Trafficking, Conspiracy, Min Mans
TRAFFICKING IN A CONTROLLED SUBSTANCE
There are so many different ways to wind up arrested on a 'trafficking' charge, with each different drug carrying different minimum mandatory prison sentences, but typically the most common means of acquiring such a charge is thru the weight of the substance. Possess over 28 grams of cocaine, for example, and you have yourself a Trafficking in Cocaine >28grams Under 200 grams charge. However, Cannabis can behave a bit differently, as possession of greater than 300 cannabis plants (regardless of their weight) constitutes a Trafficking in Cannabis charge.
Here's the basics for proving a trafficking case, for an example we'll use the very common Trafficking in Cocaine > 28 grams. The State must prove four elements: (1) that the defendant knowingly purchased or possessed a certain substance, (2) the substance was cocaine, (3) the quantity was 28 grams or more, and (4) the defendant knew the substance was cocaine.
If it seems like a trafficking charge is just a trumped up possession charge, you're right. The problem is, the penalties are far more serious, and often times the amount of evidence, and the type of evidence, is far different than your typical possession charge. For example, recorded telephone conversations, confidential informations, phone records, and undercover agents can play a large role in a trafficking case, whereas you don't see such evidence in a simple possession charge.
MINIMUM MANDATORY SENTENCES
Here's an example of the minimum mandatory prison sentences for Trafficking in Hydrocodone, Trafficking in Oxycodone, or Trafficking in Heroin: if you are caught with:
a. 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.
b. 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.
c. 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.
Trafficking in Cannabis requires a bit more weight, as you might imagine,
1. In excess of 25 pounds, but less than 2,000 pounds (or 300-2,000 plants), the mandatory minimum prison term shall be 3 years, and a $25,000 fine;
2. From 2,000 pounds - 10,000 pounds (or 2,000 - 10,000 plants), the mandatory minimum prison term shall be 7 years, and a $50,000 fine;
3. From 10,000 pounds or more (or 10,000 or more cannabis plants), the mandatory minimum prison term shall be 15 calendar years, and a fine of $200,000.
Trafficking in Cocaine has minimum mandatory prison sentences as follows:
a: 28 grams - 200 grams carries a mandatory minimum term of 3 years prison and a $50,000 fine;
b: 200 grams - 400 grams carries a mandatory minimum term of 7 years prison and a $100,000 fine;
c: 400 grams - 150 kilograms carries a mandatory minimum term of 15 years prison and a $250,000 fine;
d: more than 150 kilograms is a first degree felony punished by life imprisonment, and shall be ineligible for any form of discretionary early release (except pardon or medical).
TRAFFICKING IN MDMA, 1,4-Butanediol
a: 1 kilogram or more, but less than 5 kilograms carries a mandatory minimum term of 3 years prison and a $50,000 fine;
b: 5 kilograms - 10 kilograms carries a mandatory minimum term of 7 years prison and a $100,000 fine;
c: 10 kilograms or more carries a mandatory minimum term of 15 years prison and a $500,000 fine;
d: more than 150 kilograms is a first degree felony punished by life imprisonment, and shall be ineligible for any form of discretionary early release (except pardon or medical).
There are lots of factors that criminal lawyer John Guidry will consider when defending trafficking charges, so let's start with some basics.
BASICS OF TRAFFICKING DEFENSE
First we challenge the circumstances of your arrest. If you were stopped in your vehicle, did the officer have legal grounds to make the stop? Is there a constructive possession issue? Was the search of your home, person, or car legal? Was the warrant issued to conduct the search legal? Did others have access to where the drugs were found? Are statements of co-defendant or co-conspirator admissible, and without co-defendant will the defendant's constitutional right to confront his accuser be violated? Was the conduct of the officers and Confidential Witnesses legal, was the accused entrapped? Did defendant have access to place where drugs were found (i.e. a locked safe)?
