Drug Crimes

When You're Facing a Federal Controlled Substance Conspiracy Indictment — here are some "Clues for Moves" to Shake-Up the Prosecutor and Start Gaining Some Much-Needed Leverage

Most all federal drug crimes can be broken down into a few categories: possession, possession with intent to distribute, distribution, transporting, manufacturing, importation, maintaining drug-involved premises, OR, ANY “Attempt,” or “Conspiracy” to do any of those acts. These are all contained in title 21, section 841 (a) (1), 846, 952, 960 et seq.

If you have been charged with, or you're under investigation for, a federal drug offense, there can be no doubt about the fact that you need a federal criminal defense attorney, such as Joe Shemaria– one with actual federal criminal jury trial experience in trying controlled substance offenses in United States District Court! When it comes to drug offenses, the laws are much different in federal court as opposed to State Court, especially in California!

To begin with, from my experience, the chances are very good that if you're becoming a target in a federal drug investigation, or a federal defendant who has been indicted for a title 21 controlled substance offense, your case started with a “snitch.” “Snitches” are not necessarily bad people. Rather, they are people who would rather turn you in to law enforcement (i.e., tattletale) in exchange for the snitch's immunity from prosecution. When it comes to controlled substance offenses, the overwhelming majority come to federal law enforcement agencies -- such as the DEA, United States customs, FBI Or United States Postal Inspectors -- by way of a snitch who has been caught committing a controlled substance offense and faces a very long prison term. The snitch then decides to “flip” and assist federal law enforcement with names of other persons believed to be involved in federal violations of controlled substance (title 21) laws.

What Must the Government Show to Prove You Guilty?

First, in order to prove somebody guilty of a controlled substance offense in federal court, the prosecutor (commonly known as an AUSA, or Assistant United States Attorney) must prove beyond a reasonable doubt that:

  • First, a defendant knowingly possessed a specified type of controlled substance;

  • Second, that the defendant possessed the controlled substance with the intent to distribute it to another person,[841(a)(1)], or bring it into the United States from a place outside the United States, [952, 960 etc.]

The government is not required to prove the amount or quantity of the specified controlled substance. It is sufficient if the government proves that the accused knew it was some kind of a controlled substance. To “possess with intent to distribute” means to possess with intent to deliver or transfer the possession of a specified controlled substance to another person, with or without any financial interest in the transaction.

Conspiracy To Possess with Intent to Distribute Or Manufacture A Controlled Substance [841 & 846]

Oftentimes, the government will charge the defendant with having conspired with another person to commit a controlled substance offense. In a conspiracy, the Government must prove:

  • First, that between a certain given date and ending on about another given date, there was an agreement between two or more persons to [distribute],[manufacture], [import] a specified controlled substance; and

  • Second, that the defendant joined in the agreement knowing of its purpose and intending to help accomplish that purpose.

Conspiracy is often defined as “a partnership in crime.” Where two or more people agree to commit a crime, it is called a “conspiracy.” There is never a formal agreement required. Certainly no written agreement is required and, rarely is there even a verbal agreement! Rather, from Joe's experience in federal court for the last 44 years, drug conspiracy charges result from a simple coincidence of the accused defendant being in the wrong place at the wrong time!

Under the law, details of the conspiracy are not required either. Under the law, it is sufficient if the two conspirators met, discussed matters of common interest, acted in similar ways, or perhaps helped one another. But if the case should go to trial, the jury must find, beyond a reasonable doubt (of course) that there was actually a plan to commit at least one of the crimes that is alleged as a federal drug offense as the object or purpose of the conspiracy. The jury must agree as to the particular federal drug offense which the conspirators allegedly agreed to commit.

Remember that one becomes a member of the conspiracy simply by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Further, one who willfully joins an existing conspiracy well after it begins is still as responsible for it as the originators. On the other hand, one who has no knowledge of the conspiracy, and who just happens to act in a way which furthered some object or purpose of the conspiracy, does not thereby become a conspirator! Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators. Also important, is the fact that a person does not become a conspirator merely by knowing that a conspiracy exists.

(Some of) Mr. Shemaria's Most Common Defenses for Federal Drug Trafficking Crimes

This happens to be Joe's favorite specialty! Although “White-Collar” federal prosecutions and trials are very interesting and challenging, Criminal Defense Lawyer Joseph Shemaria got his start in the early 1970s doing major federal drug conspiracy cases in United States District Court. Rest assured, regardless of the quantity, regardless of the controlled substance involved, regardless of the circumstantial evidence against you, regardless of the ill-advised statements you may have made to law enforcement after your arrest and/or the ill-advised statements you may have made that were either recorded by confidential informants or picked up in a court-approved wiretap, you cannot lose hope and you cannot despair! Maybe your case is an “absolute loser.” Even with those “absolute loser” cases, however, a highly experienced federal criminal defense lawyer such as Joe Shemaria may be able to work wonders for you in getting you below the so-called “minimum mandatory” sentences of five, 10 or even 20, or 30 years in federal prison. This all has to do with an experienced federal criminal defense lawyer who is knowledgeable of all the nuances, gimmicks and know how to navigate through the notorious Sentencing Act of 1984 which created the United States Sentencing Guidelines. (For further information regarding the United States Sentencing Guidelines, or “USSG,” go to our “UNITED STATES SENTENCING GUIDELINES” tab.)

