Federal Drug Trafficking Organization: DTO Prosecutions.

There are two key statutes under which most federal prosecutors bring distribution, possession, and conspiracy cases. While federal distribution prosecutions most commonly arise under 21 U.S.C. §841(a) and federal conspiracy prosecutions most commonly arise under 21 U.S.C. §846, federal prosecutors will typically pursue charges under both if the underlying circumstances warrant.

Distribution (21 U.S.C. §841(a))

The primary statute used in the prosecution of most federal distribution offenses, 21 U.S.C. §841(a) reads, in pertinent part, “Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally- (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or” If you are charged with a distribution offense under §841, federal prosecutors must prove (i) that you knowingly or intentionally distributed or possessed a controlled substance with intent to distribute, and (ii) that the substance in question is a controlled substance.

Conspiracy (21 U.S.C. §846)

The primary statute used in the prosecution of federal conspiracy offenses, 21 U.S.C. §846 reads, “Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” In other words, a conspiracy charge under §846 does not identify an independent federal crime, but instead applies the penalties imposed for the underlying drug-related offense to the act of conspiracy.

Drug Trafficking and Interstate Movement

As previously noted, there is a widespread misconception among the public that federal drug-trafficking cases only arise out of (or involve) movement of drugs across state lines. While interstate transportation of controlled substances is one way to establish federal jurisdiction and trigger prosecution in federal court, it is not the only way, nor is it required in every case. Many cases in federal court involve transactions that took place entirely within a single state.

How does a federal DTO investigation turn surveillance into coordinated charges?

What evidence do federal prosecutors have against me?

A federal DTO investigation is likely to involve a team of investigators with personnel from the DEA, FBI, and U.S. Postal Inspection Service (USPIS), as well as pertinent state and local agencies. Many of these agencies have teams dedicated specifically to drug task forces, and they will regularly work with one another. At the same time, these agencies will also use various tactics in order to uncover the extent and scope of the alleged organization.

• Confidential informants will work with federal investigators in order to identify participants in the organization, and the various shipments, transactions, and other activities, including the date, time, and location of the alleged activities.
• Federal investigators will use informants in order to set up controlled purchases of controlled substances. These purchases usually involve the transfer of prerecorded currency and involve extensive surveillance of the exchange, such as the use of undercover federal agents and listening devices.
• Search warrants may result from controlled purchases, informant tips, surveillance, intercepted telephone, text, or internet communications, or any other evidence federal investigators gather. If a search warrant is executed, federal investigators will use the information they find in order to pursue charges against members of the alleged DTO.
• Federal investigators will often spend months or even years working on their investigations before making any arrests. Once the federal government is ready to make charges, they will do so in a coordinated manner across all pertinent agencies and jurisdictions in order to prevent suspected members of the alleged organization from fleeing the area or destroying evidence.

Which evidence can tie a courier to the DTO, and which rights can challenge it?

Can federal prosecutors charge me with a drug trafficking organization offense even if I am not the one running the organization?

Yes, federal prosecutors can charge any individual suspected of being part of a drug trafficking organization. Federal prosecutors will not only pursue the leadership of alleged organizations, but will often pursue couriers and other individuals who are believed to be part of a DTO. When federal prosecutors have evidence that ties you to a drug trafficking organization, you need to speak with a federal defense attorney right away.

How can federal prosecutors use evidence from a DTO investigation in a plea negotiation or drug trial?

Federal prosecutors will often produce evidence from a DTO investigation in order to induce a defendant to take a plea or in order to secure a conviction. Federal prosecutors may argue that they have information that ties the defendant to the organization, such as:

• A person’s fingerprints or DNA on the packaging used for the shipment, on the controlled substance itself, or on other items found at the time of the shipment, possession, or distribution,
• A witness’s testimony identifying the defendant as part of a DTO,
• Testimony from a witness who has become a confidential informant,
• Telephonic surveillance of the defendant’s phone calls,
• Online communication surveillance,
• Surveillance footage,
• Other evidence obtained during the investigation,

Such evidence may be used to induce a defendant to enter a plea in exchange for a reduced sentence, or it may be used in order to obtain a conviction.

What rights do I have to challenge evidence obtained during a DTO investigation?

If you are facing the consequences of a federal DTO investigation, you may have various constitutional rights. Many of these rights are addressed in the U.S. Constitution and Bill of Rights, including:

• Fourth Amendment, The Fourth Amendment protects against unreasonable searches and seizures. However, search warrants are permitted if they are supported by probable cause and signed by a judge.
• Fifth Amendment, The Fifth Amendment prohibits the government from compelling a person to testify against himself or herself.
• Sixth Amendment, The Sixth Amendment establishes rights related to criminal prosecution, including the right to a speedy and public trial and the right to assistance of counsel; the presumption of innocence is protected by due process.