The weight of the drug plays a crucial role in a trafficking case. Thus, if the weight is just over the trafficking amount (i.e., say 30 grams of cocaine), then a Motion to Re-Weigh Evidence may be filed. In such a case, we're asking the judge to allow our defense expert, a scientist with his own lab, to re-weigh the evidence, often times using methods that involve heating up the drug to allow the moisture to be released, but not so much heat as to change the chemical composition of the drug. With less moisture, we have a more scientifically accurate account of how much of the drug was actually "trafficked". Some courts will grant such a motion, some will not. It costs the defendant a bit of money to hire such an expert ($950-$1,750), but the payoff can be huge, because in close weight cases we don't want to take FDLE's word on such an important issue. As you might suspect, the weights brought back by government paid FDLE workers can vary greatly from those numbers produced by unbiased, independent labs.
The weight of a drug can be an even tougher issue in a hydrocodone case. The Florida Statutes define the weight of a controlled substance as the total weight of the mixture within which the controlled substance. To see how this works, let's consider cases involve Vicodin pills, which contain 500 mg acetominiphen (tylonol, legal) and 5 mg hydrocodone (illegal). Doing the math here, 100 pills of Vicodin will weigh approximately 50.5 grams (enough for a big trafficking charge), but there's only about 1 gram of hydrocodone total, scientifically speaking. Unfortunately, the courts have held that the State is entitled to convict a defendant based on the entire weight of the pills including the filler substances, even though the actual, scientific, weight of the illegal substance is far less.
CONSPIRACY TO COMMIT...
And what discussion of trafficking would be complete without mentioning conspiracy issues. Yes, many trafficking cases are really "conspiracy to commit" trafficking cases. In order “[t]o establish a conspiracy and appellant's participation in it, the state must prove ‘an express or implied agreement or understanding between two or more persons to commit a criminal offense,’ and an intention to commit that offense.” Sheriff v. State, 780 So.2d 920, 921 (Fla. 4th DCA 2001). “Direct proof of the agreement is not necessary; it may be inferred from the circumstances.” Arguelles v. State, 842 So.2d 939 at 944. Florida courts have upheld conspiracy convictions where defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase. Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991). Only where the defendant's involvement in the conspiracy enterprise appears to be minimal at best, with no prearrangements or meetings with the other defendants have Florida courts been inclined to dismiss such conspiracy charges.
Yes, all of this is complex, and new case law is coming out every day changing our analysis. Thus, all the more reason to give criminal attorney John Guidry a call to discuss these issues. Don't talk to the police, or even your friends about your case, make sure you call me first. Thanks.
There are so many different ways to wind up arrested on a 'trafficking' charge, with each different drug carrying different minimum mandatory prison sentences, but typically the most common means of acquiring such a charge is thru the weight of the substance. Possess over 28 grams of cocaine, for example, and you have yourself a Trafficking in Cocaine >28grams Under 200 grams charge. However, Cannabis can behave a bit differently, as possession of greater than 300 cannabis plants (regardless of their weight) constitutes a Trafficking in Cannabis charge.
Here's the basics for proving a trafficking case, for an example we'll use the very common Trafficking in Cocaine > 28 grams. The State must prove four elements: (1) that the defendant knowingly purchased or possessed a certain substance, (2) the substance was cocaine, (3) the quantity was 28 grams or more, and (4) the defendant knew the substance was cocaine.
If it seems like a trafficking charge is just a trumped up possession charge, you're right. The problem is, the penalties are far more serious, and often times the amount of evidence, and the type of evidence, is far different than your typical possession charge. For example, recorded telephone conversations, confidential informations, phone records, and undercover agents can play a large role in a trafficking case, whereas you don't see such evidence in a simple possession charge.
MINIMUM MANDATORY SENTENCES
Here's an example of the minimum mandatory prison sentences for Trafficking in Hydrocodone, Trafficking in Oxycodone, or Trafficking in Heroin: if you are caught with:
a. 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.
b. 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.
c. 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.
Trafficking in Cannabis requires a bit more weight, as you might imagine,
1. In excess of 25 pounds, but less than 2,000 pounds (or 300-2,000 plants), the mandatory minimum prison term shall be 3 years, and a $25,000 fine;
2. From 2,000 pounds - 10,000 pounds (or 2,000 - 10,000 plants), the mandatory minimum prison term shall be 7 years, and a $50,000 fine;
3. From 10,000 pounds or more (or 10,000 or more cannabis plants), the mandatory minimum prison term shall be 15 calendar years, and a fine of $200,000.
