Berry Law Firm clients arrested on state charges or pending investigations
often ask us this question. The answer depends on the type of criminal
investigation and the facts of the case. Below we will discuss some examples.
White Collar Cases
In white collar cases, it is not unusual for an investigation to go on
for months, if not years, before a criminal defendant is indicted. In
some cases, federal investigators must pore through thousands of documents
before reaching a conclusion. Furthermore, the case can continue to develop
as long as the investigation is open. In other words, while there may
not have been enough information to indict when the investigation started,
if the investigation is left open for several months or years and new
evidence emerges during that time, it could convince a federal prosecutor
to seek an indictment.
Interstate Drug Cases
In cases where large amounts of narcotics or cash are seized by the state
patrol or deputy sheriff’s office, initial charges are usually filed
by the state. However, if the quantity of cash or drugs is large enough,
the feds may get involved. In Nebraska cases involving marijuana possession,
Berry Law Firm has represented clients who were stopped with hundreds
of pounds of marijuana and not indicted. Similarly, we have represented
clients stopped carrying hundreds of thousands of dollars who received
state drug conspiracy charges. Carrying thousands of pounds of marijuana
or millions of dollars is more likely to result in a federal indictment
on a drug conspiracy charge. The presence of guns and large quantities
of narcotics almost always results in federal indictments.
For non-marijuana-related substances such as methamphetamine, cocaine,
or heroin, small amounts found on the interstate are generally charged
by state courts. However, when large amounts are found, federal indictment
is likely. However, the feds don’t always indict for large quantities
of cocaine or methamphetamine. Once we represented an individual in western
Nebraska who was stopped on the interstate with 20 pounds of cocaine.
He was sure he was going to be indicted, but the case had problems and
the interstate stop and search of the vehicle appeared to be Fourth Amendment
violations. He was never indicted.
In cases involving computer crimes (such as child pornography), it is not
unusual for law enforcement to obtain a search warrant, seize computers
and other equipment, and then take months to investigate prior to deciding
whether to file state charges or federal charges. In some cases in which
Berry Law Firm clients’ computers were seized pursuant to an investigation,
no charges were filed in the state or federal courts. However, we have
found that in file sharing cases, the more child pornography images found,
the more likely it is that the suspect will be federally indicted.
It is not unusual for someone to initially be charged with a child pornography
offense in state court, and then later indicted in federal court while
the state court case is pending.
Working with a Criminal Defense Attorney
Regardless of the type of crime, it is important to know that your criminal
defense lawyer will not automatically know whether clients are going to
be indicted. The indictment process takes time and it is common for a
person to be arrested on state charges prior to the case going federal.
Grand juries are kept secret and therefore the prosecutor is not in a
position to directly tell the defense attorney whether there is going
to be an indictment until after a grand jury has made a decision.
That being said, defense attorneys generally know when federal indictments
are likely and should prepare their clients for the indictment. Federal
indictment is frustrating for criminal defendants when they have already
posted bond and battled the state court case for months. In the district
of Nebraska, judges rarely set bond for federal cases. They either release
someone pursuant to pretrial release conditions or they do not. A pretrial
release hearing requires preparation. If a defendant does not know in
indictment is coming, some of the preparation he could have done to put
himself in the best position possible to receive pretrial release is squandered.
If a person is indicted for the same or similar conduct for the state charge,
the state charge will generally be dismissed, but not always. At Berry
Law Firm, we have represented individuals who have served time on state
charges and then were federally indicted for conduct that occurred around
the same time as the state charge. Also, we have been involved in cases
in which clients were federally indicted and the state refused to dismiss
the pending state charges. Put simply, the state does not always dismiss
state charges when someone has been federally indicted.
In conclusion, in white collar cases, interstate drug cases and computer
crimes, federal indictment is a possibility even if state charges have
already been filed.