl as a different cargo; placement of fentanyl in hidden locations among legitimate cargos; bribery (or intimidation) of customs officials at the ports of departure, transshipment, and ultimate receipt; and the like.REF The primary risk is that one might repeat the same course of business too often thereby giving away one’s technique. The only limit on how to evade detection is the parties’ imagination.

Consider these examples. In 2021, the U.S.–China Economic and Security Review Commission, a federally charted body, found that “Chinese traffickers are using various strategies to circumvent new [Chinese] regulations,” such as “focusing on chemical precursors, relocating some manufacturing sites to India, rerouting precursor shipments through third countries, and leveraging marketing schemes to avoid detection.”REF According to the DEA, the handoff from Chinese companies to the Mexican TCOs works as follows:

The Sinaloa and Jalisco cartels and their chemical suppliers in China rely on deliberate mislabeling, multi-phase shipping maneuvers, and other evasive techniques to get fentanyl precursor chemicals into Mexico without being detected by law enforcement or stopped by international chemical regulators. Suspect vendors and dark web marketplaces based in China use certain keywords or phrases to indicate their willingness to defy bans and restrictions, such as “discreet delivery,” “no customs issues,” or “100% guaranteed delivery or free reshipment.” In shipping notifications, vendors sometimes hide the shipment details by embedding them in photos or images that do not raise suspicions. Cargo containing these chemicals can be deliberately mislabeled or misspelled or contain the Chemical Abstracts Registry number instead of the chemical name—a number unlikely to be known by shippers, freight forwarders, or port workers. China-based chemical suppliers prefer cryptocurrency payments over other forms, and encrypted messaging and communications platforms. The Mexican cartels use international export brokers, consignees, third-party countries, and other methods to anonymize the contents and source of the chemical shipments. The cartels also use legitimate but likely complicit companies in the United States, Mexico, and India to import chemicals for subsequent diversion to clandestine fentanyl labs in Mexico.REF

Such efforts to disguise the nature of shipments is a testament to knowledge of the illegalities that the TCOs commit as well as the shippers’ interests in partnering with the TCOs to make profits that “come only from” their “encouragement and supply” of the TCOs’ illicit operations.REF Moreover, proof of efforts to disguise or obscure fentanyl trafficking is not materially different from what the Supreme Court found persuasive in Direct Sales to establish criminal responsibility.

Use of a Nontraditional Process to Synthesize Illicit Fentanyl. Mexican TCOs sometimes manufacture fentanyl using sophisticated laboratory equipment,REF but that is unnecessary; fentanyl production requires only elementary knowledge of chemistry and basic laboratory skills along with rudimentary facilities.REF Even high-school dropouts can learn the necessary steps, which can be learned by assisting more experienced parties.REF One such cook said that “whipping up the drug was as easy as ‘making chicken soup.’”REF A current common production process, known as the “one-pot Gupta method” and named after Pradeep Kumar Gupta, the Indian scientist who invented that streamlined production method for battlefield medicine use, does not require sophisticated equipment in a modern pharmaceutical-quality laboratory.REF The average person would know that producing a powerful drug—a fact known to participants because of the masks they must wear while “cooking”—under such circumstances is not how legitimate pharmaceuticals are prepared.REF

Laundering the Proceeds of Illicit Drug Trafficking. There is strong evidence that Chinese nationals have worked with Mexican TCOs to launder the cartels’ drug trafficking proceeds.REF The existence of money laundering is proof of knowledge of guilt, and proof of laundering is a matter of public knowledge.REF In April 2015, the Financial Crimes Enforcement Network (colloquially known as FinCen), a component of the U.S. Department of the Treasury, concluded that Mexico and China have laundered the proceeds of sales of fentanyl precursors and processed fentanyl through the United States banking system. FinCen concluded that “the Mexican [TCOs]” and “chemical brokers leveraged front companies, money mules, and U.S.-based intermediaries to procure fentanyl precursor chemicals.”REF As the House Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party concluded in 2024, “[t]he fentanyl crisis has helped CCP-tied Chinese organized criminal groups become the world’s premier money launderers” and has “enriched the PRC’s chemical industry” while having “a devastating impact on Americans.”REF

The Heavily Regulated Nature of the Industry. The production and sale of fentanyl precursors is a heavily regulated business under American law. That fact is relevant when considering a company’s or person’s knowledge of what the law demands. Several Supreme Court decisions make that point. In each one, the Court emphasized that the highly regulated nature of the activities at issue justified the conclusion that a party can be held criminally liable for illegal conduct even without proof that the charged parties knew that their actions were illegal and that they intended to break the law.

