“It’s a rainy night in Georgia” crooned Brook Benton in the 1970 R&B classic, which is fitting on this rainy Monday during this rainiest time of the year here in soggy Atlanta, Georgia. Although it’s very wet and ugly outside, here in my office I am pondering possibilities for resolving a certain federal criminal case in which my client wants me to negotiate the best “deal” he can get. Looking for a deal sometimes means we need to get creative, and this leads to my never-ending quest for quirky and oddball federal crimes that sometimes come in handy. These strange federal crimes can be useful if they have a lower penalty than the one suggested by the prosecutor in the first place. I will do another post some other time soon to lay out some of the really stupid federal crimes that are on the books.
However, considering my current matter, I am facing the fact that some federal crimes have mandatory penalty structures. These make it especially hard to do my job of getting the lowest possible sentence for my client. For example, even if I convince the Judge that my client is entitled to mercy, the Judge’s hands are tied and he or she cannot impose anything less than the mandatory minimum punishment. As a result, I try to convince prosecutors to let my client plead guilty to a different, but related, crime which carries no mandatory minimum and a relatively low maximum punishment.
Federal drug crimes often carry mandatory minimum penalties, another leftover from the idiotic War on Drugs we waged against ourselves back in the 1980’s and 1990’s and early 2000’s. The maximum sentences are usually 20 years, 40 years, or sometimes life in custody. However, I sometimes can get federal prosecutors to drop the drug charges and let my client to plead guilty to one of my three favorite quirky crimes outlined below.
First, we sometimes can use the “general” conspiracy statute, 18 U.S. §371. This is a separate law that makes it a crime to conspire (meaning “to agree”) to commit a different federal crime. The great thing about §371 is that the maximum punishment is 5 years in custody, even when the object of the agreement would be a higher and more heavily punished crime. There also is no minimum for this type of conspiracy.
Second, I also like to see if we can use a “Travel Count” for certain situations as a quirky alternative. This crime looks nasty and dangerous on the surface, and is lodged deep in the midst of the federal racketeering laws. However, a very close reading shows that this crime also has only a 5-year maximum for anyone, and applies to anyone who travels in interstate commerce to distribute the proceeds of any unlawful activity or who travels to promote or facilitate any unlawful activity. Obviously, we can shoehorn a lot of cases into the Travel Count scenario
Finally, one of my favorite quirky laws is the “Phone Count.” Remember, many federal drug crimes have 5 and 10, and even 20-year mandatory minimum penalty structures. However, deep within the bowels of Title 21 of the U.S. Code is section 843(b). This law makes it a crime to use a “communications facility” to “cause” or “facilitate” anything else that is a crime under the federal drug laws. The “Phone Count” has a maximum of 4 years in custody, so this is another option when we are looking for other laws my client can plead guilty to in order to avoid the mandatory minimum sentence structures.