Defending Against Criminal Drug Charges
This article is intended to provide clients who are under investigation or have been charged with possession, distribution or trafficking in cocaine, heroin, oxycodone or other Class A or Class B narcotics in Massachusetts. It is written by a retired Boston Police Sergeant, now criminal defense lawyer, with extensive experience in the investigation of drug crimes from initial investigations, to search warrants to actual indictment and arrests of hundreds of people charged with drug crimes in Massachusetts. That expertise has allowed me, now as your attorney, to look closely at the charges against you and to find the best possible defense in your particular case.
Always remember that each case is unique in its investigation, the officers involved and the court in which you are charged. This local knowledge is helpful in knowing how the court is likely to react to your charges.
Anyone accused of a drug crime should follow the advice of an attorney experienced and knowledgeable in the defense of selling, trafficking, delivering, or conspiracy to sell, traffic, or deliver cocaine, marijuana, oxycontin, oxycodone, GHB, or other drug, and who is familiar with the specific facts of the individual’s case. This is a general article and not meant as specific legal advice in your particular case.
Introduction
Defending a person arrested, indicted, or charged with selling or conspiracy to sell illegal drugs present unique and special challenges that many other criminal charges do not present. Unlike crimes such as robbery or assault which the government investigates after the fact; when the government conducts an investigation in the sale, conspiracy to sell, or the trafficking in drugs the government will often target individuals and “build a case” against the targeted individual. In the typical investigation of the sale or the conspiracy to sell or traffic in drugs the government can take its time and build its case. Wiretaps, the use of confidential informants, undercover agents, accountants to comb thru financial records, video and audio surveillance, are all tools that the government will often employee in conducting a drug investigation.
If the government does not have enough evidence they simply continue to investigate such as surveillance of the targeted individual or switch to a proactive investigation and introduce undercover agents or “confidential informants” in an attempt to entice the target of the investigation to commit criminal acts. (Note: One exception to this scenario is the vehicle stop where the police stumble upon a large amount of drugs.) Due to the extreme complexities and unusual nature of a drug sale, conspiracy or trafficking case and the extreme and harsh penalties often inflicted upon those convicted of such crimes with sentences which can reach up to life in prison, it is extremely important that anyone facing such charges hire an attorney experienced and qualified in defending against allegations of drug selling, dealing, and drug trafficking.
The most important defense against drug charges involves being aggressively proactive in seeking information regarding the investigation and the agencies or departments involved. Also the amount of drugs you are alleged to possess will play a huge part in your case as, in Massachusetts, the drug must be tested and the actual person who tested the drug must testify at your trial. With limited money and resources the state almost always reserves these individuals for bigger cases and you have an opportunity at trial to have the drug evidence thrown out under these circumstances if they cannot prove the substance is in fact the illegal drug they state it is. We are aggressive in filing pre-trial motions that force the state to divulge as much information regarding the investigation and arrest as possible to better understand the case against you and the possible defenses available to you.
Anyone attempting to formulate a defense to an allegation of drug sale, drug conspiracy, or drug trafficking, should also consider the following factors when developing the plan of defense.
Hire an Attorney Immediately Who Has Experience Handling Drug Cases
Serious and irreparable mistakes can be made by the targeted individual who tries to deal with the government himself before or instead of hiring an attorney. Because the government will employ tricks or lies to get the person to agree to a search or to make a statement these individuals will usually make the huge mistake of agreeing to a search of their home, car, or other private premises, and will also often make the huge mistake of making a statement to the government. I do not know of any person who has ever been convicted of a crime for keeping quiet or for being uncooperative with the government but I do know of plenty of individuals who have talked themselves into a conviction or consented to searches that resulted in a conviction which could have been avoided had the individual first kept quiet and refused to cooperate and hired an attorney.
Hiring an attorney immediately has further benefits. When targeted by the government and under investigation or arrest or indictment for the sale, trafficking or conspiracy to sell and traffic of cocaine, marijuana, oxycontin or other drugs the targeted individual needs to take action by having an attorney and our private investigator making sure that the investigator is speaking to witnesses and potential witnesses, collecting documents and evidence which are exculpatory, making sure that favorable witness statements are locked in early so that it becomes more difficult for the witness to turn against you and later make an allegations in an attempt to save themselves from prosecution when the government starts to reward or threaten witnesses or co-defendants with charges they may be facing.
