Fighting a Federal Drug Case

Fighting a Federal Drug Case

Serious drug charges—distribution, possession with intent to distribute, importation of controlled substances, etc.—are always difficult cases, but when the federal government has sought an indictment, the federal charges are likely to be more complex and intricate than state charges, and the sentence that could be imposed is always life-altering.

State charges are almost always going to be based on narcotics that were seized, often with photos of police officers standing around something, drugs, cash, firearms, etc. In those types of cases, if a search was illegal, the evidence will be suppressed, and the case will be dismissed.

Not so with federal charges. Although there may be searches and seizures of narcotics, the case will almost always be primarily a “historic” case based upon the law of Conspiracy and the testimony of alleged co-conspirators. Rather than pointing to a pile of something, federal agents will point to the testimony of people who worked for or with the defendant. The drugs alleged to have been distributed are long gone, and the quantities of drugs that will determine a sentence will come from the memories of cooperating witnesses.

The federal case is therefore vastly different from a state case, and the length of federal sentences can be multiples higher, sometimes becoming a functional life sentence.

Cooperating Witnesses

The cooperating witness (or cooperating informant (CI)) is the backbone of nearly all federal cases. If one is going to fight a federal charge, that person must understand that there will be witnesses associated with the defendant who are going to cooperate. To make matters worse, the identity of the witnesses will not be known sometimes until the day of the trial itself.[1] I have seen brothers, girlfriends, cousins, and just about anyone else show up at trial, always to the shock of the defendant.

[1] In one federal case I had more than twenty years ago, in the lead up to the trial, there were three defendants who were going to trial. Under a Joint Defense Agreement, we determined a defense strategy and prepared for trial. On the Friday before the trial was to start, one of the three defendants decided to plead guilty and cooperate with the government. On the morning of trial, my client and I were the only ones who showed up for trial. Over the weekend, the second co-defendant entered into a plea agreement and agreed to testify against my client. The “Cooperating Witnesses” in that case had been working with the defendant through nearly all of the trial preparation phase.

What can be done about the cooperating witness? The answer is a lot. But it is best to be prepared for the witness rather than to be surprised by the witness. The witnesses are not the best people. They are convicted felons by the time they appear, people who themselves have agreed that they are drug dealers. They have usually lied to the police, sometimes multiple times, before agreeing to cooperate, and often times, they have made statements that were favorable to the defendant. They are only testifying because of some consideration—or promise—they have extracted from the government. The argument to be made is: why is this person believable?

Preparation is the key to success, and preparation means investigating and finding who might be a cooperating witness and then preparing to meet that witness in Court.

Illegal Searches and Seizures

Where applicable, an illegal search which resulted in the seizure of drugs used in the prosecution provides a defendant with an excellent defense to drug charges. The government must comply with the Fourth Amendment of the U.S. Constitution which requires that a search be based upon a warrant issued by a neutral magistrate which in turn must be based on probable cause. If the government violates the Fourth Amendment, then the evidence that was seized must be suppressed, and any evidence derived from the illegal search must also be suppressed (referred to as the “fruit of the poisonous tree”).

Illegal searches frequently occur when officers decide to search an individual thinking they have a valid exception to the warrant requirement. A police officer searching a vehicle may think that he is entitled to search under the “vehicle exception” to the warrant requirement, or an agent might think that “exigent circumstances” justify a search without a warrant. Each of these exceptions have specific factual requirements, and if the government official is wrong, then the search may be illegal.

Wiretaps where state or federal agents secretly record conversations of individuals they suspect of being drug dealers also have specific legal requirements, and if the government has not strictly complied with these requirements, then the conversations will be suppressed, and any evidence gathered from those conversations is likewise subject to suppression as the “fruit of the poisonous tree”. If these suppression issues are handled properly, they can result in the complete dismissal of the government’s case.

Nowadays, government drug cases are frequently based upon “conspiracy” liability and historic evidence. In these cases, there may not be any drugs seized, or the amount of drugs seized may be very small. The evidence of drug quantities does not come from the evidence seized; it comes from the testimony of co-conspirators. It is therefore important to understand conspiracies and what a co-conspirator is.

Co-conspirator Liability  

Almost all federal drug charges will involve one or more conspiracy charges. A conspiracy is an agreement by two or more people to commit a crime or to commit a legal act by illegal means and a substantial step toward the completion of a crime. The agreement need not be in writing and is usually proven by circumstantial evidence. Therefore, the government must prove the existence of a drug distribution ring and the defendant’s voluntary participation in that ring. If the government is able to prove the existence of a conspiracy, the result can be catastrophic for a defendant because a co-conspirator is liable for all crimes committed by all co-conspirators during the course of the conspiracy.

Understanding the law of conspiracy is the key to defeating a charge of conspiracy and everything that comes with it. The sale of drugs from one person to another does not constitute a conspiracy, and even where one or more drug dealers know each other and work out of the same location, there is not necessarily a conspiracy. The conspiracy only exists if a defendant understands the terms of an agreement and then voluntarily joins the conspiracy.

