State v. Federal1
There are many significant differences between prosecution by the State (that is, the District Attorney’s office of the local County) and prosecution by the Federal Government (the Office of the United States Attorney or the United States Department of Justice). Criminal conduct that violates a federal statute will be prosecuted by the United States Attorney’s office. Such crimes include:
RICO (Racketeering Influenced and Corrupt Organizations) Violations
Mail Fraud/Wire Fraud
Internet Crimes
Interstate/International Crimes
Bank Robbery/Fraud
Trafficking in Controlled Substances
National Security/Terrorism
But, beware: conduct that violates a state criminal statute, might also violate a federal statute. And both the state and the federal governments can prosecute separately. Double jeopardy does not apply when you are prosecuted by different governing bodies.
Indictment/Complaint
While a defendant in a state criminal prosecution is protected by the same constitutional rights as a defendant in a federal criminal case, the procedures followed in state court differ from that in federal court.
The first difference is in how a criminal case is brought in federal court. Most criminal cases are indicted by a Grand Jury. A Grand Jury proceeding is not the trial. The government does not present evidence beyond a reasonable doubt. It is a secret proceeding. Only the government, the witnesses, and the Grand Jury members themselves know what happens in the Grand Jury room. And the law prohibits the disclosure of Grand Jury Proceedings by anyone except a witness.
The target of the Grand Jury does not have any right to present evidence in his or her defense. In fact, the target may never know that he or she is in fact the target. Witnesses, including the target, are not even allowed to be represented by a lawyer inside the Grand Jury room. The lawyer for the witness or target must stay outside, is not allowed to hear the questions, see the evidence, and may only consult with their client outside the Grand Jury room.
When the Grand Jury decides that more likely than not the target committed the crime alleged, they return an Indictment. The Indictment forms the basis for the charges brought against a defendant in federal court.
In state court, a case is usually brought on the sworn affidavit of a law enforcement officer. This is the criminal Complaint by which a person may be arrested or summoned to court.
To make sure that there is sufficient evidence to prosecute a defendant on a criminal Complaint, the defendant has the right to a Preliminary Hearing. This is where the prosecution must present enough evidence to the court (without a jury) to show that more likely than not a crime was committed and that more likely than not the defendant committed the crime. This is not the trial. The prosecution does not have to prove their case beyond a reasonable doubt. This is merely a constitutional protection to ensure that there is enough evidence to require that the defendant stand trial on the charges.
The federal system also has a Preliminary Hearing procedure. It is also used when a person is arrested or summoned on a criminal Complaint without indictment by a Grand Jury. However, in some districts, such as the Central District of California, all cases are indicted by the Grand Jury, even if the initial arrest is made based on a criminal Complaint.
Initial Appearance
The Initial Appearance is the first time a defendant will go to court. This is a court hearing to address the question of bail, to advise the defendant of his or her rights, to make sure that the defendant has a lawyer or to see if the defendant qualifies for appointed counsel.
Although every defendant in a criminal case has the right to have a lawyer, the defendant must financially qualify to have the court appoint a lawyer at no cost. You do not qualify for appointed counsel simply because the lawyer you want to hire is too expensive. You must fill out a financial affidavit, signed under penalty of perjury showing your income, your assets, and your expenses. Generally, unless your income and assets are just enough to cover your reasonable and necessary living expenses, you will have to pay for your own lawyer. One way to look at qualifying for appointed counsel is to answer the question: will you be destitute if you have to pay for your own lawyer? If you have substantial equity in a house, for example, you may be required to use that asset to pay for your own lawyer.
The court will set bail at the initial appearance as well. Bail is different in state and federal court. In many Counties, bail is set according to a “bail schedule.” This is a list that sets a certain amount for bail according to the nature of the charges. If a defendant has a criminal record, that bail amount will likely be higher. If the defendant is from out-of-state or a foreign country, the court may determine the defendant is a flight-risk, and bail will be higher. If the defendant is determined to be an undocumented alien, he or she will likely be held with no bail.
In federal court, bail is handled differently. There is no bail schedule. The court must make a determination of bail for each defendant individually. Typically this requires that Pretrial Services, an arm of the court, interview the defendant to determine what an appropriate bail amount would be under the circumstances. In some districts, the court does not accept bonds posted by bail bond companies.
Arraignment
The arraignment is the court proceeding where the defendant enters a plea. Most often in both state and federal court, the defendant enters a “not guilty” plea at the arraignment. The arraignment is early on in the process, and often the defendant and his or her lawyer have not had enough time to evaluate the case, review the evidence, and discuss possible plea agreements with the prosecution.