Assuming there is not a statute of limitations, improper jurisdiction and/or venue defense, or other very obvious defense, Joe Shemaria is a master at using an extreme amount of pretrial motions to suppress evidence that he feels was taken in violation of his client's Fourth Amendment rights, or exclude evidence of statements his client made after arrest taken in violation of his client's Fifth Amendment rights.

Post-arrest statements given either after federal law enforcement agents advised you that “you are not under arrest. . . . and/or you are free to go. . . ” when in fact you happen to be in your own home at 6 AM in the morning in your pajamas when the federal agents confronted you, can, and often are, excluded by the federal judge hearing the case based upon a violation of law under Miranda vs. Arizona. Miranda requires that the statements of any person in custody, (meaning any person who is not objectively “free to leave,” regardless of the federal law enforcement agent's statements that you are not under arrest and that you are free to leave), be excluded by federal judges from introduction into evidence at trial after it is objectively apparent that he was no longer free to leave. Federal agents are trained to specifically tell suspects that they are “free to leave” and/or “not under arrest,” FOR THE SPECIFIC PURPOSE OF AVOIDING GIVING THE SUSPECT HIS/HER MIRANDA RIGHTS! The federal agents are trained well and, in almost all cases, execute these simple instructions that they have been trained to employ with friendliness, simplicity and a deceptive manner of stating that the suspect “may not have any fear” because “he is not in any trouble. . . . “— famous last words!

If you are charged with a federal drug trafficking offense, you need a federal criminal defense lawyer such as Joe Shemaria who can help you mount a defense of entrapment. The entrapment defense is a judicially created defense. It was created by federal judges who recognized the injustice in sending convicted federal drug trafficking defendants to federal prison for crimes they would never have committed but for being induced to commit such crimes by either a federal law enforcement agent, or, more likely, a “stool pigeon” (confidential informant) acting at the direction and behest of law enforcement (the Government). The theory underlying the entrapment defense basically assumes the defendant did commit the drug trafficking offense, but he/she was induced to commit the drug trafficking offense by either a federal agent, or one of their informants. The entrapped individual otherwise would not have committed such a crime, and is judicially “innocent” and entitled to either an acquittal or dismissal of the federal drug trafficking charges! The underlying philosophy and theory of the judges in creating the judicially enacted defense of entrapment, from the lower United States District Courts to the United States Supreme Court, was to send a message to federal (as well as state) law enforcement agents that there are enough legitimate drug traffickers out there for law enforcement to arrest and prosecute, as opposed to inducing persons otherwise not predisposed to committing such a crime to go ahead and do so.

Unlike most states laws, federal law is different as, once a defendant was able to bring out some evidence that he/she was induced to commit the drug trafficking offense, it requires the Government to then prove beyond a reasonable doubt that the defendant was PREDISPOSED to committing such an offense prior to the defendant's alleged criminal conduct in violation of the Controlled Substance Act of 1984!

In summary, only an experienced federal criminal defense attorney, such as Joe Shemaria (as well as others with some of the same experience, even if they do not have the same number of years of practice) can bring you the JUSTICE YOU NEED AND DESERVE! Nothing can ruin a family, a person, a reputation, a career or profession or interrupt one's life like a term of imprisonment in a federal penitentiary for a federal drug trafficking conviction! So even if you actually committed a federal drug trafficking offense, don't despair, don't give up and don't hire an attorney who lacks experience in defending federally charged drug trafficking defendants! Unless, that is, you want to take a long “all-expenses-paid” vacation in a federal penitentiary just for the hell of it!

This is but a short summary on a website, not meant to be all-inclusive or to list all of the various legal defenses you may have in a federal drug trafficking prosecution and/or investigation. This website and the statements of Joe Shemaria contained herein are not meant to create any kind of attorney-client relationship, nor to give advice to any particular person charged in a federal drug trafficking case. Every case has its own unique facts and the opinions expressed herein although believed wholeheartedly 110% true by Joe Shemaria, may not be applicable to your particular factual situation. In fact, you may have even a better defense than the ones described herein. Only an experienced federal criminal defense practitioner, such as Joe Shemaria, can tell you just what your defenses might be. The most important thing is not to ever give up until your attorney has looked under every stone and every bush has been shaken. Even then, if your case is still a “dead bang loser,” an experienced federal criminal defense attorney such as Joe Shemaria may be able to work wonders for you through his knowledge of the United States Sentencing Guidelines.

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