Republican Congressman Sentenced under DC Code 904.01(e)

489547_cocaine_stripesA big story in the news today was last night’s arrest of Republican Congressman from Florida Trey Radel for possession of cocaine in DC.  Congressman Radel is a freshman tea party congressman who represents the 19th congressional district which covers Naples, Fort Myers, and Cape Coral.

He was arrested after he purchased about 3.5 grams of cocaine from an undercover law enforcement officer.  In DC, possession of cocaine is a misdemeanor that carries a maximum penalty of 180 days in jail and/or a $1,000.00 fine.  Unlike most people arrested in DC, Congressman Radel immediately plead guilty at his first court date.  I did not realize what had happened until I walked into court this morning and saw the media frenzy outside the DC Superior Court.

Congressman Radel was sentenced by Senior Associate Judge Robert S. Tignor (a judge a just appeared in front of yesterday) under provisions of the DC Code that would allow his arrest and subsequent guilty plea to be expunged if he successfully completes probation.  Some people refer to this as “probation before judgment” because it puts the defendant on probation before officially entering the judgment.  There is a lot of speculation out there as to whether the Congressman got a sweetheart deal with the United States Attorney’s Office for the District of Columbia because of his position.  As a DC criminal defense lawyer who has litigated close to 300 cases in Superior Court, I can unequivocally say that is not the case.

No criminal laws in DC make the possession of drugs more illegal based only on the quantity.  Possession is possession.  If you are caught with large quantities of drugs, however, the government may charge that as possession with intent to distribute, which is a felony.  Large quantities of illegal drugs do not automatically prove intent to distribute.  DC drug laws look to other factors referred to as “indicia of sale.”  For example, possessing large quantities of drugs packaged individually in smaller bags along with a scale to weigh the drugs would be strong “indicia of sale” and likely lead to the charge of possession with intent to distribute.

Here, Congressman Radel purchased about 3.5 grams of cocaine from an undercover agent, which is a quantity consistent with personal use.  In addition, there were no other indicia of sale present.  So, the government properly charged him with misdemeanor possession.  Other jurisdictions criminalize quantities of drugs.  For example, the same amount of cocaine possessed in the Congressman’s home state of Florida would be charged as a felony.

As far as his sentence goes, DC Superior Court judges are relatively fair when it comes to sentencing for drug offenses.  In fact, its hard to imagine a scenario where a first time offender caught possessing illegal drugs for personal use would be denied the same sentence the Congressman received this morning.  So, while I am no stranger to criticizing law enforcement, the US Attorney’s office, and the DC criminal justice system, any stories out there that paint the picture that Congressman Radel received special treatment because of his position in the way he was charged or sentenced are just hype.