U.S. Attorney’s Office Adopts New Policy Aimed At Seeking Greater Penalties In Prosecution Of Heroin Cases

HARRISBURG – The United States Attorney’s Office for the Middle District of Pennsylvania today announced a new policy for bringing more severe charges against persons who distribute heroin in Central Pennsylvania and for tougher sentencing recommendations by federal prosecutors in heroin cases.

U.S. Attorney Peter Smith said that, “heroin today is not a life style or a business – it is a killer.  The steep increase in heroin trafficking and the alarming rise in deaths due to heroin overdoses, particularly in young people, are a state-wide and national problem, but also a deep personal tragedy for many families.  Much of what must be done will be through education, additional funding, medical help, counseling and rehabilitation.  But those who sell or otherwise put heroin in the hands of others, are knowingly dealing in possible death or serious harm to users and should pay heavily for their greed and callous indifference.  The new policy is intended to emphasize that point.”

The guidance to Assistant U.S. Attorneys in the District’s three offices (Harrisburg, Scranton and Williamsport) for heroin cases includes the following:

• In heroin cases, all available charges should be considered.In addition to charges under the Controlled Substance laws and firearms charges, particular attention should be paid to statutes relating to continuing criminal enterprises; maintaining drug-involved premises; endangering human life while illegally manufacturing controlled substances; distribution to persons under age 21; distribution or manufacturing in or near schools and colleges and employing children to distribute drugs near schools or playgrounds and other prohibited places; and employment or use of persons under 18 years of age in drug operations.

• Money laundering charges and forfeiture allegations should be part of all charges where there is evidence of substantial proceeds from the illegal activity and/or assets that can be seized and forfeited.

• Many heroin cases involve defendants with ties to large-scale drug trafficking organizations, gangs, or cartels.Many defendants in heroin cases are leaders, organizers, managers, or supervisors of others within an organization.Other defendants have significant criminal histories or use violence, weapons, and minors in the operation of their business.These factors indicate that a drug weight should be charged that will trigger a mandatory minimum sentence when a reasonable argument can be made that it applies.

• The evidence must be analyzed as to each defendant individually.A defendant is responsible for drugs involved in his own activities or those he encouraged others to undertake.A defendant is also responsible for drugs involved in the activities of co-conspirators if those acts are "reasonably foreseeable."We will charge defendants in heroin cases accordingly when the argument can be made that reasonable foreseeability applies to the scope of that particular defendant’s responsibility.

• Repeat offenders, particularly those involved in heroin trafficking, are appropriate candidates for sanctions which generally double any applicable mandatory minimum sentence.When a defendant involved in heroin trafficking is a repeat offender and the conduct falls within the sanctions, we should not hesitate to seek the enhancement.

• Because of the seriousness of heroin-related offenses, plea agreements that call for dismissal of the most serious charges in heroin cases are highly disfavored and will only be approved in the most extraordinary circumstances.Defendants who wish to reduce their sentence must fully cooperate and then they should not expect a sentencing reduction of more than fifty percent from the otherwise applicable mandatory minimum sentence or guideline range, whichever is higher.

• Because heroin cases present a greater risk of harm to individuals and the community, we will advocate for applicable guidelines enhancements that will increase the sentence.These include possession of a dangerous weapon; use of violence; maintaining drug premises; aggravating role; use of a minor; obstruction of justice; commission of offense while on release; and criminal livelihood.

In addition to seeking enhancements, there may be heroin cases where a sentence at the high end of the applicable guideline range or even an upward departure above the guideline range is called for. 

• Under the federal sentencing guidelines, the decision to recommend a guideline departure based upon a defendant's "substantial assistance" to law enforcement is one of the most significant judgments facing any prosecutor.Heroin cases should be treated no differently than any other cases in this respect.We should make an assessment of the significance and usefulness of the defendant's assistance in making our recommendation to the court for a sentence departure on this basis.When defense counsel seeks a variance below the applicable guideline range in a heroin case, we will generally oppose that request unless extraordinary circumstances exist.

• A sentencing memorandum should be filed by the prosecution in heroin cases, particularly when we are advocating for a sentence more serious than otherwise would be imposed if another drug was involved in the offense of conviction.In order to support and strengthen our approach to these cases, when appropriate we will include the grim statistics and other information that reflect the current nationwide heroin epidemic.

# # #