Lawyer Gal's Blog

A Young Lawyer's Perspective

Why are some crimes prosecuted federally while others are at the state level?

I was always baffled by this question, even in law school and while working with a big time criminal defense lawyer.  One thing I did know:  if a person gets prosecuted by the federal government, then he or she is caught on a small watercraft on Lake Erie when a storm suddenly hits.  [Lake Erie is quite shallow, and churns up dangerously, with rip-tides and all].  I’m not sure if the severity of a federal indictment comes from the prestige of the court, the lifetime appointment of judges, or the sentencing guidelines.  A federal courthouse, in my opinion, should be visited by every citizen – not only is the building incredibly aesthetically pleasing, but it has a certain grandeur about it that truly cannot be described.

When I attended a seminar on the federal courts [a lawyer has to do various additional tasks to practice in front of each federal court], an assistant U.S attorney from the Northern District of Ohio spoke.  He said the first reason, obviously, that some crimes are prosecuted by the federal government is because they are contrary to federal law.  The federal government enforces myriad laws, especially ones relating to mail fraud, firearms, taxes and drugs that cross interstate lines. Rarely, however, does a crime fall exclusively within federal jurisdiction [say, mail fraud or filing false federal income tax].  More often than not, a crime is both a violation of federal and state law.

For example:  a company targeted poor people, often the elderly and Amish, into becoming members of a discount club for $2000.  In exchange for the fee, members were promised access to manufacturers directly.  The middleman would supposedly be bypassed.  As you can imagine, none of the “contacts” to the manufacturers actually existed.  Members saved no money, yet could never obtain a refund.  After countless complaints to the Better Business Bureau, the matter was brought to the attention of the FBI [they investigate crime generally], who started investigating the company.  The OIG [Office of Inspector General] became involved too. The OIG investigates crimes related to mail.  Anyway, the salesmen were indicted by the federal government for mail fraud – because they sent false information to consumers that induced them to act.

The fact is, however, that the crime could easily have been prosecuted in state court on a pure fraud theory. After all, the scam took place in Ohio; the consumers were Ohioians.  Yet, the defendants were charged federally.  Much of this stems from the extreme nature of the crime and that it caused a lot of financial hardship.  Additionally, the investigation was complex and more suited to the federal government.  Typically, a federal investigation starts on the desk of a federal agent.  He or she must establish certain criteria before the case is brought to an assistant US attorney, who then looks at the facts, the law, resources, the nature of the offense and his professional experience in deciding whether the case should go ahead.  So, in sum,  most cases depend on: federal law [and if the case has facts that can support a federal charge, even tenuously], who investigates it [was it local police, or did the feds get involved?], and factors analyzed by the US Attorneys Office.

Like I mentioned earlier, the federal government doesn’t mess around when it opts to proceed with charges. Some of the very brightest and most talented people work in the US Attorney’s Office.  FBI agents and other agents with investigatory duties are highly trained and screened.  [Most state detectives have 600 hours in the police academy.]  Federal judges possess c.v’s that young lawyers could only dream of.  Federal courts have the very best technology.  Federal dockets carry far fewer cases than state courts; thus, each case is closely followed.  Federal sentencing guidelines have a presumption of incarceration.

Finally, Double Jeopardy is NOT violated when a defendant is prosecuted in federal court and state court.  For example: a defendant commits an armed robbery involving interstate commerce.  (The federal government can legislate under the Dormant Commerce Clause for crimes that are at first blush within the states’ powers if the activity affects interstate commerce. Well, just about every robbery of a business involves interstate commerce [goods travel across state lines.])  The defendant is convicted and sentenced per the Sentencing Guidelines.  After his sentence is served, he is transported to state custody to face state armed robbery charges.  This is perfectly constitutional.

I hope you are a little less-confused than I was when I first became involved in criminal defense.



May 11, 2010 Posted by | Uncategorized | Leave a comment