Defending Against Criminal Drug Charges
by
Brent Owen Horst on Sep. 25, 2014
Summary: This Article describes how to begin to defend against a felony drug conspiracy or resale charge
Defending Against Criminal Drug Charges
Authors note: This article is targeted mainly toward non-lawyers, those who suddenly find
themselves or someone close to them accused, indicted or arrested for the criminal offense of
selling, trafficking, delivering, or conspiracy to sell, traffic, or deliver cocaine, marijuana, GHB,
ecstacy, or other drug. As the contents of this article are based almost entirely upon my personal
experience and opinions developed from my twenty years of criminal trial experience as a
prosecutor and defense attorney, the use of legal citations will be omitted as much as possible.
The purpose of this article is to provide individuals who have been accused, indicted, or arrested
for selling or trafficking in cocaine or marijuana or other drug with basic practical legal
information and a framework for things to consider as they begin the process of deciding how to
defend themselves. However, such individuals should always keep in mind that every case has
unique and challenging facts that may call for different considerations or actions then those
discussed in this article. Anyone accused of a crime should follow the advise of an attorney
experienced and knowledgeable in the defense of selling, trafficking, delivering, or conspiracy to
sell, traffic, or deliver cocaine, marijuana, GHB, or other drug, and who is familiar with the
specific facts of the individual's case.
Introduction
Defending a person arrested, indicted, or charged with selling or conspiracy to sell cocaine,
marijuana, GHB, ecstacy, or other illegal legend and designer drugs present unique and special
challenges that many other criminal charges do not present. Unlike crimes such as robbery or
assault which the government investigates after the fact; when the government conducts an
investigation in the sale, conspiracy to sell, or the trafficking in drugs such as cocaine, marijuana,
extract, GHB, or other legend and designer drugs the government will often target individuals
and "build a case" against the targeted individual. The government may even manufacture
circumstances in an attempt to trap the targeted individuals during the commission of the crime.
In most other crimes the government is usually limited to only investigating the crime after the
crime has been completed and the government is stuck with whatever evidence that was left at
the crime scene or what the witnesses observed. The government can do very little in those cases
to make the eventual prosecution in court stronger. In the typical investigation of the sale or the
conspiracy to sell or traffic in drugs the government can take its time and build its case. Wiretaps,
the use of confidential informants, undercover agents, accountants to comb thru financial records,
video and audio surveillance, are all tools that the government will often employee in conducting
a drug investigation.
If the government does not have enough evidence they simply continue to investigate using all of
their tools until they believe the have a strong enough case to get a conviction. If the target of the
investigation is not initially implicated based upon the government's passive investigation such as
surveillance of the targeted individual the government will switch to a proactive investigation
and introduce undercover agents or "confidential informants" in an attempt to entice the target of
the investigation to commit criminal acts. (Note: One exception to this scenario is the vehicle
stop where the police stumble upon a large amount of drugs or the drug interdiction vehicle stop
which is designed to find and stop vehicles the police have profiled as likely to be vehicles
carrying large amounts of drugs.) Due to the extreme complexities and unusual nature of a drug
sale, conspiracy or trafficking case and the extreme and harsh penalties often inflicted upon those
convicted of such crimes with sentences which can reach up to life in prison, it is extremely
important that anyone facing such charges hire an attorney experienced and qualified in
defending against allegations of drug selling, dealing, and drug trafficking.
While this article will discuss a number of specific items for the individual charged, indicted,
arrested, or under investigation for a drug crime to consider I believe the one most important
factor in a successful defense against any criminal charge is to go on the offense as much as
possible. The defense attorney should not simply sit back and wait for the government to bring its
case. The Defense Attorney should direct an investigation on behalf of the defendant in an
attempt to locate exculpatory information or evidence to use to impeach the government agents
or their informants. The Defense Attorney should aggressively file pre-trial motions aggressively
attacking the validity of the government's actions, and should be generally shaking things up as
much as possible. The government when forced to respond to actions by the Defense Lawyer will
be more likely to make mistakes and / or to reveal information that can be used to formulate a
successful defense.
Anyone attempting to formulate a defense to an allegation of drug sale, drug conspiracy, or drug
trafficking, should also consider the following factors when developing the plan of defense.
