PENNSYLVANIA DRUG CRIMES ATTORNEY

Federal Drug Crimes

Federal Drug Crimes

Federal Drug Crimes

Brian J. Zeiger, Esquire

Mr. Zeiger is licensed to practice in the federal court in the Eastern District of Pennsylvania, the Middle District of Pennsylvania, the Western District of Pennsylvania and the Third Circuit Court of Appeals. He has experience in all avenues of drugs crimes in criminal law from fighting the federal drug case through a motion to suppress, trial by judge, trial by jury, sentencing, and appeals.

Brian J. Zeiger, Esquire is always ready and prepared to go toe-to-toe with federal prosecutors from the United States Attorney General’s office. Mr. Zeiger is an experienced federal drug crimes criminal defense attorney in pre-trial motions, motions to suppress, jury selection, opening statements, cross-examination, and closing arguments. Zeiger knows hot to fight and is ready to go. Some lawyers think the pressure is on the defense attorney from the AUSA in a federal drug crime case. Mr. Zeiger understands the opposite is true—constant pressure on the prosecutor is the formula that can lead to a successful path in winning the fight.

Pre-Trial Procedures in Federal Drug Crimes

Reverse Proffer

A reverse proffer is a meeting between the assigned AUSA, the agent, your lawyer and you. The AUSA and the agent give a presentation of their evidence and show you exactly what you should expect in the prosecution. Sometimes in a federal drug crimes case, the discovery doesn’t come at once. Sometimes it takes months.

By doing a reverse proffer, the lawyer and the client can both get a sense of what is coming in the case. A good prosecutor who is very confident in her case will put on a real show at the reverse proffer in order to convince the client of the strength of her case. The true benefit of the reverse proffer is to know what’s coming and what you will see in future. It can help fighting the case because you know what you will probable face from the beginning.

Jenks Material

In federal court, the discovery is often bare. The idea of cooperation of co-defendants is ever-present and very unremarkable. The largest chunk of important discovery is often the statements of the co-defendants or other witnesses against the defendants. This information is called Jenks Materials, it can also be found at 18 U.S. Code § 3500 – Demands for production of statements and reports of witnesses.

The written statements of the witnesses against the defendant are not required to be given to the to defense attorney until after the witness has testified. At that point the attorney can ask for a brief continuance to review the materials. If the government refuses to hand over the materials the judge can hold a hearing to ask why and possibly redact some of the information contained in the statements and then give the redacted statements to the defendant. If the government refuses to give any of the statements to the defense attorney, even if redacted, the judge can grant a mistrial.

In most situations, the prosecutor gives the Jenks Material to the defense attorney a day or two before the trial starts or a day or two before they anticipate the witness testifying. The reason for why the prosecutor gives the information in advance is very practical. First, if the prosecutor intended to call twenty witnesses and gave the defense attorney a copy of the witness statements after each witness testified, then the judge gave an hour long continuance for the attorney to review the statements before cross examination, a two week trial would take four weeks. No judge is going to tolerate that kind of schedule and all of the jurors will become very angry with all of the lawyers involved in the case.

Second, if the lawyer is not given a full opportunity to review all of the documents before cross examining the witness and the defendant loses the case, there is a built issue for ineffectiveness of the defense attorney. Accordingly, the AUSA has an incentive to give the Jenks Materials to the attorney a day or two in advance.

Lastly, in some very rare cases, the AUSA may allow the lawyer to review the documents well in advance of trial. In some federal drug crimes cases there is virtually no discovery in the cases. In those instances, the defendant has almost no idea at all what he is facing in his case and the reverse proffer did not really do much. The AUSA realizes the lack of discovery is hampering the defense attorney from doing their job, so they are amenable to a private review of the Jenks Materials.

Marijuana

In federal drug crimes cases we are always asked about whether the United States Attorney’s Office is prosecuting marijuana cases. The answer is a clear yes. The feds are still prosecuting marijuana cases as if they are standard federal drug crimes. Currently, there are far less prosecutions of the marijuana cases in federal court which shows us the government is not as keen on marijuana cases as they have been in the past. However, the federal government is still prosecuting marijuana cases.

