Things to Ponder in a Common Eastern North Carolina "Guns and Drugs" Case

Last week the news reported that a husband and wife were busted in Halifax County with over 50lbs of cocaine. The drugs were apparently found during the execution of a search warrant at the couple's home, and with the assistance of a K-9 unit. Police found a decent amount of cash and a gun in the house, and said that the search warrant was issued as part of an ongoing investigation into drug distribution in Halifax County.

This case is not uncommon, at least not as  reported. It's a decently large amount of cocaine but nothing extraordinary. It looks like they were charged in state court with trafficking. They are probably held at the county jail in the custody of the local sheriff, with a relatively high bond to get out. This is also common, and depending on the situation, a person might expect to sit in the local jail under state charges while waiting for the (very likely) federal indictment.

Consider Whether Your Case Might "Go Federal" When Thinking About Posting Bail or Hiring a Lawyer

In a similar situation, it might be tempting for someone who has the resources to post a bond. In this case, the bond is reported as $1 million. This is a lot of money, but sometimes people are desperate to get out of jail.

It's important to understand that posting bond in this situation is likely to trigger a federal indictment or complaint and arrest warrant. I recently advised a defendant's family that posting the bond, which was well north of half a million, would only be worth it if they were okay with losing that money when he is picked up on federal charges in less than a week. I don't think they liked my advice because they hired another attorney. Last I saw, the defendant was in jail on federal charges, and the money the family posted is gone.

How a New(ish) Federal Policy May Affect Charging Decisions

I will be interested what charges the Defendants end up with in federal court, assuming the case is headed there. Obviously the amount of cocaine involved (26+ kilograms) is enough to trigger mandatory minimums. And until recently I would predict with confidence that they would also be charged  with a violation of 18 U.S.C. 924(c), which provides an additional *consecutive* mandatory minimum sentence for possessing a firearm "during and in relation to" a drug trafficking crime.

In December, Attorney General Merrick Garland issued two policy memos regarding charging decisions, pleas, and sentencing. The Garland memos are a statement of United States policy. They place restrictions on charging mandatory minimums, guide charging decisions, and generally instruct federal prosecutors to be a little more lenient.

Lately I *think* I have seen the Garland memos taking hold in the Eastern District of North Carolina, with a few instances of the DOJ not charging mandatory minimums where I would expect it. So rather than specifying an amount of the drugs in question sufficient to trigger a statutory man min in the indictment, the indictment might just read "a quantity of cocaine" (or meth, heroin, fentanyl, etc). This can make a big difference at sentencing and is a welcome sign if it is truly a manifestation of policy. Even without a charged 924(c), the gun would still likely enhance any sentence in the case, and if one or both of the defendants are felons that would be an additional charge.

Since the Garland memos were issued late 2022, I have attempted to use them in negotiations on a few occasions. Hard to say whether the invocations of these policy statements had a direct or peripheral effect, but the clients ended up with decent resolutions to otherwise difficult cases. I think the memos can be very useful in helping to shape outcomes prior to an indictment, or even after the indictment.

I'll try to keep an eye on this case and see if it goes federal in the Eastern District of North Carolina, and if so what the charging decision is.

In the meantime, it's important to know that spending a whole lot of money bailing out a loved one accused of a crime that has obvious federal potential is dangerous, as is hiring a defense attorney who does not have experience with federal cases. On countless occasions I have heard from family members or an appointed client about how  they spent ten thousand or more dollars on a private attorney for a case that was picked up by federal prosecutors and then the attorney either couldn't or wouldn't continue the representation or refund the "non-refundable flat fee" leaving the family broke and without a lawyer.

Make Sure Your Fee Agreement Covers the Possibility of Federal Prosecution

When you or a loved one is facing a federal criminal investigation or indictment, or has been charged by state law enforcement authorities with a crime that might well be federal, it is very important to seek an attorney who is familiar with federal cases and can provide advice based upon experience. Ask what will happen to the money if the case is indicted by U.S. DOJ, and include that in the contract (never hire a lawyer without a written fee agreement!).

I represent people in drug trafficking cases in both North Carolina state and federal courts. Give me a call to discuss your case- I provide free initial consultations. I also routinely provide fee agreements that contemplate the possibility of  much more complicated federal prosecution. Fill out the form in the sidebar or give me a call at 919-833-8949 to get the conversation started.