Hire an Attorney Immediately
Serious and irreparable mistakes can be made by the targeted individual who tries to deal with
the government himself before or instead of hiring an attorney. Because the government will
employ tricks or lies to get the person to agree to a search or to make a statement these
individuals will usually make the huge mistake of agreeing to a search of their home, car, or
other private premises, and will also often make the huge mistake of making a statement to the
government. I do not know of any person who has ever been convicted of a crime for keeping
quiet or for being uncooperative with the government but I do know of plenty of individuals who
have talked themselves into a conviction or consented to searches that resulted in a conviction
which could have been avoided had the individual first kept quiet and refused to cooperate and
hired an attorney.
Hiring an attorney immediately has further benefits. When targeted by the government and under
investigation or arrest or indictment for the sale, trafficking or conspiracy to sell and traffic of
cocaine, marijuana, GHB, or other designer and legend drugs the targeted individual needs to
take action by having an attorney direct an investigation on the targeted persons behalf, making
sure that an investigator is speaking to witnesses and potential witnesses, collecting documents
and evidence which are exculpatory, making sure that favorable witness statements are locked in
early so that it becomes more difficult for the witness to turn against the target and later make an
allegations in an attempt to save themselves from prosecution when the government starts to
threaten witnesses or co-defendants.
Another reason that it is extremely important to have an attorney involved as soon as possible
especially if the targeted individual is in fact guilty and the State has a strong case is that it may
be in that persons best interest to become the cooperating witness. In such cases it is often the
first defendant in a large conspiracy that agrees to cooperate with the government that will
receive a significant reduction in their ultimate sentence or possibly avoid a conviction. Those
who hold out and go to trial or later plead guilty are often left facing much longer prison terms.
Deciding whether to become the cooperating witness or to hold out and fight the charge to the
end is possibly the most difficult and most important decision one faces. It involves
considerations of whether the target is actually guilty, the strength of the government's case, the
extent of the exposure (potential sentence or prison term), whether there is danger of violent
reprisal from other members of the criminal enterprise, and the personal values of the person who
is under investigation. Due to the complexity of this decision it simply should not be made
without the advise of an attorney who can assess the strength of the governments case, possible
defenses, and the potential sentence if a conviction is obtained by the government, and who can
take measures to insure as much as possible that the government will honor any promises it
makes.
Confronting the Governments Vast Power and Resources.
Any criminal defense attorney who believes that he can match the power and resources of the
government or leads his client to believe such a thing is delusional or dishonest. Even an army of
criminal defense lawyers or the largest law firms cannot match the government's financial
resources or its manpower. However, this does not mean that a defendant cannot win. The
government can be beaten. In order to have a fighting chance it is important to realize how the
war must be fought. The successful criminal defense of those arrested, indicted, or charged with
selling or conspiracy to sell or to traffic in cocaine, marijuana, GHB, extacy, or other illegal
legend and designer drugs depends upon the attorney's ability to formulate a strategy. The key is
to remember that the only thing that the defense attorney needs to do is to convince the jury that
there is reasonable doubt. Granted, getting the jury to see that there is reasonable doubt is
sometimes easier said than done. Often times however, what appears to be an impossible case for
the Defendant to win can in fact be won by simply finding that one weak spot in the governments
case and exploiting that weak spot. Taking out one aspect of the governments case, or showing
one key government witness to be a fraud and a liar, or showing how federal agents and police
officers can make serious mistakes in judgment and perception, or showing the willingness of the
government to violate rights, can cause a jury to sometimes see the governments entire case as
nothing but a house of cards and when one card is removed the entire case can come tumbling
down.
Criminal defense is nothing short of warfare and in attacking the government's case the
experienced and successful criminal defense attorney will employ the strategy of warfare. For
example, a military commander may send an attack directly into the strongest portion of the
enemies defenses before sending troops to exploit the weakest part of the enemies lines in order
to trick the enemy into committing its reserves where the main attack will not take place.
