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A drug can be legal when prescribed by a doctor, yet it can be illegal when someone uses it without a valid prescription. If you are being investigated for a prescription drug crime, you cannot afford to be poorly represented. Houston Criminal Lawyer Charles Johnson has expertly defended prescription drug charges in Houston and throughout Texas.
The Charles Johnson Law Firm regularly assists clients with drug cases involving illegal prescription medications, such as:
- Forging of prescriptions
- Pharmacy fraud and prescription fraud
- Illegal possession of prescription medications
- Transportation of drugs
- Distribution of drugs
- Illegal buying prescription drugs online
- Drug delivery, manufacturing and trafficking
If you have been charged with one or more of these offenses, you could be facing jail time and other significant consequences. It is important to know what to do in the days following an arrest and how an experienced attorney can build a vigorous defense for your charges. In many cases he will be able to have your case dismissed entirely. Call Houston Drug Lawyer Charles Johnson at (713) 222-7577 to discuss your case. Attorney Johnson answers the phone 24 hours per day and offers you a free initial consultation.
Hire the Best Houston Drug Attorney: The Charles Johnson Law Firm
Prescription drug abuse is on the rise in Texas. There are many possible ways for someone to acquire prescription drugs for illegal use. Some people obtain the prescription drugs from a person who has a valid prescription. Others steal a doctor’s official prescription pad and forge the doctor’s signature for the medication, while some create a counterfeit prescription that resembles a doctor’s official prescription. There are some who do what is called “Doctor Shopping,” which entails going to many different doctors complaining about a medical condition to get prescriptions from each of them.
What is prescription drug abuse?
Prescription drug abuse is the use of a medication without a prescription, in a way other than as prescribed, or for the experience or feelings elicited. According to several national surveys, prescription medications, such as those used to treat pain, attention deficit disorders, and anxiety, are being abused at a rate second only to marijuana among illicit drug users. The consequences of this abuse have been steadily worsening, reflected in increased treatment admissions, emergency room visits, and overdose deaths.
How many people abuse prescription drugs?
According to results from the 2010 National Survey on Drug Use and Health (NSDUH), an estimated 2.4 million Americans used prescription drugs nonmedically for the first time within the past year, which averages to approximately 6,600 initiates per day. More than one-half were females and about a third were aged 12 to 17. Although prescription drug abuse affects many Americans, certain populations, such as youth, older adults, and women, may be at particular risk.
Who abuses prescription drugs?
Individuals of all ages abuse prescription drugs—data reported in the National Household Survey on Drug Abuse indicate that an estimated 36 million U.S. residents aged 12 and older abused prescription drugs at least once in their lifetime. The survey also revealed that millions of teenagers and young adults abuse prescription drugs—2.7 million individuals aged 12 to 17 and 6.9 million individuals aged 18 to 25 abused prescription drugs at least once. Prescription drug abuse among high school students is a particular concern. According to the University of Michigan’s Monitoring the Future Survey, more than 10 percent of high school seniors in the United States abused narcotics (other than heroin) at least once in their lifetime. Nearly 17 percent abused amphetamines (a type of stimulant), 10 percent abused barbiturates, and 11 percent abused tranquilizers at least once.
Adolescents and young adults
Abuse of prescription drugs is highest among young adults aged 18 to 25, with 5.9 percent reporting nonmedical use in the past month (NSDUH, 2010). Among youth aged 12 to 17, 3.0 percent reported past-month nonmedical use of prescription medications.
According to the 2010 MTF, prescription and OTC drugs are among the most commonly abused drugs by 12th graders, after alcohol, marijuana, and tobacco. While past-year nonmedical use of sedatives and tranquilizers decreased among 12th graders over the last 5 years, this is not the case for the nonmedical use of amphetamines or opioid pain relievers.
When asked how prescription opioids were obtained for nonmedical use, more than half of the 12th graders surveyed said they were given the drugs or bought them from a friend or relative. Interestingly, the number of students who purchased opioids over the Internet was negligible.
Youth who abuse prescription medications are also more likely to report use of other drugs. Multiple studies have revealed associations between prescription drug abuse and higher rates of cigarette smoking; heavy episodic drinking; and marijuana, cocaine, and other illicit drug use among adolescents, young adults, and college students in the United States.
Persons aged 65 years and older comprise only 13 percent of the population, yet account for more than one-third of total outpatient spending on prescription medications in the United States. Older patients are more likely to be prescribed long-term and multiple prescriptions, and some experience cognitive decline, which could lead to improper use of medications. Alternatively, those on a fixed income may abuse another person’s remaining medication to save money.
