Federal Drug Conspiracy & Drug Trafficking Defense

A federal drug case usually begins with an investigation the person knows nothing about: a wiretap, pole cameras, controlled buys through an informant, or a traffic stop that turns out to have been planned. The arrests come all at once, and one person can be among twenty defendants in an indictment that describes an organization and a quantity of drugs they never saw.

What makes these cases different from state drug cases is the sentence. The quantity charged sets a mandatory minimum of 5 or 10 years that the judge cannot go below unless an exception applies, a prior drug or violent conviction can raise it, and the law presumes detention before trial.

Bedi & Singer defends people charged with federal drug offenses in the Northern District of Illinois, at the Dirksen courthouse a block from its office, and in federal courts across the country. Drug charges in Illinois state court are handled in Bedi & Singer’s state practice.

Distributing a controlled substance, or possessing it with intent to distribute (21 U.S.C. § 841), is punished by quantity. Most distribution counts carry up to 20 years with no minimum. A count involving 100 grams of heroin, 500 grams of cocaine, 28 grams of crack, 40 grams of fentanyl, 5 grams of pure methamphetamine or 100 kilograms of marijuana carries 5 to 40 years. Ten times those amounts carries 10 years to life. For most drugs the weight is of the whole mixture, not the pure drug; methamphetamine and PCP also have pure-drug thresholds. Where a death or serious bodily injury results from the drug, the minimum becomes 20 years, or life with a qualifying prior conviction.

A conspiracy to commit any of these offenses (21 U.S.C. § 846) carries the same penalties as the offense itself. The government does not have to prove that the person touched the drugs; it has to prove that the person knowingly agreed with at least one other person to distribute, and the quantity that sets the minimum must be proved beyond a reasonable doubt as to that person. Separating the client’s own agreement from the organization’s kilograms is the center of the defense.

A prior conviction raises the floor, but only if the government files a notice before trial or a plea (21 U.S.C. § 851). For the 5- and 10-year minimums the prior has to be a “serious drug felony” or “serious violent felony,” which since 2018 means a qualifying drug or violent felony, final before the new offense, for which the person actually served more than a year and, for a drug felony, from which the person was released within 15 years of the new offense. One such prior raises the 10-year minimum to 15 and the 5-year minimum to 10; two raise the 10-year minimum to 25. On a count carrying up to 20 years with no minimum, any earlier felony drug conviction raises the maximum to 30 years, and where a death or serious bodily injury results it makes life mandatory. Distribution within 1,000 feet of a school or public housing doubles the maximum and carries a one-year minimum, and a firearm possessed in furtherance of the offense is a separate count with its own consecutive 5-year minimum.

The detention hearing is held at the first appearance or, if either side asks for a continuance, generally within three working days on the government’s request and five on the defense’s. For any drug offense with a maximum of ten years or more, which includes nearly every federal distribution and conspiracy count, the law presumes that no conditions of release are adequate; the defense answers it with the person’s history, ties, employment and a release plan, and the government keeps the burden of proving that detention is needed. Bedi & Singer prepares for that hearing as for a trial; the presumption is rebutted more often than people expect.

Discovery follows: the wiretap applications and the recorded calls, text messages, surveillance footage, lab reports, the informant’s recordings, and the agreements of cooperating co-defendants. A wiretap authorized without the showing the statute requires, a stop or search made without cause, or a statement taken in violation of the client’s rights can be challenged by motion to suppress.

The questions the defense works through are usually these:

• What the client, as distinct from the organization, actually agreed to, and with whom
• Whether the quantity charged can be tied to the client, and whether the lab results and weights hold up
• What the calls and texts actually say; the agent’s reading of coded language is an opinion, not a fact
• Whether the informant and the cooperating witnesses are telling the truth, and what they were promised
• Whether the searches, the stop and the wiretap were lawful

At sentencing the advisory guidelines turn on the drug quantity attributed to the person and on their role, and the court weighs them against the factors in 18 U.S.C. § 3553(a). Two exceptions can take a person below the mandatory minimum: the safety valve, for a person with a limited record who did not use violence or possess a gun in connection with the offense and was not a leader; and a government motion for a person who has provided substantial assistance. Whether to cooperate is the client’s decision.

Jonathan Bedi and Dena Singer work on Bedi & Singer’s federal drug cases together. In a case with many defendants the client needs lawyers who answer only to them, on what the evidence against them is, what their own exposure is, and what each choice would mean. Every case is prepared as though it will be tried.