As a former federal prosecutor and current federal criminal defense lawyer based in Dallas, I have prosecuted and defended more federal drug cases than I can count. If you or your loved one has been charged with a federal drug crime, you are probably scared and anxious about what will happen. Federal drug crimes are extremely serious matters. They can throw families into fear and confusion about how their loved one could have been charged with such a serious crime, how they are going to live if their family member is an important provider of income, and what will happen if their family member is sentenced to a long prison sentence.
Hopefully, the information here will help reduce some of the confusion and anxiety you may be feeling. In the end, though, the best way to do that is to make sure that you or your loved one is represented by an experienced federal criminal defense lawyer who you can trust to give you the best advice.
What are Federal Drug Charges?
A federal drug charge is an accusation that a person has violated the federal drug laws of the United States. There are laws about illegal drugs at the federal and state levels. They often overlap.
At the federal level, the law that applies to illegal drugs is the Controlled Substances Act, 21 U.S.C. § 801 et. seq. This law was originally passed by the United States Congress in 1971, and it has been amended many times since then.
Each state also has their own laws about illegal drugs. So, for example, it is illegal to possess with intent to distribute cocaine, heroin, and methamphetamine under the laws of each state as well as federal law.
So, what is the difference? The main difference is that federal drug cases tend to involve larger quantities of illegal drugs and larger drug trafficking organizations. This is because the federal government is generally only interested in larger and more serious cases that justify the use of federal resources. For this reason, it is rare for the federal government to prosecute people for possessing small quantities of illegal drugs that are only for personal use. The federal government will usually let a state government handle those smaller types of cases.
By far, the most common federal drug charges are possession with intent to distribute an illegal drug (21 U.S.C. §841(a)(1)), and conspiracy to possess with intent to distribute an illegal drug (21 U.S.C. §846). The most common illegal drugs that are prosecuted by the federal government are methamphetamines, cocaine, heroin, and marijuana, although the federal government usually does not get involved in marijuana unless the quantity is very large.
What is “possession” for purposes of possession with intent to distribute?
Possession with intent to distribute an illegal drug means:
See Fifth Circuit Pattern Jury Instructions, §2.95A (2019); United States v. Rodriguez-Garcia, 657 F. App’x 252, 254 (5th Cir. 2016).
“Possession” is a legal concept that can be difficult for many people to understand. People charged with drug crimes often say, “The drugs were not mine.” Under the law, though, you can possess something, even if it belongs to someone else. For example, I can go to a restaurant and pick up a glass. I am possessing the glass because I am picking it up, even though it belongs to the restaurant, and I cannot walk out with it. The federal drug laws make it a crime to possess illegal drugs, regardless of who owns them.
“Possession” means either that the person has “direct physical control” over something, or that the person has “the power and the intention to exercise dominion or control over it, either directly or through another person or persons.” Fifth Circuit Pattern Jury Instructions, §1.33; see United States v. Lewis, 265 F.App’x 255, 257 (5th Cir. 2008).
Based on this definition, under the law, you can possess something even if you have never touched it and even if you have never actually seen it. For example, if a person is told that a car contains illegal drugs in a secret compartment in the trunk and drives the car to drop it off somewhere else, the person has direct control over the illegal drugs in the car while driving the car to the intended destination, even if the person has never looked into the hidden compartment to see the drugs.
On the other hand, in order for the possession to be illegal, the person must know they are in possession of illegal drugs. If the person driving the car does not know that there are drugs hidden in the car, the person has not knowingly possessed the drugs. Under the law, “’guilty knowledge may not be inferred solely from the defendant’s control’” of a vehicle. United States v. Rivera, 444 F. App’x 774, 781 (5th Cir. 2011) (quoting United States v. Gonzalez-Rodriguez, 621 F.3d 354, 361 (5th Cir. 2010)). Instead, the Government may not rely solely on ownership or control of a vehicle and “must prove that there is other evidence indicating the defendant’s guilty knowledge of a controlled substance hidden in the vehicle.” United States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994).
There are many facts that can indicate knowledge that illegal drugs are in a vehicle. Some of them are nervousness when stopped by law enforcement, inconsistent statements to law enforcement about things like what the person is doing or where they are going, implausible explanations when drugs are found, possession of large amounts of cash, and the value of the drugs. See United States v. Fellove, 402 F. App’x 957, 959 (5th Cir. 2010). In a trial, a jury would be asked to decide whether the facts, beyond control of the vehicle alone, show knowledge of the drugs beyond a reasonable doubt.
