Federal Online Drug Trafficking: Dark Web Investigations.

The dark web is the deliberately anonymized portion of the deeper web. In federal drug cases involving the use of Tor (The Onion Router), the most common tool for accessing the dark web, the application routes internet traffic through multiple relays to hide users’ locations. This obscures a user’s IP address, but it does not make identification impossible. As a result, these cases are often the subject of coordinated undercover investigations, remote searches, and computer forensic analysis.

Cryptocurrency is another common element of online drug trafficking cases. Bitcoin addresses are pseudonymous; this means that they are not inherently anonymous to federal investigators. Blockchain records can expose a multitude of connections between cryptocurrency addresses and marketplaces. This can turn a seemingly hidden transaction into one of the most damning pieces of evidence available.

International cooperation is also a regular part of dark-web drug investigations. From server placement to market moderators and user locations, most infrastructure and parties involved in distributing controlled substances via the dark web operate from outside the United States. U.S. federal authorities often work with other nations’ law enforcement agencies to obtain digital evidence, secure warrants, and conduct searches.

To build a case for online drug trafficking, federal prosecutors must establish specific facts regarding the transaction. This may include evidence that the defendant intended to sell drugs, had knowledge of the drugs, negotiated the transaction on a specific platform, and made arrangements for shipping and receipt. While the use of the dark web can make this more challenging, federal authorities have several methods of establishing these details, including :

• Coordinating with foreign law enforcement authorities
• Conducting undercover investigations to establish intent and knowledge
• Establishing connection to dark-web marketplaces and drug sales
• Conducting remote searches of dark-web markets
• Following the blockchain to cryptocurrency addresses used for drug sales
• Corroborating digital evidence to establish the nature of illicit transactions
• Conducting computer forensic analysis of the defendant’s technology

How do investigators turn a Tor marketplace account into evidence against a specific defendant?

With federal online drug trafficking investigations, the evidence required to link a dark-web marketplace account to a specific defendant must be gathered prior to obtaining a search warrant. Along with working undercover, federal investigators will often work with foreign law enforcement authorities to establish evidence. This process may include:

• Conducting controlled purchases using undercover accounts to pose as drug buyers or sellers;
• Seizing computers, smartphones, servers, cryptocurrency, drugs, postal labels, and other evidence of sales;
• Conducting laboratory analysis to identify the composition of the seized drugs;
• Searching for evidence linking the defendant to other marketplace accounts, drug sales, and buyers;
• Comparing messages, accounts, and transaction records from dark-web marketplaces with artifacts found on seized devices;
• Tracking cryptocurrency transactions to connect suspected drug transactions with the cryptocurrency addresses and wallet files seized from defendants, and other transactions on the blockchain;
• Following shipping labels back to suspected vendors;
• Using law enforcement authorities abroad to conduct searches, seizures, and arrests;
• Using data from seized servers or compromised dark-web marketplace administrators to identify suspected sellers; and,
• Using computer forensic analysis to connect the defendant’s computer and IP address to the marketplace.

How do federal prosecutors prove online drug trafficking charges?

Along with the evidence gathered prior to the issuance of the warrant, federal prosecutors rely on a variety of different types of evidence to prove federal online drug trafficking charges in court.

• In order to establish connectivity, federal prosecutors must prove the defendant had a computer and internet access. In dark-web drug trafficking cases, they will need to prove the defendant had access to Tor as well.
• Establishing an illegal drug transaction on a dark-web marketplace is not by itself sufficient; prosecutors must prove the elements of the charged offense. For charges involving conspiracy to sell or distribute a controlled substance, prosecutors must also prove that the defendant entered into an agreement with others to sell, distribute, or manufacture a controlled substance.

Which federal charges can reach marketplace operators, vendors, buyers, and shippers?

For buyers, vendors, and others in the chain of drug distribution involving the dark web, prosecutors will focus on developing evidence to prove intent. With these types of cases, prosecutors seek to prove distribution, possession with intent to distribute, conspiracy, and attempting to distribute a controlled substance. Many prosecutions will focus on 21 U.S.C. § 841(a), which states:

• “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 (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.”

As mentioned, penalties for offenses listed under Section 841(a) depend on the drug involved and the statutory amount. Specifically, 21 U.S.C. § 841(b) provides the applicable penalties based on the substance involved and the amount that triggers criminal prosecution.

