OVERVIEW OF DRUG TRAFFICKING PROSECUTIONS IN FEDERAL COURT
By John Teakell, Attorney-at-Law
Traditionally, cases prosecuted in federal court were either larger, complex drug trafficking cases, or white-collar crime offenses. This is still true today, although there are a variety of federal offenses prosecuted by the U.S. Attorney’s Offices and the U.S. Department of Justice. Other such cases include public corruption, computer/Internet crimes, weapons offenses, immigration fraud or smuggling, and violations of the Foreign Corrupt Practices Act. Drug trafficking cases with large quantities of controlled substances (illegal drugs) continue to account for a significant percentage of federal cases, and defendants prosecuted federally for drug cases account for a large portion of inmates in federal correctional facilities.
Federal prosecutions differ greatly from most prosecutions in state courts, and this writing highlights those differences, and it outlines the significant issues that a defendant or his attorney will encounter when defending a drug trafficking case in federal court. Many people are aware of the fact that sentences are harsher in federal court, yet they are not familiar with the U.S. Sentencing Guidelines, which provide a “point system” for defendants convicted in federal court. The Sentencing Guidelines calculations are based to a large degree on the quantity for which a defendant is deemed responsible. Also, such drug cases in federal court are more complex due the number of persons involved, the sizeable quantities involved, the length of investigation time, the amount of government resources dedicated to the investigation, and therefore, the discovery evidence that a defendant and his federal counsel are entitled to see upon indictment.
Federal drug cases usually are the result of an investigation that covers a variety of investigative techniques and that produces various evidence. Examples include telephone records, recorded conversations, surveillance, trash “runs,” and sometimes, wire-tap investigations (involving a judge-authorized recording of telephone conversations of targets of the investigation).
Also, conspiracy charges are the norm in federal drug indictments, as there are usually various persons involved in the trafficking of large quantities of illegal substances, and a conspiracy charge allows federal prosecutors to include targets who have a lesser role in the trafficking scheme.
II. Charges and Statutes
a. Drug Charges
Drug trafficking offenses and charges of possession of drugs with intent to distribute are found in Title 21 of the United States Code. Most drug trafficking statutes for federal prosecution are in Title 18 U.S. Code §841, and conspiracy to commit one of these drug offenses is listed in Title 18 U.S. Code §846. Another federal statute used in federal drug prosecutions is using a communication device to facilitate or further a drug trafficking offense, commonly known as a “telephone count.” This communication device offense is located within Title 18, U.S. Code §843.
Often, money laundering charges are included in a federal drug trafficking Indictment, as well as asset forfeiture provisions regarding certain real or personal properties allegedly acquired through proceeds of the sale of illegal drugs.
b. Other Charges Often Used in Federal Drug Trafficking Cases
Weapons charges are very commonly used in drug case Indictments in federal court, usually resulting in additional counts in the Indictment. One such gun charge is based upon handguns, rifles or shotguns that are used or carried during the course of a drug trafficking case. See Title 18 U.S. Code §924(c). This statute allows federal prosecutors to indict on additional charges (thus, potentially making the sentence even more severe) even if the gun is not brandished or pointed at a person. The “924(c)” charge only requires proof that the defendant used or carried the weapon during the drug trafficking felony, which may be based upon having a handgun, shotgun or rifle in the vicinity of the activities.
2. Money Laundering
Money laundering is basically defined as making a transaction with proceeds of a criminal activity when knowing that these proceeds “derive” or originate from, a criminal activity. Classic money laundering was/is accomplished in order to try to conceal the fact that the monies produced were the result of criminal offenses. Thus, money laundering charges are quite common for federal drug trafficking cases, as often the large quantities of controlled substances yield substantial profits from sales, which are invested in real estate or businesses, or are attempted to be hidden in certain bank accounts. The “traditional” money laundering statute found in the federal criminal code is located at 18 U.S. Code §1956.
Actually, pursuant to 18 U.S. Code §1957, just conducting some kind of transaction, where a purchase or simply a transfer into another account, with proceeds known to be from criminal activity, can be prosecuted as money laundering in federal court.
- a. Informants/Cooperators
- b. Searches and Seizures
- c. Telephone Records
- d. Trash Runs
- e. Wire Tap Investigations
- f. Other Recorded Conversations
- g. Surveillance
- h. Transactions
- i. Drug Ledgers
- j. Photographs
- k. Large Amounts of Cash
- l. Bank records
- m. Real estate records
Persons who cooperate with the government in the prosecution of federal drug trafficking cases may be categorized as “informants,” “confidential sources,” or “cooperators.” An informant is a person who may or may not have criminal charges pending, with charges that are pending or a criminal case that is forthcoming against him.
A confidential source is usually a person who provides a one-time debriefing or information on a limited basis. A cooperator is a generic term, but it usually means that the person is cooperating because of a case that is pending and he is trying to obtain a sentence reduction. The cooperator’s assistance may be in the form of providing historical information about the target’s activities and/or in the form of active cooperation. Active cooperation usually means participating in a transaction for illegal drugs with the government’s knowledge and consent, in order to help make cases on the targets.
