A charge of drug conspiracy or intent to distribute drugs carries much harsher penalties than a drug-possession charge. Federal and state drug laws are more strict when the prosecutor has reason to believe that a drug sale or distribution was going to occur.
The Charles Johnson Law Firm, located in Houston, TX, is experienced in defending against drug conspiracy and intent to distribute charges. Contact Houston Criminal Lawyer Johnson anytime day or night to speak with a skilled attorney who has a proven record of success with drug cases.
Intent to Distribute Drugs Criminal Defense
Possession of a large amount of cash, baggies, paraphernalia or a scale all could lead to a charge of drug conspiracy or intent to sell drugs. The prosecutor will use that evidence to argue your possession could only mean you had the intent to distribute the drugs to someone else.
With our significant criminal defense experience in federal and state court, we know how to prepare a successful defense against drug crimes. We may be able to challenge the search or seizure to suppress the evidence against you if you are charged with intent to distribute the following drugs:
- Marijuana
- Cocaine
- Heroin
- Crack
- Meth or methamphetamine
- Prescription drugs
- Narcotics
- Ecstasy
- Steroids
If the evidence against you was lawfully obtained, Houston Drug Lawyer Johnson is also an experienced negotiator. Through negotiating and plea-bargaining, you may receive a less-serious punishment or an alternative punishment. Either in trial or in negotiations with the prosecutor, Attorney Johnson will provide personalized service aimed at obtaining an outcome favorable to your situation.
Experienced Drug Crimes Defense Attorney
With a thorough investigation and aggressive defense, we pursue the dismissal or reduction of the charges. Our goal is to preserve your freedom while minimizing any jail time or fines.
Definition of Conspiracy
A conspiracy is an agreement between two or more persons to commit a crime, and in order for a conspiracy to exist, the conspirators would have to perform at least one “overt act” in an attempt to accomplish the purpose of the conspiracy. It is not necessary for the conspiracy to be successful, that is, for the object of the conspiracy to have been accomplished, and it is only necessary that one overt act be completed (even if the overt act is actually a failure in terms of what the overt act was supposed to accomplish).
Federal Indictments for drug cases most usually allege a conspiracy under Title 21, U.S. Code §846, the conspiracy statute for Title 21 violations. Such a conspiracy is usually plead in the Indictment as a conspiracy to distribute controlled substances, a conspiracy to possess with intent to distribute controlled substances, a conspiracy to manufacture controlled substances, or a combination of all of these. Quite often, Indictments in federal drug trafficking cases will allege these two allegations/objects of the conspiracy: 1) to distribute, and 2) to possess with intent to distribute.
Generally, conspiracy is considered a common law offense. A civil conspiracy is an agreement between two or more parties to deprive a third party of legal rights or deceive a third party to obtain an illegal objective. The essence of civil conspiracy is damages. The main elements constituting a civil conspiracy are:
- Agreement
- An object to be accomplished,
- Meeting of minds on the objective or course of action,
- One or more overt acts,
- Damages
- Further, proof of malice or an intent to injure, can be included as essential elements.
However, conspiracy is treated as a crime under many jurisdictions when a conspiracy to commit a particular offense occurs. The crime of conspiracy is defined as two or more persons conspiring to commit any crime, together with proof of the commission of an overt act to effect an objective of the agreement.
A conspirator remains a participant in the conspiracy unless and until s/he communicates a decision to renounce the agreement. Likewise, a person who joins a conspiracy after its formation is equally guilty with the original conspirators. It is to be noted that a conspirator is liable for the acts of his/her co-conspirators.
There are various elements that constitute conspiracy. A criminal conspiracy will be complete if it fulfills the following main elements:
- An agreement about the objective of the conspiracy;
- Specific intent to achieve that object;
- An overt act in furtherance of the agreement.
- Conspirators are jointly liable in conspiracy. If a defendant claims that s/he was not present at the time of the alleged conspiracy, or if s/he was unaware about the means to be employed for committing conspiracy, or defendant was put under coercion by the co-conspirator to commit conspiracy, these will not amount to a defense in criminal conspiracy.
By definition, as referenced above, a conspiracy necessarily includes an agreement between persons to perform, or attempt to perform, an illegal act, i.e., possess large quantities of an illegal drug with the intent to distribute it to others (possess with intent to distribute), or actual transactions where the illegal drugs are transferred to other persons (distribution). Because of the nature of such allegations, it is common place for some defendants to know other defendants in the Indictment, and to even have had contact with them regarding the allegations.