The high rates of comorbid illnesses in older populations, age-related changes in drug metabolism, and the potential for drug interactions may make any of these practices more dangerous than in younger populations. Further, a large percentage of older adults also use OTC medicines and dietary supplements, which (in addition to alcohol) could compound any adverse health consequences resulting from prescription drug abuse.
What prescription drugs are commonly abused?
The prescription drugs that are commonly abused in the United States fall into several broad categories: opioids/narcotics/pain relievers, CNS (Central Nervous System) depressants, and stimulants. Individuals abuse these drugs because they are an easily accessible and inexpensive means of altering a user’s mental and physical state; the effects vary depending upon the drugs they abuse.
What are some of the commonly abused prescription drugs?
Although many medications can be abused, the following three classes are most commonly abused:
- Opioids—usually prescribed to treat pain;
- Central nervous system (CNS) depressants—used to treat anxiety and sleep disorders; and
- Stimulants—most often prescribed to treat attention deficit hyperactivity disorder (ADHD).
What are opioids?
Opioids are medications that relieve pain. They reduce the intensity of pain signals reaching the brain and affect those brain areas controlling emotion, which diminishes the effects of a painful stimulus. Medications that fall within this class include hydrocodone (e.g., Vicodin), oxycodone (e.g., OxyContin, Percocet), morphine (e.g., Kadian, Avinza), codeine, and related drugs. Hydrocodone products are the most commonly prescribed for a variety of painful conditions, including dental and injury-related pain. Morphine is often used before and after surgical procedures to alleviate severe pain. Codeine, on the other hand, is often prescribed for mild pain. In addition to their painrelieving properties, some of these drugs—codeine and diphenoxylate (Lomotil) for example—can be used to relieve coughs and severe diarrhea.
- Opioids/Narcotics/Pain Relievers
- Common Brand Names:
- Dilaudid (Dust, Juice, Smack, D, Footballs)
- Lorcet (Pharmies, Beans, Hydro, Painkillers, Happy Pills)
- Lortab (Tab, Hydro, Norco, Vikes, Viko)
- Oxycontin (Hillbilly Heroin, Oxycet, Oxycotton)
- Oxycodone which includes Percocet, Percodan & Tylox (Percs, Paulas, Roxicotten, Roxi’s, Blue Dynamite, 512s)
- Vicodin (Happy Pills, Vikes)
What are CNS depressants?
CNS depressants, sometimes referred to as sedatives and tranquilizers, are substances that can slow brain activity. This property makes them useful for treating anxiety and sleep disorders. Among the medications commonly prescribed for these purposes are the following:
Benzodiazepines, such as diazepam (Valium) and alprazolam (Xanax), are sometimes prescribed to treat anxiety, acute stress reactions, and panic attacks. The more sedating benzodiazepines, such as triazolam (Halcion) and estazolam (ProSom) are prescribed for short-term treatment of sleep disorders. Usually, benzodiazepines are not prescribed for longterm use because of the risk for developing tolerance, dependence, or addiction.
Non-benzodiazepine sleep medications, such as zolpidem (Ambien), eszopiclone (Lunesta), and zalepon (Sonata), have a different chemical structure, but act on some of the same brain receptors as benzodiazepines. They are thought to have fewer side effects and less risk of dependence than benzodiazepines.
Barbiturates, such as mephobarbital (Mebaral), phenobarbital (Luminal Sodium), and pentobarbital sodium (Nembutal), are used less frequently to reduce anxiety or to help with sleep problems because of their higher risk of overdose compared to benzodiazepines. However, they are still used in surgical procedures and for seizure disorders.
- CNS Depressants
Common Brand Names:
- Barbiturates which include Amytal, Nembutal, Seconal And Phenobarbital (Barbs, Blue Birds, Phennies, Tooties, Yellows, Reds, Yellow Jackets, Amytal, Downers, Nembutal, Phenobarbital, Red Birds, Red Devils, Seconal, Tuninal)
- Benzodiazepines which include Ativan, Halcion, Librium, Valium Or Xanax (Candy, Downers, Sleeping Pills, And Tranks)
- Flunitrazepam which includes Rohypnol (Known as a leading ‘date-rape’ drug, Forget-Me Pill, Mexican Valium, R2, Roche, Roofies, Rope)
- Ketamine which includes Ketalar (Kat, Valium K, Special K, Vitamin K)
What are stimulants?
