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Drug Crimes

Federal Drug Crime Defense

The Henry Law Firm PLLC is committed to innovatively representing its clients facing federal charges or investigations for drug offenses in New York and across the country. Persons accused by the government of drug violations face substantial minimum mandatory prison time, a period of supervised release, and huge fines.

The federal government expends significant resources prosecuting and incarcerating people for drug crimes.  They rely on sophisticated investigation techniques, broad subpoena power and old fashioned cooperating witness testimony to arrest and imprison individuals at a staggering rate.  Since the 1980’s, the prison population has boomed because of drug crime prosecutions.  That is why it is absolutely necessary to get an attorney who has significant experience handling federal drug crimes.  A seasoned federal drug attorney can help you avoid months or years of your life in federal prison.

The Henry Law Firm PLLC has extensive experience representing clients in federal drug investigations and prosecutions.  We have defended individuals in cases involving cocaine, heroin, cocaine base (“crack”), methamphetamine, anabolic steroids, Oxycodone, marijuana and many other types of narcotic drugs.  We have saved our clients significant amounts of time in jail and achieved dismissals, probation or reduced sentences in drug cases around the country.  We have a successful track record in federal drug trials involving drug conspiracies, substantive drug crimes, importing narcotics and attempt cases.

Drug crimes in federal court fall into many categories.  Title 21 of the United States Code lays out multiple ways someone may be charged with and convicted of a drug crime.

21 USC 841

Title 21, United States Code, Section 841(a) lays out the general prohibition against manufacturing, distributing, or dispensing a controlled substance.  It also prohibits possessing a controlled substance with the intend to manufacture, distribute or dispense.  In addition to actual controlled substances, it is a violation of the law to create, distribute, or dispense, or possess with intent to distribute or dispense a counterfeit substance.

Title 21, United States Code, Section 841(b) describes the penalties for a violation of subsection (a).  21 USC 841(b)(1) breaks down the most common areas of punishment for federal drug crimes.

21 USC 841(b)(1)(A) states that the penalty is no less than 10 years and up to life in prison if the offense involves:

    • 1 kilogram or more of a mixture or substance containing a detectable amount of heroin;
    • 5 kilograms or more of a mixture or substance containing coca leaves, cocaine, ecgonine or any compound, mixture or preparation containing those substances;
    • 280 grams or more of a mixture or substance which contains cocaine base;
    • 100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);
    • 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);
    • 400 grams or more of a mixture or substance containing N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide or 100 grams or more of a mixture or substance containing any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;
    • 1000 kilograms or more of a mixture or substance containing marihuana, or 1,000 or more marihuana plants regardless of weight; or
    • 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing methamphetamine, its salts, isomers, or salts of its isomers.

The maximum prison sentence for a conviction under 841(b)(1)(A) is a life sentence. The court must also impose a five-year period of supervised release in addition to the mandatory prison term and a $10,000,000 fine. The weight of the substance includes any mixture of the drug with other substances. A person faces a 20-year minimum mandatory prison sentence if a person was killed or severely injured from the use of such prohibited substances. A person who had committed one previous offense faces a 20 to life prison term. A third offense is a mandatory life sentence.

21 USC 841(b)(1)(B) states that the penalty is no less than five years up to 40 years in prison for offenses involving:

    • 100 grams or more of a mixture or substance containing a detectable amount of heroin;
    • 500 grams or more of a mixture or substance containing coca leaves, cocaine, ecgonine or any compound, mixture or preparation containing those substances;
    • 28 grams or more of a mixture or substance which contains cocaine base;
    • 10 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);
    • 1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);
    • 40 grams or more of a mixture or substance containing N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide or 10 grams or more of a mixture or substance containing any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;
    • 100 kilograms or more of a mixture or substance containing marihuana, or 1,000 or more marihuana plants regardless of weight; or
    • 5 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing methamphetamine, its salts, isomers, or salts of its isomers.