For most prosecutions involving dark-web marketplaces, prosecutors will include criminal conspiracy or attempt charges. Section 846 applies the federal criminal conspiracy and attempt statutes to any offense defined in this subchapter.

In conjunction with distribution and related offenses, prosecutors will charge individuals using communication facilities to facilitate drug felonies. 21 U.S.C. § 843(b) prohibits any person knowingly or intentionally from using a communication facility in committing, causing, or facilitating any act constituting a felony under the applicable controlled-substances provisions, with each separate use constituting a separate offense. Because most online drug transactions involving the dark web go through multiple communication facilities, including computer, telephone, and even radio, federal charges under Section 843(b) are common.

Other Federal Charges in Drug Trafficking Cases

Along with controlled-substance offenses, prosecutors will also charge individuals with money laundering offenses. 18 U.S.C. § 1956 addresses several types of financial transactions involving drug proceeds, and prosecution under this statute does not require a conviction for an underlying distribution or conspiracy offense. Transactions in cryptocurrency can lead to liability under Section 1956 as well, and cryptocurrency transfers are no exception.

Mailing controlled substances can also result in liability under various federal statutes. Drug trafficking over the internet usually involves mailing illegal substances through the United States Mail. In these cases, prosecutors will charge offenders with relevant federal controlled-substance offenses as well as pertinent postal offenses under Title 18.

For illegal drug transactions involving the dark web and the U.S. Postal Service, the potential targets of federal investigation and prosecution include:

• The founders and operator(s) of the dark-web marketplace
• Vendors selling controlled substances on the marketplace
• Buyers on the dark-web marketplace
• Shippers who mailing substances purchased on the dark-web marketplace

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When can a lawyer challenge remote searches, authentication, and chain of custody?

A lawyer may be able to challenge a remote computer search under various circumstances. Federal Rule of Criminal Procedure 41(b)(6) provides the authorization for remote computer searches, but it does so in specific circumstances only. Specifically, Rule 41(b)(6)(A) authorizes a magistrate judge with authority in any district where activities related to a crime may have occurred to issue a warrant for remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if the district where the media or information is located has been concealed through technological means. Rule 41(b)(6) authorizes a magistrate judge with authority in any district where activities related to the crime may have occurred to issue a warrant for remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district, subject to the rule’s stated conditions.

Challenging law enforcement’s request for electronic communications records is also possible. The Stored Communications Act (SCA), 18 U.S.C. § 2701 et seq., governs some law enforcement requests for records from third-party providers, and the SCA contains limitations that can serve as the basis for an effective challenge.

While the Fourth Amendment generally requires the government’s search and seizure of a defendant’s property to be reasonable, the specific circumstances involved in the investigation will dictate whether the government’s search and seizure of the defendant’s computer or computer system are constitutionally permissible. Along with challenging the remote search itself, a defense lawyer may be able to challenge the remote search’s authentication, chain of custody, and reliability. A federal criminal defense lawyer will need to evaluate the digital evidence recovered from the remote search to determine what, if any, challenges should be made.

How do conspiracy and entrapment change the stakes after an online transaction?

Even when the evidence seems strong, federal prosecutors still have the burden of proving each element of every charged offense beyond a reasonable doubt. This remains true in online drug cases, and if the government fails to meet this high burden of proof, then it cannot obtain a criminal conviction.

The Conspiracy Charge

In online drug trafficking cases, discussions with a seller may create the basis for a conspiracy charge. Online drug discussions with a seller do not, by themselves, prove the existence of a conspiracy, however. If a prospective buyer discusses illegal drugs with an undercover agent online, but does not actually take any steps to further the drug conspiracy, the government may fail to prove that a conspiracy to sell or distribute controlled substances existed in the first place.

Entrapment

Entrapment is a potential defense in online drug trafficking cases. Generally, to prove entrapment, a defendant must demonstrate that law enforcement agents (i) induced the defendant to commit the crime, and (ii) the defendant was not predisposed to commit the crime without government inducement. While providing a suspect with the opportunity to commit a drug offense does not usually rise to the level of inducement required for an entrapment defense, the specific facts and circumstances will matter.

Federal Sentencing

Sentencing for federal online drug trafficking cases can be extremely severe. Depending on the charges involved, a conviction for distributing drugs online can carry the potential for years or decades in federal prison. Sentences typically include a period of imprisonment, a period of supervised release, fines, and forfeiture. While there are various opportunities to seek sentencing reductions, federal drug crimes still carry severe penalties in most cases.

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.