However, it is also common to find that many defendants of a multi-defendant Indictment do not even know many other defendants, especially those “down the line” in the Indictment. That is, if many persons, say, twenty (20) or more, are indicted, often a defendant anywhere in the Indictment may not know those who are listed as say number ten (10) or lower. Frequently, the U.S. Attorney’s Office will include many persons who are allegedly involved in the distribution chain of the controlled substances, and those who are allegedly involved in the collection of monies for the same. This scenario often leaves one, two, or three persons named near the top of the Indictment as the supposed common link(s) between them and various others in the Indictment.
A conspiracy allegation is generally easier for the government to prove than substantive counts, as the evidence needed to prove a conspiracy would have to show that there was an agreement and at least one person performed or attempted to perform an overt act to further the object of the conspiracy. A conspiracy count often is more attractive to a federal prosecutor who has some, but limited evidence, on a defendant.
Elements of the Crime
The crime of conspiracy is defined as two or more persons conspiring to commit any crime, together with proof of the commission of an overt act in furtherance by one or more of the parties to such agreement. However, mere association of two or more persons will not constitute a criminal conspiracy. The main elements of conspiracy are a specific intent, an agreement with another person to engage a crime to be performed, and the commission of an overt act by one of the conspirators in furtherance of the conspiracy.
An unlawful agreement is an element of a criminal conspiracy. Generally, the crime of conspiracy is complete when parties enter into a conspiratorial agreement. Moreover, if there is an agreement between two or more persons for an unlawful purpose, it is considered a criminal conspiracy even where there is no agreement regarding the details of the criminal scheme or the means by which the unlawful purpose will be accomplished. The agreement will determine whether single or multiple conspiracies exist between the parties. A single conspiratorial agreement will constitute a single criminal conspiracy and multiple agreements to commit separate crimes will constitute multiple conspiracies.
Similarly, conspiracy is considered a specific intent crime. A specific intent crime is one in which a person acts with knowledge of what he/she is doing and also with the objective of completing some unlawful act. The intent can be determined from words, acts, and conduct. If the conspirators agree or conspire with specific intent to kill and commit an overt act in furtherance of such agreement, then they are guilty of conspiracy to commit express malice murder.
Another element that constitutes criminal conspiracy is knowledge. To be more specific, to make a person liable for criminal conspiracy as a coconspirator, he/she must have knowledge of the existence of the conspiracy and knowledge of the illegal object of the conspiracy. At the same time, a person having no knowledge of a conspiracy cannot be considered a conspirator.
Hire the Best Drug Conspiracy Criminal Defense Lawyer in Houston
Similarly, in order to satisfy the statute, the government must prove that a conspirator committed an overt act in furtherance of the conspiracy. A conspiracy conviction requires proof of the commission of at least one overt act by one of the conspirators within the five-year statutory period in furtherance of the conspiratorial agreement.
Distribution Charges
In federal Indictments, in addition to conspiracy counts, often the government charges specific events of transfers of illegal drugs, referred to in the federal system as “distribution(s).” In various state court Indictments, such transfers of drugs are known as “deliveries.” These charges are much more specific as to what occurred and when it happened. That is, a distribution count in the federal Indictment concisely alleges that on a certain date, a named defendant distributed a certain amount of a controlled substance to another named person or a government agent.
Possession With Intent to Distribute Charges
Like a specifically-pled distribution count, a substantive count alleging possession with intent to distribute a controlled substance more specifically (than the wording in a conspiracy) states the date, quantity, persons involved and sometimes the location. The element of the crime “with intent to distribute” has to be proven just as the other elements of the alleged crime, including possession and controlled substance. The government will attempt to prove the element “with intent to distribute” in one of two ways: 1) the quantity alone can show that it was much more than personal use amounts; and/or 2) testimony from cooperators who have knowledge of the discussions and plans of the co-defendants.
Manufacturing
A person can be charged with manufacturing a controlled substance under Title 21 of the United States Code, but more commonly any allegation of manufacturing will be alleged in a conspiracy.
Defenses for a Conspiracy Charge
Entrapment
Entrapment is a defense available in conspiracy cases. A defendant can make an entrapment defense by stating that s/he was persuaded and induced by a law enforcement officer or agent to participate in a conspiracy and that s/he had no previous intention to conspire. In such cases, the conviction is excluded by the court as a matter of policy.
However, the defense of entrapment will not be available to a defendant who avails him/herself of the benefit of the opportunity provided to him by the government official with an intention to commit conspiracy. But if there is evidence to show that the intention to participate in a conspiracy was the result of the persuasion or inducement from the government official then a defendant will not be convicted.
A defendant who takes the defense of entrapment must show the following:
- that the idea of conspiracy came from the government official and not from the defendant;
- that the government official persuaded or induced the defendant to commit the crime; and
- that before inducement, the defendant was not ready to commit the crime.
