Federal Drug Conspiracy Charges

If you or someone you love has been charged with a federal drug conspiracy, here is what the charge means, what the government has to prove, and what penalties it carries. These charges can change a life. Knowing the basics will help you plan a defense and choose a lawyer. And if federal agents contact you, talk with a lawyer before you answer their questions.

A federal drug conspiracy charge means the government says you agreed with at least one other person to commit a drug crime, like selling drugs. You can be convicted even if you never touched the drugs yourself. A drug conspiracy carries the same penalties as the drug crime itself, including the same mandatory minimums (21 U.S.C. § 846). Criminal Center represents people charged with federal drug conspiracy crimes.

Why do prosecutors bring so many drug conspiracy charges?

Federal prosecutors often add drug conspiracy charges against people they have investigated or charged with other crimes. A conspiracy charge lets them bring a case against someone in the drug trade without proving that the person personally made, sold, or bought drugs. It also lets them charge many people in one case, from leaders to drivers to people who only made a few phone calls.

Critics say prosecutors use these charges broadly to look tough on drugs, even when the people charged are not the ones most responsible. Conspiracy charges are also fairly easy for the government to prove. That is why it helps to get a lawyer involved as early in the case as you can.

How does federal conspiracy law work in general?

The general federal conspiracy law is 18 U.S.C. § 371. It covers a broad range of conduct, and prosecutors often use it to add charges. It makes it a crime for two or more people to agree to commit any federal crime, or to cheat (defraud) the United States or any of its agencies, when at least one of them does some act to carry out the plan. That act is called an “overt act.” A § 371 conspiracy has a maximum of 5 years.

Conspiracy law is broad. You can be part of a conspiracy with someone you have never met or talked to. This is especially true when the group is a large network with one leader giving directions. What matters is that you knew you were working with, or helping, a criminal plan, and you meant to do so.

What does the government have to prove in a drug conspiracy case?

Drug conspiracies have their own law, 21 U.S.C. § 846. It makes it a crime to conspire, or to attempt, to commit a federal drug crime, such as making, selling, or possessing drugs with intent to sell them.

In general, the government must prove:

• There was an agreement between two or more people to commit a federal drug crime.
• You knew about the agreement.
• You joined it on purpose.

The agreement does not have to be written or even spoken out loud. You do not have to know everyone in the group or meet them in person.

Unlike § 371, a drug conspiracy under § 846 does not require proof that anyone took a step (an overt act) to carry out the plan. The Supreme Court decided this in United States v. Shabani, 513 U.S. 10 (1994). And while a § 371 conspiracy has a 5-year maximum, a § 846 drug conspiracy is punished like the drug crime itself, which can mean 10 years to life.

Can you defend by saying you backed out, or that the plan could not work?

Three defenses people often ask about are renunciation, withdrawal, and impossibility. Each is explained below. They are narrow and highly technical, so talk with a lawyer before relying on any of them.

What is renunciation?

Renunciation means giving up a crime and stopping it from happening. It is mainly a rule from the Model Penal Code (a model set of laws written by legal scholars) and from the laws of some states. Under that rule, a person who stops the conspiracy from succeeding, or openly works to defeat it, may have a complete defense. The person must give up the plan fully and voluntarily — not just because he fears getting caught. Telling police about the plan can be one way to show this.

Federal law does not use the Model Penal Code renunciation rule for drug conspiracy. In federal court, the crime is complete once you agree to the plan. Backing out later does not erase that crime. Instead, federal courts use the narrower withdrawal rule below. Before going to the police about a conspiracy, talk with a lawyer.

What is withdrawal?

Withdrawal means leaving the conspiracy. Simply stopping is not enough. You must take a clear, affirmative step to quit or defeat the plan. Examples include telling the other members, in a way likely to reach them, that you are out, or going to the police.

Withdrawal has limits. It can cut off blame for what the others do after you leave. It can also be a complete defense if you withdrew more than 5 years before you were charged, because the time limit to charge you (the statute of limitations, usually 5 years under 18 U.S.C. § 3282) has run. But it does not erase the conspiracy you already joined. You are still liable for the crime of joining it. And you, not the government, have the burden to prove that you withdrew. The Supreme Court explained these rules in Smith v. United States, 568 U.S. 106 (2013).

Withdrawal is hard to prove and easy to get wrong. Speak with a lawyer before talking with law enforcement, so the defense can be planned with care.

What is impossibility?

If two or more people agree to do something that is not actually a crime, they cannot be guilty of conspiracy. That is true even if they believe at the time that they are breaking the law. Lawyers sometimes call this “legal impossibility.”

But federal law does not excuse a conspiracy just because the plan could not succeed on the facts, for example because police had already seized the drugs. The Supreme Court held that a conspiracy does not automatically end when the government defeats its goal, even if the members do not know it. People who join after the drugs are seized can still be guilty of conspiracy. See United States v. Jimenez Recio, 537 U.S. 270 (2003). The reason is that the agreement itself is the crime.

Impossibility questions are highly technical. Talk with a lawyer to see if this defense could apply in your case.

What are the penalties for a federal drug conspiracy?

Do not treat a drug conspiracy charge as less serious than a charge of making, having, or selling drugs. You face the same range of penalties as for the drug crime itself (21 U.S.C. § 846), and that is the main reason these charges are so serious. Prosecutors can also include low-level members of a large group in the same case as the leaders.

The penalty depends on the type and amount of drugs involved in the conspiracy (21 U.S.C. § 841(b)(1)). For example:

• 1 kilogram or more of heroin, 5 kilograms or more of cocaine, or 500 grams or more of a methamphetamine mixture: 10 years to life.
• 100 grams or more of heroin, 500 grams or more of cocaine, or 50 grams or more of a methamphetamine mixture: 5 to 40 years.
• Smaller amounts of most hard drugs: up to 20 years.

Prior serious drug or violent felony convictions can raise these minimums, but only if the prosecutor files a formal notice before trial or a plea (21 U.S.C. § 851).

Because the amount drives the sentence, a big question in many conspiracy cases is how much of the group’s drugs should count against you. A careful defense on that question can make a real difference at sentencing.

See the full federal drug penalty levels

How is a drug conspiracy charge defended?

• Whether there was a real agreement, or just a buyer and a seller.
• Whether you knew what the group was doing.
• How much of the drug amount can fairly be counted against you.
• Whether the evidence was gathered legally, including wiretaps and searches.
• Whether co-defendants who testify against you are believable.

A drug conspiracy charge can affect your freedom, your work, and your family. A lawyer can look at all of your options, including a defense at trial, or an appeal of a conviction and sentence. Many people in conspiracy cases are offered plea deals. Whether to take one is a big decision you should make with a lawyer who has seen the evidence.

What should you do next?

Book a consultation to talk it through with Brandon Sample.

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