“I’ve been representing people in federal court over the past 20 years, and I’ve handled a lot of federal drug conspiracy cases. One of the things I’ve learned is that most people, when they’re charged with something like this, really don’t know what a drug conspiracy is. So I thought it might be helpful to talk about the basics. What is a drug conspiracy?

In order to convict somebody in federal court of a drug conspiracy charge, the government has to prove two elements. The first element is that there is an agreement to violate the drug laws, and that sounds pretty simple. And it is. The government does not have to show that there is some sort of formal agreement, or contract, or anything like that. It’s just a general understanding or plan between two or more people to do something that violates the federal drug laws. That can be importing drugs, it can be distributing drugs, it can be possessing drugs with the intent to distribute. It can be manufacturing drugs. As long as there’s an agreement between two or more people to do something that violates the federal drug laws, the government can prove that first element.

But the government also has to show a second element – that the person, the person being charged in this case, knows about the agreement and joins in the agreement. Understanding what’s going on, they say, “Hey, I wanna be a part of this.” Now that’s it, just those two elements. If the government can prove both of these things then they can charge someone with a drug conspiracy.

Now notice what’s missing here. The government does not have to show that a person actually sold drugs. They don’t have to show that a person even had drugs. It’s just this agreement, and then knowing about the agreement, saying, “I wanna be a part of it.” The person can drive a car and be part of a drug conspiracy. They can make a few phone calls and be part of a drug conspiracy. There is no requirement that the person actually has to handle any drugs.

Well, if it’s this broad, you wonder, “Are there any defenses to it?” Because it is very broad under federal law. There are defenses, and there are several that we have used effectively in court when we’re representing someone charged in a drug conspiracy case.

The first obvious defense is that there’s no unlawful agreement. A good example of that is a case I handled just last year representing a doctor who worked at a pain clinic. Now he ran a medical practice and he prescribed pain medication, opioid pain medication, to a number of different patients for chronic pain. The government stepped in and said, “You’re prescribing too much medication. We don’t think these people really need it, and so you violated the federal drug laws.” Well, we were able to show the government that there was no unlawful agreement. He was simply prescribing medicine for his patients, and he was acting within the legitimate medical practice and what his license allowed. So there was no unlawful agreement. Obviously there was an agreement. They had a medical practice, they were prescribing drugs, but it wasn’t unlawful.

Another defense is that there is no knowledge of the agreement. The person being charged, while there may be an agreement, he doesn’t know about it. Great example of this defense is a case I tried here in Atlanta a couple of years ago. I represented a pilot who had a charter airline service. He had been flying two folks from the Mexican border to Atlanta back and forth many times. The people that he was carrying into Atlanta had large duffel bags with them, and it turns out they had a lot of cocaine in those duffel bags. And then when they would distribute it in Atlanta, they would load it back up with cash, take it back to the Mexican border. Clearly those individuals were part of a drug conspiracy. But my client, even though he carried them into Atlanta, even though he flew them back and obviously helped them accomplish their unlawful plan, he didn’t know about it. He was simply told that what was in the duffel bags had to do with their work, was never given any indication that those duffel bags contained drugs. And so, while he actually helped them commit the offense, he wasn’t aware of the unlawful plan,. So he had no knowledge of the agreement, and the jury found him not guilty of all charges.

Another defense, and this is a little more complicated, is that the person may be involved in the drug business, but it’s a different conspiracy than the one the government has charged him with in the indictment. When the government charges someone, they draft an indictment, and that’s agreed to by the grand jury, and then the government is stuck with that document. So when they go to trial, if they don’t prove exactly what’s in that indictment, then the jury cannot find the person guilty. So let’s say they go to trial. They have evidence that an individual is involved in the drug business, but they have charged him with a bunch of people that he didn’t know. Well, in that case the government may have shown that he’s involved in drugs, but he’s not a part of that conspiracy. It’s a different conspiracy, and so the jury has to find him not guilty.

Another defense, which is also a little complicated and difficult to use, is that the person withdrew from the conspiracy. At some point he knew about the plan, he agreed to get involved, and he helped out. But he realized down the road he did not wanna be a part of this, and so he said, “Look, you know, I’m done with this. I’m out.” That’s fine, but to really take advantage of this defense you have to communicate that to either law enforcement, or make it clear to everybody else in the conspiracy. And even if you do that, it only protects you going forward. It doesn’t protect you from what you may have done with that group in the past.

The entrapment defense. We get a lot of questions about the entrapment defense. Will it apply in my case? You know, “The government came after me. I didn’t go after them. They tried to sell me drugs. They tried to get me involved in this conspiracy.” The entrapment defense is a very effective defense when it’s used the right way and by a lawyer who knows what he or she is doing. In entrapment, you basically have to show two things. Number one, the person was not predisposed at being involved in a drug conspiracy. They don’t have a history of it, there’s not other evidence to show they were interested in finding out about the drug business. They had nothing to do with drugs until the government came along, either an undercover agent or an informant, and they went after this individual and tried to convince them to get involved. So it’s lack of predisposition, and it’s that second thing, the government conduct. They kept on after the person. Perhaps they made a call and suggested a drug deal, and he turned them down but they came back again. If you have those two elements, then you have an entrapment defense, and it’s a very effective defense in trial.

Finally, challenging an unlawful search or a wiretap. You need to consider that in almost any drug case there’s usually going to be a search. Somebody’s house was searched, somebody’s car was searched, a storage shed, a business. In some cases, the government will have a warrant, in some cases they won’t. Sometimes they’ll say they had consent to search, the person agreed to it, but they really didn’t. The way to challenge that is by filing a motion early in the case, getting a hearing, and then showing the judge that the search was unlawful. We’ve done that in many cases, and usually because the evidence that they find during the search is so important, if we can keep that out, the case will be dismissed.

We’ve also been successful suppressing wiretaps, and we see wiretaps now in almost every drug case. They’ll be recording the conversations that people in this alleged conspiracy have, then they will use those tapes against them in court, but they have to do it the right way. We’ve been able to throw out two cases based on improper wiretaps. In the first one, they didn’t have enough probable cause to get the wiretap. Even though a judge signed off on it, the judge that handled the case said, “I don’t think there was sufficient probable cause here.” They suppressed the wiretaps, they couldn’t use them in trial. And then once the government realized that, they dismissed the case. In another situation, another wiretap case, the government had probable cause to get the wiretap but they didn’t follow the specific requirements of the statute. They didn’t seal the recordings like they were supposed to. Again, a federal judge threw out those wiretaps and we were able to resolve the case.

These are some defenses. There are others, it all depends on the specific facts of the case. But those are the basic elements and defenses involved in a federal drug conspiracy charge. If you or someone you know is facing a charge like this, I hope this has answered some of your questions. But if you have other questions, feel free to give us a call.”