Another possession issue that comes up often is when illegal drugs are found in a house or apartment that is occupied by more than one person. Under the law, if illegal drugs are found in a place that is occupied by more than one person, there must be some other evidence of possession besides the mere fact that a person lived or went there. See United States v. Moreland, 665 F.3d 137, 150 (5th Cir. 2011).
Importantly, a person can be guilty of knowingly possessing illegal drugs if they know that they are possessing an illegal drug, even if they do not know what drug it is. “The government must prove beyond a reasonable doubt that the defendant knew he [or she] possessed a controlled substance but need not prove that the defendant knew what particular controlled substance was involved.” United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003).
The legal meaning of “possession” can be complicated in federal drug cases, and the facts relating to whether someone knowingly possessed illegal drugs may be disputed or unclear. That is one reason why it is important to hire a federal criminal defense lawyer with experience in federal drug cases.
What is “Intent to Distribute”?
“Intent to distribute” is easier to understand. It means the “intent to deliver or transfer possession of a controlled substance to another person.” Fifth Circuit Pattern Jury Instructions, §2.95A (2019). In other words, you do not just intend simply to take the drugs yourself. You intend to give them to someone else. That someone else could be a customer who would buy some or all of it, or anyone else. It could also be another person involved in drug trafficking. You do not have to intend to sell the drugs yourself. “Distribute” can mean just bringing them to someone.
You can also have intent to distribute a drug, even if you have not been paid to do it. It is illegal to give someone drugs whether they, or anyone else, pays you or not. See Fifth Circuit Pattern Jury Instructions, §2.95A (2019) (stating that intent to distribute can exist “with or without any financial interest in the transaction”).
Probably the most common and obvious way to prove that someone has the intent to distribute illegal drugs is that the possessed an amount that is more than someone would have for personal use. This indicates that they plan to distribute it to someone else. See United States v. Valdez, 453 F.3d 252, 260 n. 7 (5th Cir. 2006).
What is a “conspiracy” to distribute illegal drugs?
The term “conspiracy” may seem mysterious to many people. It basically means an agreement to do something illegal.” The law defines a “’conspiracy’ [as] an agreement between two or more persons to join together to accomplish some unlawful purpose.” Fifth Circuit Pattern Jury Instructions, §2.97 (2019); see United States v. Suarez, 879 F.3d 626, 631-32 (5th Cir. 2018); United States v. Chapman, 851 F.3d 363, 375-78 (5th Cir. 2017).
The concept of “conspiracy” recognizes that people can agree to do something illegal, even if they all do not technically do the illegal thing. A conspiracy charge is often in drug cases used when multiple people are involved in drug trafficking, but not all of them actually possess the drugs.
For example, Person A may arrange for a shipment of drugs from a supplier. Person B may pick up the shipment from the supplier and bring it to a safe house. Person C may take the drugs from the safe house to people who sell them on the street. Person D may simply bring money from the sales to a representative of the supplier for payment. In this example, each person is involved in the conspiracy, because each person plays a role in the drug trafficking. Person A and Person D are guilty of conspiracy, even though neither of them ever possessed the drugs.
This example illustrates how a person can be charged with a federal drug crime, even if the person never actually possesses the drugs.
Keep in mind, however, that even though many people can be guilty of the crime of conspiracy to distribute illegal drugs, but that does not mean that they will all get the same sentence. The fact that one person plays only a minor role may mean that the person gets a much shorter sentence than someone who plays a major role.
What punishment will someone get if they are found guilty of a federal drug crime?
Of course, when someone is charged with a federal drug crime, they and their loved ones want to know what will happen if they are found guilty. In the federal system, it is usually impossible to predict with certainty what sentence someone will receive. This is because the judge decides what the sentence will be, and no one knows exactly what the judge will decide until the judge actually makes the decision at a sentencing hearing in court. However, an experienced federal criminal defense lawyer can give you a general idea of the type of range you are facing, once the lawyer knows enough about the facts of the case.
Under federal law, judges are required to consider the range of punishment that the Federal Sentencing Guidelines recommend. The Federal Sentencing Guidelines will recommend a range of months in prison, based on the facts of the case and the defendant’s criminal history. The worse the facts are, and the worse the defendant’s criminal history, the higher the recommended range will be. Federal judges are not required to sentence within the recommended range in the Federal Sentencing Guidelines, but they do so more often than not.
The kinds of facts that can affect someone’s sentence include:
One of the most important jobs of a federal criminal defense lawyer in federal drug cases is to persuade the judge to give a defendant who has been found guilty the lowest possible sentence. This takes a thorough knowledge of the facts and the law and, most importantly, a lot of experience knowing the kinds of approaches that work and the kinds that do not.
What is a Mandatory Minimum Sentence?
