David Benowitz on Federal Drug Cases

DC federal drug lawyer David Benowitz answers questions about federal drug laws, offenses, penalties, and federal court in general.

What makes a case a federal drug case as opposed to a state court drug case?

Answer: Typically, federal drug cases deal with greater quantities of controlled substances and they also deal with drug conspiracies. In other words, larger groups of people allegedly agreeing to traffic and ship, possess with intent to distribute larger quantities of drugs. Those cases usually end up being prosecuted in federal court because the penalties are much stiffer. And the investigative tools that are used to investigate these conspiracies are usually more sophisticated and are conducted over a longer period of time. There are usually wiretaps or video surveillance. So, those cases can be challenging to defend.

I’ve handled drug conspiracies involving large quantities of heroin, crack cocaine, methamphetamine, powder cocaine, and marijuana. Marijuana qualifies as a federal drug case in large quantities.

What can someone expect if they’ve been charged with a federal drug offense?

Answer: It’s a similar process to other federal criminal cases. You start with what’s called a presentment, where you’re presented in court. And then, there will be a date set for what’s called a preliminary hearing and a detention hearing. That’s where it’s determined whether or not you’ll be held or be released. Once that determination is made, you start going through the case and looking at the information that the government has, which is called “discovery.” But the process is pretty standard. What’s different about conspiracy cases is that there’s usually a lot more wiretap evidence in federal court.

In federal court, it’s a lot easier for the government to try to have you held without bail because of what’s called a presumption. If what you’re charged with carries a potential sentence of ten years, there’s a presumption that you should be held without bail and you have to overcome that presumption. The presumption is that you’re too dangerous to be on the street, even if you’ve never been arrested for anything before.

Depending on the situation, if you have a prior conviction for a drug offense and you get charged with conspiracy to commit a drug offense, or an actual drug offense in federal court, you could be looking at a mandatory 20-year sentence if you’re convicted. That creates huge pressure. I’ve had very weak federal cases, where the clients still felt enormous pressure to try and resolve the case because they were facing a potential 20 year jail sentence. That makes it very difficult. Even if they hadn’t done anything wrong, it makes it very difficult.

Why is it important to hire an attorney with experience in federal court?

Answer: There are a lot of nuances to a federal criminal drug case that you need to have experience with to understand. You need to understand what you’re up against.

Most state court cases are not as well-investigated as a federal drug case. So, you need to understand that what you’re dealing with is going to be different. And there’s also different challenges that you can raise to the statements that are likely to be admitted from what’s called a co-conspirator.

On a federal drug case, what I normally tell clients is, “Listen, this is a very long and involved process. Obviously, it’s very serious. But it’s something that we need to go through step-by-step and look at the evidence, and figure out what the best thing for you to do is.”

To me, it’s all about having clients feel empowered. Even though there’s this big government investigative arm that’s coming after them; you have power, you have options, you have things that you can do and I can help you do to make it better. I think that that’s the most important thing.

How are penalties different for federal drug cases?

Answer: The penalties in state court, they’re usually not mandatory minimums. Or the mandatory minimums, if there are any, are much less. There are harsh mandatory minimums sentences in federal drug cases; there’s a five-year mandatory minimum, potentially a ten-year, a 20-year, and potentially life without parole for federal drug cases. Depending on prior convictions, depending on the amount of the drug; there are all sorts of issues, harsh sentencing considerations, and sentencing consequences in federal court that normally do not exist in state court. That’s the primary difference.

In federal court, if you have a prior conviction, the government will usually seek to bring out your prior conviction whether or not you testify at trial. That’s a huge difference between federal court and state court, where that is normally not allowed. That’s a huge disadvantage in federal court.

What makes defending these types of charges challenging?

Answer: What makes it challenging is you have all different types of evidence that’s coming into play: wiretap evidence, video surveillance, GPS tracking, and pen registers, all different types of investigative techniques are used. A lot of it is cutting-edge technology and that makes it interesting to work with.

What goes into developing a good defense?

Answer: As far as developing a defense, I think the investigation is most important. Understanding the relationships between people who are charged. Who has a potential bias to want to do your client harm or say things that are not true? Again, good investigation is the way you develop a defense in those cases.

Sometimes, a defense can also be technical. Maybe there was a conspiracy but my client was not involved in it. Again, it can get very technical. My client had these specific conversations with someone, but he was not a part of that specific conspiracy. He never made the agreement to participate in something illegal.

You get into questions of interpretation about what certain phone calls mean or certain wiretaps, what the information is on that wiretap. Because the government will have a law enforcement agent that will come in, and say, “Every single word that was spoken on that wiretap has to do with a drug conspiracy.” Even when innocuous words were used, like, “Do you want to go out to dinner?” They will testify that means it was a drug transaction. Again, you get the government overreaching or stretching common sense to try to show that they’re culpable in a conspiracy.