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Federal Defense Lawyer Explains the Basics of Federal Narcotics Law

The Law Office of Matthew Galluzzo, PLLC Team

The federal government has designated the New York and New Jersey area as a “high intensity drug trafficking area” (HIDTA), and as such, the prosecution of drug trafficking in New York and New Jersey is a high priority for federal law enforcement officers. Federal agents are especially well-funded and well-equipped in HIDTAs like New York and New Jersey, and they typically are very patient and thorough in building cases against entire organizations before indicting individuals or making arrests.

Types of Federal Drug/Narcotics Cases

In the Federal criminal justice system, narcotics and controlled substances cases are generally prosecuted under 21 U.S.C.§ 841 (Chapter 13 of Title 21 of the United States Code). That provision makes it illegal to “manufacture, distribute or dispense, or possess with intent to manufacture, distribute or dispense, a controlled substance”. “Controlled substances” not only includes obvious narcotics – cocaine, crack-cocaine, and heroin – but also marijuana, steroids/HGH (human growth hormone), methamphetamines like “crystal meth”, ecstasy (also known as methylenedioxymethamphetamine or MDMA), date rape drugs such as GHB (Gamma-hydroxybutyric acid), and prescription drugs like oxycontin etc., among others. The full list of federal controlled substances can be accessed here.

The federal government prosecutes a wide variety of types of drug-related crimes, although federal prosecutors typically do not get involved in low-level drug offenses, as there is little evidence of intent to “distribute or dispense”. However, even in drug cases involving significant quantities, the offense could oftentimes just as easily be prosecuted by state law enforcement pursuant to Penal Law Chapter 220. In any event, federal law enforcement will pursue relatively simple or straight-forward cases against “drug mules” arrested at airports, complex trafficking cases against international cartels and conspiracies, and almost everything in-between. Indeed, 21 USC § 841 is very broad and can be applied to almost anything drug-related, so long as the quantity of controlled substances at issue is large enough to suggest some involvement with drug trafficking, rather than simple possession for personal consumption.

Many federal drug-related arrests and indictments come as a result of long-term investigations spear-headed by the FBI (Federal Bureau of Investigation) or DEA (Drug Enforcement Agency) and directed by Assistant U.S. Attorneys. Oftentimes, federal law enforcement agents will use wiretaps, warrants, undercover officers, and confidential informants to build their cases. Bank and financial records can also be used to bring money laundering charges under the Money Laundering Control Act (18 U.S.C. § 1956-57). And, after arrests are made, defendants are often compelled to testify against their co-conspirators because their potential penalties for refusing to cooperate with the government are so significant (more on this later). Thus, these cases can be very very strong from the prosecutor’s perspective.

However, some defendants in federal narcotics cases can be charged with very serious crimes even when the evidence against them specifically is fairly flimsy. Federal prosecutors love to use conspiracy charges such as RICO, the Racketeer Influenced and Corrupt Organizations Act (18 USC § 1961-1968) to charge people who had little or no involvement with the drug-selling organization. (Prosecutors also use a similar conspiracy statute – the Continuing Criminal Enterprise (CCE) Statute [21 U.S.C. § 848] to prosecute drug “kingpins” – but it does not apply to those that did not organize or manage the drug cartel/organization.) These conspiracy charges sometimes allow prosecutors to introduce evidence of crimes committed by the organization in cases involving low-level or barely-involved defendants; fortunately, experienced criminal defense attorneys know how to identify this prosecutorial strategy and defeat it.

Federal Sentencing Guidelines and Drug/Narcotics Offenses

The penalties for federal drug offenses can be quite severe. The system for determining the appropriate sentence in a federal drug offense is described by the federal sentencing guidelines, which are very complex. In a nutshell, to ascertain a defendant’s possible exposure, one must first determine his “base offense level,” and next establish whether there are any possible aggravating factors or bases for “downward departures” from the base offense level. Of course, the defendant’s criminal record is also very relevant to this equation as well.

