Money Couriers Charged in Drug Conspiracies.

21 U.S.C. § 846 is the federal drug conspiracy statute. It provides, “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.” The statute applies to persons who knowingly attempt or conspire to commit an offense under the federal drug laws, including some money couriers whose conduct satisfies those requirements. At Spodek Law Group, we handle conspiracy and attempt cases involving both sides of the drug transaction. Drug conspiracies are rarely formal agreements. Of course, drug conspiracies still exist, but they rely on implicit agreements, which are inferred from individuals’ knowledge and conduct. If you are being charged for a drug conspiracy, proving (or disproving) that you knowingly and voluntarily agreed to participate in the conspiracy is critical. Proving a conspiracy requires more than proving that a defendant knew about the existence of the conspiracy or that drug trafficking was going on. Simply associating with drug dealers, hanging out at a dealer’s home, or simply being present where drugs were sold are all not sufficient to prove that someone knowingly and voluntarily agreed to participate in the drug transactions. While these facts can be used to establish that someone was aware of the drug activity, proving that someone chose to participate in the agreement is more difficult. Drug conspiracies can be interrupted at any stage of the process. However, if a conspiracy can be established to the government’s satisfaction, a defendant can still face liability under Section 846 even if the planned drug offense was never completed or thwarted. Many couriers believe that because they are not selling or distributing drugs, they are safe from criminal prosecution. However, as previously noted, the DOJ uses the statute to pursue “any conspiracy or attempt,” meaning that acting as a money courier does not make a person immune to criminal charges. In many cases, the government will use a courier’s financial role to infer knowing participation in a drug conspiracy. Once that is established, the courier can face criminal liability for the entire conspiracy, not just the movement of cash. As a member of the conspiracy, you may be held liable for a co-conspirator’s substantive crime only if it was committed in furtherance of the conspiracy, fell within its scope, and was reasonably foreseeable.

Which evidence turns financial services into knowing agreement?

While implicit drug conspiracies often rely heavily on circumstantial evidence, they can still be established to the government’s satisfaction in many cases. If you have been caught moving proceeds from a drug transaction, federal investigators will rely on bank records to reconstruct the alleged transaction. When they identify transactions that they view as suspicious, they then attempt to build a drug conspiracy case. This often starts with the identification of the proceeds of drug trafficking. Once that is established, federal investigators will then search for evidence that links a specific individual to those proceeds and connects the individual to the drug conspiracy. The federal government has a long list of resources available to investigate and prosecute drug conspiracies, and they have proven to be quite successful. Investigators often use confidential informants to help build cases against drug couriers, traffickers, and others. With the help of these informants, federal authorities then deploy other investigative resources. For example, investigators may:

• Arrange undercover drug buys, then use the sale of those drugs to track where the proceeds end up
• Follow the suspected courier from the scene of a transaction, and conduct additional surveillance to see where the proceeds go
• Install tracking devices on suspected couriers’ vehicles
• Arrange for a “controlled” delivery or transaction involving a suspected courier

Once federal agents have identified a suspected courier, they will use this information to look for more evidence. If a courier is arrested, federal agents will immediately search for phone records, GPS data, messages, texts, or social-media activity that they think they can use to link the suspect to a larger drug conspiracy. When you are the target of a drug-conspiracy investigation, identifying the evidence that the government has (or is looking for) is the first step in your defense. While your defense lawyer will help you fight the drug charges and the conspiracy charge itself, your lawyer will also need to help you challenge the evidence that federal authorities have assembled against you. For example, many witnesses receive certain benefits as a result of their cooperation, such as immunity and cooperation agreements. As a result, their credibility in court will be questionable at best, and this can help to support your defense.

What sentence exposure follows from the drugs and conduct attributed to a courier?

