Federal Drug Crime Attempts, Aiding and Abetting, & Drug Analogues

Besides conspiracy charges, there are other tactics the government can use to expand the reach of federal drug laws. For example, the government can also charge people who attempt to commit a crime or who aid and abet another in committing a crime as if they are responsible for the full offense. Additionally, the government can bring federal drug charges for offenses involving “analogue” drugs, which are substances that are substantially similar to Schedule I drugs and that have a similar effect but a slightly different chemical makeup.

Evidence in Federal Drug Cases

The most common types of evidence in a federal case include:

• Witness testimony – Police officers or agents, cooperating witnesses, informants, bystanders, friends, family, neighbors, and others who are called to testify under federal subpoena.
• Expert testimony – People with particular knowledge about a topic that is outside the normal understanding of jurors, often in scientific fields like DNA and lab testing.
• Digital files – Cell phone content, emails, text messages, photos, videos, social media accounts, private messages, app usage, computer files, cloud accounts, and other digital media.
• Cell phone records – Call records, location information, and other data that comes directly from the cell phone company.
• Seized drugs – Drugs seized during the course of the investigation, such as through a search warrant, in plain sight, or subject to an exception to the warrant requirement.
• Lab reports – Drug weight, type, potency/purity tests, and other scientific testing.
• Physical evidence – Digital scales, plastic baggies, pipes, needles, money, notes, firearms, documents, and other items tying the defendants to the crime.
• Location information – Cell tower records, tracking devices, and GPS records.
• Audio/video recordings and phone tapping – Surveillance videos from pole cameras or recording devices, security camera footage, recordings made by undercover officers or informants, and audio recordings of phone conversations acquired through a wiretap.

Audio recordings obtained through a wiretap (“Title III” or “T3” intercept order) are one of the most powerful tools available to law enforcement in drug investigations and prosecutions. A T3 order allows law enforcement to listen to conversations as they are happening in real-time over a “target phone.” Law enforcement can obtain a T3 intercept order from a federal judge by demonstrating that (1) the target phone has been used as an instrumentality of drug trafficking and (2) less invasive means will not provide sufficient evidence to prosecute the crime. Messages sent over text, social media, and other apps are also subject to T3 intercepts and similar orders. These orders are frequently used, and it is not uncommon for a defendant in a federal drug case to learn for the first time in court that his or her phone has been tapped for months or even years.

Defenses in Federal Drug Cases

In a federal drug case, an experienced defense attorney can pursue an acquittal by identifying and exploiting weaknesses in the prosecution’s case, including that:

• The search or seizure of the evidence was illegal.
• The chain of custody for the evidence was broken — mishandling, mislabeling, or improperly storing of evidence.
• The drugs were not tested correctly.
• The evidence against the person is too weak, unreliable, or circumstantial to convict.
• DNA analysis is questionable, indeterminate, or non-existent.
• Pieces of evidence and information are missing.
• The prosecution’s witnesses are unreliable or motivated to lie, including government informants and cooperators.
• Drug quantities are unknown or unproven.
• The charges are wrong — wrong drug type, wrong quantity, wrong place, or wrong people.

In a drug conspiracy case, an experienced federal defense attorney can also present defenses that:

• The defendant never entered an agreement.
• The agreement was for something other than what the charge alleges.
• The defendant never intended to go through with the conspiracy or deliberately withdrew from the conspiracy by choosing not to participate any longer.

These drug conspiracy defenses can result in charges being dropped or a not-guilty verdict by a jury.

Pretrial Detention and Bond in Federal Cases

In a federal drug case, the court can order a defendant to be locked up pending trial rather than being released on bond. In deciding whether someone facing federal charges should be released or detained in jail, the judge will consider whether the defendant presents a danger to the community or a risk of non-appearance at future court hearings. To make the decision, the judge will hold a hearing to learn more about the person’s criminal history and personal character, the severity of the offenses charged, the potential that the defendant will attempt to threaten or intimidate witnesses, and other factors. If the judge does not order detention, the judge will set a bond that may require the defendant to be monitored by a supervising court officer, submit to drug testing, live in a certain place or with certain people, not travel outside the district, maintain employment, and other restrictions. The judge may also require the bond to be “secured” by cash or property, which the court can seize if the defendant violates the conditions of the bond or fails to appear in court.

In federal cases, if the person has any prior history of not appearing in cases, even minor cases, or of violating probation or parole, it is very likely that the judge will rule to detain the person for the remainder of the case. These prior failures on supervision or failures to appear signal to the court that the person should not be trusted to comply or appear in the current case. Any time spent in custody on the federal case or on state charges that turn into federal charges counts towards the federal sentence that might ultimately be imposed.

Federal Trial Preparation and Evidence

By the time the government charges a defendant, prosecutors and investigators have usually been working on the case for a long time. A defendant does not have as much time to develop a strategy and come up with a defense, especially in a complex conspiracy charge.

The federal “Speedy Trial Act” requires trials to take place within specified time limitations unless certain exceptions apply. While the law, by its name, was meant to protect the rights of defendants to a timely trial, one of its unintended effects is that it shortens the amount of time for the defendant to develop a strong strategy. Because the evidence in federal cases is often voluminous and has been available to the prosecuting attorney much longer than the defendant, this has the potential to put defendants and their attorneys on their heels.

