One of the most common questions clients ask me is whether their case will
be prosecuted by the Federal Government as opposed to the State. The simple
answer is “it all depends”. There are a number of factors
that go into the decision as to whether or not federal authorities will
prosecute a criminal case; but the reality is that the vast majority of
criminal cases in Phoenix, and around the United States, are handled by
state or local prosecutors.
While State and Federal prosecutors have concurrent jurisdiction over a
vast majority of crimes – that is, both have the legal right and
ability to prosecute certain offenses – the Federal Government typically
only prosecutes cases that have an interstate connection. For example:
While many fraud, forgery and money laundering offenses can be thrown into
the broad category of white collar offenses, federal prosecutors typically
have certain criteria for those cases which they will prosecute. Typically,
the investigation spans over several districts (states) such that the
resources of federal law enforcement agencies such as the FBI or the IRS
The amount of money at issue is also an extremely important consideration.
While every United States Attorney’s Office typically has a different
minimum threshold, it is fair to say that if a white collar crime does
not involve at least one million dollars in financial losses, chances
are the case will be referred to the state prosecutor.
Like white collar crimes, if a drug trafficking offense spans over several
districts, it is more likely that the DEA and other federal law enforcement
agencies will be involved in the investigation. If a drug trafficking
offense is alleged to encompass international involvement, such as importation
or smuggling across the border, it is almost a guarantee that the case
will be prosecuted by the Federal Government and not the state.
The quantity of drugs is also an important consideration, but a very subjective
one. In border states like Arizona, marijuana and cocaine distribution
are extremely common. While in states like New York, quantities of 50
pounds of marijuana are considered extremely large amounts likely to result
in a federal prosecution, in Arizona, 50 pounds is a mere drop in the
bucket and the case will almost certainly be referred to state prosecutors.
In Arizona, federal cases typically involve thousands of pounds of marijuana
or several kilos of cocaine before federal prosecutors will even look
at the case.
Federal authorities will prosecute sex crimes if the alleged conduct involves
crossing state lines. If a minor was transported from one state to another
for the purposes of sexual conduct, there is a much stronger likelihood
that federal authorities will become involved. If the allegations are
straight-forward and involve child molestation or sexual assault that
occurs in one place, it is much more likely that the case will be handled
by state authorities.
Child pornography offenses are perhaps the most variable in terms of whether
state or federal authorities will prosecute the offense. Both state and
federal law enforcement are actively involved in proactive investigations
to curtail the possession, distribution and production of child pornography.
From my 22 years of experience, it is safe to say that, perhaps, the biggest
factor as to whether a child pornography case is handled by state or federal
prosecutors is which law enforcement agency initiated the investigation.
Officers often work side-by-side on task forces, and it is often more
luck of the draw as to which prosecuting agency will handle the case.
Because of stiff mandatory minimums under Arizona law for child pornography
(sexual exploitation of a minor), it is often better for defendants to
be prosecuted by federal authorities. While there are also mandatory minimums
in the federal system, they are not nearly as harsh as Arizona minimums
and federal prosecutors often are more willing to negotiate.
Being Prosecuted By The Feds Is No Joke
If you or someone you know is being investigated or prosecuted by federal
law enforcement or federal prosecutors, it is important to hire an attorney
who has extensive experience in federal court. Jason Lamm routinely tries
cases involving white collar offenses, drug trafficking offenses, and
child pornography offenses in federal court, both in Phoenix and Tucson.
The Rules of Federal Court are much different than those in state court
and it is important to hire a criminal defense attorney who knows those
rules and who has had success with them in the past. Because every case
is different, it is important to tailor a defense around each unique situation.
For a personal and private consultation, contact Jason Lamm at (602) 663-9100
to set up a time to go over the facts of your case.