Despite the improvements in drug-detecting technology and processes - as
well as the steep criminal penalties for those caught importing drugs
into the United States - the drug smuggling business still remains lucrative
enough to cause many people to attempt to import drugs through commercial
airline flights. When smugglers are caught, however, the cases can be
prosecuted either federally or at the state level.
In New York and New Jersey, when drugs are discovered in someone's
luggage, for example, the subsequent arrest might be referred to either
the local District Attorney's Office (the
Queens DA for LaGuardia and JFK) or to the nearest U.S. Attorney's Office (the
US Attorney for the Eastern District of NY for the New York airports, or the
US Attorney for the District of New Jersey for Newark Airport). In the former case, the matter will be prosecuted
under state law, and in the latter, under federal law. We find in our
experience that arrestees on incoming flights from abroad tend to be referred
more often to the federal authorities, whereas domestic flights usually
go to the local authorities, but this is certainly not always the case.
Under New York state law, the applicable charge is contained in Penal Law
Chapter 220 and depends both on the type of illegal substance being smuggled and the
quantity possessed. In addition, a person's charges can be
more serious if there is evidence of an "intent to sell" the narcotics; obviously, a large quantity of narcotics can be evidence
of such an intent to sell, but possession of a small quantity of narcotics
- even just one small bag -
can still be prosecuted as an "intent to sell" felony in cases in which, for example, the arrestee admits that he intended to
sell the drugs in his possession.
Under New York state law, the penalties for a conviction for possession
of narcotics depend not only on the nature of the offense but also largely
upon the extent of the person's criminal record. For example,
predicate felons face much more significant jail time on drug offenses
than first time offenders.
Under federal law, it is a serious crime to import narcotics into the United
States. 21 U.S.C. Section 952 makes it illegal to do so, whereas 21 U.S.C.
Section 841 makes it a federal crime to possess narcotics with the intent
to sell or distribute them.
The seriousness of these charges again depends on the type of narcotic
and the quantity involved, as well as the arrested person’s criminal
record. Other factors can mitigate the defendant’s sentencing exposure,
and many “drug mules” are eligible for downward sentencing
departures pursuant to the “safety valve”.
Finally, non-U.S.citizens arrested on suspicion of narcotics smuggling
face particularly dire consequences. An agent from the Department of Homeland
Security (and/or Immigration and Customs Enforcement, a sub-agency of
that umbrella), will be notified of this arrest and the arrestee’s
residency status, and s/he will certainly submit an “immigration
detainer” on the person. This effectively means that a deportation
proceeding is likely to ultimately happen. It also means that securing
the arrested person’s freedom is going to be more complicated for
his family than simply posting a criminal court bail; indeed, getting
released from custody altogether in some cases may be impossible when
immigration detainers are involved.
If you or a loved one have been arrested on suspicion of smuggling drugs
or narcotics at a NYC-area airport, you should strongly consider retaining
the services of an
experienced criminal defense attorney.
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