What To Do: Being Charged with a Federal Crime
The following is an excerpt from an interview with Maryland criminal defense attorney Kush Arora.
What should someone charged with a federal offense expect?
Kush Arora: After they are charged, if they are placed under arrest, and most people in federal cases are placed under arrest, very likely a bond review will take place immediately. That bond review will determine what risk there is in releasing a particular person. Among the things that a judge reviewing that bond will take into consideration are what the crime is, how serious it is, how much of a danger is posed to the community, and whether or not the defendant is a flight risk. After that bond review takes place, it’s determined whether release is possible or not, either by a bond or some other form of surety. A person is released and preparations begin for trial. Next, the defense attorney gets in touch with the U.S. Attorney’s Office to file a request for discovery in the case, which essentially means the U.S. Attorney turns over all of the documentation that they intend to use to prove the case, as well as any exculpatory evidence that they have that might tend to prove the innocence of the defendant, to the defense attorney. From there, the defense attorney works with his client to begin trial preparation, whether that means subpoenaing witnesses, preparing the defense’s testimony, or looking into whether or not any expert witnesses are going to be necessary for trial. The trial preparation aspect is no different in the federal system than it is in the state system.
Does your approach to a criminal case change when it is in federal court?
Kush Arora: My approach to a criminal case doesn’t change when it’s in federal court, but the manner in which a sentence is imposed in federal court is a little bit different than the way it is imposed in state court. For that reason, the sentencing guidelines do play a much larger role in the federal system than they would in the state system. The federal sentencing guidelines are all based on points, and the way that the points are assigned or allocated has to do with somebody’s criminal record, as well as with the amount of money or the weight of drugs that are involved in a particular investigation. Impact on a victim might also play a role. The reason that these points are so important is because, occasionally, when we are litigating a case or preparing a case like this for trial, very small factors can change the entire course of the case. In a federal theft case, for example, if I was able to show that the amount of money taken was just a little bit less than what was alleged, the sentencing guidelines might be dramatically different than one might have originally expected. Similarly, in a federal drug case, if I could argue that the weight of the drugs was just a few grams less than alleged, the guidelines for sentencing might be significantly different. My approach in a federal case is different because I am considering these issues throughout my representation.
Can someone be charged with the same crime at the state and federal level?
Kush Arora: Yes, they can, but usually, the charges won’t both go forward. There is Double Jeopardy in the United States, which would keep somebody from being charged with the same crime two times. Occasionally, a case may start out in state court and then be referred to the U.S. Attorney’s Office by the State’s Attorney that is handling it for a multitude of reasons. Those reasons aren’t often divulged to the defense, but, usually, there’s a conversation that takes place between the State’s Attorney’s office that is handling a case and the federal U.S. Attorney’s Office that falls within that jurisdiction, to discuss whether there is a larger reason why a case might move from the state level to the federal level. Those reasons vary. Occasionally, in a theft case, this might have to do with the amount of money involved, or in a drug case, with the quantity of drugs involved. These are decisions that are made by individual offices and individual prosecutors as a result of their evaluation of the case. If a case has moved from the state level to the federal level, generally speaking, the state case will be dismissed and everything will be deferred over to the federal agents and U.S. attorneys to resolve with the defense attorney in that forum.