Drug Defense

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A description of the usual Federal Charges, a common prosecution tactic, and how San Diego Defenders argues the defense

Drug charges are almost always a result of financial need or in support of personal use. In the case of the former, the client that is charged with a federal drug offense is generally a courier that feels forced to cross drugs across the United States border POE (ports of entry) at San Ysidro, Otay Mesa and Calexico to earn a relatively meager amount of money. In those cases, attorney Daniel Smith generally talks with family members that want to see that their loved ones get the best representation.

Federal Charges

The federal charges we see most often are Title 21 U.S.C. § 952 and § 960 for the importation of cocaine, heroin and or a methamphetamine, a schedule A substance. Any of these charges are considered a Class A felony and carry a mandatory minimum of 10 years in custody for as little as 50 grams of pure meth, 500 grams of a meth mixture, 5 kilos of cocaine or 1 kilo of heroin. Because the federal statutory minimum sentences are harsh and led to overcrowded jails, the First Step Act also known as S. 756 was passed and has the potential to change the potential sentences in many cases. An evaluation must be done on a case by case basis in federal cases only.

The federal offenses under Title 21 of the United States Code in the 800's generally deal with all aspects of illegal drug distribution within the United States, such as 21 U.S.C. § 841 , § 842 and § 844 , which deals with federal “simple possession” of prohibited drugs. Other examples of Title 21 such as § 843 mail or “telephone count” are a lesser offense while § 848 deals with the very serious charge of a “continuing criminal enterprise.” The federal offenses under Title 21 of the United States Code in the 900's generally deal with all aspects of illegal drug importation into the United States from any place outside, such as 21 U.S.C. § 963, § 952, § 960, § 959 to name just a few.

Lengthy investigations of drug distribution are often charged as federal conspiracy to commit a federal offense under 18 U.S.C. § 371 which historically referred to as the “prosecutor’s darling” because of the wide net and relatively easy grasp the federal government uses to charge any individual that commits an “overt act in furtherance of a conspiracy to commit a federal crime.” An overt act can be as simple as proving that a telephone call was made to deliver drugs without ever taking possession of drugs or the proceeds of the sale or transfer. So, it is not uncommon that the accused and his or her family come to our office and say, “he never had any drugs” or “he was not caught with any cash!” Daniel Smith, the supervising attorney at San Diego Defenders describes the overt acts as the “spokes” that connect to the hub of the criminal conspiracy wheel.

Federal Conspiracy to Commit Offense or Defraud U.S.

A federal conspiracy is simply defined by two elements. That there was an agreement between two or more persons to commit a federal crime or to defraud the United States Government. The agreement can be proven by the “overt acts” that show a jury proof beyond a reasonable doubt that there was an implied agreement between the defendant and another person, (that may be unknown,) to commit a crime defined in a federal statute. That is it. It is more common than not, that federal conspiracies involve warrants for telephone wire taps, photo and video surveillance, GPS tracking devices and always begin with a confidential informant or source. Determining how important it is for the Government to protect the identity of their source is a powerful bargaining tool and most always part of the strategy in defending conspiracy cases.

San Diego Defenders Has Expertise Defending Drug Cases

Attorney Daniel Smith of San Diego Defenders, APC has been fighting these federal conspiracy case since 1990 when he was a trial lawyer for the Federal Defenders of San Diego, Inc. Interestingly, Mr. Smith says that he learned much about the different defense strategies when talking with his father, Judge Ralph G. Smith, Jr., a former Assistant United States Attorney named as a “Rackets Fighter” criminal specialist in days of racketeering and fraud in the Arizona. Daniel Smith’s grandfather was a criminal defense attorney during the years of Prohibition in the 1920's and represents the third generation of experienced Smith Family lawyers in federal practice.

The old saying is that there is no substitution for experience and in the defense of drug charges that is very true. While charges brought by the People of the State of California verses John Q. Public may appear to be minor and most times are, there are cases where agencies such as the DEA, FBI, HSI and ATF may direct local law enforcement to charge a person when there is an underlying federal offense investigation in process. It may be that the larger federal agency does not want to attract attention to the federal investigation or for the purpose of obtaining information from a person they hope to be a “confidential source” as discussed above.

Possession of Small and Large Quantities

If a person is charged for a small quantity, then the charges are brought by the local District Attorney in the form of felony or misdemeanor “wobbler” charges such as H&S 11350(a) for simple possession of a controlled substance. If there is a substantial weight of drugs found, then distribution or sales H&S 11351.5 is a common charge or transportation of a controlled substance H&S 11352 if a person is arrested in a vehicle. And although marijuana is being phased into legal recreational use, carrying large quantities, whether across County lines or across the border from Mexico to the United States is still a serious felony under H&S 11360. All in all, it is safe to say the laws are confusing. At first glance, you may think that you are perfectly within your rights, however, this is not a black and white issue and it is best to consult with a local San Diego drug defense lawyer immediately before making any assumptions. As laws expand to cover new areas of the criminal charges it is best to call San Diego Defenders, APC office and ask for a telephone consultation with attorney Daniel Smith.

Further reading

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