Federal Criminal Drug Charges

Ghost Dope in Federal Criminal Drug Charges | Part I: The Backdrop

Part I: The Backdrop of State and Federal Criminal Cases

Undoubtedly you were taught that a person is not guilty of a crime in America unless they are proven so “beyond a reasonable doubt.” Who hasn’t watched Twelve Angry Men and gotten goose bumps watching American citizens deliberate and toil regarding whether a person is actually guilty of a robbery? This conception celebrates democracy and truth and brings pride to those who believe that criminals should only be sentenced based upon fair, competent evidence that conclusively establishes guilt.

Fortunately, when it comes to proving guilt/innocence, this is the standard in every state and federal jurisdiction. However, a guilty person’s punishment does not have to be supported by the same quality of proof.

What may be surprising is to see how these foundations actually operate in practice, particularly in United States Courts (also known as federal courts) when it comes to arriving at a fair sentence. In fact, one might surmise that the federal courts have abandoned traditional principles that require sentences to be supported by strong evidence. Before illustrating this disparity, it is important to understand the purpose of criminal sentences. Put simply, sentences are intended to be sanctions designed to deter crime while also punishing and rehabilitating offenders.

Punishment in State and Federal Criminal Cases

Every criminal punishment is the result of two stages of fact finding. Phase One- determining whether a person actually committed a crime. Phase Two- assuming the person is guilty of the crime, then deciding what a fair punishment for that crime should be.

In Texas, Phase One can be decided in one of five ways. One, a prosecutor can elect to dismiss a charge (relatively rare). Two, a grand jury can elect to ‘No Bill’ a case—in other words, the grand jury can elect to decline to indict. Options One and Two effectively kill a criminal prosecution. Third, an accused defendant may plead guilty. Four, an accused can demand a trial before the court (otherwise known as a court trial) where a judge decides whether the law has been broken and that the crime has been proven beyond a reasonable doubt. Five, an accused can demand a trial before a jury, otherwise known as a jury trial, where a group of citizens decides whether the law has been broken and that the crime has been proven beyond a reasonable doubt.

In federal courts, the same five options are available. However, it is important to recognize that federal prosecutors have certain practical limitations. It used to be the case that prosecutors were required to proceed on the highest provable charge. This is known as the Ashcroft Sentencing Directive. In the last several years this has been modified by Attorney General Eric Holder. Be that as it may, prosecutors feel a tremendous amount of pressure to avoid dismissing charges once an indictment has been returned. In fact, prosecutors rarely ever lower charges after indictment, let alone dismiss them.

This means that prosecutors, and people facing federal charges, are almost always at a point of no return once a case has been indicted. This is much less the case in state courts, including Texas. However, defendants in federal cases have pretty much the same other four options as defendants facing charges in Texas.

When it comes to punishment and sentencing, however, the differences between the state and federal criminal systems reveal a far weaker commitment to fairness and proof in U.S. courts.

To arrive at a sentence, judges and in Texas many times jurors, are to consider the circumstances of an offense and the history and characteristics of an offender. For federal criminal cases, this is codified under 18 USC 3553(a). This means that a defendant’s entire life may be put on display including evidence showing the defendant’s good and bad acts. To illustrate this point, anything from a defendant’s singing in the church choir, subscribing to Ashley Madison, or being convicted of theft 25 years ago may be presented in support of a harsher or lighter sentence. Pretty much any act can be presented at sentencing.

The difference between a state criminal charge and federal criminal charge in the how much proof is necessary to prove punishment evidence.

While this seems straightforward, it raises many questions. Who is allowed to sponsor such evidence? Can a disgruntled ex-boyfriend allege infidelities? Can town gossips talk about a defendant’s drinking habits? If a prior conviction is described, do accompanying court papers have to be presented? Punishments are supposed to be based upon competent evidence by persons or records with firsthand knowledge of the actions purported to be true, but how well proven do these good and bad acts have to be established? Well… the answer depends on the jurisdiction.