Many federal drug crimes have mandatory minimum sentences. This means that, if a person is convicted of a specific crime, the judge is not allowed to give them a lower sentence than the minimum, except in very limited circumstances. The mandatory minimum sentences for federal drug crimes can be very harsh. Here are some examples of the mandatory sentences for a first-time felony drug offender:
Source: 21 U.S.C. §§ 841, 960, 962.
|Mandatory Minimum Sentence
280 grams or more
1 kilo or more
|5-49 grams actual
50 g. or more actual
There are three ways to avoid a mandatory minimum sentence. One is to plead guilty, cooperate with the Government, and provide the Government with substantial assistance in investigating or prosecuting someone else. See 18 U.S.C. §3553(e), 28 U.S.C. §994(n). A second is to reach a plea agreement with the federal prosecutor for a charge that carries a lower mandatory minimum sentence or none at all. A third is for a defendant to qualify for what is called the “safety valve.” The safety valve is a law that allows a judge to sentence someone below the mandatory minimum sentence if certain criteria are met. See 18 U.S.C. §3553(f); U.S.S.G. §5C1.2.
The details of each these possibilities are complicated. I have written separate articles on each of them. Whether any of these options is available and a good idea is something that the accused should always discuss with an experienced lawyer.
Will a person charged with a federal drug crime be released on bail?
When someone is arrested on federal drug charges, one of the first questions I am usually asked is whether they will be released on bail. This is an incredibly important issue, because most people and their families are not prepared for an arrest that happens with no warning. Very often, the person arrested is the main source of the family’s income, and that person’s unexpected arrest means that the family must suddenly figure out how they are going to survive without that person’s income.
Whether a person will be released while the case is pending depends on a variety of factors that are specific to each case. In the federal system, every arrested person has a right to a hearing in court, in which a judge determines whether they will be released or detained. Sometimes, the Government does not oppose the person’s release, and a hearing is not necessary.
If the Government opposes the person’s release, the judge must decide at the hearing whether there is any combination of conditions that the judge can impose that would ensure that the person will appear in court as required and ensure the safety of the community. See 18 U.S.C. §3142.
At the hearing, the judge will hear testimony from witnesses about whether the person is a risk of flight or a danger to the community. Normally, the Government will call one of the investigating agents to testify about these issues. The defendant can also call witnesses on these issues. When possible, I usually try to call a family member to testify that the defendant has stable ties to the community and is not a danger of fleeing the jurisdiction or a dangerous person.
Based on the evidence at the hearing, the judge must decide whether there is any combination of conditions that can be imposed by the judge that would ensure the defendant’s appearance in court when required and ensure the safety of the community. If there are conditions that can do this, the judge will impose the conditions and release the defendant. The conditions could include home confinement, an ankle monitor, a monetary bond, and many others. In making this decision, the judge will consider:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, terrorism, or other inherently dangerous conduct;
(2) how strong the evidence is against the person;
(3) the history and characteristics of the person, including—
(A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
See 18 U.S.C. §3142(g).
Whenever a person’s release is at stake, if the Government opposes release, it is critical for a criminal defense lawyer to find one or more witnesses who can come to court to testify at the hearing. Especially in drug cases, it is often crucial to find someone who will agree to be responsible for the defendant’s compliance with all requirements of release, including showing up to court and not committing any crimes. This is because, in drug cases in which the charge carries a mandatory minimum sentence of ten or more years, the law presumes that the person should be detained. See 18 U.S.C. §3142(e)(3)(A). However, with the right evidence, this presumption can be overcome. It takes an experienced federal criminal defense lawyer to know what kind of evidence is necessary and how to get it quickly for the hearing.
How do you defend a federal drug case?
Defending a federal drug case takes experience and preparation. You need to look for arguments that law enforcement may have conducted an illegal search or an illegal traffic stop. You need to look for facts showing that your client was not involved in, or aware of, the illegal drug trafficking. For example, in federal drug cases, just because someone associates with drug dealers, and even discusses drug dealing with them, does not make the person guilty of a crime. See Fifth Circuit Pattern Jury Instructions, §2.97. Similarly, under federal law, just because someone bought drugs from another person does not make them part of a drug conspiracy. See United States v. Scroggins, 379 F.3d 233, 263 (5th Cir. 2004).
In some cases, the evidence against a person may be so overwhelming that their only option is to plead guilty and try to get the lowest possible sentence. The Federal Sentencing Guidelines provide that a person who pleads guilty and accepts responsibility for their actions will almost always have a lower recommended sentencing range than someone who does not plead guilty. See U.S.S.G. § 3E1.1.