The defense can gain access to the government’s evidence in a number of ways. In the pretrial “discovery” process, the government is required to disclose a limited amount of information about the evidence it intends to use at trial. An independent investigation by the defense attorney can be a critical step to finding out more about the government’s case. An experienced criminal defense attorney can use any lawful means at his or her disposal, including public records review, interviews, and research, to challenge the government’s evidence and its theory of the case. The Freedom of Information Act (FOIA) and other federal laws also allow the defense to obtain public records from government agencies under certain circumstances. While there are exceptions to FOIA that can delay or prevent production, the statute provides opportunities to learn facts the prosecuting attorney is not otherwise required to disclose to the other side.

Prescription Drug Diversion

Prescription medications also fall under the same harsh federal sentencing laws. Selling or distributing prescription drugs and pills can result in severe federal prison sentences — whether the drugs were obtained through legal or illegal means and whether or not the person has any prior criminal history. The Department of Justice has publicly announced a crackdown on the opioid epidemic, including targeting the abuse and distribution of prescription pills. The SBBL Law federal drug team has experience negotiating favorable resolutions in prescription drug diversion cases for doctors.

Sentences for Federal Drug Crimes

The importance of having a criminal defense attorney who understands the complexities of federal drug laws cannot be understated. Even first-time, non-violent offenders can face stiff penalties under federal drug charges.

Federal drug sentences are notoriously harsh and have been the subject of a number of legislative reforms in recent years to reduce the number of non-violent offenders incarcerated for lengthy federal prison terms. One such reform was the First Step Act, which reduced certain enhanced mandatory minimum penalties for some drug offenders; increased the number of offenders eligible for sentences below the mandatory minimum penalties under the “safety valve”; reduced the severity of the “stacking” of certain types of firearm sentences; and applied the Fair Sentencing Act of 2010 retroactively, which reduced mandatory minimum penalties for crack cocaine offenses.

Even with recent legislative efforts, sentences under federal drug laws remain unforgiving. Someone can be convicted for the weight of the entire mixture if there is any trace of illegal drug in it, not just the weight of the drug itself — including fillers like cornstarch and sugar. Mandatory minimum and maximum sentences can increase if the person has prior convictions for serious drug felonies or serious violent felonies or if death or serious bodily injury results from the use of the drug. Federal judges can order fines up to $10 million for an individual drug defendant. Federal prisons do not have parole, meaning that inmates serve the vast majority of their sentence minus a percentage of earned good conduct time and reductions for participation in certain programs, like drug treatment. Most federal prison sentences are followed by a period of several years of supervised release, where the person has to report to a probation officer, submit to drug testing, and follow other conditions imposed by the judge at sentencing. And as part of a federal drug conviction, the government can use the criminal forfeiture process to seize any proceeds, profits, or assets tied in any way to the person’s drug offenses — like houses, cars, and cash.

The effects of a federal drug conviction can be devastating without the assistance of a qualified and experienced federal criminal defense attorney.

Manufacturing, Distributing, and Possessing with Intent to Distribute

The most common federal drug charges involve manufacturing, distributing, or possessing with intent to distribute controlled substances. The sentences depend on the type and quantity of the drug. For example:

• Cocaine, cocoa leaves, and ecgonine (a chemical found in cocoa leaves): For 500 grams or more of any mixture that contains any of these substances, or a combination, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 5 kg or more, then the minimum sentence is 10 years, and the maximum is life in prison.
• Cocaine base (crack): For 28 grams or more of any substance containing cocaine base (crack), the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 280 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison.
• Fentanyl: For 40 grams or more of any substance containing fentanyl, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 400 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison.
• Heroin: For 100 grams or more of any substance containing heroin, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 1 kg or more, then the minimum sentence is 10 years, and the maximum is life in prison.
• LSD: For 1 gram or more of any substance containing LSD, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 10 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison.
• Marijuana: For less than 50 kg of marijuana, or less than 50 plants, there is no mandatory minimum sentence, and the maximum is 5 years. For 100 kg or more of any substance containing marijuana, or 100 plants or more, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 1,000 kg or more, or 1,000 plants or more, then the minimum sentence is 10 years, and the maximum is life in prison.
• Methamphetamine: For 5 grams or more of any substance containing methamphetamine, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 50 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison.
• PCP: For 10 grams or more of any substance containing PCP, the mandatory minimum sentence is 5 years, and the maximum is 40 years. If the quantity is 100 grams or more, then the minimum sentence is 10 years, and the maximum is life in prison.
• Unknown or unnamed quantities of the above-listed drugs, and any other Schedule I or II controlled substance, and date-rape drugs: If the charge does not list a drug quantity, then there is no mandatory minimum sentence, and the maximum possible sentence is 20 years in prison.
• If death or serious bodily injury results or the defendant has prior conviction(s) for serious drug felony or serious violent crime: The mandatory minimum and maximum sentences increase significantly. For example, for 1 kg or more of heroin, if death or serious bodily injury resulted to anyone from the use of the drug during or after the crime, the mandatory minimum sentence jumps from 10 years to 20 years. If the defendant had a prior conviction for a serious drug felony or a serious violent felony, then the mandatory minimum jumps to 15 years. If the person has two prior convictions of that nature, the mandatory minimum becomes 25 years. If the person has a prior conviction for a serious drug felony or serious violent felony and death or serious bodily injury resulted, then the mandatory minimum is life in prison.