Defending a Client in State and Federal Court

Marc Neff, Esq. on 01/09/2009

One of the more unique aspects of a criminal defense practice in the Philadelphia region is the interplay between state and federal prosecutions.  In many other jurisdictions, the lines between state and federal cases are clearly drawn.  In this district, however, the lines blur and even melt into each other, and the representation of a client potentially targeted by both governmental agencies presents a series of unique challenges.

             

As a background, the Eastern District of Pennsylvania includes Philadelphia County and the adjacent counties of Bucks, Montgomery, Delaware, Chester, Lancaster, Lehigh, Berks and Northampton.  It is one of the nation’s largest districts and home to approximately 5 million residents.  The Eastern District has, for approximately the past ten years, been the recipient of federal funds targeting specific types of crimes. Beginning in the 1990’s, a program known as FAST (Federal Alternatives to State Trials) was developed to target certain state cases for adoption by federal prosecutors.  By prosecuting these cases federally, local and federal authorities have tried to take advantage of the federal system which generally provides more certain and severe sentences 1, and the ability to hold defendants in pretrial detention.2   FAST involves review by local District Attorneys Offices to determine whether or not a referral for federal prosecution is appropriate.

             

In drug cases, several factors will be used to evaluate which cases are to be referred and among one of the factors to be considered is the defendant’s prior record.  Specifically, would the defendant qualify as a career offender under United States Sentencing Guidelines §4B1.1.3   A second factor is the quantity of drugs.4  Moreover, the Government will examine whether or not the case is related to an ongoing federal investigation or a previously adopted state prosecution.  These cases are then reviewed by supervisors in the United States Attorney’s Office to determine which will be accepted for federal prosecution.

             

In certain cases, the target defendant will be notified of the potential that the case will be federally adopted.  At this juncture, there is often a plea offer extended that would keep the case in state court. The plea offer is generally far in excess of the Pennsylvania State Guidelines. Thus, the defendant is faced with a Hobson’s choice of a plea agreement in state court for a state prison sentence or face a federal Indictment and the possibility of an even longer federal sentence.  This balancing act is further complicated by Governor Rendell’s recent moratorium on parole for violent offenders.  Since those who would accept these state plea offers are by definition, violent offenders, the offer must be evaluated at its maximum rather than its minimum.  An offer of two to four years, under the current Rendell moratorium results in serving the majority of the four years in a state facility.  This must be balanced against less predictable, and possibly longer, federal sentence.

             

Similarly, Project Safe Neighborhoods (PSN) was initiated in 2001 as a nationwide program targeting violent firearms offenders.  Under United States Attorney Patrick Meehan, PSN was expanded to all nine counties and focuses on 1) convicted felons who possess firearms, 2) criminals engaged in the sale of firearms and; 3) those who use firearms in crimes of violence or drug trafficking.

             

Occasionally, we have the defendant prosecuted by the state and federal government for the same act.  The successive prosecutions, standing alone, do not violate the 5th Amendment’s proscription against double jeopardy.5  Unless one can show that the state prosecution was “a sham and cover for a federal prosecution” and controlled from beginning to end by federal authorities, the federal prosecution will not fall into the narrow “Bartkus exception” to the dual sovereignty rule, 6 and the Third Circuit has never used it to overturn a successive prosecution.

          

Since 2001, PSN has committed almost two billion dollars nationwide to its program.  As such, in this district, we can expect an increasing number of cases to be adopted federally.  We would be remiss in our obligations not to advise them, as early as the initial interview, that they may meet the criteria for these programs and may be subjected to federal prosecution of cases initially charged by local authorities.

             

Since 2001, approximately 2,200 defendants have been indicted under PSN and 95% of those charged have been convicted.  The average sentence imposed was just under ten years. In 2006, the United States Attorney’s Office for the Eastern District of Pennsylvania was one of the six sites selected by the Attorney General to receive federal grant money to address gang violence.  The program became known as the 222 Corridor Anti-Gang Initiative (222 Corridor).  The 222 Corridor is named for Pennsylvania Route 222 which connects Easton, Bethlehem, Allentown, Reading and Lancaster.  The corridor has a diverse immigrant and minority population and has recently become a haven for drug and gang activity.

           

For the criminal defense practitioner who practices throughout the Eastern District, prosecutions that previously were handled by local police departments will now be targeted for federal prosecution.  For example, in the Allentown, Bethlehem, Easton area, the Lehigh Valley Anti-Gang Task Force (LVAGTF), includes not only local police and District Attorneys, but also agents from FBI, DEA, ATF, and other law enforcement agencies.  The success of these joint local/state/federal initiatives, targeting certain types of crime traditionally prosecuted at the county level for federal prosecution, will undoubtedly lead to additional funds being allocated for federal adoptions of state cases.  Indeed, the local practitioner in county court must now become well versed in the Federal Sentencing Guidelines or risk doing a disservice to his client.

1 See Generally United States Sentencing Guidelines. 2 18 USC §3142 
3 USSG §4B1.1, et seq. 
4 USA v. Berry, 164 F.3d 844 (3rd Cir., 1999) 

5  USA v. Wheller 435 US 313, 98 S.Ct. 1079 (1978) 
6 Bartkus v. Illinois, 359 US 121, 79 S.Ct. 676 (1959)

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