Each base offense level provides a fairly narrow range for the defendant’s sentence. For example, a first-time offender caught at the airport with 3 kilograms of cocaine in his suitcase will be charged with a base offense level of 28 (see Sentencing Guidelins, at page 144). Thus, his “base” sentencing exposure would be 78-97 months in prison (about 6.5 to 8 years).

Fortunately for our drug mule in the example above, he could be eligible for several “downward departures” that would decrease his base offense level and allow him to receive a lighter sentence. First, there would be a possibility of a three-level reduction as a result of the federal “safety valve”. Realizing that many low-level and first-time drug offenders were being punished too harshly, Congress passed the “safety valve” statute in 1994 to allow for downward departures in cases where the defendants could prove five mitigating things about their crimes: 1) no one was harmed during the offense, 2) the offender has little or no history or criminal convictions, 3) the offender did not use violence or a gun, 4) the offender was not a leader or organizer of the criminal enterprise, and 5) the offender tells the prosecutor everything they know about their crime and the organization. If the drug mule can prove these things to the satisfaction of the court, then the defendant would have to receive a sentence under offense level 25, which would be between 57 and 71 months in prison (i.e. about 5-6 years). Moreover,our drug mule could even potentially get a reduction of four more levels by pleading guilty early in the process (potentially worth two base levels) and by having played a minimal role in the organization (potentially worth another two base levels). In that case, a base level of 21 could mean a sentence between 37 and 46 months in prison (or about 3-4 years). Clearly, then, having an experienced defense attorney that understands the complex nuances of the federal sentencing guidelines can be invaluable to a defendant. Also, the fifth prong of the safety valve test described above can be hotly
contested between the prosecutor and the defense attorney, as prosecutors will often argue to judges that defendants were not completely honest about their role or their organization during their “proffer” sessions with the prosecutor. An experienced criminal defense attorney is thus also critical towards preparing the defendant for any proffers with the prosecutor and arguing his case to the sentencing judge.

On the flip side, aggravating factors can increase a defendant’s sentence. Generally speaking, in cases where the defendant’s actions caused harm to another person, or violence or a weapon was involved or used, or there was a risk of harm to an underaged or pregnant person, or the accused was a “kingpin” or organizer of the enterprise, then the offense level can rise. There are a number of other potential aggravating factors as well, but these are the most common.

Other Consequences to Federal Drug/Narcotics Prosecutions

– Civil Forfeitures

Federal law enforcement officers oftentimes seize cash, jewelry, vehicles, and other property while making drug-related arrests, and federal prosecutors will then bring civil forfeiture actions in an effort to permanently keep those items. Civil forfeiture proceedings allow the government to keep money or property where they can demonstrate by a mere preponderance of the evidence that they were knowingly purchased with criminal profits. Civil forfeiture actions can even be used against real estate holdings and bank account deposits in large scale federal drug cases; in these cases, an experienced criminal defense attorney capable of demonstrating that the seized money or property were not illegally obtained is especially important.

– Immigration consequences

Non-citizens of the United States arrested in the country on suspicion of drug trafficking will typically find themselves the subject of two concurrent proceedings: a criminal prosecution and an immigration removal process. A non-citizen can be forcibly removed from the United States upon suspicion of drug trafficking; indeed, a criminal conviction is not necessary under Section 1227 of the Immigration and Nationality Act. An experienced criminal defense attorney can help you defend against criminal charges and may be able to preserve your right to remain in the United States.


If you or a loved one have been arrested for a federal drug charge, you should strongly consider hiring the aggressive and experienced criminal defense attorneys at the Law Office of Matthew Galluzzo. They routinely represent people accused of drug-related crimes in state and federal courts in New York and New Jersey, and as former prosecutors, they understand how law enforcement officers investigate and pursue these matters. They have impeccable reputations amongst their peers, judges and adversaries, and their efforts have resulted in numerous dismissals and favorable plea bargains on behalf of their clients. Contact them today to schedule a free initial consultation, and to receive a fair quote for their services.

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