FEDERAL PROSECUTIONS OF METHAMPHETAMINE AND CRYSTAL METH (ICE)

I. Introduction

Much of drug trafficking in the United States consists of methamphetamine, and this is true regarding federal trafficking investigations and cases.  Federal prosecutions for trafficking of illegal drugs include cocaine, heroin, marijuana, and synthetic substances, yet methamphetamine cases of distribution and possession with intent to deliver are seen more and more in Indictments in U.S. District Court.  These cases are prosecuted by the U.S. Attorney in federal court as violations of Title 21, U.S. Code, §841, et seq.

One of the aspects of methamphetamine cases that may be surprising, is the fact that a significant amount of the methamphetamine trafficked in the United States was produced in Mexico and transported to the United States for sale and further distribution.  Traditionally, cocaine was and is produced in, and trafficked through, South America, Central America, and Mexico, but we also see more groups south of the U.S. border producing and trafficking methamphetamine into the United States.  You will sometimes see charges of Importation of a Controlled Substance from a foreign country, in addition to the traditional charges of Conspiracy, Distribution, and Possession with Intent to Distribute.

The U.S. Sentencing Guidelines, which is a point system to calculate a recommended imprisonment range for defendants in federal court, is largely driven by the quantity of the controlled substance (illegal drug) for which a defendant is deemed to be responsible.   In addition, pure, or nearly pure, substances will calculate higher at a quicker rate, to yield a harsher potential sentence.  For example, pure methamphetamine, or “crystal meth,” aka “ice,” calculates higher than methamphetamine powder, which is a “mixture and substance containing a quantity of” methamphetamine. [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.]

II. Powder and Pure Methamphetamine

Methamphetamine powder, which is the more traditional form of methamphetamine, can be injected or snorted by the user.  The pure form, or nearly pure form (according to the U.S. Sentencing Guidelines, substances that are 82% or more in purity, are considered pure), is referred to in the U.S. Sentencing Guidelines as “actual” methamphetamine.  It is also known commonly as “crystal meth.”

Methamphetamine can be cooked into pure methamphetamine to give a more potent product for users.  Due to the potency and more dangerous quantities of the pure form, the Sentencing Guidelines ranks the pure form higher on the calculations than powdered methamphetamine.  Thus, a smaller quantity of “pure meth” may, or will, calculate to a higher imprisonment recommendation range than a larger quantity of powder methamphetamine.

This is why the stakes, which are high to begin with in federal court cases, are even higher for pure substances due to the harsher imprisonment recommendations for pure forms.

III. Investigations

Case agents and investigators will use the following sources of information and evidence to piece together a federal methamphetamine trafficking case, or any other drug trafficking case in federal court.  These sources of information and evidence include: 1) telephone records; 2) tape-recorded conversations; 3) surveillance of targets of the investigation and photographs of meetings; 4) informants/cooperators/sources of information; 5) seizure of drug ledgers and other communications; 6) documented sales of substances; 7) bank records; 8) evidence of large amounts of cash; and 9) trash “runs,” where agents and officers search through abandoned trash of targets of the investigation, searching for communications with other persons and evidence of travel or purchases of items.

IV. Conspiracy

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.

A conspiracy is:

a. Agreement Between Two (2) or More Persons to Commit an Illegal Act

1. Used Almost 100% of the Time in Federal Cases
2. Can Be Responsible for the Acts of Co-Conspirators
3. Can Be Convicted Even if You Committed No Overt Acts
4. Defendant May Not Know Others in the Alleged Conspiracy

V. Importation Into the United States

In addition to the usual, traditional charge of “conspiracy,” plus charges of possession with intent to distribute, if the government can prove that the illegal substance originated outside the United States, that is, that the substances were brought into the United States from a foreign country, then the defendants can be charged with “importation” or importation of a controlled substance.

21 U.S.C. § 952(a) provides:

“It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter, or any narcotic drug in schedule III, IV or V of subchapter I of this chapter” (with exceptions for medical, scientific, or other legitimate purposes)…”

So, if methamphetamine is produced outside the United States and brought into the United States, the traffickers can be charged in federal court with the importation charge.  The Fifth Circuit Court of Appeals have held that even if a person is involved in a trafficking conspiracy, but that person did not actual bring the substance into the United States, and even if he did not know that it came from outside the United States, he/she can still have enhancement points added on the U.S. Sentencing Guidelines calculations for importing from a foreign country.

VI. Negotiations That Can Occur

• [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.
• 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.
• The federal detention statutes are found at Title 18, U.S. Code, §3142.]

VII. Federal Court System

See Federal Criminal Process on this site for an explanation of the federal court system as it relates to criminal cases.

VIII. Cooperation

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. 

IX. Sentencing

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.

X. 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.