Another reason that it is extremely important to have an attorney involved as soon as possible especially if the targeted individual is in fact guilty and the State has a strong case is that it may be in that persons best interest to become the cooperating witness. In such cases it is often the first defendant in a large conspiracy that agrees to cooperate with the government that will receive a significant reduction in their ultimate sentence or possibly avoid a conviction. Those who hold out and go to trial or later plead guilty are often left facing much longer prison terms. Deciding whether to become the cooperating witness or to hold out and fight the charge to the end is possibly the most difficult and most important decision one faces. It involves considerations of whether the target is actually guilty, the strength of the government’s case, the extent of the exposure (potential sentence or prison term), whether there is danger of violent reprisal from other members of the criminal enterprise, and the personal values of the person who is under investigation. Due to the complexity of this decision it simply should not be made without the advise of an attorney who can assess the strength of the government’s case, possible defenses, and the potential sentence if a conviction is obtained by the government, and who can take measures to insure as much as possible that the government will honor any promises it makes.
Any criminal defense attorney who believes that he can match the power and resources of the government or leads his client to believe such a thing is not very experienced. Even an army of criminal defense lawyers or the largest law firms cannot match the government’s financial resources, its manpower and its resources to find and use “cooperating witnesses”. However, this does not mean that a defendant cannot win. The government can and has been beaten. The key is to remember that the only thing that the defense attorney needs to do is to convince the jury that there is reasonable doubt. Granted, getting the jury to see that there is reasonable doubt is sometimes easier said than done. Often times however, what appears to be an impossible case for the Defendant to win can in fact be won by simply finding that one weak spot in the government’s case and exploiting that weak spot. Taking out one aspect of the government’s case, or showing one key government witness to be a fraud and a liar, or showing how federal agents and police officers can make serious mistakes in judgment and perception, or showing the willingness of the government to violate rights, can cause a jury to sometimes see the governments entire case in a different light.
In almost all cases political pressure will often dictate what types of cases will be prosecuted and how aggressively. Few types of crimes have been the focus of as much political focus as drug crimes. In fact no other type of crime has been the subject of an official “declaration of war”. The result of this political pressure and the declared “war on drugs” is the desire of the politicians to appear tough and aggressive. They are therefore often reluctant to abandon cases that should be abandoned and will sometimes seek the mandatory minimum sentences in drug cases to show they are tough on crime. This often results in a grave injustice to the defendant.
Almost every serious drug prosecution will involve a charge of conspiracy. Prosecutors love conspiracy charges because the law of conspiracy encompasses a wide variety of activity. Witnesses should be located and affidavits obtained for pre-trial use and for locking in the witnesses testimony for trial that verify the relationship with the other defendants or conspirators was familial, social, or a legitimate business and that these witnesses observed no criminal activity by the client. Financial, real estate, personal property, and legitimate business records should be obtained to demonstrate that the Client is not living an extravagant life style and is not wealthy, as one would expect if the person were involved in a drug conspiracy. If the targeted individual does have significant wealth evidence of legitimate sources of that income should be gathered. The targeted individual with wealth may need to hire accountants to testify as experts as to the legitimate sources of income of the targeted individual.
A “cooperating individual” is the person who agrees to testify on behalf of the government in return for an agreement from the government for a reduction in that person’s sentence, or sometimes even the dismissal or agreement not to file charges against the “cooperating individual”. In short a police officer will catch a suspect with drugs and offer him a deal if he cooperates and turns in a “friend”. The secret to this arrangement is that rarely will the “cooperating individual” or the government directly and expressly acknowledge that a deal was made. The officer will usually tell the cooperating individual that hecannot make any promises but that if the individual testifies against the other defendant(s) that the prosecutorwill take his cooperation into considerationlater on. Therefore the “cooperating individual” when cross-examined will attempt to claim that he was not promised anything and that he has just seen the error of his ways and is doing his “civic duty”. It is therefore extremely important that an attorney defending a person charged with a drug offense be very skilled in cross-examination and be able to demonstrate thru cross-examination that the cooperating witness will say or do anything including lie under oath and take down an innocent person if that is what it takes to save his own skin. The difference that a skilled cross-examiner can make in this situation as compared to the in-effective cross-examiner can very well be the difference in many cases between a guilty verdict and a not guilty verdict. It is further extremely important to do as much of a background investigation on the “cooperating individual” as possible in order to obtain extrinsic evidence such as previous criminal convictions in order to attack the credibility of the cooperating individual.
Do not Cooperate with the Government Before Getting Legal Advice
One of the most important things that any person under arrest or investigation for the sale, conspiracy to sell, and the trafficking in drugs needs to understand is that there is almost never any benefit in consenting to a search, agreeing to make a statement, or agreeing to cooperate unless and until an attorney has been consulted and has worked out an understanding with the government on your behalf. When I say almost never I mean that in 10 years as a criminal lawyer I have never seen a targeted individual’s cooperation provide him with significant benefit unless an attorney worked out the deal, it may have happened but I have never seen it. Many individuals believe that a police officer cannot lie to you and believe that if the government’s agent says that they are going to help you they are legally and duty bound to honor that promise, this is not true. Government agents are allowed to lie, at least to a certain extent. They can lie about what evidence they have when interrogating a defendant. They can make implied promises and then claim that no express promise was made.