If a person is killed or severely injured from the use of these prohibited substances, then the court must impose a 20-year minimum mandatory sentence, with a maximum term of life imprisonment. The court may also impose a $10,000,000 fine and four years of supervised release. A prior offense for one of these crimes will result in a 10-year mandatory prison sentence accompanied by eight years of supervised release.

21 USC 841(b)(1)(C) states that the penalty is up to 20 years in prison for offenses involving:

    • Schedule I drugs not included in subsection (b)(1)(A) or (b)(1)(B);
    • Schedule II drugs not contained in subsection(b)(1)(A) or (b)(1)(B);
    • gamma hydroxybuttyric acid; or
    • 1 gram of flunitrazepam.

If a person is killed or severely injured from the use of these substances, then the maximum sentence is life, with a minimum of twenty years. The court may impose a $2,000,000 fine and supervised release for three years. A prior offense results in a maximum incarceration of thirty years, accompanied by six years of supervised release.

21 USC 841(b)(1)(D) states the penalty is up to 5 years in prison for an offense involving:

    • Less than 50 kilograms of marihuana, except in the case of 50 or more marihuana plants regardless of weight;
    • Less than 10 kilograms of hashish; or
    • Less than 1 kilogram of hashish oil.

21 USC 846

The United States Attorney’s Office often charges a violation of 21 USC 846 in connection with 21 USC 841 or standing alone.  Commonly referred to as conspiracy, Section 846 is one of the most heavily used federal criminal statutes used to prosecute federal drug crimes.

Affirmative Defenses

Mere Presence:  The law provides that an individual who is merely present at the scene of an illegal drug transaction has not violated the law.  The 2nd Circuit has said:

Traditionally, law has required more than “mere presence” or mere knowledge to sustain a conviction for conspiracy. See, e.g., United States v. Edwardo–Franco, 885 F.2d 1002, 1010–11 (2d Cir.1989) (holding that defendant who lived for twelve days in a single room of a house found to contain drugs in basement could not be convicted of conspiracy to possess for mere presence in house); United States v. Nusraty, 867 F.2d 759, 764–65 (2d Cir.1989) (holding that mere presence at airport when acquaintance arrived carrying drugs could not justify conspiracy conviction); United States v. Soto, 716 F.2d 989, 991 (2d Cir.1983) (holding that defendant’s presence in apartment in which drugs were found did not sufficiently support conviction). Rather, it is necessary for the government to introduce some evidence of participation in the conspiracy in order to sustain a conviction. See id.
United States v. Locascio, 6 F.3d 924, 944 (2d Cir. 1993)

Buyer-Seller Agreement:  Federal drug laws do not extend to an individual who is merely a buyer or seller of narcotics.  There are many exceptions to this rule, but if you were simply buying or selling drugs without more you cannot be guilty of a crime.  The Second Circuit describes this rule as follows:

