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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

What Does it Mean to Have “Constructive Possession” of a Firearm in New York?

Although we often hear about a lack of gun control in the U.S., federal agents arrest around 7,000 individuals for firearms violations every year, and many more arrests are made at the state level. While the Second Amendment and current federal regulations do allow for legal ownership of a wide variety of firearms, you can face stiff criminal penalties if arrested for possession of an illegal weapon. Furthermore, felony convicts and others who have had their gun ownership rights revoked also face arrest, which are among the most common type of federal firearms. States and localities such as New York do go further than federal law in regulating firearms, requiring permits for pistol ownership and outlawing assault rifles. But what does it mean to have possession of a firearm in New York? Under the concept of “constructive possession,” defendants in firearms crime cases face legal challenges in asserting their criminal defense in New York.

Possession and Constructive Possession Defined

First off, it should be understood that possession is not the same as ownership. If you are holding a firearm, you are possessing it, regardless of whether someone loaned it to you even for a brief moment, you are transferring it to someone else, or you simply found it.

Constructive possession takes the concept of possession a step further. It says that a person can be considered to have possessed a firearm – and thus run afoul of any relevant firearm laws – even if the firearm was not literally in their possession. Specifically, New York courts have held that: a defendant has property in his or her constructive possession when that defendant:

  • exercises a level of control over the area in which the property is found, OR
  • exercises control over the person from whom the property is seized, AND
  • this control was sufficient to give the defendant the ability to use or dispose of the property

New York legal authorities have also said that two people can both have constructive possession over contraband when: “they each exercise dominion or control over the property by a sufficient level of control over the area in which the property is found.”

Defending Against Constructive Possession Charges

Taking the above definition, this means that prosecutors can bring charges for illegal possession of a firearm when the defendant is not literally possessing the firearm on his body or in his personal belongings, but where a gun is simply found on a person over whom he has control (e.g. a spouse, a child, a subordinate, etc.) or in property he possesses, such as a shared home, vehicle, or business.

That said, it is important to remember that prosecutors must prove every element of a firearms charge beyond a reasonable doubt, and an experienced criminal defense attorney can cast doubt and present contrary arguments against the prosecutor’s allegations.

Such defenses can take any number of specific forms, but might include questioning whether a defendant did in fact have control over the person or the property on which the firearm was found or whether the defendant was even aware of the presence of the firearm. Talk to an experienced criminal defense attorney about the best defense in your particular circumstance.

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.

Are There Legal Defenses to Extortion/Blackmail?

Extortion and blackmail crimes both involve threats made against another person to do violence to that person or their property – which can include publicizing facts about that person to damage his or her reputation – for the purpose of extracting money or other property from the person. Under both state and federal law, an extortion conviction is a felony that can mean many years in prison, fines, as well as a ruined personal and professional reputation. But sometimes people are investigated and/or charged with extortion based on exaggerations or statements taken out of context. If you are under investigation for extortion, it is important to obtain experienced legal counsel to present your best defenses to the potential charges.

Lack of Evidence to Support an Extortion Charge

Extortion statutes may vary across states and at the federal level, but in general they require that the defendant have knowingly made a threat to damage the person, property, or reputation of a victim with the purpose of obtaining money or other property from the victim.

When a disagreement between parties gets out of control, an extortion or blackmail allegation may arise based on what has actually just heated negotiations and discussions which should not be taken literally or which were not based on an actual intent to threaten another person. Your defense attorney can assess all of the available evidence for relevance and strength and cast doubt on the prosecutor’s allegations in this regard, as the prosecutor is required to prove your intent beyond a reasonable doubt.

Lack of Admissible Evidence

Even where evidence may support elements of an extortion or blackmail charge, that evidence can only be used against you where it is admissible based on being legally obtained by police and other government agents.

If evidence was obtained through illegal means – including custodial interrogations that did not include Miranda warnings, detainments not supported by reasonable suspicion, questionings that did not honor your right to counsel, searches not conducted via a warrant or a warrant exception – your attorney can successfully argue that such evidence should not presented to a jury and that charges should be dismissed.