Similarly, the successful criminal defense attorney may fain an attack on one part of the
governments case knowing that part of the case cannot be shaken in order to mask his attack on
the weaker part of the governments case in order to prevent the government from realizing its
own weakness and fortifying the weak spot with additional evidence or argument. The criminal
defense attorney just as the military commander would do will then launches a surprise attack on
the weak part of the case before the prosecution can strengthen the weak spot and when it is too
late for them to recover. In the biblical story of David v. Goliath, David killed the giant Goliath
by employing the strategy of allowing Goliath to underestimate him. Then with one sling shot
and one rock David struck the one fatal blow to the Goliath's weak spot. Just like David defeated
Goliath the defendant arrested, indicted, or charged with selling or conspiracy to sell cocaine,
marijuana, GHB, extacy, or other illegal legend and designer drugs can often beat the
government despite the governments overpowering size and resources by employing the
strategies of warfare and striking the government where it is the most vulnerable.
Realize the Political Nature of the Drug Case Prosecution.
The office of the District Attorney, State Attorney, and the United States Attorney are all political
positions. District Attorneys and State Attorneys are elected on a county or circuit basis. United
States Attorneys are appointed by the president but are often appointed to that position based
upon political patronage and serve at the pleasure of the President. The result is that in all cases
political pressure will often dictate what types of cases will be prosecuted and how aggressively.
Few types of crimes have been the focus of as much political focus as drug crimes. In fact no
other type of crime has been the subject of an official "declaration of war". The result of this
political pressure and the declared "war on drugs" is the desire of the politicians to appear tough
and aggressive. They are therefore often reluctant to abandon cases that should be abandoned and
will sometimes employ questionable methods in the investigation and prosecution of some
individuals that can lead to grave injustice.
The person accused of the sale, trafficking, or conspiring to sell or traffic in cocaine, Marijuana,
GHB or designer drugs needs an attorney who not only understands the facts, and the law of a
drug case but how to address the prosecutors political concerns and issues. In the example above
the prosecutor needed to be public ally embarrassed for such overzealous activity and the story in
the news paper was a very good start and I hope that the Defense attorney involved in that case
initiated that publicity.
Aggressively Defend against the Conspiracy Charge.
Many serious drug prosecutions will involve a charge of conspiracy. Prosecutors love conspiracy
charges because the law of conspiracy casts a very wide net. In some jurisdictions including
Florida and the Federal System, a person can be convicted as a conspirator for simply agreeing to
commit a crime. Tennessee does require the individual to engage in at least one "overt act" in
furtherance of the conspiracy in order to be guilty of conspiracy. The government does not need
to prove that the person did anything to actually participate in the manufacture or sale or
trafficking of the drugs. The simple agreement of the person to participate in the crime even if
they never actually do participate is sufficient for the government to bring charges and get a
conviction if the government can convince the jury to return a guilty verdict. Furthermore, the
use of circumstantial evidence is allowed in order to prove the persons agreement to participate
in the conspiracy and the government does not need to provide proof of an express agreement
and in most cases there is no proof of an express agreement. In other words, in most conspiracy
cases the government will merely present evidence of a persons activities and relationships with
other defendants in an attempt to prove a conspiracy but will offer no evidence of an express
agreement. In cases where the client is charged with conspiracy but there is no evidence of his
direct participation in any illegal activity and no direct evidence of his agreement to participate in
the conspiracy an aggressive defense can be presented. Witnesses should be located and
affidavits obtained for pre-trial use and for locking in the witnesses testimony for trial that verify
the relationship with the other defendants or conspirators was familial, social, or a legitimate
business and that these witnesses observed no criminal activity by the client. Financial, real
estate, personal property, and legitimate business records should be obtained to demonstrate that
the Client is not living an extravagant life style and is not wealthy, as one would expect if the
person were involved in a drug conspiracy. If the targeted individual does have significant wealth
evidence of legitimate sources of that income should be gathered. The targeted individual with
wealth may need to hire accountants to testify as experts as to the legitimate sources of income of
the targeted individual.