As the name suggests, stimulants increase alertness, attention, and energy, as well as elevate blood pressure, heart rate, and respiration. Stimulants historically were used to treat asthma and other respiratory problems, obesity, neurological disorders, and a variety of other ailments. But as their potential for abuse and addiction became apparent, the medical use of stimulants began to wane. Now, stimulants are prescribed to treat only a few health conditions, including ADHD, narcolepsy, and occasionally depression—in those who have not responded to other treatments.
Common Brand Names:
- Amphetamines which include Adderall, Dexedrine, Dextrostat, Desoxyn, ProCentra, Vyvanse and Biphetamine (Bennies, Black Beauties, Crosses, Hearts, LA Turnaround, Speed, Truck Drivers, Uppers)
- Methylphenidate which includes Ritalin (Jif, Mph, R-Ball, Skippy, The Smart Drug, Vitamin R, Kiddy Cocaine, West Coast)
How are prescription drugs abused?
Prescription drugs are abused in a variety of ways. Many of the prescription drugs that are commonly abused are available as tablets. Typically abusers either consume the tablets orally or crush them into a powder, which they then snort. In some instances, abusers dissolve crushed tablets in water and then inject the solution.
How many people suffer adverse health consequences from abusing prescription drugs?
The Drug Abuse Warning Network (DAWN), which monitors emergency department (ED) visits in selected areas across the Nation, reported that approximately 1 million ED visits in 2009 could be attributed to prescription drug abuse. Roughly 343,000 involved prescription opioid pain relievers, a rate more than double that of 5 years prior. ED visits also more than doubled for CNS stimulants, involved in nearly 22,000 visits in 2009, as well as CNS depressants (anxiolytics, sedatives, and hypnotics), involved in 363,000 visits. Of the latter, benzodiazepines (e.g., Xanax) comprised the vast majority. Rates for a popular prescribed nonbenzodiazepine sleep aid, zolpidem (Ambien), rose from roughly 13,000 in 2004 to 29,000 in 2009. More than half of ED visits for prescription drug abuse involved multiple drugs.
One in five teens nationwide were reported abusing a prescription pain medication and one in ten reported abuse of a prescription stimulant. (The Partnership for a Drug-Free America)
More teens abuse prescription drugs than any other illicit drug, except marijuana—more than cocaine, heroin, and methamphetamine combined. (The Partnership for a Drug-Free America)
Local school officials privately express concern about the selling and easy access of prescription drugs in their schools. School administrators, however, are reluctant to speak publicly about the problem.
Experts don’t know exactly why this type of drug abuse is increasing. The availability of drugs is probably one reason. Doctors are prescribing more drugs for more health problems than ever before. Online pharmacies make it easy to get prescription drugs without a prescription, even for youngsters.
How are they obtained?
Prescription drugs are obtained in various ways. In some cases, unscrupulous pharmacists or other medical professionals either steal the drugs or sell fraudulent prescriptions. In a process known as doctor shopping, abusers visit several doctors to obtain multiple prescriptions. Individuals also call pharmacies with fraudulent prescription refills, or they alter prescriptions. Prescription drugs occasionally are stolen from pharmacies. Young people typically obtain prescription drugs from peers, friends, or family members. Some individuals who have legitimate prescriptions sell or give away their drugs. Young people also acquire prescription drugs by stealing them from relatives and other individuals with legitimate prescriptions or from school medicine dispensaries.
Is abusing prescription drugs illegal?
Yes, it is illegal to use prescription drugs without a valid prescription or to distribute them. The penalties associated with the abuse or illegal distribution of prescription drugs vary depending upon the drug type.
What are the penalties for possessing illegal prescription drugs in Texas?
Prescription drugs are offered legally through a prescription, however, possession of prescription pills without a legal prescription can land you in jail in Texas.
Sec. 481.115. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 1. (a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
Sec. 481.117. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 3. (a) Except as authorized by this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed in Penalty Group 3, unless the person obtains the substance directly from or under a valid prescription or order of a practitioner acting in the course of professional practice.
Possession With Intent to Distribute
Some states have laws making it illegal to be in possession of your own prescription drugs under certain circumstances. Most states have laws that make it illegal to carry around pills that are not in their labeled prescription bottle.
In other words, if you are carrying around pills that your doctor prescribed to you, but have them loose in your pocket or purse, that is illegal. The presumption is that you are carrying them in that manner so that you can distribute them.
Purchasing Prescription Drugs over the Internet
Federal law prohibits buying controlled substances such as narcotic pain relievers (e.g., OxyContin®, Vicodin®), sedatives (e.g., Valium®, Xanax®, Ambien®), stimulants (e.g., phentermine, phendimetrazine, Adderall®, Ritalin®) and anabolic steroids (e.g., Winstrol®, Equipoise®) without a valid prescription from your doctor. This means there must be a real doctor-patient relationship, which by most state laws requires a physical examination. Prescriptions written by “cyber doctors” relying on online questionnaires are not legitimate under the law.
