by Jamison Koehler on December 3, 2021
With the Department of Forensic Science (DFS) having lost its accreditation, the government now has to contract out the testing of controlled substances that are at issue in a criminal case.
The government is always looking to save money. In simple possession cases, therefore, it is not sending out the drugs for testing at an independent laboratory. Instead, it is amending the charges to attempted possession.
A conviction for attempted possession carries the exact same penalty as actual possession: incarceration for up to 180 days and a maximum fine of $1,000. The only difference is that, with attempted possession, the government does not need to prove the composition of the substance in question in order to meets its burden. Instead, it must only show that the defendant thought the substance he possessed or attempted to buy was illegal. That showing would constitute the requisite criminal intent.
I had a case recently in which my client was arrested with a large amount of crack cocaine on his person: 6 grams, to be precise, of individually wrapped packets. Also found on my client’s person was over $450 in cash.
My client was originally charged with simple possession. However, given the continuing problems with DFS, the government later amended the charge to attempted possession.
The government filed notice of its intent to call a drug expert to testify at trial. The expert was expected to testify that the drugs found on my client looked, smelled, and felt like crack cocaine. The government also sought to introduce the results of the field test that officers had conducted at the time of my client’s arrest, indicating a positive for the presence of cocaine in the tested sample. Presumably, the government was also planning to introduce evidence that my client fled upon the initial approach of police, that he initially gave a false name, and that he pleaded with police officers not to arrest him. These would all be indications of my client’s consciousness of guilt.
I fought the government at every turn. I filed a motion to suppress the evidence on the basis that the police had violated my client’s constitutional rights when they chased him into a private residence and ordered him to the ground at gunpoint. I filed a motion to preclude the government from introducing expert testimony as a sanction for failing to provide adequate notice. And I filed a motion to preclude the government from introducing any evidence with respect to the field test kit as a sanction for failing to preserve the evidence.
My trial theory was simple, if somewhat unorthodox: Without the chemical analysis of the substances taken from my client’s person, the government could not prove that the substances were not counterfeit drugs – designed to look, feel, and smell like the real thing. And if my client was a dealer of counterfeit drugs, not an addict, the government could not prove beyond a reasonable that he intended to possess actual drugs. After all, a person attempting to pass off counterfeit drugs as real drugs would know for certain that the substances in question were not the real thing.
In other words, my client did not possess actual drugs. Nor did he attempt to possess actual drugs.
My trial strategy led to an interesting dynamic during my cross-examination of the government’s drug expert.
Normally, a suspect arrested with 6 grams of individually wrapped crack cocaine and over $450 in cash would have been charged with possession with intent to deliver – a felony offense. Who knows why the government did not do that in case? Maybe it was responding to the fact that there was no chemical analysis and thought it would be easier to convict my client of attempted possession, for reasons described above.
Normally, the government’s expert would pontificate on how such a large amount of drugs, coupled with so much money, could only suggest the defendant was dealing drugs. Because no user would possess such a large amount.
The defense would typically counter that the drugs were clearly for personal use – thereby reducing the offense from a felony to a misdemeanor.
In this case, I was able to turn the tables on the government’s witness.
“Is it fair to say,” I asked him, “that no addict would possess 6 grams of crack cocaine?”
It took the officer a moment to figure out where I was going with this. “That is true,” he replied.
“Because that is a lot of cocaine, am I right?”
“The fact that the cocaine was wrapped in 40 individual packages is further evidence that these drugs were possessed for sale, not for personal use, right?
The officer was now catching on. He started to squirm in his seat. “That’s right,” he replied.
“It is also fair that the typical user of drugs would not possess that much money, right?
“And that is because, based on your extensive experience dealing with narcotics in the District, you know that addicts tend to spend their money as soon as they get it. Is that right?”
“Yes,” replied the officer.
Now the clincher: “You are familiar, of course, with the practice of selling counterfeit drugs on the street, right?”
“And you know, again based on your extensive experience, experience we heard so much about on direct, that counterfeit drugs are made to with the intent to look, feel, and smell like actual drugs, right?
“You need to say yes or no.”
“Because otherwise no one would ever buy them, isn’t that true?”
“That is true.”
And now, bringing it home: “In this case, you do not know that whether the substances recovered from my client were real drugs or counterfeit drugs, am I right?”
“Yes, you are right.”
“And that is because the substances were never tested, is that right?”
“Finally, officer, you would agree with me that the one person on the street who would know that drugs are counterfeit would be the person who is selling them, right?”
We are taught to end our cross-examination with a bang, and it was very gratifying to end my questioning of the officer with this.
I sat down.
I will never know if the court found my argument convincing because, as it turns out, the court granted my motion to suppress and the case was dismissed on constitutional grounds.
But cases like this are what make it so much fun to be a lawyer — even if war stories such as this one are the reason many people don’t like to spend time with us.