Federal Drug Sentencing

Safety Valve

Federal drug crimes often have outrageous mandatory minimums. Under federal drug crimes law, we can seek a safety valve, which would prevent the mandatory minimum and allow the defendant to be sentenced by the judge, where the judge is not forced to apply the mandatory minimum to the case.

The actual statute is §5C1.2. Limitation on Applicability of Statutory Minimum Sentences in Certain Cases. The statute says if you are charged with a drug case and you are facing a mandatory sentence, the judge can de-mandatorize the case if: your criminal history is one point or less, no violence or threat of violence are alleged in the discovery or indictment, no one died in the case, the defendant is not a manager, the defendant has truthfully cooperated with the government, and the offense level is at least 17.

§5k1.1 Substantial Assistance

§5k1.1 Substantial Assistance to Authorities states that if the government files a motion with the judge informing the defendant has cooperated substantially, the judge should depart from the federal sentencing guidelines and give the defendant less time then indicated by the federal sentencing guidelines. Also, mandatories will not apply in the case if the government files the motion. No set guidelines exist for the extent of the decrease at sentencing. Usually, the AUSA makes a recommendation and the judge makes her own decision on sentencing.

Importantly, the government is not required to file the motion even if the defendant has cooperated. For the government to file the motion, most AUSAs consider the following factors: the significance of the cooperation in the instant case or another case, the truthfulness of the cooperation, how much information was given by the defendant, the timeliness of the information, and the extent of danger to the defendant due to the cooperation.

The Safety Valve and §5k1.1

The 5k1.1 is not easy to earn. The defendant must provide substantial assistance. If you cooperate with the government, but the government isn’t giving you the 5k1.1 because they claim you didn’t earn it, you can still get the safety valve. Therefore in a very serious drug case where you think the government should have given you the 5k1.1, but didn’t, you can argue for the safety valve with the judge. In a very serious drug case, the interplay between the safety valve and the 5k1.1 is extremely important.

C Plea

The C Plea is a negotiated guilty plea under Federal Rule of Criminal Procedure 11(c)(1)(C). Usually, in a federal drug crimes case, the government will not negotiate a sentence. If the case is a guilty plea, the AUSA makes the judge make the determination of the sentence. Many factors are involved in sentencing, which can make a sentence hard to predict.

In certain drug cases, with very serious consequences, the government will offer a C Plea, but the practice is very rare.

The Minus 2

In all federal sentencings, the judge uses the federal sentencing guidelines to determine the sentence. At the time of a sentencing, the judge uses a range of sentence based on a matrix using the offense level and the criminal history. Once the range is determined, the judge may decide to grant a variance, and may decide to accept a 5k1.1 from the government.

At the time the guidelines are calculated, often the offense level is the most serious part of the calculation because the offense level dictates the severity of the overall punishment.

In 2014, United States Attorney General Eric Holder added his own “Minus 2.” In every drug prosecution in federal court, your defense attorney can ask for the Holder Minus 2, and have the offense level lowered by two points. The net effect is a lower sentence in all federal narcotics cases.

Mandatory Minimums

A mandatory minimum is a sentence requiring the judge to impose a set amount of time on a case as the minimum. The judge can always give more time then a mandatory minimum, but never less. Federal drug crime mandatory minimums are some of the most heinous draconian sentences in the United States or any state court. Below are two charts of federal drug crimes mandatory minimums.

Chart One

Federal Trafficking Penalties for Schedules I, II, III, IV, and V (except Marijuana)

Schedule

Substance/Quantity

Penalty

Substance/Quantity

Penalty

II

Cocaine
500-4999 grams mixture

First Offense: Not less than 5 yrs. and not more than 40 yrs.  If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $5 million if an individual, $25 million if not an individual. 

Second Offense: Not less than 10 yrs. and not more than life. If death or serious bodily injury, life imprisonment.  Fine of not more than $8 million if an individual, $50 million if not an individual.

Cocaine
5 kilograms or more mixture

First Offense: Not less than 10 yrs. and not more than life.  If death or serious bodily injury, not less than 20 yrs. or more than life.  Fine of not more than $10 million if an individual, $50 million if not an individual.

Second Offense: Not less than 20 yrs, and not more than life.  If death or serious bodily injury, life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.

2 or More Prior Offenses: Life imprisonment.  Fine of not more than $20 million if an individual, $75 million if not an individual.