As we discussed, 21 U.S.C. § 846 imposes the penalties prescribed for the offense that was being attempted or conspired. Rather than prescribing a unique penalty for a conspiracy, this statute creates a statutory penalty that is equal to the underlying offense’s statutory penalty. The maximum penalties for a drug conspiracy offense are up to life imprisonment. As a result, there is no “one-size-fits-all” maximum sentence in drug conspiracy cases under Section 846. Instead, the specific sentencing range depends on the statute(s) that govern the underlying offense(s). Although drug sentencing also depends on your criminal history, it is common to judge drug offense severity based on the drug type involved, the drug’s weight (measured by its volume or purity), and previous convictions. For example, in the context of a conspiracy charge under Section 846, the minimum mandatory sentence can be ten years under 21 U.S.C. § 841(b)(1)(A). This applies to conspiracies involving:

• Heroin: 1 kilogram; methamphetamine: 50 grams or 500 grams of mixture; PCP: 100 grams or 1 kilogram of mixture; fentanyl: 400 grams or 100 grams of an analogue or fentanyl-related substance
• Cocaine: 5 kilograms or more
• No generic “other specified substances” category appears in 21 U.S.C. § 841(b)(1)(A); the statute instead specifies particular drugs and quantities. Under 21 U.S.C. § 841(b)(1)(B), the minimum mandatory sentence is five years for a conspiracy involving:
• Heroin: 100 grams; methamphetamine: 5 grams or 50 grams of mixture; PCP: 10 grams or 100 grams of mixture; fentanyl: 40 grams or 10 grams of an analogue or fentanyl-related substance
• Cocaine: 500 grams or more
• No generic “other specified substances” category appears in 21 U.S.C. § 841(b)(1)(B); the statute instead specifies particular drugs and quantities. As the statutory maximums and mandatory minimums for each drug conspiracy offense can vary widely, knowing how to calculate the relevant offense level under the United States Sentencing Guidelines is important. The United States Sentencing Guidelines (USSG) generally impose greater penalties for drug offenses involving larger quantities, and for those with an extensive criminal history. For drug conspiracies, the government often argues that the “relevant conduct” for sentencing includes the conduct of the entire conspiracy, including that of alleged co-conspirators. This often is not the case. The guidelines analysis should focus on the specific criminal activity the courier agreed to jointly undertake and should include acts of others that were within its scope, in furtherance of it, and reasonably foreseeable in connection with it.

If you need help understanding your potential sentence exposure, or if you want to help keep a loved one’s potential sentence to a minimum, our lawyers can work with the federal court to properly determine your relevant conduct and ensure the appropriate application of the United States Sentencing Guidelines.

How can a courier challenge attribution beyond the money handled?

For defendants who have been convicted of drug offenses and related federal crimes, a federal district judge will use a two-step approach to determine their sentencing range. After the district judge determines the relevant drug quantity (if applicable) and considers the defendant’s prior criminal history, the judge must then assess relevant role adjustments. While there are several aggravating role adjustments under the United States Sentencing Guidelines, defendants who are convicted of a conspiracy offense but played a minimal role in the drug offense can argue for a “minimal role” or “limited role” adjustment under USSG § 3B1.2.

In many drug conspiracy cases, the prosecution will argue that the courier should be sentenced based on the full activities of the alleged conspiracy. However, as with other charges, a courier’s defense lawyer must be prepared to rebut federal prosecutors’ arguments during the sentencing hearing. Defense attorneys can often argue that a defendant’s limited role, or role as a courier that did not involve selling or distributing drugs, should warrant a role reduction.

Can the “Pinkerton Rule” apply to federal drug conspiracies?

Federal conspiracy charges often involve the Pinkerton rule. The rule applies to substantive crimes that are “reasonably foreseeable” and in “furtherance of the conspiracy.” Defendants can only be held liable for these additional crimes if their role in the conspiracy is sufficient to trigger liability. In other words, not every crime committed by a co-conspirator will automatically be attributed to other co-conspirators. If a defendant’s connection to a substantive drug offense is too slight or if the crime was outside the scope of the agreed drug transaction, the defendant can argue that this does not violate the principles of due process.

Can a courier withdraw from a drug conspiracy?

In some cases, couriers are able to prove that they withdrew from the conspiracy before any drug violations occurred. However, proving withdrawal requires affirmative conduct, and it is not enough to merely intend to withdraw. Rather, withdrawing requires an affirmative statement or act that is clearly inconsistent with the underlying conspiracy. Generally, that statement or act must also be communicated to at least one other member of the conspiracy to support the conclusion that the defendant has truly withdrawn.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.