The police can’t just take your property if you didn’t commit a crime, right?  Wrong. According to federal and state civil asset forfeiture laws, the police have the right to “seize and forfeit” property from people if they have “clear and convincing evidence” that the property was used to carry out certain crimes or it was the result of criminal activities.

Civil asset forfeiture laws in many states only permit forfeiture under strict regulations.  However, notwithstanding these regulations, numerous law enforcement agencies across the country have been accused of civil asset forfeiture abuse.

If the state or federal government is unfairly seizing your property, it’s essential to consult with an experienced criminal defense lawyer.

Continue reading to learn more about the intricacies of civil asset forfeiture and the rampant civil asset forfeiture abuse perpetrated by law enforcement agencies across the nation.

WHAT IS CIVIL ASSET FORFEITURE?

An online search for “laws about civil asset forfeiture by state” quickly reveals that every state does it slightly differently.  Some states don’t allow civil asset forfeiture at all.  However, it is legal at the federal level, and most states still have some form of civil asset forfeiture on the books.

Generally, civil asset forfeiture allows law enforcement officials to seize property used for or derived from criminal activity.  It’s used to punish criminal activity and take away the tools they use to commit crimes. What’s important to note is that civil asset forfeiture doesn’t require an actual conviction. 

That means that law enforcement can take property from individuals so long as:

1. There is a legal basis for the property seizure, and
2. A judge gives permission for the seizure.

However, there are exceptions.  In some cases, the police can seize property without the court’s permission.    

Most types of property can be seized under asset forfeiture laws, including but not limited to:

• Residential, vacation, and rental properties
• Property upgrades (i.e., appliances, security systems, etc.)
• Personal property
• Any type of vehicle
• Assets like cash, securities, and proceeds from illegal activities

CIVIL ASSET FORFEITURE BY STATE AUTHORITIES

For the most part, law enforcement officials are not likely to seize property involved in petty or misdemeanor crimes. Further, individuals are typically not at risk of property forfeiture for items used in or resulting from crimes if they were not aware of the criminal activity.

However, if someone is “willfully blind” to criminal activity, they may be subject to property seizure.  For example, suppose Fred overhears his brother telling an acquaintance that he will use Fred’s abandoned property to hide illegal drugs.

In that case, Fred may be guilty of “willful blindness,” and his property may be subject to forfeiture, even though he didn’t commit any crimes himself.  Additionally, depending on the state you’re in, law enforcement can potentially seize assets without a judge’s permission under the following circumstances:

• Law enforcement has probable cause to believe that the property is a health risk to the public.
• The property is otherwise subject to forfeiture.
• The property was seized via search warrant.
• Law enforcement seized the property during a legal administrative inspection.
• The property was seized during an arrest.

It’s important to note that the police must follow strict guidelines when seizing property without the court’s permission.  If they do not, they may be in violation of a state’s search and seizure laws.

CIVIL FORFEITURE ABUSE FREQUENTLY ASKED QUESTIONS

Most people are not aware that civil asset forfeiture can happen to someone who is guilty and someone innocent. That’s because the burden of proof to sustain civil asset forfeiture is much lower than that used in criminal court proceedings.

With that in mind, we’ve provided a few answers to commonly asked questions about civil asset forfeiture abuse below.

WHAT’S THE PURPOSE OF CIVIL ASSET FORFEITURE?

Generally, state, and federal laws allow civil forfeiture to decrease instances of organized crime and punish criminal behavior.  In many cases, law enforcement agencies repurpose the property to go after more criminals.

However, police departments use civil forfeiture in many other circumstances as a revenue generation tool, making them more likely to seize property than otherwise.

CIVIL FORFEITURE IS ONLY FOR CRIMINALS, RIGHT?

People who are genuinely ignorant to any criminal activities involving their property are not subject to civil forfeiture.  However, it’s not always easy to prove that you had no information about certain crimes or weren’t involved in criminal activity.