II

Cocaine Base
28-279 grams mixture

Cocaine Base
280 grams or more mixture

IV

Fentanyl
40-399 grams mixture

Fentanyl
400 grams or more mixture

I

Fentanyl Analogue
10-99 grams mixture

Fentanyl Analogue
100 grams or more mixture

I

Heroin
100-999 grams mixture

Heroin
1 kilogram or more mixture

I

LSD
1-9 grams mixture

LSD
10 grams or more mixture

II

Methamphetamine
5-49 grams pure or
50-499 grams mixture

Methamphetamine
50 grams or more pure
or 500 grams or more mixture

II

PCP
10-99 grams pure or
100-999 grams mixture

PCP
100 grams or more pure
or 1 kilogram or more mixture

 

 

 

 

 

Substance/Quantity

Penalty

Any Amount Of Other Schedule I & II Substances

First Offense: Not more that 20 yrs.  If death or serious bodily injury, not less than 20 yrs. or more than Life.  Fine $1 million if an individual, $5 million if not an individual.

Second Offense: Not more than 30 yrs.  If death or serious bodily injury, life imprisonment.  Fine $2 million if an individual, $10 million if not an individual.

Any Drug Product Containing Gamma Hydroxybutyric Acid

Flunitrazepam (Schedule IV)
1 Gram

Any Amount Of Other Schedule III Drugs

First Offense: Not more than 10 yrs.  If death or serious bodily injury, not more that 15 yrs.  Fine not more than $500,000 if an individual, $2.5 million if not an individual.

Second Offense: Not more than 20 yrs.  If death or serious injury, not more than 30 yrs.  Fine not more than $1 million if an individual, $5 million if not an individual.

Any Amount Of All Other Schedule IV Drugs (other than one gram or more of Flunitrazepam)

First Offense: Not more than 5 yrs.  Fine not more than $250,000 if an individual, $1 million if not an individual.

Second Offense: Not more than 10 yrs.  Fine not more than $500,000 if an individual, $2 million if other than an individual.

Any Amount Of All Schedule V Drugs

First Offense: Not more than 1 yr.  Fine not more than $100,000 if an individual, $250,000 if not an individual.

Second Offense: Not more than 4 yrs.  Fine not more than $200,000 if an individual, $500,000 if not an individual.

 

Chart Two

Federal Trafficking Penalties for Marijuana, Hashish and Hashish Oil, Schedule I Substances

Marijuana

1,000 kilograms or more marijuana mixture or 1,000 or more marijuana plants

First Offense: Not less than 10 yrs. or more than life. If death or serious bodily injury, not less than 20 yrs., or more than life. Fine not more than $10 million if an individual, $50 million if other than an individual.

Second Offense: Not less than 20 yrs. or more than life.  If death or serious bodily injury, life imprisonment.  Fine not more than $20 million if an individual, $75 million if other than an individual.

Marijuana

100 to 999 kilograms marijuana mixture or 100 to 999 marijuana  plants

First Offense: Not less than 5 yrs. or more than 40 yrs.  If death or serious bodily injury, not less than 20 yrs. or more than life.  Fine not more than $5 million if an individual, $25 million if other than an individual.

Second Offense: Not less than 10 yrs. or more than life.  If death or serious bodily injury, life imprisonment.  Fine not more than $8 million if an individual, $50million if other than an individual.

Marijuana
50 to 99 kilograms marijuana mixture,
50 to 99 marijuana plants

First Offense: Not more than 20 yrs.  If death or serious bodily injury, not less than 20 yrs. or more than life.  Fine $1 million if an individual, $5 million if other than an individual.

Second Offense: Not more than 30 yrs.  If death or serious bodily injury, life imprisonment. Fine $2 million if an individual, $10 million if other than an individual.

Hashish
More than 10 kilograms

Hashish Oil
More than 1 kilogram

Marijuana
less than 50 kilograms marijuana (but does not include 50 or more marijuana plants regardless of  weight)

1 to 49 marijuana plants

First Offense: Not more than 5 yrs.  Fine not more than $250,000, $1 million if other than an individual.

Second Offense: Not more than 10 yrs.  Fine $500,000 if an individual, $2 million if other than individual.

