Federal Crimes Outline - Professor Bolitho - Campbell Law - Part 1

a. Literally speaking, the only true limit on prosecutorial discretion occurs when the decision is based on the defendant’s membership within a protected class. Otherwise, the decision is absolute.

b. Standard for Selection—demanded by Equal Protection—US-As must have a rational basis for why they distinguish who they want to charge.

c. Technically, the US-As have plenary power over which cases to prosecute, but the DoJ influences, directs, and guides the selection by centrally determined missions and policies.

d. The primary discretionary decision is whether to prosecute federally or leave to the state due to the significant overlap

e. Primary Factors Influencing Selection

1. Pragmatic/logistical considerations—allocation of resources
2. Type/relation to central missions and policies
3. Special issues raised by those policies
4. HOWEVER, the main practical consideration is the strength of the case.

f. Deciding whether to prosecute state or federally

1. #1 Factor—which agency did the majority of the investigation?
   1. Cross Designation—process of temporarily appointing a state/federal prosecutor to permit them to try a case under the laws and in the courts of another jurisdiction.
2. Factor 2—who has custody of the suspect?
   1. Habeus corpus ad prosequendum—Ability of federal prosecutors to remove a suspect from state custody into federal custody for the purpose of prosecution.
3. Factor 3—Possibility of Duplicative Prosecution
   1. See Petite Policy and Dual Sovereignty
4. Factor 4—Collaborative Investigation
5. Factor 5—Notorious Case?
   1. Many times, the feds will take big cases for higher punishments and fame.
   2. No one has the authority to resolve differences between the states and feds on who will prosecute first
6. Factor 6∫—Caseload and resources—skill, cost, availability
7. Factor 7∫—agency and agent relations
8. Factor 8—Legal Advantage
   1. Usually, there is no real difference
   2. Areas that may effectuate an advantage
      1. Substantive law
      2. Penalties (higher with feds)
      3. Procedures
      4. Rules of Evidence
      5. How the Constitution affects the investigations (4th Am.)
      6. Judicial attitudes
   3. Typical Advantages of the Feds
      1. Duration and reach of subpoenas
      2. Limited immunity for grand jury witnesses
      3. Lower standard for warrants
      4. Availability of preventative detention
      5. Lower BoP for warrants
      6. Lower BoP for electronic surveillance
      7. Ability to use uncorroborated accomplice testimony
      8. Discovery rules
      9. US-A had more ability to influence sentencing, making pleas more likely
9. Factor 9—Influence of policy prerogatives

g. Policies Influencing Selection

1. Promulgated by the DoJ, prosecution decisions can be directly influence adherence to a central mission
2. Statements of Policy—quasi-legislative issuances by the Criminal Division that give guidance, limits, and advice beyond the governing statute.
3. Principals of Federal Prosecutorial Discretion
   1. The following factors are used when challenging a Fed’s decision to take the case
   2. A determination to prosecute represents a policy judgment that fundamental interests of society require the application of criminal laws to a particular set of facts, while recognizing potential negative externalities regardless of whether a conviction occurs.
   3. Generally, a US-A should commence prosecution if he believes a violation has occurred and evidence will back it up, unless:
      1. No substantial federal interest will be served
         1. Weigh all relevant factors, including:
            1. Enforcement priorities
            2. Nature and seriousness
            3. Deterrent effect
            4. Culpability
            5. Criminal history
            6. Willingness to cooperate
            7. Probable sentence
            8. Worth the use of resources
               1. MUST be justified on found other than the fact that a lot of resources have already been expended.
      2. The person is subject to effective prosecution in another jurisdiction
         1. #1 focus is the probable sentence
         2. Also consider, strength of the case and other’s ability and willingness to do so effectively
      3. There is an adequate, non-criminal alternative

h. Current Federal Priorities

1. Anti-terrorism, violent-crime, immigration, opioids, financial fraud, exploitation of children, district specific priorities

i. Statute of Limitations

1. SoL is typically 5 years
2. 18 U.S.C. § 249(b)
   1. May only prosecute if:
      1. State has no jurisdiction
      2. State asks for the feds to take it
      3. The verdict from state court will leave the federal interest unindicated in eradicating bias-motivated violence
      4. Federal prosecution is in the public interest

j. Dual Sovereignty

1. General Principles
   1. Gamble v. U.S. (2019)—reaffirmed principles of dual sovereignty and double jeopardy considering state and fed relationship
   2. Bartkus v. IL—SC upheld a conviction in state court where defendant was already acquitted in federal court. Hold. This did not deny due process
   3. Abbate v. U.S.—extended ^^this rationale to double jeopardy.
   4. Fundamental Principles
      1. Where you violate laws of two separate sovereign entities, you are subject to prosecution under both, otherwise, this would deprive one of its rights to enforce laws.
      2. Timing between the two does not matter
2. Speedy Trial
   1. U.S. v. Dowdell
      1. To find a speedy trial violation, use the factors from Barker v. Wingo:
         1. Length of delay
         2. Reason for delay
         3. Defendant’s assertion of the right
         4. Resulting prejudice to the defendant
      2. Accrual begins either when the arrest happens or the indictment is made, whichever comes first
         1. State court accrual has no bearing on the feds
      3. Holding—accrual of speedy trial begins upon arrest/indictment by each sovereign. This period only affects that sovereign.
      4. EXCEPTION Bartkus—if one sovereign wholly dominates the prosecution of another, that that the latter retains very little or no control, the case is treated as having been already prosecuted by the controlling party.
         1. D has BoP to show one was the pawn of the other and that the supposedly independent prosecution was a sham
         2. This exception does NOT prevent maximum cooperation between state and feds
3. Petite Policy Approach
   1. “After a state prosecution, there should be no federal prosecution for the same act or acts unless the reasons are compelling.”
      1. Began as a policy of AG William Rogers.
      2. Refers to both (1) restricting successive prosecution and (2) trying all related federal charges in a single trial
   2. UNENFORCEABLE AT LAW. For internal guidance only
   3. ONLY apply this to the decision on whether to charge
   4. Three substantive requirements to pursue dual prosecution
      1. The matter must involve a substantial federal interest
      2. Prior prosecution left it demonstrably unvindicated AND
         1. Determined by length of punishment
      3. The government believes a violation occurred and will be proven by evidence
   5. Procedural Requirements
      1. There is prior Assistant AG approval OR
      2. Retroactive Asst AG approval, which is allowed if: (1) there are unusual or overriding circumstances justifying retroactive approval AND (2) it would have been approved if done seasonably.
         1. Otherwise, the DoJ will force the AUSA to dismiss the case
   6. Regular Procedural Process
      1. Get US-A approvalOEO office at DoJ and Deputy Asst AGIf either OEO or Deputy disagree with one another, then the Asst AG steps in.
   7. Petite Policy gives D no rights
      1. U.S. v. Mitchell—gov’t must be the party who requests dismissal
      2. U.S. v. Fletcher—Petite Policy serves an important function in protecting citizens from any unfairness associated with
         1. May signal that the court relies on the policy to ensure that it does not have to formulate a standard of its own.