An experienced federal criminal defense attorney who understands all of the intricacies of conspiracy is in a position to tear apart the government’s case and prove there was no conspiracy. A defendant should only be held accountable for what he or she did, not what others the defendant did not even know did.

Contesting the Government’s Evidence of Possession

Every case is different. But one thing that all cases share is that the government has created a theory of prosecution based upon evidence. How that evidence is interpreted, however, can be the difference between a conviction and an acquittal. The first issue that arises is: is the evidence even admissible? If it is based upon hearsay or a lack of firsthand knowledge, then it should be excluded. If it comes from a wiretap, is the wiretap clear enough to be easily understood without the interpretation of a government agent, and even then, is the government agent qualified to talk about what the wiretap says?

Witnesses lie, and evidence can be ambiguous. Even if drugs are located, how was the ownership of the drugs determined by the agents? If a CI is used, which is nearly always the case, is the CI lying? The Federal Rules of Evidence govern the introduction of testimony and physical evidence at trial, and a skilled trial attorney can greatly restrict the government’s evidence and, at time, even cause the government’s case to collapse.

Sometimes, the government will seize narcotics because of a confidential informant. However, when one examines the case more closely, it may be that the only evidence linking a defendant to the narcotics may be the testimony of the CI and the CI may have been a drug dealer. Under these circumstances a skillful trial lawyer may be able to convince a jury that the drugs came from the CI, not the defendant.

Entrapment

Another common defense may be entrapment. For someone to be convicted of a drug offense, the defendant must voluntarily engage in criminal conduct. This means that the idea of committing the crime must start in the mind of the defendant, not the agents eager to make an arrest.

Not every narcotics agent is honest and trustworthy. Sometimes a person may not have any interest in selling narcotics, but an agent may entice that person into committing a crime so that the agent can arrest that person. An extreme form of entrapment occurs when the agent sets up a drug transaction and then supplies the soon-to-be defendant with the drugs to be sold. In many ways, the defendant is simply there, but when federal agents appear, he is arrested.

As with every defense, the facts determine what the defense will be. However, depending upon the conduct of the agents or officers involved, an entrapment defense may be an appropriate defense in some cases.

Finally, there is a caveat when it comes to raising an entrapment defense. Whenever a defendant raises a defense of entrapment, the government may then introduce the defendant’s prior record of narcotics distribution to show that the defendant was predisposed to sell drugs. Therefore, if the defense is going to be raised, the defendant must be prepared to explain the prior conviction(s).

The Right to Remain Silent

Finally, I would like to talk about the defendant’s right to remain silent. First, a defendant has an absolute right to remain silent, and the government cannot comment on his silence if he decides to remain silent.[2] Just because a defendant can remain silent does not mean that the defendant should remain silent. There may be facts that may be known only to the defendant that might require him or her to testify. Compelling testimony from a defendant can lead to an acquittal.

[2] Of course, some prosecutors do comment on the right to remain silent either directly or indirectly. If a prosecutor comments on the defendant’s silence, defense counsel should object immediately and move for a mistrial. If the statement was made deliberately, it may be possible to prevent a retrial of the defendant.

On the other hand, if a defendant decides to testify, that may allow the prosecutor to strengthen certain aspects of the government’s case through the cross examination of the defendant. In addition, if a defendant has prior convictions, depending on the specific conviction and the timing of the conviction, those convictions may come into evidence. Finally, some defendants are simply too nervous or afraid to testify, and on cross examination, they may fall apart or even agree with a prosecutor’s version of events even if they are innocent.

The testimony of a defendant is an important tool that the defense may have and may decide to use. It is not, strictly speaking, a defense, but it can be compelling.

Conclusion

These defenses and others can lead to an acquittal in a drug case, but the most important thing that anyone charged with a drug defense can do is retain an experienced drug defense attorney and review the specific evidence in a case with that attorney. In federal court, that can be difficult because the information that is likely to be disclosed in discovery is often not the full story. Jencks Act[3] materials are often withheld until just before trial. It is therefore always necessary, to the greatest extent possible, for the defense attorney to conduct his or her own investigation.

[3] The Jencks Act, 18 U.S.C. 3500, is a federal statute that requires the government to disclose witness statements from the witnesses who will testify against a defendant. Although the statute requires the disclosure of statements, it does not require their disclosure as part of the discovery process, and prosecutors will wait until the last minute, sometimes only a couple of days before trial, to disclose this material. I have had cases where a statement was not provided until the moment a witness was called to the stand.

We have represented individuals charged with drug charges for decades, defending hundreds of people in federal court. Understanding the law can mean the difference between an acquittal or a short prison sentence and decades in prison. These charges are serious, but we know what we are doing. If you are indicted or under investigation by federal authorities, call us. We can help.