For example, many states, including Texas, specifically require evidence presented during a punishment phase to be proven beyond a reasonable doubt. Thus, if a computer specialist testifies that a person convicted of solicitation of a minor has looked for mail order brides on his computer during the last seven months, that action cannot be used by a judge or a jury as a reason to punish someone more lightly or harshly unless it has been proven beyond a reasonable doubt. Article 37.07 Texas Code of Criminal Procedure.

37.07(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. A court may consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Chapter 17 as a condition of release on bail. Additionally, notwithstanding Rule 609(d), Texas Rules of Evidence, and subject to Subsection (h), evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law …

What does all this mean? A lot. Proof beyond a reasonable doubt is the highest standard of proof under the law. It requires not only evidence of the commission of an act, but that such evidence eliminates the existence of ‘reasonable doubts.’ For example, if the Washington Post reports that the New York Mets beat the L.A. Dodgers last night most people would trust that that is true. However, it’s possible that reporters make mistakes or that misprints sometimes happen. Many people would demand more than the newspaper to find the game’s result has been established beyond a reasonable doubt—perhaps a second newspaper or an eye witness who saw the game or a Vegas payout ledger.

In contrast, in the federal system, bad acts at sentencing need only be proved by a preponderance of the evidence, which means proof by the greater weight of the evidence. In other words, if something is 51% proven, or simply more likely than not, than the fact can be established. Most people would certainly think the Washington Post could prove the game result by a preponderance of the evidence.

This may seem like a lot of esoteric legal-ese, but it’s not. The consequences are enormous, particularly in drug cases.

The difference between State and Federal Criminal Drug Charges

A federal drug case will most likely be alleged as a conspiracy, or agreement, to distribute drugs under 21 USC §§ 841 and 846. Understand that conspiracies do not necessarily penalize drug dealing but instead proscribe agreeing to deal drugs. This means that many cases are established without any necessity that law enforcement personnel actually recover dope.

In Texas, that person will not likely be accused of conspiring to distribute drugs. Rather, a case would only proceed if police officers recovered the methamphetamine. In the state system, a defendant would most likely be charged with possession of a controlled substance with intent to deliver. Thus, the possession is the operative element that establishes guilt, not the agreement.

This distinction is massive because many statements would come into the trial as evidence of guilt in a conspiracy case that would not necessarily be admissible in a typical state possession case. For example, if Johnny and Jenny are distributors of methamphetamine that is supplied by Mike, all three are conspirators regardless of whether Johnny and Jenny work together. Since Johnny has an agreement with Mike and Jenny has an agreement with Mike all 3 are guilty of conspiracy. Imagine now that one time Jenny got 4 ounces of methamphetamine from Mike and gave it to Johnny who then deals it to several others. In this situation all 3 have dealt more than 50 grams of meth which makes them all subject to prosecution. In Texas, they would be guilty of possession of between 4–200 grams of methamphetamine with intent to deliver which is a second-degree felony subject to imprisonment of 2–20 years. In the federal system they would be guilty of a Possession offense but would more likely be charged with Conspiracy to Possess more than 50 grams of a substance with a detectable amount of methamphetamine under 21 USC §§ 841(b)(1)(B) and 846 which carries a penalty range of 5–40 years.

Seems pretty similar, right? Wrong. In Texas people with a relatively small amount of criminal history would likely receive a probation sentence whereas in the federal system the guidelines and statute would prohibit probation.

Click here for Part II to learn about Ghost Dope and how sentencing is enhanced even further in the federal criminal system.

About the Author
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Steve Jumes

Steve Jumes is former Assistant United States Attorney and he is also a Board Certified Criminal Law Specialist. Steve handles federal and state criminal matters in addition to being one of the nation's foremost asset forfeiture attorneys. A former prosecutor at both the state and federal level, Steve Jumes is admitted to the Northern, Eastern, and Western Federal Districts in Texas. Steve Jumes has tried over 100 cases to juries in the state and federal system.Steve Jumes focuses primarily on white collar crimes. He is experienced in high-profile money laundering, wire fraud, health care fraud, and tax matters.

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