If your property is unfairly seized by law enforcement, there are options available to get it back. However, fighting civil forfeiture can be an uphill battle.  That’s especially true if you don’t work with an attorney familiar with the complexities of civil asset forfeiture laws.  

HOW CAN I FIGHT CIVIL FORFEITURE?

Civil forfeiture involves aspects of criminal law and civil law (potentially at the federal and state levels).  Generally, an attorney is more likely to get seized property returned if they could show that law enforcement neglected certain procedures or conducted an illegal search and seizure.

Two Former Federal Prosecutors Talk About Forfeiture

The civil forfeiture laws can be complex.  For a better understanding about the laws on asset forfeiture, this video will help:

The United States Attorney prosecutes cases on behalf of the federal government.  Each US Attorney’s Office has its own area of jurisdiction and acts as the representative of the federal government in their state, district, or territory. The US Attorney’s Office also defends civil cases against the federal government and helps ensure that laws are upheld within their district or territory.

The position of United States Attorney (US Attorney) was established by the Judiciary Act of 1789. Today, there are 94 U.S. Attorney’s Offices located throughout the 50 states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands.  The United States Attorney that is in charge of each office is nominated by the President and confirmed by the United States Senate. 

THE JOB OF A FEDERAL PROSECUTOR

When you think of a US attorney, you probably think of big cases like drug cartels and terrorists, but federal prosecutors actually do much more than that. They investigate crimes (large and small), represent the federal government at trial and seek to convict federal criminal defendants.  They also help with civil issues in addition to criminal ones—civil issues can include anything from handling lawsuits against businesses to enforcing discrimination laws to helping with class-action suits that cover entire cities or states. But how do they decide what cases they’ll take on?

How does their job differ from state-level prosecutors or defense attorneys? And just what does a US attorney do day in and day out once he or she is working on a case?  Keep reading to learn more.   

THE RESPONSIBILITIES OF AN ASSISTANT U.S. ATTORNEY

Assistant U.S. Attorneys (“AUSAs”) represent the government in federal district court and handle both civil and criminal cases on behalf of their employers, the U.S. Department of Justice (DOJ). They’re also known as “federal prosecutors” because they prosecute a wide range of federal crimes, including drug trafficking, wire fraud, identity theft, cybercrime, money laundering and murder.  Federal prosecutors handle only federal cases whereas district attorney’s prosecute state crimes.  Defense attorneys represent the person accused of the crime.     

AUSAs work in close coordination with law enforcement agents who gather evidence for trials while they build their own cases through research and interviews with witnesses or victims. Their efforts culminate when they present their findings to grand juries—the panels that determine whether there is sufficient cause to bring criminal charges against suspected offenders and proceed to trial for prosecution.

HOW DOES A LAWYER BECOME AN ASSISTANT U.S. ATTORNEY?

The process for becoming an AUSA can be rigorous.  An applicant will apply to a particular office and then be interviewed by the United States Attorney and a panel of other lawyers within that office.  The process is more competitive in larger cities such as New York, Chicago, Los Angeles and Washington, D.C. given the large number of attorneys that generally apply for these coveted positions.  The same is true for federal public defenders in larger cities which also attract very high caliber attorney applicants. 

Once offered a job as an AUSA, a lawyer becomes a civil service employee of the DOJ subject to the rules and regulations of federal government employment.  There is no term limit for serving as an AUSA and many lawyers in that position spend their entire legal careers employed by the DOJ.   

When most people think of blackmail, they think of the crime in its simplest form: you ask someone for money, and if they don’t pay up, you threaten to tell their secret to everyone. While that’s blackmail in the simplest sense, it’s not the only form federal blackmail can take. In fact, there are three elements that must be present in order to prove blackmail as a federal crime, and each of them has some nuances that are easily overlooked by the general public and even by some legal professionals.  The federal crime of blackmail is codified at 18 U.S.C. § 873. 

WHAT IS THE DEFINITION OF BLACKMAIL?

