Defense Attorneys in Dallas BRODEN & MICKELSEN LLP | Federal Cases, State Cases & Criminal Appeals

Defending a Federal Drug Case

There are many kinds of drug charges that the government may bring in Federal court. The most common charges are distribution of a controlled substance and conspiracy to distribute a controlled substance. Money laundering charges are also common and are the subject of a separate article on Federal money laundering and forfeiture cases. For information about defending a Federal money laundering or forfeiture case.

Most people learn they are the target of a Federal drug case when they are arrested and brought to Federal court. In Federal drug cases the government usually will move to detain the defendant pending trial. Federal law generally presumes defendants charged with Federal drug crimes will be detained pending trial and generally the burden is on the defendant to show that there is no risk to the community or risk that the defendant will flee the jurisdiction at a Federal detention hearing. Usually, on the day of arrest the government requests that the detention hearing be delayed to or three days. To see a separate article on Federal detention hearings.

After the case is indicted and the defendant has made their initial appearance in court, the prosecutor begins the process of providing the defense with “discovery.” Discovery primarily consists of all the physical and electronic evidence the prosecution has gathered in the course of its investigation. It often contains paper documents, photographs, emails, bank records, video and audio recordings, etc. Often time it does not contain sworn statements of witnesses nor memoranda of interviews of witnesses. Federal investigators rarely collect sworn statements from witnesses but merely record what the witness told them in a memorandum of interview. The defense is not generally entitled to these memoranda prior to trial, but many prosecutors choose to make them available to the defense.

Most Federal drug cases result in a plea bargain. This is due to the fact that in most Federal drug cases there is strong evidence against the defendant such as the defendant being the subject of a “sting” operation resulting in video or audio evidence, or the defendant is caught in the presence of large amounts of drugs. Moreover, there are usually several people who are willing to testify against the defendant in exchange for leniency on their own cases. With this being said the lawyers at Broden & Mickelsen have successfully represented numerous defendants in Federal drug cases at trial.

The Federal prosecutor on the case will almost always attempt to induce a defendant to enter a plea agreement. The plea bargain process in Federal court cannot be understood without some understanding of the Federal sentencing guidelines.

The Federal sentencing guidelines are primarily intended to reduce sentencing disparities in Federal court. They are a complex system for evaluating the severity of a given crime by means of a point system. The more severe the crime the more points and final “offense level” determination. Once the offense level of a given crime is determined, a guideline sentencing range is derived by cross-referencing the offense level with the defendant’s criminal history category (which itself is derived by an analysis of the defendant’s criminal convictions and sentences and how recent they are). Although a Federal judge is not required to impose a sentence within the guideline sentencing range, they are required by law to calculate the guideline range and give “consideration” to them when imposing sentence. As a practical matter, the vast majority of Federal judges impose sentences within the guideline range, and if they elect to “depart” or “vary” from the guideline range, they do so by reducing or increasing the offense level or criminal history for some reason not taken into account in the initial offense level or criminal history determination.

The Federal sentencing guidelines reward defendants who plead guilty for “accepting responsibility” and reducing their offense level. Pursuant to plea agreements the Federal prosecutors can stipulate to the offense level or factors used in determining the offense level. The Federal prosecutors are also permitted to award defendants who “cooperate” and incriminate other people with substantial reductions in their sentences. Although there are many ways in which a Federal prosecutor with a plea agreement can attempt to provide a defendant with incentives to plead guilty, they rarely enter into a plea agreement that stipulates what the defendant’s sentence is going to be. In many Federal court plea agreements that stipulate a specific sentence are looked upon by judges with some degree of disfavor. In any event, Federal judges always retain the authority to reject plea agreements.

In Federal drug case the offense level is primarily determined by drug amounts. As defendants in a Federal drug case decide to cooperate it is common for these drug amounts to rise based on the information that cooperating co-defendants provide about past drug deals. The defendants are incentivized to cooperate early because they generally are provided an agreement that states any of the information they provide will not be used in determining their drug amounts for sentencing purposes, in addition to the fact the Federal prosecutors usually will seek more leniency for cooperation for those codefendants who seek to cooperate early.

If a defendant does not enter a guilty plea (either with or without a plea agreement), eventually the case will go to trial. In Federal court it is common for multiple defendants to be charged in the same indictment and for the amount of evidence to be examined and gathered by all the parties to cause substantial delays before the trial to actually commence. Delays of a year or more from indictment to trial are commonplace.

Because Federal drug trials often involve multiple defendants, numerous witnesses, and lots of exhibits, they usually take at least a week to try, and in unusual cases may last several months.

Although most Federal drug cases involve more than one defendant and a conspiracy charge, the court will instruct the jury that it must consider the guilt of each defendant separately. Thus, in many Federal drug trials there are complex dynamics in play at trial. One defendant may attempt to shift blame to another defendant, and another defendant may employ a strategy of being relatively “invisible,” letting the focus of the trial fall on a co-defendant. Because multi-defendant trial in Texas state courts are almost non-existent, it is important to hire a criminal defense lawyer with experience trying cases in Federal court given these complexities.

Another way in which Federal trials are different than in sate courts, is that most Federal judges only permit the lawyers to have minimal interaction with the prospective jurors during the jury selection process. Because the lawyers are not permitted to ask probing questions and interact with jury pool as they are in Texas courts, most state court lawyers feel disempowered during the Federal jury selection process and consider the Federal process somewhat of a “crapshoot.”

If the jury finds the defendant not guilty on every charge, the case is immediately over. On the other hand, if there is guilty verdict on any charge, the jury is excused, and sentencing will be set for several months later.

With a few weeks after having been found guilty or having had entered a guilty plea, the defendant and his attorney will meet with a Federal probation officer. This officer is assigned the task of writing a comprehensive presentence report. This report will describe the offense conduct, calculate the guidelines, and provide the court with the defendant’s personal history, a description of their mental and physical status, and their financial status. A draft report is provided to the defense a month or two later, and the defense may formally object to the guideline calculation or factual inaccuracies in the report. These objections, if not accepted by the probation officer will be resolved by the court at the sentencing hearing.

At the sentencing hearing both sides can call witnesses relevant to the guideline calculations and usually at least three character witnesses. Moreover, the defense may submit any number of character letters to the court in advance of the hearing. Finally, the defendant and their lawyer always have the right to address the court before sentence is imposed.

In Federal drug cases there is usually no possibility of probation. The average sentence in a Federal drug case is ten years imprisonment.

Given these high stakes hiring a highly experience Federal criminal defense lawyer in a Federal drug case is of paramount importance.