I. Introduction

• Jurisdiction: North Carolina

I. INTRODUCTION

Federal criminal prosecutions differ dramatically from most state criminal prosecutions. Simply put, the feds have the luxury of choosing their cases and the ability to leverage the full power of the United States government against those it charges with crimes. Moreover, the federal criminal code, which is mainly set out in Title 18 of the United States Code, contains thousands of often vaguely worded statutes that potentially criminalize vast amounts of everyday behavior. Thus, federal prosecutors wield enormous power. In an attempt to check that power, the Department of Justice has established strict policies regarding decisions made at the district level. A federal criminal defense attorney must be aware of these policies, most of which are set out in the DOJ U.S. Attorneys Manual, which can be found online.¹

All criminal defense attorneys should recognize that conduct constituting a state crime can usually also be charged as a federal crime. There is no constitutional bar to prosecuting the same conduct in both state and federal court,² and while there is a federal policy against charging a person federally after a state prosecution for the same conduct, that policy creates no substantive rights against such successive prosecutions.³ Criminal defense lawyers must therefore recognize the potential for the federal government to either adopt a state prosecution or follow a state prosecution with a federal indictment. Often one of the most important jobs of a criminal defense lawyer is to attempt to prevent a state case from becoming a federal case.

Another important aspect of federal criminal prosecutions is the power of the federal government to forfeit property. While the state government rarely uses its forfeiture power, the federal government seized over one billion dollars worth of assets in 2013 alone.⁴ There are criminal, civil and administrative forfeiture proceedings, and while this complex area of federal practice is beyond the scope of this primer, it is important for all defense attorneys to be aware of this broad and potentially destructive federal power. A person need not be charged criminally to have vast sums of their assets taken by the federal government under a standard of preponderance of the evidence, or in certain cases with the burden on the person to prove the legal legitimacy of the property. This power often interferes with the ability of the defendant to hire the counsel of their choice, and understanding the...