- A defendant who becomes successful in proving an entrapment will be exempted from being punished for conspiracy. However, the defendant will not be exempted if the defendant was part of a conspiracy group of more that two persons. In this case, the defendant can get an exemption only if the other conspirators testify to the defendant’s entrapment.
If the objective of the conspiracy is of a nature that it was to be performed by the government official alone in exercise of his/her official duty, then the defendant will be exempted from punishment. However some courts have refused to accept this principle on the ground that it is the agreement that constitutes the crime of conspiracy and not the attainment of the objective.
When a defendant makes the defense of entrapment, it is the duty of the government to prove beyond reasonable doubt that the defendant was not entrapped by the government official.
Abandonment or Withdrawal From Crime
Abandonment or withdrawal from conspiracy is a defense available to a conspirator to escape liability. In cases of conspiracy requiring an overt act for conviction, a defendant can escape from the liability if s/he proves that they have withdrawn from the conspiracy prior to the performance of an overt act. Any withdrawal or abandonment taken subsequent to an overt act’s performance will not protect a defendant from liability. The defense of withdrawal or abandonment is not applicable in the case of a conspiracy that does not involve an overt act.
To make the defense of withdrawal or abandonment, a defendant must satisfy the following conditions:
- a defendant must take some positive action to withdraw from conspiracy;
- a defendant must make a timely communication of the withdrawal with the co-conspirators;
- a defendant must make the withdrawal prior to completion of conspiracy’s object; and
- a defendant must prove that there was a sufficient interval between the withdrawal or abandonment and commission of the conspiracy.
- When a defendant makes the defense of withdrawal or abandonment, s/he must prove the withdrawal or abandonment before the court. However, withdrawal or abandonment will not be fulfilled by the mere cessation of activities of the co-conspirators[ix]. A conspirator’s arrest or incarceration also will not constitute a withdrawal or abandonment.
But if a defendant, after withdrawal, stays in touch with the co-conspirators and takes part in the goals of the conspiracy, then the defense of withdrawal or abandonment will be nullified by the court.
Former Jeopardy
Former jeopardy is a defense available for a conspiracy offense. Generally a conspiracy to commit a crime and commission of a crime are considered two separate offenses. Prosecution for conspiracy and commission of a crime are treated as separate proceedings and they do not qualify under the double jeopardy prohibition. Thus, a former conviction or acquittal for a crime will not bar a subsequent prosecution for conspiracy to commit that crime. Similarly, a former conviction or acquittal for conspiracy to commit a crime does not bar a subsequent prosecution for that crime. The order of acquittal passed in prosecution proceedings of the crime and a subsequent order of conviction for the offense of conspiracy to commit the same crime will not be treated as inconsistent. The conviction of a person for both the crime and conspiracy will not be treated as prosecuting a person twice for the same offense.
The commission of an overt act which forms an element of a conspiracy can by itself constitute a crime. In such cases, an acquittal for the crime on the ground that the overt act was not committed will operate as an acquittal for the offense of conspiracy of that crime. In like circumstances, the defendant can take the plea of former jeopardy to defend against a conviction for conspiracy. However, if the acquittal was rooted on some other ground, that will result in a conviction for the offense of conspiracy.
In some circumstances a person may be accused for two separate crimes done in one action and for conspiracy to commit both crimes. For example, person A committed murder and lurking house trespass under a conspiracy. Here A is liable for the offense of murder and its conspiracy and for lurking house trespass along with its conspiracy. Convicting such a person severally for two conspiracies would amount to convicting a person twice for the same crime. However, person A who is charged with the offense of murder in pursuance of a conspiracy cannot claim jeopardy on the basis of the prior conviction or acquittal for the offense of lurking house trespass that is committed under the same conspiracy.
However, a state court is not barred from convicting a person against an order of acquittal by the Federal court on identical facts involved in the case which came before the state court. Similarly if any case comes before the Federal court with facts identical to the facts of a state case that granted a conviction, the Federal court can grant an acquittal in such a case without considering the state court’s decision for conviction.
Res Judicata
The plea of res judicata is a defense available in conspiracy cases. Although the defense of res judicata appears to be similar to the defense of former jeopardy, the former differs from the later in its legal implications.
An order of acquittal passed in a former case will operate as res judicata on a subsequent case only if the matter in the former case was tried and adjudicated properly. A verdict can be said to be a properly adjudicated one only if the issues involved in the case were fully considered and determined.
