Hello and welcome back to Attorney Paz’s rants of a criminal defense attorney. This week I want to talk about an issue that’s not commonly known, but has come up recently in some client interviews that I’ve done. It’s the ability and the possibility to be charged in both federal court and state court for almost identical offenses.
Federal and State Charges
So I do get clients that come in here for sex offenses, because I work with sex offenses, and I talk to them about the potential exposure that they have in the state court. And then I say, “well, listen, you may face an indictment in federal court as well.” And then I get this shocked face, “what do you mean?” And what I mean is the following. We all live under a system in which we have multiple sovereigns – so we have a federal government, we have a state government, and then we have local governments. All of these governments have their hands in our pot, so to speak, in some fashion, but what it means for us on the criminal level is that some offenses may constitute both a federal crime and a state crime. And even though it’s essentially the same crime, there is no double jeopardy provision that prohibits the federal government from prosecuting you as well as the state government.
So for example, if you are being prosecuted in state court for possession of child pornography, a lot of the times I see indictments in federal court as well, and the reason is because most of these files are being downloaded from servers that are interstate or they’re being uploaded to servers that are housed in other states. In other words, they’re being moved in interstate commerce, and this automatically will trigger the jurisdiction of the federal court. Now, whether the federal court chooses to indict you is another story. Generally, some of the lower level pornography offenses, the feds have just been letting the state handle it, and so most of the time you won’t ever see an indictment in federal court. But the possibility is there for you to be both indicted in federal court and have a state court case pending for the exact same images, in which case, we would have to then coordinate sentencing amongst the two jurisdictions, and you could potentially be facing some more time. So this is something that you need to be aware of, the potential for federal exposure.
So if you have any questions about that, feel free to email me, [email protected], and as always take care, don’t get arrested, and see you soon.