Berry Law 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 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.
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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 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.
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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.
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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, 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.
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