DRUG TRAFFICKING AND POSSESSION CASES FEDERAL COURT PROSECUTIONSSeptember 23, 2010
I. BACKGROUND / OVERVIEW
Traditionally, federal drug trafficking, and drug possession, cases have been cases that involved large quantities, or very large, significant quantities of the controlled substance (illegal “drug”) that was being investigated and/or seized. This included, for example, kilograms (“kilos”) of cocaine in powder form, and many pounds or even kilos of marijuana. Today, the focus of federal investigations of drug activities still concerns very significant amounts of the drug that is the subject of the investigation, but also federal investigations target organized groups of persons, regardless of how loosely connected the group of persons appear to the federal investigators and prosecutors.
Very often in the federal system, the United States Attorney’s Office (federal prosecutors) will seek Indictments of a group of persons whose activities may be somewhat related or at least be centered around a purported common goal – that is, to move controlled substances to a designated location or to specifically named persons. Usually, this transferring, or “distributing” drugs is accomplished in exchange for money, and typically cash money, referred to in Indictments as “currency or U.S. currency.” Universally in drug trafficking investigations, the U.S. Attorney’s Office will seek Indictments charging that a conspiracy existed in an effort to distribute drugs or to at least possess with intent to distribute drugs. Defendants in federal Indictments are charged pursuant to Title 21, U.S. Code, §841, which alleges drug possession, possession with intent to distribute, or drug trafficking (distribution), and also pursuant to Title 21, U.S. Code, §846, conspiracy.
A conspiracy is an agreement between two or more persons to commit a crime, and in order for a conspiracy to exist, the conspirators would have to perform at least one “overt act” in an attempt to accomplish the purpose of the conspiracy. It is not necessary for the conspiracy to be successful, that is, for the object of the conspiracy to have been accomplished, and it is only necessary that one overt act be completed (even if the overt act is actually a failure in terms of what the overt act was supposed to accomplish).
Federal Indictments for drug cases most usually allege a conspiracy under Title 21, U.S. Code §846, the conspiracy statute for Title 21 violations. Such a conspiracy is usually plead in the Indictment as a conspiracy to distribute controlled substances, a conspiracy to possess with intent to distribute controlled substances, a conspiracy to manufacture controlled substances, or a combination of all of these. Quite often, Indictments in federal drug trafficking cases will allege these two allegations/objects of the conspiracy: 1) to distribute, and 2) to possess with intent to distribute.
III. REALITIES OF A FEDERAL CONSPIRACY
By definition, as referenced above, a conspiracy necessarily includes an agreement between persons to perform, or attempt to perform, an illegal act, i.e., possess large quantities of an illegal drug with the intent to distribute it to others (possess with intent to distribute), or actual transactions where the illegal drugs are transferred to other persons (distribution). Because of the nature of such allegations, it is common place for some defendants to know other defendants in the Indictment, and to even have had contact with them regarding the allegations.
However, it is also common to find that many defendants of a multi-defendant Indictment do not even know many other defendants, especially those “down the line” in the Indictment. That is, if many persons, say, twenty (20) or more, are indicted, often a defendant anywhere in the Indictment may not know those who are listed as say number ten (10) or lower. Frequently, the U.S. Attorney’s Office will include many persons who are allegedly involved in the distribution chain of the controlled substances, and those who are allegedly involved in the collection of monies for the same. This scenario often leaves one, two, or three persons named near the top of the Indictment as the supposed common link(s) between them and various others in the Indictment.
A conspiracy allegation is generally easier for the government to prove than substantive counts, as the evidence needed to prove a conspiracy would have to show that there was an agreement and at least one person performed or attempted to perform an overt act to further the object of the conspiracy. A conspiracy count often is more attractive to a federal prosecutor who has some, but limited evidence, on a defendant.
IV. DISTRIBUTION CHARGES
In federal Indictments, in addition to conspiracy counts, often the government charges specific events of transfers of illegal drugs, referred to in the federal system as “distribution(s).” In various state court Indictments, such transfers of drugs are known as “deliveries.” These charges are much more specific as to what occurred and when it happened. That is, a distribution count in the federal Indictment concisely alleges that on a certain date, a named defendant distributed a certain amount of a controlled substance to another named person or a government agent.
V. POSSESSION WITH INTENT TO DISTRIBUTE CHARGES
Like a specifically-pled distribution count, a substantive count alleging possession with intent to distribute a controlled substance more specifically (than the wording in a conspiracy) states the date, quantity, persons involved and sometimes the location. The element of the crime “with intent to distribute” has to be proven just as the other elements of the alleged crime, including possession and controlled substance. The government will attempt to prove the element “with intent to distribute” in one of two ways: 1) the quantity alone can show that it was much more than personal use amounts; and/or 2) testimony from cooperators who have knowledge of the discussions and plans of the co-defendants.
A person can be charged with manufacturing a controlled substance under Title 21 of the United States Code, but more commonly any allegation of manufacturing will be alleged in a conspiracy.
Penalties for convictions of federal drug statute violations are driven by the type of controlled substance, and by the quantities involved. Usually in federal drug prosecutions, the statutory range of punishment is either five (5) to forty (40) years, or ten (10) years to life. Title 21, U.S. Code, §841 sets forth the drug and quantity listings for these statutory penalties. Some, but fewer, federal prosecutions are for charges that carry from zero (0) to twenty (20) years.
Also, more significantly, the U.S. Sentencing Guidelines (“U.S.S.G.”) play a huge role in sentencing a defendant in federal courts. In summary, the U.S.S.G. function as a point system, driven by drug quantities and other point enhancements, such as the use of a weapon or organizer/leader. The more points accumulated, then the higher the prison range exists for a defendant’s potential sentence. A defendant can receive points subtracted from the total offense level for acceptance of responsibility upon a plea of guilty, and cooperation with the government provides an avenue for the possibility of a reduced sentence. See the U.S. Sentencing Commission and the Sentencing Guidelines at www.ussc.gov.