One example is United States v. International Minerals and Chemicals Corp.REF Charged with knowingly transporting hazardous chemicals (sulfuric acid and hydrofluosilicic acid) in violation of federal shipping regulations, the company sought to have the charges dismissed because they did not allege that the firm knowingly violated the law. The Supreme Court rejected that argument. The Court reasoned that, although “[a] person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered” by the act,REF where “dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.”REF The Supreme Court’s other cases are to the same effect.REF As a result, parties involved in the production or shipping of fentanyl precursor chemicals can be deemed to be held criminally liable if and when they ship or transport such chemicals to the Mexican TCOs.

Buttressing that legal presumption is the fact that, as noted above, federal law requires (inter alia) that chemicals and equipment that could be used to manufacture illicit drugs be listed on a Special Surveillance List to help legitimate businesses identify their intended or possible use.REF Since 2021, the U.S. Department of the Treasury’s Office of Foreign Asset Control has imposed sanctions on more than 290 foreign individuals and companies involved in the illicit fentanyl business.REF Among the sanctioned parties have been “[China]-based suppliers of fentanyl precursor chemicals and manufacturing equipment; chemical brokers based in the PRC, Mexico, and other jurisdictions; Mexico-based manufacturers, smugglers, and traffickers of illicit fentanyl and other synthetic opioids,” and “money launderers that obfuscate the illicit proceeds sustaining the supply chain.”REF

Does consideration of these factors pose a risk of convicting innocent parties? No. There is no serious risk that prosecution of fentanyl trafficking intermediaries will ensnare innocent parties. On the contrary, here, as in Direct Sales, “[t]here is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation.”REF The parties involved in the illicit trafficking of fentanyl precursors know how those chemicals will be used. In particular, organized criminal elements in the PRC, along with the PRC government and the CCP, likely do or should know full well what is happening in their nation but have not stopped it.REF

The Business of Illicit Fentanyl Trafficking. Consider the principal culprits in the nation’s fentanyl deaths. One is the group of Chinese companies that manufacture fentanyl production equipment, including die molds, used to manufacture counterfeit fentanyl-containing pillsREF as well as the precursor chemicals—or the “pre-precursor chemicals”REF—used to synthesize the final product.REF China has a massive chemical sector that annually contributes trillions of dollars to its national economy and employs thousands of workers.REF That factor and others might explain why the Chinese government and CCP have refused to suppress the shipment of fentanyl precursors to the other principal culprit in America’s fentanyl crisis.REF

“The China–Mexico connection grew,” the U.S.–China Economic and Security Review Commission found, “when Chinese traffickers increased fentanyl precursor sales to Mexican cartels.”REF The “Chinese chemical manufacturers sell fentanyl precursors at extremely low margins,” DEA Deputy Chief of Foreign Operations Matthew Donahue explained. As a result, there is “an unlimited and endless supply of precursors chemicals…coming from China to Mexico,” and “Chinese traffickers have virtually ceased making analogues to focus solely on precursors” while also shipping “large-scale industrial size pill presses to Mexico” for the TCOs’ use.REF As the House Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party put it, “the PRC ‘has done little to halt the flow of fentanyl to the United States’” because “‘Mexican drug trafficking groups continue to almost exclusively source fentanyl precursor and pre-precursor chemicals in China, synthetize them into fentanyl, and smuggle them to the United States.’”REF For example, in 2022, the DEA seized more than 379 million lethal doses of fentanyl, and in 2023, “a single PRC chemical manufacturer shipped enough fentanyl precursors to produce over 25 million lethal doses to just one undercover agent.”REF The involvement of some Chinese companies in fentanyl trafficking is clear.REF