A conspiracy conviction requires proof “that two or more persons agreed to participate in a joint venture intended to commit an unlawful act.” Desimone, 119 F.3d at 223. “A transfer of drugs from a seller to a buyer necessarily involves agreement, however brief, on the distribution of a controlled substance from the former to the latter.” Wexler, 522 F.3d at 210 (Raggi, J., concurring in part and dissenting in part). However, while the illegal sale of narcotics is a substantive crime requiring an agreement by two or more persons, “ ‘the sale agreement itself cannot be the conspiracy [to distribute], for it has no separate criminal object.’ ” Wexler, 522 F.3d at 208 (alteration in original) (quoting United States v. Thomas, 284 F.3d 746, 751-52 (7th Cir.2002)). “Without more, the mere buyerseller relationship … is insufficient to establish a conspiracy.” United States v. Gore, 154 F.3d 34, 40 (2d Cir.1998); see also Wexler, 522 F.3d at 210 (Raggi, J., concurring in part and dissenting in part) (“Absent more, … the law does not consider this momentary meeting of the minds sufficient to support a conviction for conspiring to distribute drugs.”); United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir.) (“[A] mere buyerseller relationship is not necessarily *72 a conspiracy ….”), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989); United States v. Borelli, 336 F.2d 376, 384 (2d Cir.1964) (“[A] sale or a purchase scarcely constitutes a sufficient basis for inferring agreement to cooperate with the opposite parties for whatever period they continue to deal in this type of contraband, unless some such understanding is evidenced by other conduct which accompanies or supplements the transaction.”), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965); United States v. Koch, 113 F.2d 982, 983 (2d Cir.1940) (“The purchase of the cocaine from [a conspirator] was not enough to prove a conspiracy in which [the seller] and the appellant participated. They had no agreement to advance any joint interest.”).
“The rationale for holding a buyer and a seller not to be conspirators is that in the typical buy-sell scenario, which involves a casual sale of small quantities of drugs, there is no evidence that the parties were aware of, or agreed to participate in, a larger conspiracy.” United States v. Medina, 944 F.2d 60, 65 (2d Cir.1991), cert. denied, 503 U.S. 949, 112 S.Ct. 1508, 117 L.Ed.2d 646 (1992). However, “[t]his rationale does not apply … where, [for example,] there is advanced planning among the alleged co-conspirators to deal in wholesale quantities of drugs obviously not intended for personal use. Under such circumstances, the participants in the transaction may be presumed to know that they are part of a broader conspiracy.” Id. at 65-66.
It is clear, then, that the existence of a buyerseller relationship does not itself establish a conspiracy; however, where there is additional evidence showing an agreement to join together to accomplish an objective beyond the sale transaction, the evidence may support a finding that the parties intentionally participated in a conspiracy. See Wexler, 522 F.3d at 208 (noting, in the course of reversing conviction for narcotics-distribution conspiracy, the absence of proof of an agreement to distribute); Gore, 154 F.3d at 41(holding that “it would be sheer speculation for jurors to conclude that an agreement to distribute drugs had been made” where there was no evidence “of the exact nature of [the sale] transaction or the quantity of drugs involved”); Beech-Nut Nutrition Corp., 871 F.2d at 1191(“[A] defendant may be deemed to have agreed to join a conspiracy if there is something more, some indication that the defendant knew of and intended to further the illegal venture, that he somehow encouraged the illegal use of the goods or had a stake in such use.” (internal quotation marks omitted)); Borelli, 336 F.2d at 384 (“Purchase or sale of contraband may, of course, warrant the inference of an agreement going well beyond the particular transaction. A seller of narcotics in bulk surely knows that the purchasers will undertake to resell the goods over an uncertain period of time, and the circumstances may also warrant the inference that a supplier or a purchaser indicated a willingness to repeat.”); Koch, 113 F.2d at 983(“It was necessary to the government’s case to show that the appellant was in some way knowingly associated in the unlawful common enterprise to import the drugs and dispose of them unlawfully.”).
Thus, where the evidence has supported the inference that a defendant agreed to participate in the conspiracy beyond simply buying or selling we have upheld the conviction.
United States v. Hawkins, 547 F.3d 66, 71-72 (2d Cir. 2008)

Young Adult Opportunity Program

The Southern District of New York recently implemented a Young Adult Opportunity Program for individuals who have been charged with drug or other non-violent offenses.  The program is intended to allow selected individuals who are under 25 years old and meet other qualifications to undergo a probationary period of drug treatment and/or other supervision in hopes of a reduction in charges, a lower sentence, and potentially a dismissal of the case.  Additional information is also available here.

Other districts around the country are also implementing drug courts or other diversion programs for low-level drug offenders and non-violent individuals.  Be sure to discuss this with an attorney immediately.

How Can We Help

The consequences of a federal drug conviction are to serious to leave to just anyone.  The Henry Law Firm, PLLC is dedicated to vigorously defending its clients facing enormous minimum mandatory prison sentences. We have represented countless people facing charges for cocaine, methamphetamine, heroin, crack, marijuana and other illegal drugs.  We are one of the few firms in New York City to have placed an individual in the Young Adult Opportunity Program.  We have tried federal drugs cases in multiple districts around the country.  Our experience fighting these charges inside and outside the courtroom is second to none.  Call the Henry Law Firm, PLLC at 646-820-0224 to learn how our innovation and experience can help you.