An order of acquittal made in a prosecution of a crime will not operate as res judicata to bar the subsequent prosecution for conspiracy to commit that crime. However an order of acquittal resulting from a prosecution for conspiracy of a crime will operate as a bar on the prosecution for the commission of the crime on the ground that there is re-litigation of the same question of fact that was already determined in the previous prosecution. Whereas if an order of acquittal results from a conspiracy prosecution where the prosecution attorney was unable to convince the jury on the conspiracy, this proceeding will not operate as res judicata to a subsequent proceeding to prosecute the commission of the crime.
However, an order of acquittal for conspiracy will operate as a bar to a subsequent proceeding against the defendant for aiding and abetting the commission of a crime, if evidence of the agreement between the abettor/defendant and the abetted is essential to prove the crime.
The following arguments will not constitute a defense to a criminal conspiracy:
- that it was the co-conspirators who committed the conspiracy’s objective;
- that the defendant was not present at the time and place of an alleged conspiracy(plea of alibi);
- that the co-conspirator is an undercover police agent who extended cooperation and made the agreement for conspiracy;
- that a conspiracy’s object was not achieved due to impracticability in performance;
- that the defendant had withdrawn from the conspiracy before any overt act is performed in furtherance of the conspiracy agreement which did not require an overt act;
- that the defendant was unaware about the means to be employed for committing conspiracy; and
- that the defendant was put under coercion by the co-conspirator to commit conspiracy, if there is evidence supporting the defendant’s willful knowledge and participation in a conspiracy.
Punishment and Sentencing
Penalties for convictions of federal drug statute violations are driven by the type of controlled substance, and by the quantities involved. Usually in federal drug prosecutions, the statutory range of punishment is either five (5) to forty (40) years, or ten (10) years to life. Title 21, U.S. Code, §841 sets forth the drug and quantity listings for these statutory penalties. Some, but fewer, federal prosecutions are for charges that carry from zero (0) to twenty (20) years.
Also, more significantly, the U.S. Sentencing Guidelines (“U.S.S.G.”) play a huge role in sentencing a defendant in federal courts. In summary, the U.S.S.G. function as a point system, driven by drug quantities and other point enhancements, such as the use of a weapon or organizer/leader. The more points accumulated, then the higher the prison range exists for a defendant’s potential sentence. A defendant can receive points subtracted from the total offense level for acceptance of responsibility upon a plea of guilty, and cooperation with the government provides an avenue for the possibility of a reduced sentence.
Punishment and sentencing in a conspiracy conviction depends on the evidence set forth in the case. Punishment will be given in conformity with the applicable statutes.
While imposing a sentence, a court can use its discretion reasonably to consider various factors. An appropriate sentence considers a defendant’s age, social and cultural background, past criminal record if any, education, and experience. The defendant’s manner and attitude are also taken into consideration. The motive to commit the offense and the nature of the offense are additional factors considered when imposing a sentence.
The maximum penalty for conspiracy is usually limited to the maximum punishment fixed for the crime that the conspirators conspired to commit. A court can grant a sentence in a crime of conspiracy to the extent of the maximum punishment fixed for the crime. Some state laws do not require a strict ratio between crime and sentence. However, the sentence must not be extremely inconsistent with the severity of the crime.
An enhanced sentence can be given considering the nature and circumstances of the offense committed. A conspiracy to kill or injure a person is a crime of violence and the conspirator to that crime would be sentenced based on the rules of sentencing related to a crime based on the use of physical force. The gravity of the offense will be considered and the conspirators are subject to enhanced punishment. Likewise, if the crime was not due to a sudden provocation but planned, the crime is more severe and the sentence could be more severe.
Under some state laws, the trial court’s sentence can be reversed only on appeal:
- if it violates constitutional requirements;
- if a judge was influenced by ill-will, prejudice, or impermissible considerations; or
- if the sentence exceeded the limit prescribed by a statute.
- Generally, criminal procedures permit multiple sentencing. Hence it does not violate the Constitution. For example, a federal statute provides that, whoever is being prosecuted for any crime of violence or drug trafficking, if he/she uses or carries a firearm in relation to that crime, they may be sentenced to an additional period apart from the sentence for the original crime.
The Best Houston Conspiracy Lawyer: The Charles Johnson Law Firm
Drug crime convictions are serious and can result in jail time, heavy fines, asset seizure, and a permanent criminal record. Not to mention the additional penalties that can result from a charge of conspiracy. Houston Drug Attorney Charles Johnson has significant experience investigating and defending drug conspiracy crimes and will fight to ensure the protection of your freedom. Depending on your crime and the particular facts of your case, there may be many defenses available against your charge.
Contact Houston Lawyer Johnson today for a Free Consultation at (713) 222-7577 anytime day or night and learn which defenses may work for you.
by Charles Johnson
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