Trafficking in Cocaine has minimum mandatory prison sentences as follows:
a: 28 grams - 200 grams carries a mandatory minimum term of 3 years prison and a $50,000 fine;
b: 200 grams - 400 grams carries a mandatory minimum term of 7 years prison and a $100,000 fine;
c: 400 grams - 150 kilograms carries a mandatory minimum term of 15 years prison and a $250,000 fine;
d: more than 150 kilograms is a first degree felony punished by life imprisonment, and shall be ineligible for any form of discretionary early release (except pardon or medical).
TRAFFICKING IN MDMA, 1,4-Butanediol
a: 1 kilogram or more, but less than 5 kilograms carries a mandatory minimum term of 3 years prison and a $50,000 fine;
b: 5 kilograms - 10 kilograms carries a mandatory minimum term of 7 years prison and a $100,000 fine;
c: 10 kilograms or more carries a mandatory minimum term of 15 years prison and a $500,000 fine;
d: more than 150 kilograms is a first degree felony punished by life imprisonment, and shall be ineligible for any form of discretionary early release (except pardon or medical).
There are lots of factors that criminal lawyer John Guidry will consider when defending trafficking charges, so let's start with some basics.
BASICS OF TRAFFICKING DEFENSE
First we challenge the circumstances of your arrest. If you were stopped in your vehicle, did the officer have legal grounds to make the stop? Is there a constructive possession issue? Was the search of your home, person, or car legal? Was the warrant issued to conduct the search legal? Did others have access to where the drugs were found? Are statements of co-defendant or co-conspirator admissible, and without co-defendant will the defendant's constitutional right to confront his accuser be violated? Was the conduct of the officers and Confidential Witnesses legal, was the accused entrapped? Did defendant have access to place where drugs were found (i.e. a locked safe)?
The weight of the drug plays a crucial role in a trafficking case. Thus, if the weight is just over the trafficking amount (i.e., say 30 grams of cocaine), then a Motion to Re-Weigh Evidence may be filed. In such a case, we're asking the judge to allow our defense expert, a scientist with his own lab, to re-weigh the evidence, often times using methods that involve heating up the drug to allow the moisture to be released, but not so much heat as to change the chemical composition of the drug. With less moisture, we have a more scientifically accurate account of how much of the drug was actually "trafficked". Some courts will grant such a motion, some will not. It costs the defendant a bit of money to hire such an expert ($950-$1,750), but the payoff can be huge, because in close weight cases we don't want to take FDLE's word on such an important issue. As you might suspect, the weights brought back by government paid FDLE workers can vary greatly from those numbers produced by unbiased, independent labs.
The weight of a drug can be an even tougher issue in a hydrocodone case. The Florida Statutes define the weight of a controlled substance as the total weight of the mixture within which the controlled substance. To see how this works, let's consider cases involve Vicodin pills, which contain 500 mg acetominiphen (tylonol, legal) and 5 mg hydrocodone (illegal). Doing the math here, 100 pills of Vicodin will weigh approximately 50.5 grams (enough for a big trafficking charge), but there's only about 1 gram of hydrocodone total, scientifically speaking. Unfortunately, the courts have held that the State is entitled to convict a defendant based on the entire weight of the pills including the filler substances, even though the actual, scientific, weight of the illegal substance is far less.
CONSPIRACY TO COMMIT...
And what discussion of trafficking would be complete without mentioning conspiracy issues. Yes, many trafficking cases are really "conspiracy to commit" trafficking cases. In order “[t]o establish a conspiracy and appellant's participation in it, the state must prove ‘an express or implied agreement or understanding between two or more persons to commit a criminal offense,’ and an intention to commit that offense.” Sheriff v. State, 780 So.2d 920, 921 (Fla. 4th DCA 2001). “Direct proof of the agreement is not necessary; it may be inferred from the circumstances.” Arguelles v. State, 842 So.2d 939 at 944. Florida courts have upheld conspiracy convictions where defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase. Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991). Only where the defendant's involvement in the conspiracy enterprise appears to be minimal at best, with no prearrangements or meetings with the other defendants have Florida courts been inclined to dismiss such conspiracy charges.
Yes, all of this is complex, and new case law is coming out every day changing our analysis. Thus, all the more reason to give criminal attorney John Guidry a call to discuss these issues. Don't talk to the police, or even your friends about your case, make sure you call me first. Thanks.