Blackmail is a crime where someone uses information about an individual to get that person to do something.  Blackmail also comes in many forms, such as extorting money from an individual by threatening harm, public embarrassment or revealing private information about that person. To blackmail someone under federal law, you must use more than just fear, force or violence; you must also actually threaten that individual with harm and try to get them to perform some illegal act—for example, giving you money or property.

Because blackmail is a federal crime and not necessarily state-specific, it’s best to talk with your attorney if you’re facing any accusations of blackmail. It’s important when talking with an attorney or hiring one for representation that he has experience in handling federal cases.

When it comes to blackmailing federal officials, punishment can be even harsher because these charges fall under 18 U.S.C. §§ 241 and 242—which means violations carry hefty prison sentences and fines up to $250,000 for individuals who intentionally damage a government institution or harass officials through threats of violence or economic harm .

WHAT ARE SOME POTENTIAL CRIMES RELATED TO BLACKMAIL?

Among them are extortion, violations of federal trade secrets law, and mail or wire fraud. For example, you could face federal blackmail charges if you threatened to expose someone’s sexuality if they didn’t do what you want. Similarly, blackmail is a federal crime if you threaten to reveal information that may be seen as damaging to someone’s reputation (like accusing them of tax evasion). You could also face blackmail charges if you demanded money in exchange for not revealing certain information or photos; prosecutors would likely see your actions as extortion. Mail and wire fraud laws have also been applied against people who send emails containing threats or emails with copyrighted information attached. If successful, these cases can lead not only to imprisonment but asset forfeiture penalties and restitution orders too.

HOW DOES THE GOVERNMENT PROVE THAT A PERSON COMMITTED A SPECIFIC CRIME?

There are several different ways that prosecutors can prove a person committed blackmail. The exact legal elements depend on which specific federal statute they’re using. Broadly speaking, though, there are three essential elements of federal blackmail: (1) obtaining property from another person; (2) by threatening harm to that person or someone else; (3) with intent to cause fear; and, if fear of serious bodily injury or death is present then the crime can become extortion. The government must prove all elements in order for a person to be convicted.

In order to prove “intent” to commit a specific crime, the government will rely upon the defendant’s statements and actions.  For example, the government may have recordings documenting statements that can then be played for a jury to prove intent. 

HOW DO I DEFEND MYSELF AGAINST FEDERAL CRIMINAL CHARGES?

If you’re under investigation for blackmail, you might not be sure how to respond. Remember that federal prosecutors typically have an easier time winning cases than do state prosecutors. The burden of proof is on them—not you—so don’t make it easy for them by volunteering statements or telling other people details of your activities.  If you’re approached by federal or state law enforcement, politely decline to speak with them until you have an attorney present.  Anything you say to them can end up being used against you.  The American justice system is built upon the concept of due process.  This means you have a Constitutional right to have a lawyer by your side if you’re being accused of something.  Thus, no matter how nice federal agents might seem, do not speak with them until you have a lawyer representing you.   

The Securities and Exchange Commission (SEC) is a federal agency responsible for protecting investors, regulating the securities market, and facilitating capital formation. If you received a “target letter,” or you otherwise have reason to believe you are the target of an SEC investigation, it is imperative that you understand what is at stake. Understanding SEC investigations requires insight into the role of the SEC and its enforcement powers.

WHAT IS THE ROLE OF THE SEC?

Each year, more than $1 trillion in securities are traded on U.S. equity markets. Numerous federal laws and regulations are in place to ensure that buying and selling securities is fair and transparent for investors. Among other roles, the SEC provides oversight within the securities market and investigates suspected violations of securities laws and regulations.

UNDERSTANDING SEC INVESTIGATIONS: THE ENFORCEMENT DIVISION

Within the SEC, the Enforcement Division acts as the investigative arm of the agency. Although the SEC itself does not prosecute criminal violations, the Enforcement Division does conduct investigations into alleged criminal conduct related to the securities market and works closely with the U.S. Department of Justice (DOJ) and with law enforcement agencies around the world to pursue criminal cases when warranted. An Enforcement Division investigation may also lead to a civil action in federal court or before an administrative law judge.

