How Is It Determined If A Crime Will Be Prosecuted at the State or Federal Level?

Interviewer: Is it always clear-cut that someone will be charged federally or is it a toss-up?  Do the jurisdictions fight over who will charge a person?

Paul: It varies from case to case. Let’s use a narcotics offense as an example. Suppose someone is stopped on the highway and they have, comparatively, a large volume of narcotics. They have a car that is tagged in the Southwest or in California.

Then during the course of the traffic stop, during regular investigatory questioning before the search, the person says, “I am travelling to New York to visit friends and family.” Pretty early on in the stop, it is determined that this is the type of case that crosses several state boundaries.

If that traffic stop matures into a search and they discover a large volume of drugs, it is very likely that would be prosecuted at the Federal level.  That is probably going to be a federal case.

The general rule prosecutors will tell you is that cases typically belong to the state or the county prosecutor. It is the county prosecutor’s decision to relinquish it for federal prosecution.

Most people would think federal authorities, being higher up the legal food chain, would have that discretion.  But 99% of the time, if the United States Attorney expresses any interest in the case, the county attorney is all too happy to let go.

This is because the types of cases the United States Attorney would be interested in are the very types of cases that would consume a great deal of the county attorney’s time and resources.

Interviewer: What are the criteria is to get a case bumped from state up to federal? Are you saying it is usually larger cases?

Paul: That is correct. The criteria is a large distribution network or a larger quantity of drugs; and anything involving the crossing of state lines.

We see that with some of these child pornography cases, too. An example is an individual who lives here in the metro area who may have paid for the opportunity to download images from a provider or a server in a different state; or maybe even in a different country. Anytime we cross state boundaries or certainly international boundaries, that will certainly attract the attention of the United States Attorney.

“The Importance of Aggressive Federal Criminal Defense”.