Although there are times that cooperating with the government can be a person’s best option to avoid a criminal conviction or a much longer prison sentence any “deal” needs to be negotiated by a qualified criminal attorney because if the government can get what they want from the targeted individual without providing him anything in return they are happy use him and then leave him to “hang”.
Plea Bargaining
Plea-bargaining which is the term for the defendant agreeing to a lesser sentence in return for his agreement not to take the case to trial and / or in return for his cooperation in the prosecution of other individuals is an art.
There are two things that in my opinion greatly help in the ability of a defense attorney to be able to negotiate a favorable plea bargain. The first is whether the defense attorney has a reputation as an attorney who is willing to take a case to trial and who is at minimum a competent defense lawyer. Prosecutors are not likely to give a favorable plea bargain to a defendant who is represented by an attorney that they know does not like to or who is afraid to take a case to trial or who is incompetent. Why should they? They know they will get what they want in the end. The more willing the defense lawyer is to take a case to trial, the better he is, and the more he will make the prosecutor work for any conviction he may hope to obtain often greatly enhances the ability of that defense attorney to negotiate a favorable plea bargain. If a prosecutor knows that he will have to work much harder (which means spending his weekends preparing for trial) or that he may not get a conviction at all because the defense lawyer knows what he is doing the prosecutor will often be more likely to offer that lawyer a better deal. The second factor that in my opinion greatly helps the ability of a defense attorney in the art of plea-bargaining is if the defense attorney has had prior experience working as a police officer or a prosecutor and has established relationships with the police and the district attorney’s office.
Taking into account knowledge of the prosecutor’s job and each particular prosecutor’s personality is very important in plea negotiations. There are times during negotiations to take a hard stance meaning that you point out the weakness of the government’s case and express your confidence you could win, there are times you need to bluff and act like you can win even though you know that is not likely, and there are times to acknowledge to the prosecutor that the defendant is in fact guilty and to appeal to the prosecutor’s sense of mercy, and compassion.
How to negotiate with the prosecutor and when simply depends upon many different variables that are different with every case and with every prosecutor. These variables include the prosecutor’s personality, how long he has been a prosecutor, local custom, the facts of the case, the defendant’s desires, the judge involved in the case, and other factors. It is the weighing, considering, and balancing of these factors and determining the best way to approach plea bargaining that makes plea negotiations an art.
Pretrial Motions
There are various types of pre-trial motions to file in drug cases, a few of the more common motions include:
A) A motion to suppress, which challenges a search or the seizure of evidence because the search or seizure by the Government was illegal.
B) A motion for bill of particulars and other discovery motions keyed specifically towards drug cases seeking that the Government discloses more details about when, where, and how it alleges that the defendant committed the crime, who was involved in the investigation and how was this particular investigation conducted.
C) A motion in limiting seeking to prohibit the Government from placing into evidence certain evidence that is unfair or overly prejudicial (such as the prior criminal conviction of a defendant).
Use of pre-trial motions is one of the best ways for the Defense to find the weak parts of the Governments case and to assess the credibility and vulnerability of Government witnesses.
Finally, if you have a drug problem and need help handling your problem then we can assist you in getting that help with our team of professionals that we have used over the years to help many clients not only beat their case but beat their addiction. In some cases getting that help can assist you in winning your case.
Conclusion
Defending against criminal allegations of selling or conspiracy to sell, distribute or trafficking in cocaine, marijuana, heroin, oxycontin, or other illegal drugs present unique and special challenges that many other criminal charges do not present. Anyone facing a drug charge should hire an attorney who has extensive experience not only as a criminal defense lawyer but who also has extensive experience with how police handle drug cases.
Attorney Richard Sweeney spent years as a Boston Police Officer and retired as a Sergeant directing one of the Boston Police Drug Units and has testified in state and federal courts in hundreds of criminal cases involving search warrants, investigations, hand to hand sales and conspiracy cases involving every class of drug. Sweeney & Associates is an AV-Rated criminal defense firm and we have successfully represented our clients in every phase of an investigation or a trial involving drugs.
You NEED a law firm with KNOWLEDGE, EXPERIENCE AND THE ABILITY TO DEFEND YOUR CASE!! Call Attorney Richard Sweeney at (617) 300-0212 and use my experience and knowledge to help you or your loved one.
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