If a defendant decides to plead guilty, a lawyer’s job becomes trying to get the lowest possible sentence for the client. There are a number of ways to do this, including cooperation with the Government. Whether cooperating makes sense for a particular defendant is an issue that requires serious consideration, analysis, and careful advice by a lawyer, because cooperation with the Government always involves some degree of risk. For a decision as serious as whether to cooperate, a defendant should be able to rely on a lawyer with years of experience.
How do you choose a lawyer for a federal drug case?
Choosing a lawyer to defend a federal drug case may be one of the most important decisions you make. Your goal should be to find someone who you can trust and who will get the best possible result in the case. But with all of the lawyers out there, how can you do that?
First, you want to hire someone with extensive experience defending federal criminal cases. Federal criminal cases are very different from state court criminal cases. Many criminal defense lawyers handle mostly state-court cases, and they may not be thoroughly familiar with the procedures in federal court. Make sure you look for someone who is a federal criminal defense lawyer.
Second, you want to hire someone who has extensive experience with federal drug cases. The federal drug trafficking laws are complicated, and you do not want to hire someone who has to do on-the-job training. More than that, though, it is important to understand how federal drug crimes are investigated and prosecuted. It is often very important for a federal criminal defense lawyer to understand how a federal agent and a federal prosecutor build their case and how to know where the weaknesses may be. It is also important to be able to work with federal prosecutors to get the information and evidence you need and to work with them on possible plea agreements, if necessary. I tried federal drug cases as a federal prosecutor, so I know how important it is to understand a prosecutor’s point of view when I am defending my clients.
Third, you want someone who you trust to give you the best possible advice. A crucial part of a criminal defense lawyer’s job is to help the client make the best possible decisions for them. Sometimes, people want to hire a lawyer who tells them what they want to hear or who is a good talker. But ask yourself this: When you have to make some of the most crucial decisions in your life, do you want a salesman advising you? Probably not. You probably want someone who is calm, smart, and level-headed and who gives you straight talk, instead of a sales job.
Fourth, you want a lawyer who can and will fight for your rights. Many lawyers back down when they should not. I see this all of the time. Whether it is making sure that your rights were not violated during a search, making sure you receive all of the evidence the law requires to be disclosed to the defense, calling out a prosecutor who overreaches, or being willing to try a case, you need someone who will fight to protect your interests. Look to see what people say about the layer you are considering.
Fifth, you want someone who is an outstanding trial lawyer. Most federal drug cases do not go to trial because of guilty pleas, but many do. You want to know that, if your case goes to trial, you have a winner representing you. It takes many years of experience to become a great trial lawyer. To become a great federal criminal trial lawyer takes even more specialized experience and skill. Make sure you hire someone who has them.
Sixth, you want someone who is available to you. When you call, do you speak to a receptionist? A secretary? An answering service? Or can you communicate directly with your lawyer? There are few things as stressful as being accused of a federal drug crime or having a loved one accused of one. You want to know that you can contact your lawyer when you need answers to difficult questions. A lawyer who is responsive can help reduce the anxiety you feel.
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If you have not been arrested or charged with a crime, but the police have told you that they would like to talk to you, what do you do? Do not say a thing; let them know you want to use your right to get a lawyer. And do it ASAP.
Whenever you have any dealings with the police, you should be represented by a lawyer. If they are looking for you, if they want to talk to you, if they want to arrest you, or if someone has contacted law enforcement and accused you of a crime, you need a lawyer.
Even if you plan on pleading guilty, it is critical that you hire a criminal defense lawyer to protect your rights. Representing yourself is never a good idea. Even if you plead guilty, you can expect that prosecutors will try to take advantage of your inexperience by only agreeing to a plea deal that is less favorable than they would with a lawyer. Plus, an attorney may be able to spot problems with the government’s case that you would not recognize, like evidence that should be suppressed. Problems like that might result in dismissal of the charges altogether, but just being able to spot them can help negotiate a better deal with a prosecutor. An attorney, especially a former prosecutor like me, can help you protect your rights, evaluate your options, and negotiate with the prosecutors for the most favorable outcome.
In criminal cases, we usually charge a flat rate for everything but trial and a trial fee that is only owed if the case goes to trial. A flat fee means that, no matter how much work the lawyer has to do, you know up front what the fee is going to be. We base our fees on our estimate of the amount of time and work that will be required to defend the case. We are not a factory type of operation, so we generally do not have “grocery store” pricing, in which a given crime costs a set amount regardless of the facts. Each case is different, and we try to tailor our fees to your individual case. That means that we want to find out about your case and that we try to set our fees based on how much work we think your case will take and how complicated it will be.
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