Once the precursors arrive in Mexico, the second principal culprit—the Mexican TCOs—takes over.REF They control the ports into which the precursor chemicals arrive.REF They manufacture the final products in powder or pill forms and smuggle them into the United States, disperse the drug along established trafficking routes, and see to its retail distribution.REF Together, the Chinese companies and Mexican criminal enterprises, with the acquiescence of their governments,REF have been responsible for nearly all of the illicit fentanyl that has entered United States and therefore have caused scores of thousands of overdose deaths. The illicit production, distribution, and use of that drug is a form of chemical warfare that has victimized the American public for almost four years.REF

Nor do the Chinese firms and Mexican TCOs act alone in this regard. Chinese chemical and pharmaceutical companies act with the support and assistance of the PRC government and the CCP.REF In fact, China’s chemical companies, the PRC government, and the CCP have a symbiotic relationship with regard to fentanyl,REF with each one benefitting from actions taken by the other twoREF even though some of that activity might be illegal under Chinese law.REF According to the House Select Committee’s CCP and Fentanyl report on China’s involvement in the fentanyl trade, the CCP-controlled PRC government:

1. Directly subsidizes the manufacturing and export of illicit fentanyl materials and other synthetic narcotics through tax rebates. Many of these substances are illegal under the PRC’s own laws and have no known legal use worldwide. Like its export tax rebates for legitimate goods, the CCP’s subsidizing of illegal drugs incentivizes international synthetic drug sales from the PRC. The CCP has never disclosed this program.
2. Gave monetary grants and awards to companies openly trafficking illicit fentanyl materials and other synthetic narcotics. There are even examples of some of these companies enjoying site visits from provincial PRC government officials who complimented them for their impact on the provincial economy.
3. Holds ownership interest in several PRC companies tied to drug trafficking. This includes a PRC government prison connected to human rights abuses owning a drug trafficking chemical company and a publicly traded PRC company hosting thousands of solicitations of open drug trafficking on its sites.
4. Fails to prosecute fentanyl and precursor manufacturers. Rather than investigating drug traffickers, PRC security services have not cooperated with U.S. law enforcement and have even notified targets of U.S. investigations when they received requests for assistance.
5. Allows the open sale of fentanyl precursors and other illicit materials on the extensively monitored and controlled PRC internet. A review of just seven e-commerce sites found over 31,000 instances of PRC companies selling illicit chemicals with obvious ties to drug trafficking. Undercover communications with PRC drug trafficking companies (whose identities were provided to U.S. law enforcement) revealed an eagerness to engage in clearly illicit drug sales with no fear of reprisal.
6. Censors content about domestic drug sales but leaves export-focused narcotics content untouched. The PRC has censorship triggers for domestic drug sales (e.g., “fentanyl + cash on delivery”), but no such triggers exist to monitor or prevent the export of illicit narcotics out of the PRC.
7. Strategically and economically benefits from the fentanyl crisis. The fentanyl crisis has helped CCP-tied Chinese organized criminal groups become the world’s premier money launderers, enriched the PRC’s chemical industry, and had a devastating impact on Americans.REF

Over the past seven years, the Mexican TCOs have operated largely with the acquiescence of the Mexican government.REF Mexico’s immediate past president, Andres Manuel López Obrador, adopted a policy of “abrazos no balazos”—hugs not bullets, viz., attacking poverty, not the cartels—which only emboldened the TCOs by effectively giving them a pass.REF We know that this approach was a massive failure both for the United States and for Mexico.

The Relevance of Motive. Despite what most people see on television, motive, unlike intent or knowledge, is not a necessary element of proof of a crime.REF Motive refers to the desire to achieve a certain end; intent refers to the actor’s state of mind at the time that he commits the external act(s) necessary for a crime.REF “Motive has been said to be that something in the mind, or that condition of the mind, which incites to the action, or the moving power which impels action, induces action, or gives birth to a purpose.”REF A person can intend to kill for multiple reasons—to defend himself against an unlawful murderous assault, to carry out a lawful execution, to defeat an enemy in war, and so forth—but why X committed a crime against Y ordinarily is less important than what X’s intent was.REF The reason is that a crime is the union of act and intent, not motive.REF

Nonetheless, the two concepts are related. A person’s motive, the “emotional urge” to achieve “a particular result,” can “prompt an intent to bring about that end” and result in the action necessary to accomplish it.REF Accordingly, even though motive is not an element of an offense, it is relevant for a different reason. Proving that a particular party was strongly motivated to commit a specific crime is relevant proof that he or she committed it when the government’s proof is circumstantial because it helps to identify who is the responsible party.REF

Here, both profit and nonprofit motives are at work. The steps that the CCP and PRC have taken to spread illicit fentanyl have benefitted those parties domestically and internationally.