Hashish
10 kilograms or less

Hashish Oil
1 kilogram or less

Federal Drug Crimes Definitions

Controlled Substance

When the government regulates a substance and its distribution it is called “controlled”. There are different classes of drugs and they are called schedules. Not all scheduled drugs are illegal. Many common prescription drugs that are non-narcotic are Schedule IV Drugs.

Schedule I

Drugs that have little to no medicinal use according to the government, are very dangerous, and are highly addictive. Heroin, LSD, marijuana, ecstasy, quaaludes, and peyote.

Schedule II

Drugs that are not as dangerous as Schedule I drugs, but potentially very dangerous and addictive. Cocaine, Meth, Dilaudid, Demerol, Oxycontin, Fentanyl, Dexedrine, Addreall, and Ritalin.

Schedule III

Drugs with far less potential for abuse, but still capable of being dangerous and having the potential for long term abuse. Vicodin, Tylenol with Codeine, Ketamine, Anabolic Steroids, and Testosterone.

Schedule IV

Drugs with a very low potential for abuse and low risk of danger. Xanax, Soma, Darvon, Darvocet, Valium, Ativan, Talwin, and Ambien.

Schedule V

Over the counter meds like antidiarrheal and cough medine. Robitussin or Lomotil.

List of Controlled Substances

Many other drugs have various different names that all fit into the categories above. The DEA gives them all honorable mention: Acid, Blotter, Blotter Acid, Cubes, Doses, Fry, Mind Candy, Mushrooms, Shrooms, Special K, STP, X, XTC, Adam, Beans, Clarity, Disco Biscuit, E, Ecstasy, Eve, Go, Hug Drug, Lover’s Speed, MDMA, Peace, STP, X, XTC, Bilss, Black Mamba, Bombay Blue, Fake Weed, Genie, Spice, Zohai, Cat Tranquilizer, Cat Valium, Jet K, Kit Kat, Purple, Special K, Special La Coke, Super Acid, Super K, and Vitamin K, Acid, Blotter Acid, Dots, Mellow Yellow, Window Pane, Buttons, Cactus, Mesc, and Peyoto, Buttons, Cactus, Mesc, and Peyoto, Buttons, Cactus, Mesc, and Peyoto, Arnolds, Juice, Pumpers, Roids, Stackers, and Weight Gainers, Gluey, Huff, Rush, Whippets, Bilss, Blue Silk, Cloud Nine, Drone, Energy-1, Ivory Wave, Lunar Wave, Meow Meow, Ocean Burst, Pure Ivory, Purple Wave, Red Dove, Snow Leopard, Stardust, Vanilla Sky, White Dove, White Knight, White Lightening, Bilss, Blue Silk, Cloud Nine, Drone, Energy-1, Ivory Wave, Lunar Wave, Meow Meow, Ocean Burst, Pure Ivory, Purple Wave, Red Dove, Snow Leopard, Stardust, Vanilla Sky, White Dove, White Knight, White Lightening, Maria Pastora, Sally-D, and Salvia.

Legal v. Illegal

Obviously we understand street drugs like heroin and cocaine are illegal to possess under any circumstance, but what about drugs that are legal with a prescription? For example you can get a prescription from your doctor for Xanax or Percocet and they are legal to possess. However, if you have these drugs without a prescription you may have committed a crime. Also, selling prescription drugs for which you have a valid prescription is obviously also illegal.

Possession

Possession is simple. It means that you have illegal drugs on you. For a more technical definition, you could say without a prescription, you knowingly and intentionally possessed controlled substance in sufficient quantity to use or sell. Another term often used is constructive possession. This is where the drugs are in your house, car, locker, coat, etc. Paraphernalia is another charge that means that you had items that when used in conjunction with the illegal possession of a controlled substance were used with the controlled substance, like little baggies, scales, pipes, etc.

Manufacturing

The creation or cultivation of drugs themselves. The actual manufacturing of drugs. Most people think of manufacturing as growing marijuana plants, but manufacturing can be anything in the production, creation or cultivation of narcotics. You can chemically create meth or grow a marijuana plant, both are considered manufacturing.

Distribution and Trafficking

Selling, giving, bring, shipping, and transporting are all components of distribution and trafficking of narcotics. Distribution and trafficking is the high rent district of sentencing in federal court, including the possibility of a life sentence.