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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 that he will have to work much harder (which means spending his weekends preparing for trial) or that he may not get a conviction at all because the defense lawyer knows what he is doing the prosecutor will often be more likely to offer that lawyer a better deal. The second factor that in my opinion greatly helps the ability of a defense attorney in the art of plea-bargaining is if the defense attorney has had prior experience as a prosecutor.

Unless the attorney has been a prosecutor he simply cannot fully understand and empathize with the unique demands of the job of a prosecutor. For example, having been a prosecutor I know that one of the times I was least receptive to negotiation was when I was in court handling a large court docket and had a lot of other distractions going on. So if I am in that situation as a defense lawyer I will watch the prosecutor and if he appears to have the same reluctance to negotiations in that situation I will simply speak briefly with him and then contact him at his office later. It may be better to approach other prosecutors when they are busy handling other things because they are distracted and less likely to focus in on the reasons they may not want to offer a good deal. Taking into account knowledge of the prosecutor's job and each particular prosecutors personality is very important in plea negotiations. There are times during negotiations to take a hard stance meaning that you point out the weakness of the governments case and express your confidence you could win, there are times you need to bluff and act like you can win even though you know that is not likely, and there are times to acknowledge to the prosecutor that the defendant is in fact guilty and to appeal to the prosecutor's sense of mercy, and compassion.1

How to negotiate with the prosecutor and when simply depends upon many different variables that are different with every case and with every prosecutor. 2 These variables include the prosecutors personality, how long he has been a prosecutor, local custom, the facts of the case, the defendants desires, the judge involved in the case, and other factors. It is the weighing, considering, and balancing of these factors and determining the best way to approach plea bargaining that makes plea negotiations an art.

Pretrial Motions

There are various types of pre-trial motions to file in cases involving charges of selling or conspiracy to sell cocaine, marijuana, GHB, extacy, or other illegal legend and designer drugs, a few of the more common motions include:

A) A motion to suppress, which challenges a search or the seizure of evidence because the search or seizure by the Government was illegal.

B) A motion for bill of particulars seeking that the Government discloses more details about when, where, and how it alleges that the defendant committed the crime.

C) A motion in limiting seeking to prohibit the Government from placing into evidence certain evidence that is unfair or overly prejudicial (such as the prior criminal conviction of a defendant).

One of the key uses for pre-trial motions especially in Federal Court and in Tennessee state courts where the discovery process3 is very limited is to gain knowledge about the Government's case and to learn as much about its evidence as possible. Use of pre-trial motions is one of the best ways for the Defense to find the weak parts of the Governments case and to assess the credibility and vulnerability of Government witnesses.

Conclusion

Defending against criminal allegations of selling or conspiracy to sell, trafficking in cocaine, marijuana, GHB, extacy, or other illegal legend and designer drugs present unique and special challenges that many other criminal charges do not present. Anyone facing a drug charge should hire an attorney who has extensive experience not only as a criminal defense lawyer but who also has extensive experience with drug cases.


1There are actually some prosecutors that have compassion and empathy but just as many who do not. I usually prefer to negotiate with older prosecutors who have been on the job for a while. They tend to view their job more as simply a job and to be easier to negotiate with. It is the young prosecutor who is fresh out of law school and ready to take on and change the world who is often much more difficult to negotiate with.

2It should be noted that some prosecutors cannot be negotiated with. Some will make a take it or leave it offer and refuse any further negotiation. The choice in that situation is therefore simple if not always easy. Take the only offer on the table or take the case to trial.

3 Discovery process is the process by which the Government and the Defendant must exchange the evidence that each has and intends to use at trial. In some states such as the Florida state court system discovery is fairly broad. Names and addresses of witnesses and their statements must be provided; Depositions can be taken of the witnesses. In the Federal Court system and in the Tennessee state court system the Discovery process is much more restricted. The Government is not required to disclose its witnesses, or provide their statements and depositions are generally not allowed.

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