The arraignment is also the start for the defendant’s speedy trial rights. In state court, a defendant has the right, but not the obligation, to be brought to trial within 60 days of the felony arraignment. In federal court, the case must be brought to trial within 70 days of the arraignment unless the court finds good reason to allow more time.
Pre-Trial
At the arraignment, the trial date is set, and in both federal and state court, the case is assigned to a judge. However, in state court, the assigned judge is not always the judge who will preside over the trial. Different counties follow different assignment procedures. In federal court, however, the judge assigned at the arraignment is the judge for the whole case including trial.
It is during this time that the defendant and his or her lawyer will review the prosecution’s evidence, determine what, if any, motions should be brought to limit the evidence, limit the case, or even dismiss the case.
There may be several court hearings during this time, or none at all. It depends on the court and whether the defendant needs to bring a matter to the court’s attention. This is when the defense takes shape. Investigation, witness interviews, expert consultation—all are part of preparing for trial and take place during this pre-trial period.
Trial: A Matter of Proof
Trials are all about the evidence. There can be no successful defense without a careful strategy regarding the evidence at trial. Criminal trials come down to one thing: what can the government prove. Careful and thorough investigation and trial preparation are key to a successful defense. But that investigation and preparation must involve both marshalling the evidence and crafting a strategy to limit what evidence the jury will actually hear and see—what evidence the government will be permitted to present. Every defendant has a right to a jury trial. The government also has a right to a jury trial. If both sides waive their right to a jury trial, the case will be tried before a judge without a jury.
There are some different procedures in federal court trials from state court trials. For the most part, the first day of trial in federal court is the day for jury selection. For the most part in state court, the first day of trial is simply the day that the defense must announce ready for trial. At that point, the prosecutor has 10 days in which to begin trial or the case may be dismissed. In many counties, when the defense announces ready, the case is then sent to another court for trial. In federal court, except in rare circumstances, the judge who presided over the case from the beginning is the judge who will preside over the trial.
Sentencing
Sentencing in federal court is a critical part of the process, whether the case concludes by a plea bargain or after a trial. Particular care must be taken when preparing for the sentencing hearing, which in some districts can be two or three months after the trial or guilty plea. Federal crimes are governed by the federal sentencing statutes. Part of the sentencing process involves the United States Sentencing Guidelines. Until recently, in 2005, these “guidelines” were mandatory—the court did not have the power to sentence a defendant except as permitted by the guideline formula. While no longer mandatory—the court is no longer bound by the guideline formula—the guidelines must be considered by the judge in determining the appropriate sentence.
In state court, while sentencing is less complicated, it is no less important. It is still a critical part of the process, demanding careful and thorough preparation. However, in California, for example, the sentencing procedure less involved than in federal court and is less often the several-month process as is the case with most federal sentencing.
What most people don’t realize is that the penalties for federal crimes are much more severe than for the same crime under state law. For example, possession with intent to distribute 50 grams of crack cocaine has a maximum penalty under state law of 5 years. (Cal. Wel. & Inst. Code §11351.5). And the state will not impose the maximum without proof of aggravating facts that justify imposing the maximum sentence. But, the same offense under federal law carries a mandatory minimum of 10 years (which means the court has no discretion and must impose a sentence not lower than 10 years) and the maximum penalty is life imprisonment. (18 U.S.C. §841(b)(1)(A)).
The defendant’s prior criminal history, both state and federal, have a significant impact on any pending federal sentence. Many attorneys who practice exclusively in state court, do not take into consideration the impact of a state court sentence. Their primary goal is to get as little actual time served in jail as possible for their clients. The problem is that once the defendant is in federal court, “actual time served” is not the basis for the sentencing calculation. The federal sentencing guidelines focus on the sentence itself. For example, a no-jail time probation sentence for misdemeanor driving on a suspended license can increase the guideline sentencing range in a later federal case if that probation period exceed one year. And committing a federal crime while on even informal probation may significantly increase the guideline sentencing range in federal court.
Our firm handles almost exclusively Federal Criminal matters. David Kaloyanides has significant experience in both State and Federal Criminal cases. When searching for an attorney, a federal practitioner will be better equipped to protect your freedom and your rights in the long run.
David Kaloyanides has handled numerous federal sentencing matters and has been successful in reducing his clients’ overall sentences in cases that resulted in both state and federal charges.
1This description is limited to a comparison between federal court and the California state court system. We are not licensed to practice law in any state other than California and do not purport nor intend this information to apply to any other jurisdiction other than the federal system or the California state court system.