HOW DO I KNOW IF I AM BEING INVESTIGATED BY THE SEC?

Understanding SEC investigations begins with understanding what triggers an investigation. The SEC routinely monitors the securities market and filings, flagging anything suspicious. More often, however, investigations begin with a consumer complaint, a whistleblower, or even media reports. If you are the target of an SEC investigation, you may receive a “target” letter indicating the nature of the investigation and asking you to contact the Enforcement Division and/or submit documents to the SEC. If you receive a target letter, or otherwise believe you are under investigation by the SEC, consult with an experienced attorney before responding or complying with any requests made by the SEC.

POTENTIAL OUTCOMES OF AN SEC INVESTIGATION

An SEC investigation may be informal or formal, with most being informal. An informal investigation generally involves broad concerns about a company or individual and may result in the SEC taking no action, issuing a warning letter, pursuing formal enforcement action in civil court, or referring the matter to the DOJ for further investigation and possible criminal prosecution. A formal SEC investigation is usually more targeted and involves specific evidence or information indicating a violation of securities laws or regulations. If a formal investigation is underway, you will likely receive a target letter or a subpoena requiring you to produce records or documents.

WHAT SHOULD I DO IF I AM UNDER INVESTIGATION BY THE SEC?

An SEC investigation is a serious matter and can lead to serious consequences if the investigation leads to evidence of a violation of federal law or regulations. Do not ignore a target letter, subpoena, or other indications of an investigation. At the same time, do not respond or comply without first consulting with an experienced federal defense attorney.

The term “white collar crime” refers to non-violent, financially motivated criminal offenses. White-collar crimes are often mistakenly characterized as less serious offenses; however, the truth is that many white-collar crimes can be charged as high-level felonies that carry correspondingly harsh sentences for a conviction. Understanding the various types of white-collar crimes is the first step toward protecting yourself and avoiding a conviction.

WHO INVESTIGATES AND PROSECUTES WHITE COLLAR CRIMES?

In the United States, both state and federal authorities can investigate alleged criminal conduct. The U.S. judicial system then allows a defendant to be prosecuted at the state and/or federal level. While state laws also make a variety of white-collar crimes illegal, it is the federal government that investigates and prosecutes the majority of serious white-collar crimes. Law enforcement agencies such as the Federal Bureau of Investigation (FBI), Securities and Exchange Commission (SEC), and the Internal Revenue Service (IRS) investigate white-collar crimes which are then prosecuted by the U.S. Department of Justice (DOJ).

TYPES OF WHITE COLLAR CRIMES

The term “white collar crime” was first coined about a century ago by a sociologist who defined the term as “a crime committed by a person of respectability and high social status in the course of his occupation.” That definition has not changed substantially in the intervening decades. Today we apply the term “white collar crime” to non-violent criminal offenses that typically use deceit or concealment to obtain a financial, personal, or business gain. Common types of white collar crimes include:

1. Money laundering

Intentionally hiding the source of illegally obtained money by “cleaning” the money such that it eventually appears to be legally obtained profits.

2. Embezzlement

The fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come. Unlike theft, embezzlement starts with a lawful transfer of money or property that then becomes unlawful.

3. Medicare and Medicaid Fraud

A knowing misrepresentation of the truth to obtain unauthorized benefits from the Medicare or Medicaid program.

4. Identity Theft

Wrongfully obtaining and/or using the personal data of another person for financial or personal gain.

5. Cybercrimes and Computer Crime

The use of the internet and/or computer systems to commit other crimes such as fraud, sex trafficking, or dissemination of child pornography.

6. Racketeering/RICO Charges

Federal law makes it a crime for anyone “employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.”

7. Antitrust Violations

Unlawful mergers and business practices that violate federal anti-trust laws including the Federal Trade Commission Act, the Clayton Act, and the Sherman Act.

8. Insider Trading

Using confidential information to gain an unfair advantage while trading on the stock exchange.

