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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 to Do If You Are Facing a Money Laundering Investigation

According to experts, around $5 trillion is money laundered around the world each year, and law enforcement authorities recover only a small fraction of that money. But, in spite of this gap – and quite possibly because of it – U.S. law enforcement authorities take an extremely hard line in pursuing the money laundering investigations that do end up on their radar, and it is often tertiary and unsuspecting individuals and entities that find themselves in the crosshairs of a money laundering investigation. While we might think of large banks and other financial institutions when we think of money laundering, it is common for business partners, service providers, art and antique dealers, auction houses, trustees, directors and board members, and all types of financial service providers to get caught up in a money laundering investigation. It is certainly frightening to get a visit, call, or other inquiry from a federal agent or agency – or even to hear rumors of those close to you being approached – but what you do next can have enormous implications for your future.

Understand That Criminal Liability Can Exist Even If You Were “Ignorant”

Again, federal law enforcement takes a very aggressive approach to policing money laundering, and they do this for a number of reasons. One is that it is often more feasible for law enforcement to collect evidence of financial crimes than the crimes that produced the money being laundered, such as international trafficking. Law enforcement can also approach those who may played a secondary and/or unwitting role in the money laundering and use methods to intimidate them and their businesses that might lead them to the persons committing the crimes from which the money profits flowed.

Unlike with many other criminal laws, prosecutors do not have to show that a person willfully (in other words, intentionally) violated federal laws on money laundering in order to secure a conviction. Using the concept of “willful blindness,” prosecutors can successfully argue that a person is guilty of money laundering when he makes efforts to conceal the profits of criminal activity even if he did not know the money was the product of illegal activity but had strong reason to suspect it was. For example, an art dealer facilitating transactions on behalf of a wealthy drug dealer to conceal profits might be charged with money laundering if it can be shown there was a reason to suspect the nature of the funds.

Furthermore, anyone who merely encourages or assists such a transaction (e.g. service providers) could potentially be liable even if he or she was not a primary party to the transaction.

Do Not Wait to Speak With a Criminal Defense Attorney

Does this mean every person connected with a transaction involving money derived from illegal activity is criminally liable? Absolutely not, but it does mean that prosecutors can find a way to pin criminal liability on persons in ways they may well not have imagined. Thus, it is a mistake to speak with law enforcement – or any other non-attorney for that matter (any conversation you have not protected by a privilege may be used against you) – without an attorney under the impression that you have nothing to worry about.

By speaking with a criminal defense attorney experienced in federal investigations at the first sign of a money laundering investigation, you can take steps to determine what your potential criminal liability might be (which may be none, but better to find that out in a confidential consultation with an attorney who represents only your interests), and work with that attorney in communicating with law enforcement to reach your best possible outcome, which can include a dropped investigation or favorable agreement.

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 money laundering, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

FAQ: Tax Fraud Penalties

Can I be charged with a crime if my taxes are done incorrectly?

Yes. Not only can the IRS can hand down civil penalties for improperly doing your taxes, federal prosecutors can charge you with a tax-related crime if you fail to file a tax return, provide false or fraudulent statements to the IRS, or willfully evade paying your full share of taxes.

What are the criminal penalties for failing to file a tax return?

You face up to one year in prison and up to $100,000 in fines (or up to $200,000 in the case of a corporation). These penalties also apply when a taxpayer fails to pay taxes on time or fails to supply information to the IRS.

What are the criminal penalties for making fraudulent or false statements to the IRS?

You face up to three years in prison and up to $250,000 in fines (or up to $500,000 in the case of a corporation). Making fraudulent or false statements can apply to statements made in your tax return or to government officials.

What are the criminal penalties for tax evasion?

You face up to five years in prison and up to $250,000 in fines (or up to $500,000 in the case of a corporation).

What is the difference between tax evasion and tax avoidance?

Tax avoidance is the legal process of taking advantage of strategies allowable by the tax code to reduce your taxes. Tax avoidance is therefore legal. Tax evasion is using strategies not allowed by the tax code to reduce or eliminate the taxes you pay. Tax evasion is illegal.

What are common methods of tax evasion that can result in criminal penalties?

  • Failing to report income from a side job
  • Failing to report income from rentals
  • Failing to report income paid in cash
  • Overstating deductions that do not exist, such as charitable donations not actually made

What if a person makes a mistake on their tax returns?

If you negligently make a mistake, then you still may owe civil penalties, but the government cannot convict you of a crime unless it was willful on your part. The standard of proof in showing willfulness is guilt beyond a reasonable doubt.

Can I be charged with a crime for assisting another person or entity in tax fraud?

Yes, as with most crimes, you can be charged with a tax-related crime as an accomplice if you assisted and/or encouraged another person to commit tax fraud.

Contact a New York Criminal Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York. Contact us today to schedule a confidential consultation regarding your matter.  

Do I Need My Own Lawyer in an SEC Investigation?

If your employer is being investigated by the SEC, then you likely have some questions about the SEC investigation process but may not feel comfortable asking them of your supervisor or co-workers. This is understandable, as an SEC investigation can mean significant civil penalties such as fines, permanent career and reputational damage, or loss of a job. One of the most common questions employees of a company under SEC investigation ask is whether they need their own lawyer, and they often trip themselves up by asking the wrong people to answer that question.

Your Company’s Attorneys Cannot Tell Whether You Need a Lawyer

When an employee learns that an SEC investigation is occurring, it is common for the employee to ask the HR director, the General Counsel, or even an outside law firm representing the company whether the employee needs his or her own lawyer. First, it is critical to understand that all of those people are there to serve the interests of the company, not you the employee.  Thus, it is not their job to be concerned with whether you would be better off from a legal perspective by having your own attorney.

In addition, they might not have any idea what your role in potential SEC violations were and thus whether it would serve your interests to have your own attorney or not. If company attorneys are speaking with you about events related to a potential SEC investigation (also note that the company attorneys are likely not under any obligation to tell you whether an investigation is indeed occurring or not), there is a good chance they know less than you do about potential violations at that point and are indeed speaking with you to gather that information, thus making them even less likely to be able to answer that question accurately.

The Company Attorneys Represent the Company, Not You

Beyond the issue of presenting the question of whether you need your own attorney to company lawyers, regardless of what they might say to you, the fact of the matter is that those attorneys represent the company and not you. Simply put, their allegiance and duties are directed towards representing the company’s interests, and that will always be their overriding mission.

Does this mean they are out to get you and will ultimately throw you under the proverbial bus in an SEC investigation? Not necessarily, and the company (and by extension, its attorneys) may have a strong interest in defending, so long as your interests are aligned with those of the company.

But, when push comes to shove, it is the case that they are not there to defend your interests and formulate legal strategies to protect your reputation, career, and future. In many cases, companies under SEC or other federal investigation can curry favor with law enforcement by showing that they are taking a hard line against employees in the company who have violated laws, and so penalizing and/or terminating an employee can be an action a company takes on the advice of its attorneys to reach a favorable outcome with the SEC. And this outcome may be reached on the basis of information you as the soon-to-be terminated employee provide to the company and its attorneys under the mistaken impression that doing so would help your interests.

Contact a New York White Collar Defense Attorney Today

Thus, if you have reason to suspect you face negative consequences in an SEC investigation of your employer, it is wise to reach out to your own white collar investigations attorney to discuss your options in a confidential setting. The Henry Law Firm PLLC provides white collar defense in SEC investigations to individuals and businesses throughout New York. Contact us today to schedule a confidential consultation regarding your matter.  

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Prior results do not guarantee future outcomes.