Sources:
http://www.deadiversion.usdoj.gov/21cfr/21usc/841.htm
http://www.deadiversion.usdoj.gov/21cfr/21usc/812.htm
https://www.fas.org/sgp/crs/misc/RL30722.pdf

Can I Go to Jail For Using Bitcoin?

Bitcoin and similar “crytpocurrencies” have been around for years, but Bitcoin is getting a lot more attention than usual in 2017, primarily based on the fact that such currencies have risen in value six times over since the start of the year, and $6.6 billion in digital currencies are now traded daily. This growth in digital currencies is having some effect on mitigating the cloud of controversy that has hung over Bitcoin and similar currencies, which is partly due to the mysterious origins of Bitcoin (for years its inventor remained anonymous) and the frequent use of Bitcoin in criminal transactions. But, as digital currency grows in popularity, more individuals and businesses are justifiably interested in learning more while understandably cautious about the legality.

Digital Currency Usage Is Not Inherently Illegal

Individuals and businesses are permitted to use Bitcoin and other similar currencies, although some states such as New York do impose licensing requirements on certain parties. Under New York State’s recently promulgated BitLicense rules, parties engaged in the following activities are required to obtain a BitLicense from the state if they are conducting business in New York or with people who reside in New York:

  • Virtual currency transmission
  • Storing, holding, or maintaining custody or control of virtual currency on behalf of others
  • Buying and selling virtual currency as a customer business
  • Performing exchange services as a customer business
  • Controlling, administering, or issuing a virtual currency

Customers and merchants who merely conduct transactions involving digital currency are not required to obtain a license in New York.

Criminal Liability With Bitcoin

The most common situations in the news involving criminal liability for use of Bitcoin and similar currencies is when the currency is used for illegal purposes. Several high-profile individuals have been convicted of crimes in connection with an online marketplace called Silk Road where illegal transactions involving criminal acts for hire, illegal pornography, and drug trafficking were facilitated by use of Bitcoin.

In one case, an entrepreneur who ran a service facilitating Bitcoin transactions pled guilty and served time in federal prison for facilitating the purchase of illegal drugs on Silk Road using Bitcoin. In another case, the founder of Silk Road was sentenced to life in prison for his role in facilitating illegal transactions using Bitcoin, and his trial included evidence of five potential murder-for-hires that he sought out “to protect his burgeoning creation from informants.”

Bitcoin and similar currencies have also been factors in criminal investigations and prosecutions involving fraudulent securities dealings as well as money laundering. Ultimately, many of the same finance-related crimes that can be committed with traditional currency can also be committed with digital currency, although, perhaps ironically given the attraction many of had to the supposed privacy of digital currency, crimes involving digital currency have become easier for law enforcement to investigate in some cases.

When faced with any questions over potential criminal liability for a proposed transaction or one that has already occurred, parties are highly encouraged to speak with an experienced criminal defense attorney regarding their situation.

Contact a New York White Collar Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions, and aggressively pursues appeals on their behalf. To take immediate action to defend your rights in a white collar investigation or prosecution, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

When Do I Have a Right to an Attorney?

As residents of the United States – whether citizens or not – we enjoy the greatest legacy of constitutional rights against government overreach into our personal lives that the world has known, and this legacy is most famously embedded in our constitution’s approach to the rights of people against police and prosecutors. But, in many cases, unless a person is actually aware of what those rights are and how to utilize them, those rights can be wasted. This is especially true with regard to our constitutional right to an attorney. Below we briefly discuss what that means and how you can assert those rights.

Don’t Speak: The Fifth Amendment Right to an Attorney

We often speak of the “right to an attorney” as if it were a single right provided by the constitution, but really there are two distinct but related sources of this right in the constitution. The first is the Fifth Amendment, which states that a person has the right against self-incrimination. What that means is that you cannot be forced to give the government damaging information about yourself that could lead to a conviction.

The federal courts have more fully illustrated what that means by also ruling that a person does not need to provide any information to a government agent questioning him. In addition, the courts have ruled that, when a person tells the police that he wants to speak to an attorney before speaking to police, the police must stop all questioning.