9. Ponzi and Pyramid Schemes

Complex schemes that are used to defraud victims of money or property. Ponzi schemes use incoming investor’s money to pay profits to older investors while pyramid schemes involve investors on the bottom of the pyramid paying the investors on the top.

10. Mail and Wire Fraud

Mail fraud requires the mailing of a letter, advertisement, or other correspondence for the purpose of defrauding victims while wire fraud involves an intent to defraud using electronic communications, including a telephone, television, or the internet.

Mail and wire fraud are federal criminal offenses that fall under the category of offenses commonly referred to as “white collar” crimes. Although white collar crimes are non-violent, financially motivated crimes, mail and wire fraud are serious offenses for which you can be sentenced to a lengthy term of imprisonment if convicted. If you are the target of a federal mail or wire fraud investigation, or you have already been charged with either offense, it is in your best interest to consult with an experienced federal criminal defense attorney right away to ensure that your rights and your future are protected.

WHAT IS MAIL FRAUD?

Governed by 18 U.S. Code § 1341, mail fraud is defined as “having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), the use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts).”

Because mail is considered an instrument of interstate commerce, fraud conducted through the mail falls under the jurisdiction of the federal government. Letters, advertising brochures, or informational flyers related to fraudulent schemes (such as a Ponzi scheme) that are distributed through the mail are common examples of conduct that might be prosecuted as mail fraud.

WHAT IS WIRE FRAUD?

Wire fraud is governed by 18 U.S.C. 1343 and is defined as a crime in which:

• The defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money or something of value.
• The defendant did so with the intent to defraud.
• It was reasonably foreseeable that interstate wire communications (such as a computer, television, or telephone) would be used.
• Interstate wire communications were in fact used.

A fraudulent email sent out in the hope of getting a target to share personal and/or financial information used to access the target’s financial accounts is a common example of conduct that might be prosecuted as wire fraud by the U.S. government.

WHAT ARE THE POTENTIAL PENALTIES FOR MAIL AND WIRE FRAUD?

Both mail and wire fraud are felony offenses with a potential penalty of up to 20 years in prison and/or a fine of up to $250,000 for each act of fraud. The possible sentence is increased to 30 years in prison and/or a fine of up to $1 million if mail or wire fraud occurs in conjunction with a presidentially declared disaster, or involves a federal financial institution.

ARE THERE DEFENSES TO ACCUSATIONS OF MAIL OR WIRE FRAUD?

Being investigated for or charged with federal mail or wire fraud is cause for concern; however, defenses may be available to you that prevent a conviction. Only an experienced federal mail and wire fraud defense attorney can evaluate the unique facts of your case and decide what defenses apply, but some common defenses employed when a defendant is charged with mail or wire fraud include:

• No knowledge or intent. The prosecution must prove that you had the intent to commit fraud to secure a conviction. If you were an unwitting participant (such as an employee) in a fraud scheme, you can use your lack of knowledge as a defense.
• Mistake of fact. This defense may be available if you genuinely believed that what you were communicating or sending was not fraudulent.
• Illegal search and seizure. If the government procured evidence against you through an illegal search and seizure, your attorney may be able to get that evidence excluded, meaning it cannot be used against you at trial.

If you received a target letter from the Department of Justice, or you have another reason to believe you are a suspect in an insider trading investigation, you need to take the allegations and the situation seriously. You may think of insider trading as a relatively harmless crime. You may even wonder if insider trading is a felony because you think of it as a minor offense. You need to understand that not only is insider trading a felony, but it carries a lengthy term of imprisonment if you are convicted.

WHAT IS INSIDER TRADING

The term “insider trading” is usually used to refer to buying or selling a security while in possession of important non-public information about the security. Not only does insider trading result in a breach of fiduciary duty, but it can also lead to prosecution by the U.S. federal government for securities fraud.

WHAT IS SECURITIES FRAUD?