Buying controlled substances online without a valid prescription may be punishable by imprisonment under Federal law. Often drugs ordered from rogue websites come from foreign countries. It is a felony to import drugs into the United States and ship to a non-DEA registrant.
Buying drugs online may not be only illegal, but dangerous. The American Medical Association and state boards of medicine and pharmacy have all condemned the practice of cyber doctors issuing online prescriptions as unacceptable medical care. Drugs delivered by rogue websites may be the wrong drugs, adulterated or expired, the wrong dosage strength, or have no dosage directions or warnings.
Hire the Best Houston Prescription Drugs Attorney: The Charles Johnson Law Firm
Some people believe that crimes that involve prescription drugs are treated less seriously than crimes that involve marijuana, cocaine and other illegal drugs. This is not true, however, and the penalties for prescription drug crimes in Houston can be just as severe as penalties for illegal drug crimes. Depending on the type and amount of drug, the consequences could be significant.
If you have been charged with an offense involving illegal prescription medications, you need an experienced criminal defense attorney who can successfully represent you and protect your rights.
We can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
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Arrested for Illegal Prescription Drugs? Talk to the Best Houston Criminal Lawyer
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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:
- Meth or methamphetamine
- Prescription drugs
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:
- An object to be accomplished,
- Meeting of minds on the objective or course of action,
- One or more overt acts,
- 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.
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.
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 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 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.
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.
Facing An Arrest for Conspiracy? Hire the Best Houston Criminal Lawyer
by Charles Johnson
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The illegal sale or use of prescription drugs might bring about serious criminal charges. In the event you have been arrested for a forged prescription or the unlawful possession of a prescribed pharmaceutical, you will need the Best Houston Criminal Lawyer to protect your legal rights and fight on your behalf in court.
The Most Effective Houston Criminal Defense Attorney is going to be available at any sort of hour, 365 days /year to answer the questions you have and build your defense.
Any individual can be dependent on prescribed pharmaceuticals. Many individuals started out taking their drugs for health-related reasons, however became dependent. When their prescriptions ran out, they obtained the drugs by some other means. The Top Houston Criminal Lawyer understands the consequences of a criminal conviction for average, everyday men and women. They can certainly help you deal with any sort of of the following criminal charges:
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The main goal in each individual prescribed pharmaceutical case is to prevent a jail sentence. The Best Houston Lawyer will help you explore alternative sentencing options, such as entering a drug treatment center. You could very well be in need of rehabilitation, not a jail sentence. Looking forward, they will help you get the assistance you need.
While the majority of prescribed drug cases involve painkillers, the Most Dedicated Houston Criminal Defense Lawyer will handle criminal charges involving an array of drugs, for an array of clients, including juveniles. If your case involves any of the following prescribed pharmaceuticals or others, they can certainly help:
Houston Prescribed Drug Possession/Sales Defense: The Most Dedicated Houston Criminal Defense Attorney
Trafficking in prescription medicine carries with it substantial prison sentences and hefty fines. Having five oxyCodone pills (4.26 grams) in your possession leads to mandatory sentence of 3 years minimum, with greater amounts ending up with sentences of up to Twenty five years. Some other prescription drugs that are prosecuted under the category of trafficking are Vicodin, opium, Valium, amphetamines and Ritalin. Labeling a person to be a drug trafficker because that person does not have a legitimate prescription for pain medication can destroy a person’s life. Frequently he or she is dependent on the drug, but wouldn’t be permitted to participate in a drug diversion program because he may be arrested for a first degree felony. If you or a family member has been charged with possession or trafficking of prescription drugs, or other prescription drug crimes, the Best Houston Attorney can prepare a strong defense for your case.
Prescription fraud is when forgery, misrepresentation or counterfeiting is used to illegally procure prescription drugs. This could be done for private use or to distribute or sell these drugs to other persons. Prescription fraud is typically accomplished by stealing, altering or creating fake/counterfeit blank prescription slips. Other crimes having to do with prescribed drugs are selling one’s own legal prescription or distributing it to other individuals and illegally manufacturing prescribed drugs.
Whether you have been arrested for prescription drug possession, sale, or fraud, you ought to take these charges as seriously as any sort of other drug arrest. Call the Best Houston Criminal Defense Attorney for a no cost preliminary consultation.
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