Note that this right does not depend on the police arresting you or “reading you your rights,” and instead a person can invoke this right anytime the police are questioning him. If the police keep questioning, then they are in violation of the law and any statements provided will be inadmissible at trial.

“The Assistance of Counsel”: The Sixth Amendment Right to an Attorney

In addition to the right to a lawyer that attaches to every person’s right against self-incrimination, the Sixth Amendment of the Constitution also guarantees every person “the Assistance of Counsel for his defense” at trial. As with the Fifth Amendment, the federal courts have ruled that this constitutional guarantee means that a defendant not only has a right to an attorney at a criminal trial but also has a right to an attorney during pre-trial proceedings, starting from the time that formal proceedings are brought against the defendant, such as through an indictment.

What this means is that any statement obtained from a defendant by government agents without his attorney present is inadmissible. But, putting this together with the Fifth Amendment rights, what every person should understand is that they always have a right to an attorney when approached by government agents – regardless of whether they have been read their rights, arrested, or formally charged – and speaking to police or other agents without an attorney can result in self-incrimination.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

In What Circumstances Can a Drug Conviction Be Appealed?

Whether you have been convicted in state or federal court for a drug crime, you already know that serious consequences to your liberty and future can follow, including a long prison sentence, steep fines, and lasting damage to your personal and professional reputation. Which makes appealing your drug conviction a hugely important step to consider. Not all convictions involve circumstances providing grounds for appeal, but below are a few common grounds for appealing a drug crime conviction. Consult with an experienced drug crime appeals attorney to learn more about grounds for appeal in your situation, and do not delay as appeals are often extremely time-sensitive.

Improper Police Action in Detaining or Arresting You

The police must have reasonable suspicion that you have violated the law to stop and detain you, whether on the street or in your car. If they did not, and evidence leading to your conviction was collected as a result, you may have grounds to appeal. In addition, police must have probable cause that you committed a crime before arresting you, and failure to do so can be grounds for appeal.

Failure to Provide You With an Attorney

If the police obtained statements from you leading to your conviction while in custodial interrogation (e.g. where you were detained) prior to reading you your Miranda rights, such statements may be thrown out on appeal. In addition, if you asked for a lawyer but did not receive one, or if the police questioned you without a lawyer after you were indicted, you may have grounds to appeal.

Improper Admission or Denial of Evidence

Convictions in drug crimes are often based on the nature of the evidence admitted against you, either in witness statements or physical or documentary evidence. If a judge improperly allowed the admission of evidence against you in violation of procedural rules or your constitutional rights (such as where the police violate your Fourth Amendment rights with an illegal search), this can be grounds for appeal. Likewise, an improper  failure to allow the admission of evidence that would have helped exculpate you may also be grounds for appeal.

Issues with Your Criminal Jury

A number of grounds for appeal can arise with regard to the jury that handed down your conviction. If prosecutors used improper jury selection techniques – such as selecting jurors based on race – this can be grounds for appeal. Also, if jurors engaged in misconduct by failing to follow the judge’s orders, this can also be grounds for appeal.

A Lack of Sufficient Evidence Against You

While a jury makes the determination of guilt against you, the question of your guilt should not even go to the jury if the prosecutors had not presented evidence such that it would be reasonable for a jury to find that you were guilty beyond a reasonable doubt. An appeals attorney can examine your trial record to determine whether this is the case.

Improper Judge Instructions

If the judge improperly instructed the jurors with regard to how they should analyze the facts presented at your trial in the light of the legal structures, this can be grounds for appeal.

Failure of Your Counsel at Trial

Unfortunately, many attorneys are incompetent or at least fail to provide adequate counsel at trial. If this was the case, you may have grounds for appeal.

Improper Sentence

When a judge hands down a sentence after a conviction that is not supported by the facts or the law, you can appeal the sentence.

Contact a New York Federal Drug Crime Appeals Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions and aggressively pursues appeals on their behalf. To take immediate action to appeal your drug crime conviction, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

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