The difference between State and Federal Criminal Defense

Originally published by Steve Jumes.

State and Federal Criminal Defense Comparison
Several differences exist between the state and federal criminal systems. While both systems include similar statutes, standards, and evidentiary rules, the practical application of these rules differs dramatically between the two systems.

Conspiracy Crimes and Non-Conspiracy Crimes

An agreement to commit an illegal act is a conspiracy. For example, If two brothers agree to distribute methamphetamine to customers in the Dallas/Fort Worth area they are said to have conspired to commit possession of controlled substances with intent to deliver. Conspiracy agreements are somewhat similar to, but legally distinct from, preparatory and inchoate offenses such as attempted assault. While both inchoate (which essentially means incomplete) offenses and conspiracy offenses involve crimes that have not been completed, they are distinct in significant ways. First, inchoate offenses can be committed by the actions and mental state of just one person. Second, perpetrators of inchoate offenses do not have to agree with others to commit an offense to be guilty. Additionally, conspiracy cases typically involve unique evidence and a much larger scope than other offenses. While both the state and federal systems include prohibitions of criminal conspiracies, many federal cases allege conspiracy whereas very few state cases involve conspiracy.

Hearsay exception

In the state system, statements of co-defendants cannot support a conviction unless they are corroborated. In other words, there is a skepticism of evidence provided by persons subject to prosecution that is offered against other persons subject to the same prosecution. For example, if Alan is arrested for burglary of a 7-11 and then tells a police officer that he committed the burglary with his friend Brett, that statement alone would not justify the prosecution of Brett.

While the statements of codefendants are considered somewhat suspect in the state system, similar statements are embraced within the federal system. Under the federal rules of evidence, co-conspirator statements are an exception to the hearsay rule. Thus, take the same example as above. If Alan and Brett were accused of conspiring to burglarize the 7-11 then Alan’s uncorroborated statement that Brett committed the burglary would be admissible.

This raises a significant question regarding accuracy and fairness. What is Alan’s incentive when questioned by authorities. Well, it’s two-fold. 1) burn the other guy and 2) take the heat off himself. Obviously, it is better for Alan that Brett be painted as the ringleader or “true perpetrator.” This danger is the impetus for the state requirement of corroboration.

Scope – Number of parties

Federal cases often involve multiple, sometimes 10+ or 50+ defendants. State cases, on the other hand, typically involve 1-2 defendants. This is a massive consideration because the number of defendants dictates the tenor and tone of an investigation. When there are only a few defendants then the risk of snitching is reduced. However, if many defendants are involved then clients rationally assume that at least some defendants will cooperate with authorities. If that is the case then the targeted defendant will feel a tremendous pressure to credibly cooperate. Thus, the right to silence is fatigued when multiple defendants are presented.

Historical v. Corroborated Evidence

Historical cases are built upon the words of witnesses alone. In other words, no physical evidence is presented or any type of proof that is self evidence. Take two examples: First, Alan says Brett helped him burgle but Brett is nowhere to be seen and there is no evidence to back up Alan. Second, Alan says the same thing, but soon afterward Brett is stopped for a traffic violation and a ski mask and merchandise from the 7-11 are found upon a consent search.

In the federal system, much of the evidence is simply established by targets who describe a crime long after it took place. For example, if Alan says Brett gave him 1 ounce of cocaine every week for 3 years between 2011 and 2014, then the federal sentence may be based upon the delivery of 156 ounces of cocaine. What if Brett was only caught with 1 ounce and its only Alan who puts this kind of weight upon Brett? In the federal system it does not matter and Brett is accountable for 156 ounces. Under the U.S. Sentencing Guidelines the difference between 1 ounce and 156 ounces is massive.

In the state system this gargantuan difference would not exist. However, in the federal system, this historical evidence is embraced, used, and relied upon.

Standard of Proof for Enhancement Evidence

Both the state and federal systems allow for consideration of aggravating factors when determining a sentence. Under either system, a person convicted of a theft or fraud charge will be subject to a certain statutory range of punishment.

For example, in Texas a person who stole $100,000 would be subject to a 2nd degree felony range of punishment which includes a sentence between 2 – 20 years. Probation is a possibility depending upon the defendant’s criminal history.

In the federal system, wire and mail fraud cases are described under 18 USC 1341 and 1343. The range of punishment for such an offender is a prison sentence up to 20 years. It is also important to recognize that probation is allowed in the federal system but it is far more hypothetical than practical. In other words, they are relatively rare.

The factors for consideration when determining what part of these ranges should be assessed for a particular offender for a particular crime is based primarily upon a few factors such as a defendant’s criminal history, the facts of the case, any mitigating factors about the offender, and any prior bad acts. Basically, a defendant’s entire life story is under consideration. For example, if the above-described offender has a prior felony conviction for DWI, cheated on his wife, and came from an abusive family. All of these things are fair game in the state system. In the federal system the infidelity may or may not become a factor depending upon the prosecutor and judge. Nonetheless, prior criminal history and mitigating background are relevant sentencing considerations.

While both state and federal sentences involve generalized statutory ranges of punishment, each system approaches sentencing differently. First, in state systems, particularly Texas, sentencing proceedings are referred to as “punishment” proceedings. In the federal system, sentencing is sentencing. In the state system, all extraneous bad acts and criminal history must be proven beyond a reasonable doubt to the factfinder. On the other hand, in the federal system extraneous bad acts and criminal acts offered to increase punishment need only be established by a preponderance of the evidence, or over 50%. To be sure, the preponderance of evidence standard is far lower than a beyond a reasonable doubt standard.

This becomes extremely important in cases where prior bad acts of fraud is offered for two reasons. First, forensic accounting is generally not used to establish extraneous fraud evidence in the federal system because there is no need to reach a high burden that actually goes to the trouble of eliminating possible benign explanations for deposit and withdrawal history. Second, the federal system uses an expansive view of offense conduct describing many bad acts as part of “relevant conduct.”

For example, if Frank is accused of defrauding an airline pilot by selling a fake CD and just taking off with the money. His indictment might simply describe that one relationship and one investment. However, if Frank also sold fake investments to 12 other people, even with different size investments and different occupations, all of these instances will be included in a presentence report as relevant conduct. These actions would absolutely increase Frank’s guideline calculation and will only need to be shown by a preponderance of evidence. Thus, forensic accounting would rarely come into play. In fact, the government would probably just let an agent summarize these extraneous acts to a probation officer who will include these actions within the report. It will become incumbent upon defense counsel to offer alternative explanations and dispute the agent’s summary. Once again, the prosecutor need only establish these acts by a preponderance of the evidence. This means that if the alternative explanations are possible, but unlikely, then the sentencing judge can find that these other 12 investments are relevant for consideration as to Frank’s sentence.

In contrast, in the state system these other alleged victims would not be included as relevant conduct, but would instead be offered as discrete extraneous bad acts or offenses in punishment. The defense would be allowed to argue that the state has not proven these frauds beyond a reasonable doubt, including the disproval of benign explanations for the transfer of money between the alleged victims and Frank as well as any subsequent transaction history. If these instances cannot be shown beyond a reasonable doubt, then the judge or jury could not consider them in assessing Frank’s sentence.

Sentencing

In Texas, either a judge or a jury can decide a sentence. This is extremely rare nationwide. In the federal system however, only judges can impose a sentence. The only exception comes in death penalty cases. In those cases, a jury must find the facts necessary to issue a death sentence.

Steve Jumes and Benson Varghese are experienced state and federal defense practitioners. Steve Jumes is also a former federal prosecutor. For more information on how Varghese Summersett, PLLC can assist your federal defense, call us at (817) 203-2220.

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