Investigate and Prepare to Attack the "Cooperating Individual"
A "cooperating individual" is the person who agrees to testify on behalf of the government in
return for an agreement from the government for a reduction in that person's sentence, or
sometimes even the dismissal or agreement not to file charges against the "cooperating
individual". The secret to this arrangement is that rarely will the "cooperating individual" or the
government directly and expressly acknowledge that a deal was made. The government will
usually with a wink and a nod tell the cooperating individual that he cannot make any promises
but that if the individual testifies against the other defendant(s) that the prosecutor will take his
cooperation into consideration later on. Therefore the "cooperating individual" when cross
examined will attempt to claim that he was not promised anything and that he has just seen the
error of his ways and is doing his "civic duty". It is therefore extremely important that an attorney
defending a person charged with a drug offense be very skilled in cross examination and be able
to demonstrate thru cross examination that the cooperating witness will say or do anything
including lie under oath and take down an innocent person if that is what it takes to save his own
skin. The difference that a skilled cross examiner can make in this situation as compared to the
in-effective cross examiner can very well be the difference in many cases between a guilty
verdict and a not guilty verdict. It is further extremely important to do as much of a background
investigation on the "cooperating individual" as possible in order to obtain extrinsic evidence
such as previous criminal convictions in order to attack the credibility of the cooperating
individual.
Do not Cooperate with the Government Before Getting Legal Advice
One of the most important things that any person under investigation for the sale, conspiracy to
sell, and the trafficking in drugs such as cocaine, marijuana, extacy, GHB, or other designer
drugs needs to understand is that there is almost never any benefit in consenting to a search,
agreeing to make a statement, or agreeing to cooperate unless and until an attorney has been
consulted and has worked out an understanding with the government on your behalf. When I say
almost never I mean that in 20 years as a criminal lawyer I have never seen a targeted individuals
cooperation provide him with significant benefit unless an attorney worked out the deal, it may
have happened but I have never seen it work out that way. Many individuals believe that a police
officer cannot lie to you and believe that if the government's agent says that they are going to
help you they are legally and duty bound to honor that promise, this is not true. Government
agents are allowed to lie, at least to a certain extent. They can lie about what evidence they have
when interrogating a defendant. They can make implied promises and then claim that no express
promise was made.
One of the government's favorite tricks is best demonstrated by an example. Agent Smith thinks
that Mr. Jones is dealing large amounts of cocaine out of his house but just cannot get enough
evidence on Mr. Jones for a search warrant. So one day Agent Smith finds an excuse to go to Mr.
Jones' home. While at the door Agent Smith tells Mr. Jones I've got you, I know what your doing.
Now if you cooperate and let me search and tell me whom your supplier is I will talk to the
district attorney and see what I can do to help you otherwise you are going to prison for a very
long time. The prosecutor will be much more likely to help you out if you help us out. Agent
Smith has just led Mr. Jones to believe that if he helps and cooperates with Agent Smith that Mr.
Jones will be let go free or will at least be treated much more leniently. This being Mr. Jones first
encounter as a criminal defendant is scared. He focuses in on Agent Smith's promise to help him
and allows the search and tells the agent everything he knows. Agent Smith never does say
anything to the prosecutor or if he does it is a half hearted, "yes he cooperated" and never makes
a serious effort to intervene with the prosecutor on Mr. Jones behalf. Furthermore even if Agent
Smith does really try to help Mr. Jones the prosecutor says this is my case and I'm not giving that
guy any breaks. The government when challenged for having promised to help Mr. Jones simply
says we never promised anything, Agent Smith only said he would see what he could do. This
type of empty promise or out right lie is so common that I hear the police or government agents
employ it in just about every suspect interrogation that I have ever hears.
Although there are times that cooperating with the government can be a person's best option to
avoid a criminal conviction or a much longer prison sentence any "deal" needs to be negotiated
by a qualified criminal attorney because if the government can get what they want from the
targeted individual without providing him anything in return they are happy use him and then
leave him to "hang".
Plea Bargaining and the Negotiating with the Prosecutor
Plea-bargaining which is the term for the defendant agreeing to a lesser sentence in return for his
agreement not to take the case to trial and / or in return for his cooperation in the prosecution of
other individuals is an art.
There are two things that in my opinion greatly help in the ability of a defense attorney to be able
to negotiate a favorable plea bargain. The first is whether the defense attorney has a reputation as
an attorney who is willing to take a case to trial and who is at minimum a competent defense
lawyer. Prosecutors are not likely to give a favorable plea bargain to a defendant who is
represented by an attorney that they know does not like to or who is afraid to take a case to trial
or who is incompetent. Why should they? They know they will get what they want in the end.
The more willing the defense lawyer is to take a case to trial, the better he is, and the more he
will make the prosecutor work for any conviction he may hope to obtain often greatly enhances
the ability of that defense attorney to negotiate a favorable plea bargain. If a prosecutor knows