Attempted Extortion or Conspiracy to Commit Extortion

When no money or property was actually obtained in response to an alleged extortion threat, prosecutors may still try to bring charges based on an attempt to extort or even a conspiracy (agreement) to commit conspiracy. In such cases, your attorney can argue that you did not have the requisite intent for either an attempt or conspiracy and/or that no significant steps were actually taken in furtherance of committing extortion.

Other Defenses to Extortion

Other defenses that your attorney may raise to an extortion charge could include:

  • You performed illegal acts under duress
  • You were voluntarily or involuntarily intoxicated at the time, negating the mental intent
  • You otherwise lacked the mental capacity to commit extortion

Speak to an experienced defense attorney at the first sign of an extortion investigation to begin mounting your best defense to all potential charges.

Contact a New York Extortion 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.  

Can Criminal Liability Exist Even if You Were “Ignorant” to Criminal Activity?

One of the first responses many people have when confronted by law enforcement over their allegedly illegal activity (or by internal investigators on the job) is to say “I didn’t think I was doing anything wrong.” This is highly problematic for several reasons. First, for reasons that will be explained more in-depth below, whether you thought you were committing an illegal act is often completely irrelevant to whether you might have criminal liability for that act. Second, a statement that you did commit an act that you did not think was illegal (but which in fact was) is essentially the same as admitting to authorities, “I committed an illegal act.”

Whether or not you did in fact commit an illegal act can be the basis of analysis and arguments between your defense attorney and prosecutors, but you should never attempt to do this on your own in front of investigators without speaking first to an experienced criminal defense attorney who can assess the facts and the applicable law and formulate the best strategies and defenses on your behalf.

Is Ignorance of the Law Really “No Defense?”

The phrase “ignorance of the law is no defense” is based in truth, but there are ways in which it can be misapplied to a situation. The phrase is truthful in the sense that a person’s failure to know that a certain criminal law exists does not make them innocent for violating the law. For example, if you possess a certain synthetic drug that was recently made illegal by state or federal law, you can be criminally charged for possession nonetheless.

That said, some criminal laws include knowledge or mens rea requirements, and your knowledge of what you were doing when you committed the allegedly illegal act (as opposed to your knowledge of the law itself) can come into play as a defense.

Specific intent crimes require prosecutors to prove your intent to commit a specific act. For example, larceny crimes often require an intent to deprive another person of property, and accidentally taking property you thought was yours could be a valid defense.

General intent crimes, on the other hand, do not require a specific intent to bring about a result, but rather a lower standard of knowledge of what one was doing. Examples include certain arson and rape crimes.

For strict liability crimes, such as statutory rape, a person can be criminally charged even if they thought they were committing a legal act (e.g. believed a sexual partner to be of the age of consent).

Aiding and Abetting / Accomplice Liability

Another common issue that arises with individuals being charged with crimes for which they lacked full knowledge is in the area of accomplice liability, otherwise known as aiding and abetting. With accomplice liability, a person can be charged with a crime that he did not actually take the action to commit if he provided assistance or encouragement in the commission of that criminal act, even without full knowledge of the criminal nature of the actions.

Common scenarios that criminal accomplice liability can attach include:

  • Providing assistance in engaging in a criminal transaction (e.g. money laundering)
  • Providing otherwise legal tools to aid another in committing a crime
  • Providing support, encouragement, assistance, or shelter in preparation of a crime or to help evade arrest
  • Assistance in planning a crime or in evading arrest

In such situations, prosecutors can sometimes use the concept of “willful blindness” to charge an individual who lacked full knowledge of criminal activity if it is determined that the individual had reason to suspect criminal activity was afoot but willfully avoided learning about the criminal nature of the matter.

In all cases, individuals under criminal investigation or who suspect they may soon be under investigation should contact a criminal defense lawyer to assess their potential liability and strategize their defense.

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.  

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