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DEA Lawyers Discuss the Challenges of Defending Complex Drug Conspiracy Cases
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Drug conspiracy cases are notoriously complicated – with vague statutes, novel prosecution theories, and byzantine fact patterns involving multiple defendants. As criminal defense attorneys, we have an ethical duty to provide the best possible defense, even when the charges involve large-scale trafficking operations. But fulfilling this duty can be easier said than done.
Broad Statutes Give Prosecutors Room to Maneuver
One major challenge is that drug conspiracy laws, especially federal ones like 21 U.S.C. 846, are worded very broadly. Prosecutors only need to prove that two or more people agreed to violate narcotics laws; no actual drug transaction has to occur. Given this low evidentiary bar, prosecutors can cast a wide net, roping in alleged co-conspirators based on weak circumstantial evidence.
This prosecutorial discretion makes it harder for us, as defense attorneys, to predict or counter the government’s theories of liability. We are stuck playing defense rather than strategically confronting the prosecution head-on. It also allows questionable charges to withstand pretrial motions to dismiss. Fighting broad conspiracy allegations often means gearing up for a full trial.
Proving Lack of Intent and Agreement Especially Tricky
Exacerbating matters is that conspiracy charges hinge on intangible concepts like intent and tacit agreement. As defense attorneys, we cannot put a defendant’s state of mind on the stand. And finding concrete evidence to rebut an alleged mutual understanding to break the law can be next to impossible.
Given these built-in evidentiary hurdles, my colleagues and I work diligently to show reasonable doubt. We scour phone records, financial statements, and other discovery for proof of non-involvement. We also work to exclude prejudicial evidence and impeach witnesses who “flip” and cooperate with the government. But poking holes in the prosecution’s narrative is rarely enough for an acquittal.
Sentencing Exposure Drives Plea Bargains
In light of the steep sentencing exposure drug conspiracies entail, especially for our clients facing “kingpin” charges, plea bargains are a common outcome. Settling saves our clients decades behind bars. But deciding to plead out is agonizing given that conspiracy laws sweep up low-level couriers, girlfriends doing “favors,” and unwitting participants. These defendants are a far cry from kingpins yet still face 5- and 10-year mandatory minimums.
Pleading out also means admitting guilt, which can be very hard for our clients who feel they were in the wrong place at the wrong time. As advocates, we walk a fine ethical line – counseling clients to take a deal while also fighting for their exoneration. Finding this balance keeps me up at night, afraid a client will choose trial and I won’t meet their expectations.
Joint Defense Strategy Critical Yet Risky
Finally, coordinating a unified defense across multiple defendants adds a further layer of complexity. A joint defense agreement allows us to share information and strategy without waiving attorney-client privilege. But conflicts of interest readily emerge, and defendants inevitably point fingers once cases start falling apart.
I still believe there is strength in numbers, however. Presenting an alternative, exculpatory narrative requires attacking the prosecution’s theory from all angles. But a joint defense is ultimately successful only when built on a foundation of trust and open communication from day one. Maintaining alignment as cases progress is easier said than done.
Why We Still Fight
Despite the long odds, my colleagues and I continue taking drug conspiracy cases. At the end of the day, the government has the burden of proof; our duty is to hold them to it. Of course, preparing for trial is resource-intensive. But the chance to shine light on overzealous prosecution makes the effort worthwhile.
And while mandatory minimums have taken away judicial discretion at sentencing, outstanding legal work can still make a huge difference. Just last month, I secured a below-guidelines sentence for a client facing a 20-year minimum. Thanks to meticulous investigation and sentencing advocacy, he will serve just 8 years instead. Outcomes like this remind me why I went to law school – to stand up to power and make the system just a little more fair.
So next time you see a drug conspiracy case on the news, I implore you to think beyond the lurid headlines. There are real people behind the mug shots, swept up in something bigger than themselves. As long as draconian drug laws and unchecked prosecutorial power persist, defending these most vulnerable “co-conspirators” will remain a moral imperative for me and criminal lawyers everywhere.