The Profit Motive. Start with the domestic benefits, of which there are several: Trafficking in fentanyl’s precursors (and their finished product) “has enriched the PRC itself”; it has “empowered its organized crime assets through lucrative money laundering”; it has “offer[ed] PRC elites a means to move a certain amount of their capital abroad, thus diminishing the risk of their dissent”; and it has “enrich[ed] PRC companies.”REF Fentanyl trafficking has enriched the Chinese chemical companies, the CCP, and the Mexican TCOs at the cost of American lives.

The Nonprofit Motives. PRC-sourced fentanyl has wreaked havoc in this nation.REF The PRC sees “drug warfare as an effective tactic in asymmetric warfare” because it “weakens a country”REF from within in multiple ways: It limits the number of people able and qualified to serve in the military by killing or addicting thousands of military-age men and women. It forces a nation to spend resources on the interdiction of fentanyl and its precursors, as well as the investigation, prosecution, incarceration, and treatment of drug traffickers and users. It foments internal dissension in America over the proper treatment of people suffering from substance abuse. It affords China leverage in international negotiations because China does not distinguish between this subject and others subject to negotiation.REF And it allows China to absolve itself for its participation in the production, synthesis, and distribution of illicit fentanyl by using propaganda to blame “the decadence of American-led western democracies” for their fentanyl use.REF

The upshot is this: Publicly available facts, caselaw, and common sense combine to teach us that the people involved in this activity are far from being innocent parties mistakenly caught up in a criminal enterprise. These companies and parties did not stumble across the line of illegality. Companies that sell precursor chemicals on the “Dark Web,”REF that market precursor chemicals to strangers and tell purchasers how to synthesize fentanyl illegally,REF that disguise their packages,REF that use phony documents to identify the contents of their packages and shipments,REF that run false flag operations,REF that (unlike legitimate, well-known pharmaceutical companies) synthesize fentanyl precursors in “open-air labs in rural areas such as forests or remote ranches” or in “ventilated laboratories inside apartments and houses in cities such as Culiacán,” Sinaloa, the “epicenter of [illicit fentanyl] production” in Mexico,REF and that launder their receipts—companies that use those practices know that they are on the wrong side of the law.REF

Members of organized crime groups in China, the CCP, the PRC government, the companies knowingly involved in the disguised shipment of precursor chemicals to the Mexican TCOs—each of those entities has a profit or nonprofit motive. Some seek to profit from sales of precursors to the Mexican TCOs, while Chinese government officials, acting at the behest of the CCP, charge export fees that help to fund China’s domestic activities and international ambitions. That helps to prove their complicity in illicit fentanyl trafficking. Atop that, the CCP and PRC have another, deeper motive: the desire to inflict as much pain, both personal and financial, as possible on the West, particularly the United States, to weaken this nation so that China can surpass the United States militarily and economically and become a global hegemonic ruler.

Conclusion

Along with the TCOs, parties such as organized crime entities and the companies responsible for the illicit manufacturing, shipment, and distribution of fentanyl precursor chemicals and allied equipment to Mexico—operating with the implicit blessing of the CCP—are legally responsible for the illicit fentanyl that is smuggled into the United States, is then trafficked across the nation, and winds up killing scores of thousands of Americans every year. Those parties cannot escape their responsibility by claiming that the fault lies entirely with the people who have a demand for, purchase, and use that drug. As the Supreme Court explained in Direct Sales, a company that becomes a business partner with an ongoing criminal enterprise and has a “stake” in its success is no less guilty than the person who directly distributes an illicit drug to a specific user.

Moreover, some of those parties—the CCP in particular—not only have a financial motive to aid and support the TCOs’ smuggling and distribution practices, but also have a conscious intent to weaken the United States so that China can take its place as the world’s most powerful nation. It is time that we woke up to what China and its associates are doing to the United States—with the Mexican TCOs’ help—and put an end to our fentanyl problem and China’s ambitions.

Paul J. Larkin is John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.