A great deal of Federal cases deal with drugs, particularly cocaine and crack cocaine. The old sentencing guidelines were one hundred times more severe for crack than powder cocaine. Some recent changes in the sentencing guidelines provide some relief, but not enough.

Minimum mandatory sentences are not affected by this change. Career or very violent offenders, as determined by criminal history and the nature of offenses committed, are not eligible for sentence reductions due to the new guidelines.

In Kimbrough v. U.S., the Court held that federal sentencing guidelines for cocaine violations are advisory, not mandatory as a lower court had ruled. The 7-2 decision, in an opinion by Justice Ginsburg, says that judges must consider the guidelines, but may deviate downward if they conclude that the sentence would be too harsh in light of the disparity between punishment for crack cocaine and cocaine in powder form.

In Gall v. U.S., the Court held that courts of appeal must review all sentences, “whether inside, just outside, or significantly outside” the sentencing guidelines range, under a deferential abuse-of-discretion standard. Under the 7-2 decision, written by Justice Stevens, judges may now impose below-guidelines sentences.

Another common drug charge in Federal Court involves marijuana – whether it be marijuana trafficking, international marijuana importation, possession with intent to distribute marijuana, sale of marijuana, maintaining a pot grow house, cultivation of marijuana andconspiracy with intent to distribute marijuana.

Mere marijuana possession of a small amount of marijuana is rarely charged in federal court. Most of those cases end up in state court.  One exception is if it happened on federal land, like a national park.

Typically, for a  grow house case, the federal government won’t charge you unless you have at least one hundred marijuana plants. This number could be the total amount if there are multiple grow houses. For instance, I’ve represented people charged federally with growing marijuana in different locations. The feds add up the total number of plants to see if they get past 100 plants.

I filed a motion to suppress in a federal drug case involving two separate grow houses for marijuana in South Florida. My client was facing up to 160 years in prison. Federal agents and police entered into a house just after midnight without a search warrant. The issue was whether consent was freely and voluntarily given by a Spanish speaking couple who did not understand English.

The client was initially charged by indictment with:

After the motion to suppress was heard, I negotiated a plea deal for the Federal government to drop all counts in the indictment (maximum of 160 years in prison & $5,000,000 in fines). In exchange, my client pled guilty to one count of misdemeanor possession of marijuana with no jail time.

The Drug Abuse Prevention and Control Act classifies drugs into five categories, listed in schedules, the Act also establishes regulations and penalties for the misuse of drugs listed on each schedule. Schedule I and II drugs, including heroin, LSD, mescaline, marijuana, peyote, opium, cocaine, methadone, amphetamines, and meth-amphetamines, are the most severely restricted and penalized drugs.

Your best defense in a federal drug case starts with hiring a board certified criminal trial lawyer. At trial, your lawyer may successfully argue the drugs were not yours, you didn’t know the drugs were there and/or the drugs were not under your control.

Other than the jury finding you not guilty after trial, often the best defense you may have against drug charges is whether federal agents and/or police violated your constitutional rights. As a general rule, police or federal agents may not enter your house or hotel room without a search warrant. Also, generally, if you are pulled over for an infraction, like speeding, the police may not search your vehicle. If the government violates your fourth amendment rights, the drugs in your case may be suppressed, or thrown out of court. If they are thrown out, typically the government has no case against you and they will drop the charges.

Drug treatment is a better resolution for the client and the government because it gets you the help you need. This lessens the chance you will re-offend. However, in federal court, the reality is if you are convicted, you will most likely go to prison.  However, drug treatment is available in many federal prisons.

Asset forfeiture is when the government takes all your stuff. This includes a seizure of money or property used to fund criminal activity. Typically assets are forfeited in cases of illegal drug trafficking. The Feds can potentially seize your house, car, boat, stock, bank accounts and just about anything else you can think of. Two types of forfeiture cases can be brought, criminal and civil. Two statutes apply to both civil and criminal asset forfeiture proceedings, 18 U.S.C. 982 and 21 U.S.C. 881.

Under federal law, no criminal charges or convictions are required in civil forfeiture proceedings. In civil forfeiture proceedings, the federal government brings suit against the property in question, with the property owners as third parties. In these proceedings the burden of proof is on the property owners to prove that their property was not used in criminal activity by a preponderance of the evidence (a level of proof that persuades a judge or jury that, given the evidence, the owner has proved more likely than not that their property was not used for criminal activity).

The National Assets Seizure and Forfeiture Fund was established by the Department of Justice established in 1985 and realized $27 million from drug-related forfeitures that year. Many states have since created their own civil forfeiture programs.

FEDERAL MARIJUANA GROW HOUSE - All felony charges dropped
I filed a motion to suppress in a federal drug case involving two separate grow houses for marijuana in South Florida. My client was facing up to 160 years in prison. Federal agents and police entered into a house just after midnight without a search warrant. The issue was whether consent was freely and voluntarily given by a Spanish speaking couple who did not understand English. The client was initially charged by indictment with:

After the motion to suppress was heard, I negotiated a plea deal for the Federal government to drop all counts (maximum of 160 years in prison). In exchange, my client pled guilty to one count of misdemeanor possession of marijuana with no jail time.

 

TRAFFICKING IN COCAINE AND MARIJUANA - Conviction & 20 year sentence Reversed based on my special requested jury instruction.

On appeal, the client claimed that the trial court erred in refusing to give the special jury instruction written by me, his trial lawyer. The instruction more accurately stated the law to be applied in his constructive possession of cocaine case.

At trial, I requested a special jury instruction on constructive possession where the contraband (cocaine and marijuana) is found on jointly possessed premises. The trial court denied the request and read the jury the standard jury instruction on possession.

The Fourth District Court of Appeal (the appellate court) determined that in cases of joint possession of the premises, the standard jury instruction is confusing. The instruction discusses joint possession of the article but does not discuss joint possession of the premises upon which the article is found. Further, the appellate court stated that The standard jury instruction does not explain what must be proved where possession of the premises is in joint rather than exclusive possession of the defendant. The specially-requested instruction, unlike the standard instruction, instructs the jury that the elements of knowledge and ability to control may not be inferred from the mere fact of joint possession of premises where contraband is found, but must be established by independent proof. Therefore, in this case [Grey Tesh's requested] special jury instruction was necessary in order to present [his] theory of defense. (Emphasis added).

My client’s conviction and sentence were reversed as a result of the appellate courts’ determination. Also, as a result of my efforts on his behalf, in creating a special instruction, the appellate court recommended that the standard jury instruction be modified to include my special instruction. They said “We also recommend to the Criminal Standard Jury Instruction Committee that it review the standard instruction for modification in cases where an issue at trial involves the joint possession of the premises on which contraband is found.”