Because there is not a specific federal statute prohibiting “insider trading,” activities believed to fall under the definition of insider trading are typically charged as securities fraud. The Securities Exchange Act of 1934 Section 10(b) makes it unlawful to:

• Employ any device, scheme, or artifice to defraud.
• Make any untrue statement of a material fact or omit to state a material fact.
• Engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.

Securities fraud, according to the United States Code (18 U.S.C. § 1348), occurs when someone “knowingly executes, or attempts to execute, a scheme or artifice…

• To defraud any person in connection with any commodity for future delivery, or any option on a commodity for future delivery, or any security of an issuer with a class of securities…OR
• To obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property in connection with the purchase or sale of any commodity for future delivery, or any option on a commodity for future delivery…

IS INSIDER TRADING A FELONY?

Insider trading is one of many non-violent, financially motivated, crimes referred to as “white collar” crimes. Although the public often thinks of these crimes as less serious criminal offenses, the U.S. government aggressively prosecutes these crimes. One reason for this is the staggering amount of money lost to white-collar crimes each year. In 2022 alone, consumers reported losing almost $9 billion because of white-collar crimes, according to the Federal Trade Commission (FTC).

Like other white-collar crimes, insider trading (securities fraud) is prosecuted as a felony when the federal government decides to pursue such allegations. In fact, you face up to 25 years in federal prison along with a fine of up to $5 million per offense if you are convicted of securities fraud.

The United States operates under a federalist form of government, meaning we have a strong central government along with semi-autonomous state governments. This also means we have both a federal judicial system and individual state judicial systems. If you are prosecuted and convicted of a crime by the U.S. federal government, you will be sentenced using the Federal Sentencing Guidelines. As such, every defendant in a federal prosecution should understand how the Federal Sentencing Guidelines work and how they might be applied to your situation.

WHY DO WE HAVE THE FEDERAL SENTENCING GUIDELINES?

Within the federal court system, there are 94 District Courts at the bottom of the judicial system pyramid. These courts act as trial-level courts when a defendant is prosecuted by the U.S. Attorney’s Office (federal prosecutors). Prior to the enactment of the Federal Sentencing Guidelines, each District Court had considerable discretion when sentencing defendants, leading to wide disparity in the sentences handed down for seemingly similar crimes. In 1984, the United States Sentencing Commission (USSC) was established as part of the Sentencing Reform Act. 

The USSC, in turn, created the Federal Sentencing Guidelines in 1987. Initially, application of the Guidelines was viewed as mandatory; however, they are now considered to be advisory only. Nevertheless, most federal judges stick close to the Guidelines when imposing a sentence unless a compelling reason is provided for a departure from the recommended sentence.

HOW DO THE FEDERAL SENTENCING GUIDELINES WORK?

All federal criminal offenses are assigned an offense level from one to 43 with level 43 offenses being reserved for the most serious crimes under the federal criminal code. In addition, each defendant is assigned a criminal history category from I to VI. A defendant’s placement in a category is determined by “points” that represent prior convictions with placement in Category I, meaning you have virtually no criminal history, and Category VI indicates a lengthy and usually violent criminal history.

The Federal Sentencing Guidelines provide a suggested sentencing range in months determined by where the offense level intersects with the defendant’s criminal history category. For example, a defendant convicted of a crime with an offense level of 20 and whose lack of criminal history puts him in Category I will have an advisory sentence of 33–41 months. That same defendant would be facing a sentence of 70–87 months with a Category VI criminal history.

WHAT DOES AN “UPWARD/DOWNWARD DEPARTURE” FROM THE GUIDELINES MEAN? 

Not only are the Guidelines officially intended to be “advisory” only, but there are well-accepted reasons to increase or decrease a defendant’s advisory sentence. Common reasons for increasing a defendant’s sentence, referred to as an “upward departure”, include:

• Death or physical injury occurred as a result of the defendant’s criminal conduct.
• Extreme psychological injury occurred because of the defendant’s criminal conduct.
• Possession and/or use of a weapon during the commission of the crime.
• Abduction or unlawful restraint of a victim.
• The criminal conduct resulted in the disruption of a governmental function.
• The defendant was/is a member of a gang.
• The criminal conduct caused property loss not already accounted for in the sentence.

