The federal crime of conspiracy
involves entering into an agreement to
commit an unlawful act. In drug cases,
it is not necessary that the drug
transaction actually occur or even that
any member of the conspiracy commit an
act in furtherance of the agreement. Nor
is it a defense that the object of the
conspiracy -- distributing drugs --
never came to fruition, since the crime
is the making of the unlawful
agreement.
It is not necessary that the specific
drugs discussed on the telephone be
seized or admitted into evidence.
However, requests for federal wiretaps
are granted only after an agent submits
a sworn affidavit to a judge
demonstrating probable cause to believe
that evidence of a specific crime will
come to light through the interception
of phone calls. Typically, police or law
enforcement agents would have recovered
some drugs in the recent past, perhaps
through a transaction with an undercover
officer, controlled buys using
informants, physical surveillance and/
or a seizure following a traffic stop,
to show the judge that not only is a
particular phone being used to discuss
drug deals, but that drug transactions
actually have occurred.
Federal sentencing guidelines for any
particular co-conspirator are based on
the amount of drugs possessed or
distributed by all members of the
conspiracy that are reasonably
foreseeable to him or her, from the time
he or she joined the conspiracy. The
guidelines take into account all
relevant conduct, not just that involved
in the offense of conviction. Upon
conviction, the probation department
will prepare a report that includes its
determination of the quantity of drugs
that should be assessed against the
person. The defense and prosecution can
challenge the amount as too high or too
low, and the sentencing judge will make
the final decision. The standard of
proof for determining drug quantities at
a sentencing hearing is a lesser
standard than that required to establish
guilt (Preponderance of the evidence
rather than proof beyond a reasonable
doubt.)
Federal law also makes it a crime to
use the telephone to facilitate a drug
transaction. This carries a lesser
penalty than conspiracy, however each
use of the phone is a separate
crime.
Federal conspiracy and wiretapping
cases are very complex. Federal cases in
general are quite different than state
cases. Your friend should seek the
services of a lawyer experienced in both
federal criminal cases and wiretaps. If
he or she cannot afford to retain
counsel, the court will provide an
experienced attorney at no expense.
-- Jeralyn Merritt