An Indictment in federal court is the official charge(s) or allegations against a defendant, and the Indictment may contain one or several charges or “counts” against the person, who is the subject of the case. The federal prosecutor’s office, the United States Attorney’s Office, submits a set of proposed charges against the defendant to a federal grand jury, which must find that there is probable cause before it “returns” an Indictment.
In most every federal drug case, conspiracy is charged, as there are usually two or more persons who are the targets of the investigation. If the U.S. Attorney’s Office believes the evidence will prove that these people acted in concert to distribute controlled substances (illegal drugs), the conspiracy charge will be utilized. The conspiracy charge is often used to try to obtain convictions of those who were minor participants.
- a. Agreement Between Two (2) or More Persons to Commit an Illegal Act
- b. Used Almost 100% of the Time in Federal Cases
- c. Can Be Responsible for the Acts of Co-Conspirators
- d. Can Be Convicted Even if You Committed No Overt Acts
- e. Defendant May Not Know Others in the Alleged Conspiracy
VII. Pre-Indictment Representation
If a person learns that he or she is the target of a federal drug investigation, then he or she needs to obtain experienced representation so the attorney can discuss the status of the investigation and evidence. Contact with the U.S. Attorney’s Office on behalf of the client/defendant may prevent the target/defendant from being arrested without notice, and contact with the U.S. Attorney’s Office will let the client/defendant learn the focus of the federal drug investigation and the U.S. Attorney’s belief of this person’s role in the conspiracy or offense.
VIII. Detention Versus Bond
a. Detained in Federal System if Flight Risk or Danger to Community
1) Danger to community can be the concern that a defendant may return to drug trafficking while on conditions of release;
2) Risk of flight can be neutralized by presenting evidence of “ties to the community” including family, employment, and residence.
b. Federal Statute Makes a Presumption in Drug Trafficking Cases That a Defendant Should Be Detained Without a Bond
1) This presumption can be rebutted with evidence that the defendant is not a danger to the community or a flight risk;
2) Many defendants are detained without a bond in federal drug trafficking cases.
c. The federal detention statutes are found at Title 18, U.S. Code, §3142.
IX. Federal Court System
See Federal Criminal Process on this site for an explanation of the federal court system as it relates to criminal cases.
Cooperation is “built in” to the federal system in the sense that cooperating defendants can indeed be rewarded for substantial cooperation in the form of a reduced sentence. Persons who cooperate will work toward any of these motions filed by the federal prosecutor’s office (U.S. Attorney’s Office): Downward Departure Motion, Motion for a Variance, or a Motion for Sentence Reduction.
Cooperation in federal criminal cases focuses on 1) testifying against those charged in the cooperator’s Indictment; 2) testifying against those in other Indictments; and/or 3) providing information or active cooperation to create a new investigation or Indictment against another person(s).
Defendants who want to attempt to cooperate to lessen their sentences will usually meet with the U.S. Attorney’s Office with their attorney, whether prior to indictment or after, to provide their information for the U.S. Attorney’s Office and the case agents to evaluate the usefulness of that information. Providing this information to the government is referred to as a “proffer.”
If it appears that the U.S. Attorney agrees that this information will assist the United States in its prosecutions, then the government will go forward and use the information and/or have the cooperating defendant actively cooperate.
If the defendant substantially cooperates, then the U.S. Attorney will eventually file a motion to lower the defendant’s sentence. This is either the Downward Departure Motion, or a Motion for a Variance, which asks the court to vary from the U.S. Sentencing Guidelines recommended range of punishment.
Unlike State court cases, sentencing in federal cases is more of a formal process that requires the judge to pass sentence. There is no traditional plea-bargaining that exists in State court, i.e., no negotiations for probation or the minimum time to serve. Instead, there is a “point system” based upon the quantity of illegal drugs for which the defendant is responsible, as well as other enhancements that add points. These other enhancements commonly are: 1) use of or carrying a weapon, and 2) organizer/leader/manager of a group of persons.
These sentencing guidelines and the recommendations are found in the U.S. Sentencing Guidelines Manual. The points are determined by the court and points are deducted for pleading guilty and accepting responsibility. The net offense level is determined and the grid for recommended imprisonment is found at the Sentencing Table, which has ranges in imprisonment listed in months, such as 87 – 108 months incarceration.
XII. Sentence Reduction
If the United States Attorney moves the court to lower the sentence of a defendant for substantial cooperation, the court will most likely grant the motion. Then the question becomes how much of a reduction will the court make.
The court can vary from the recommended U.S. Sentencing Guidelines range by motion of either party or on its own.
Also, if a defendant cooperated substantially, but that cooperation did not produce results (new investigations or indictments) until after the cooperator was sentenced, then the United States Attorney can then file a Motion for Sentence Reduction. The judge will then bring the defendant back to court to re-sentence the defendant based upon the cooperation. A sentence reduction motion functions like a Downward Departure motion, only it is filed and addressed after-the-fact. A sentence reduction motion is governed by Rule 35 of the Federal Rules of Criminal Procedure.