Just as there are commonly accepted reasons to increase a sentence, there are also reasons to decrease a defendant’s advisory sentence. This is referred to as a “downward departure” and may be justified if:

• The defendant provided “substantial assistance” to authorities in solving this or another crime.
• The victim contributed to or provoked the defendant’s conduct.
• It is shown that the defendant was coerced, was under duress, or suffered from diminished capacity at the time of the commission of the crime.
• The defendant voluntarily disclosed or admitted to the commission of the crime.

When the federal government is involved in the investigation and prosecution of a drug crime, you can rest assured that significant resources and manpower will be dedicated to the case and that the defendant faces harsh penalties if convicted. If you are under investigation for federal drug crimes or are facing federal drug charges, you need an experienced federal criminal defense attorney on your side as soon as possible to protect your rights and your future.

WHAT IS THE DIFFERENCE BETWEEN STATE AND FEDERAL DRUG CRIMES?

In the United States, both the federal government and each state government may enact and enforce criminal laws. As such, a criminal offense may be prosecuted at the state level, the federal level, or both. In the case of federal drug charges, the federal government typically has jurisdiction because the “criminal conduct crosses state lines.”

WHAT ARE FEDERAL DRUG CHARGES?

Title 21 of the United States Code (USC), commonly referred to as the “Controlled Substance Act (CSA), governs most federal drug crimes, making it illegal to:

• Manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance OR
• Create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

Under the CSA, controlled substances are categorized into five schedules based on medical use, potential for abuse, and the likelihood of abuse and/or dependence. Schedule I drugs are those with no currently accepted medical use and a high potential for abuse while Schedule V drugs are used for medical treatment and have the lowest potential for abuse/dependence.

WHAT ARE THE POTENTIAL PENALTIES IF I AM CONVICTED OF A FEDERAL DRUG CRIME?

If you are convicted of a federal drug crime, the penalties you face will depend on several factors, including the type and amount of drugs involved, whether you have a criminal history, and the presence of aggravating or mitigating factors.

By way of example, a conviction for distributing 100 grams of heroin, 5 grams of methamphetamine, or 500 grams of cocaine as a first-time offender carries five to 40 years in prison and a fine of up to $5 million. The potential penalties increase to 10 years to life in prison and a fine of up to $10 million for a kilogram of heroin, 50 grams of methamphetamine, or five kilograms of cocaine. Your sentence may also be increased if there was a firearm involved, you sold drugs to a minor or near a school, or someone was injured during the commission of the crime.

Many controlled substance offenses carry a mandatory minimum sentence if convicted. The average sentence for drug trafficking in 2022 was 78 months in prison, and almost two out of three defendants were subject to mandatory minimum sentencing, according to the U.S. Sentencing Commission.

DO I HAVE A DEFENSE TO FEDERAL DRUG CHARGES?

While being targeted in a federal drug investigation or facing federal drug charges can be frightening, you may have a viable defense. Only an experienced federal criminal defense attorney can review the facts of your case and determine what defensive strategies might apply; however, some common defenses in a federal drug crime prosecution include:

• Excluding illegally obtained evidence. Evidence obtained during a search of your vehicle, home, business, or person, may be excluded if that evidence was not obtained pursuant to a valid warrant and the prosecution is unable to prove that an exception to the warrant required applied.
• Challenging the credibility or reliability of informants. While law enforcement officers may use informants during a drug investigation, an informant must be reliable and credible. A common defense strategy is to arrack the reliability and/or credibility of an informant.
• Reasonable doubt. The prosecution must prove every element of a criminal offense beyond a reasonable doubt for the defendant to be convicted. Sometimes, the prosecution’s case is weak enough that the best defense is simply to point out the prosecution’s failure to meet its burden.
• Substantial assistance. If it appears that a conviction cannot be avoided, providing “substantial assistance” to the prosecution is one way to decrease your sentence.