Thomas Soldan on State versus Federal Crimes
The following is excerpted from an interview with Virginia criminal lawyer Thomas Soldan. He answers questions about the differences between state and federal crimes in Virginia.
How do the criminal process and the penalties differ for state versus federal crimes?
Thomas Soldan: The process is different because they are both constructed differently. The Commonwealth of Virginia has a state criminal procedure that says how the courts operate, and they are very different. In Virginia, there is also a vast difference between the formality of the courts, which entities are involved, and what types of crimes are prosecuted. For example, there are only a couple of different local entities in which someone could encounter a federal offense on the highway. The George Washington Parkway is the most common area, but there are also the different military installations, as well as around the Pentagon and Wolf Trap National Park. Those areas are federal property, so that is where their traffic jurisdiction lies, but there are not as many places to commit those offenses. Federal crimes in this jurisdiction tend to be things that happen on the Internet, over the wire. It could be interstate commerce against a federal entity or a larceny case involving a federal agent, for example. Another difference is which law enforcement agencies are involved. Federal crimes are typically investigated by the FBI, Customs, the Secret Service, Homeland Security, and other different bureaus that are involved in federal law enforcement. Local law enforcement would typically be the County Sheriff’s office, the state police, and local police departments.
Is it possible for someone to be charged with the same crime at the state and federal level?
Thomas Soldan: No. You cannot be found guilty of the same offense, the same set of operative facts, in two different courts. There are double jeopardy concerns and different constitutional protections against convicted of the exact same offense at the federal and state levels. It is also unlikely that someone would be charged at the same time, because typically the state and federal law enforcement entities will communicate and decide what they want to do in a cooperative manner. What does happen is, sometimes, state offenses are charged locally and then the U.S. Attorney’s office gets involved and prosecutes the offense as a federal offense because it also violates a federal law, though it may involve concurrent state law, as well. There has to be a choice of which jurisdiction is going to prosecute. That arises most commonly in Internet crimes, because they can occur both locally and at the federal level. In those cases, a person is not charged at the same time, they’re charged by one entity and then the case moves to whichever one is going to end up prosecuting. Typically, a case would originally be charged at a state level to obtain some evidence and determine the severity of the offense, and then it may move to the federal level, at which point the state charges will be dropped.
What determines whether or not a state crime becomes a federal crime?
Thomas Soldan: The gravity of the offense, whether or not there are victims outside of the state that need to be protected and whose interests may have been damaged, and whether or not there is a compelling federal interest in prosecuting the offense. That may be based on what type of law enforcement has participated in the investigation, whether there are codefendants that are in other jurisdictions that may make it a federal offense, and whether, through the cooperation of federal and state prosecutors, they feel that one jurisdiction has a better chance for a successful prosecution or an enhanced penalty. The prosecutorial side decides what makes something a state or federal crime.