Working on a Felony Drug Contract

Someone recently asked me:

I sold marijuana to an “informant” twice. The second time I was brought in by police and offered a deal to become an confidential informant. I was told if I brought in 5 controlled drug buys. My first buy went bad, and the cops ended up revealing my cover. After that they told me I just had to do one more buy. I can’t come up with anything substantial. I’m wondering if I have any chance of still getting my charges dropped, or at least most of them. I have no clue how the law works. Should I get a lawyer?

The short answer is that you should have gotten a lawyer from the very beginning. If you are arrested on a felony drug charge and offered the opportunity to cooperate – either by providing information or by setting up potential drug buys – you should always have an attorney on your side to make sure that the deal you’re offered is a good deal. In addition, you should have an attorney who can help you work with police to get credit for everything you do.

Many contracts technically fail – meaning that the defendant has trouble providing all the assistance the defendant said he would provide at the beginning of the contract. But a good attorney is sometimes able to get the defendant credit for his good faith efforts to succeed on the contract.

5k1.1, 18 USC 3553(e) and Rule 35 Federal Sentencing Departures

Federal criminal law has stiff penalties. First, there are the laws – the statutes – that are generally harsher than state statutes in imposing criminal sanctions and penalties. Second, there are the Sentencing Guidelines which add to the harshness of the federal system.

There are some limited ways that a federal criminal lawyer can help mitigate the effect of a criminal punishment, so that the person ends up serving far less time.

One way is through 5k1.1 assistance. The Sentencing Guidelines state:

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

  1. The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limited to, consideration of the following:
      (1)the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
    1. (2)the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
    2. (3)the nature and extent of the defendant’s assistance;
    3. (4)any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
    4. (5)the timeliness of the defendant’s assistance.

By providing timely and substantial assistance, a defendant may be able to secure a reduction in his base offense level so that he is a less harsh punishment grid. All United States Attorneys consider assistance that leads to the arrest and prosecution of other as “substantial assistance.” This is a motion made by the government, and approved by a judge.

The problem with 5k1.1 assistance is that it won’t permit the judge to go below the statutory minimum imposed by the law. So, for instance, if you’ve been accused of trafficking in 6 kilograms of cocaine, there is a minimum 10 year sentence imposed upon conviction. 5k1.1 assistance will help you get down to 10 years, possibly, but it won’t let the judge sentence you below 10 years because that’s the minimum imposed by statute for that crime.

One provision – 18 USC Sec. 3553(e) – allows the judge to go below the statutory minimum in cases of what I like to call “super” substantial assistance. If 8 or 9 out of 10 people who offer substantial assistance are rewarded with a sentence reduction, then just 1 of the 10 people who offer substantial assistance benefit from a 3553(e) super reduction below the statutory minimum.

To recap: if you offer substantial assistance, you may enjoy a reduction in a sentence, but that reduction won’t go below the statutory minimum for a crime. However, if your substantial assistance meets 3553(e) qualifications, the judge may, in that case, go below the statutory minimum, but must remain within the sentencing guidelines.

Both 5k1.1 and 3553(e) reductions are motions made by the government prior to sentencing. Upon sentencing, the sentence is set and the person goes into prison with that sentence having been established.

Rule 35 provides for post-conviction reductions in the sentence if the person provides substantial assistance. Rule 35 post-conviction reductions can go below the statutory minimum. This might be information that the person knew at the time he was originally convicted, but did not reveal. Or it can be information that the person developed after he was convicted, perhaps while working in cooperation with agents or authorities.

Confidential Informants – A Secret and Corrupt System

NPR has an interesting report on the use and abuse of confidential informants.

Here’s an excerpt:

Loyola Law School professor Alexandra Natapoff, author of the new book Snitching, says the public has no clue about the thousands of informants now on the government payroll.

“It’s a very clandestine, secretive and unregulated arena that yet influences the outcome of millions of cases and investigations,” she says. “It shapes the way we lawyer, it shapes the way we judge, and it shapes what we call fair and good. And yet, we don’t see any evidence of it pop up on the public record.”



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