The attorneys at Spodek Law Group carry more than fifty years of combined experience between them.

What changes after a federal DTO indictment reaches plea, trial, or sentencing?

Q: If I cooperate with the government in my case against the alleged federal DTO, is it true that my cooperation can support a motion for a reduced sentence?

A: Yes, cooperating with the government when charged in a federal DTO case can support a government motion for a reduced sentence. This is a long-standing practice in federal court and is used by federal prosecutors to encourage individuals to assist with the investigation and prosecution of an alleged DTO.

Q: How much of a sentence reduction can I expect if I cooperate with the federal government?

A: There is no guaranteed sentence reduction for cooperating with the federal government in a federal DTO case. However, cooperation can be used to negotiate a plea bargain with federal prosecutors that includes a recommendation of a reduced sentence.

Q: What other charges are common for federal DTO cases?

A: In federal DTO cases, it is common for federal prosecutors to include charges under the federal anti-money laundering statute in addition to the charged offenses under §841 and §846.

Q: What does a federal indictment establish in a federal DTO case?

A: A federal indictment does not establish guilt, but is instead used to signal federal prosecutors’ intent to pursue the charges against a defendant in federal court. If you are facing charges in a federal indictment, your presumption of innocence remains intact and you are entitled to a trial in federal court unless a plea bargain is reached.

Q: What is the typical progression of a federal DTO case, from the initial investigation to the federal sentencing?

A: With a federal DTO case, the typical progression from the initial investigation to the sentencing is:

• Federal investigation,
• Federal indictment,
• Plea or trial,
• Federal sentencing.

Why can federal DTO sentences rise from drug quantity to consecutive punishment?

How does drug quantity affect sentencing in a federal DTO case?

Drug quantity plays a very important role in determining your potential punishment when facing federal charges under §841, §846, and other applicable statutes. The quantity of drugs involved in your case could have an enormous impact on your sentencing. For example:

• If you were involved in a federal DTO case involving at least one kilogram of heroin, five kilograms of cocaine, or 50 grams of methamphetamine, or 500 grams of a mixture containing a detectable amount of methamphetamine, the statutory penalty range is generally ten years to life in prison.
• If the amount involved was at least 100 grams of heroin, 500 grams of cocaine, or 5 grams of methamphetamine, or 50 grams of a mixture containing a detectable amount of methamphetamine, then the statutory penalty range is generally five to forty years.
• At the federal sentencing hearing, the federal judge will determine your actual sentencing based on federal sentencing guidelines and the facts at hand. However, a primary consideration for the sentencing judge will be the quantity involved, especially if the amount falls within thresholds carrying a statutory range of ten years to life imprisonment.

What consequences are associated with injury, death, and firearms use in a federal DTO case?

As previously discussed, federal prosecutors can bring conspiracy and distribution charges under several different statutes, and the drug-trafficking organization (DTO) is just one example. When the conduct in a federal criminal case is especially egregious, federal prosecutors will pursue additional charges that can drastically increase the potential punishment. This includes:

• Serious bodily injury or death during the crime, There are a number of qualifying federal drug offenses in which serious bodily injury or death has occurred, and the penalties for these crimes range from twenty years to life imprisonment. If you were found to have caused serious bodily injury or death during the commission of the crime, these are two additional factors that federal prosecutors will use to seek the most severe punishment for your conduct.
• Firearms use, 18 U.S.C. §924(c) also carries a punishment of the highest order. Under this statute, a court imposes a sentence that cannot run concurrently with the sentence for the underlying drug-trafficking offense. It’s not uncommon for firearm offenders’ sentences to be on the very high end, and this federal statute has been applied to individuals who were never actually in possession of a firearm but were in the same room as one during the crime.

What factors can federal prosecutors use during a sentencing hearing?

Federal prosecutors can use numerous factors to argue for the most severe sentencing of an alleged DTO member. In order to protect yourself, you need to work with a federal defense attorney who will work to argue the least severe sentencing against you. This will include a federal sentencing for the charges beyond the specific federal offense you are formally charged with committing. If convicted, you must be prepared for federal prosecutors to ask the sentencing court to consider certain other conduct as relevant conduct. This can include:

• Other criminal offenses you were involved in that didn’t necessarily lead to a prosecution,
• Any illegal conduct you committed while you were outside of the United States,
• Any violations of the federal government’s laws during any relevant stages of the federal government’s investigation.

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