State vs Federal Prosecution: When Double Jeopardy Doesn't Protect You

The Constitution says you can't be prosecuted twice for the same offense. But "same offense" doesn't mean what you think it means. It means the same law broken, not the same conduct. Terance Gamble was pulled over for a broken tail light in Alabama in 2015. Police found a gun. Alabama prosecuted him for being a felon in possession of a firearm, and he served one year. After he was released, federal prosecutors charged him with the exact same gun possession - same gun, same traffic stop, same 2015 incident. The Supreme Court ruled 7-2 in 2019 that this doesn't violate double jeopardy. Two sovereigns, two offenses. The constitutional protection everyone believes exists doesn't actually protect them from being prosecuted twice for identical conduct.

This matters more than people realize. The difference between state prosecution and federal prosecution isn't just about which courthouse you walk into. Its about conviction rates that differ by 27 percentage points. Its about serving 85% of your sentence with no parole versus getting released after serving half your time. Its about whether your cooperation with investigators helps you or destroys you. Spodek Law Group has represented clients in both state and federal court, and we've seen how the same conduct can result in wildly different outcomes depending on which sovereign decides to prosecute. Understanding the differences between state and federal prosecution could be the most important thing you learn if your facing criminal charges. Call 212-300-5196 if both governments are looking at you.

The reality is this: prosecutors choose which venue your case goes to, and you cant appeal that decision. The FBI doesn't "take over" state cases the way everyone thinks. Joint task forces mean state and federal investigators are often working the same case simultaneously without you knowing. And the dual sovereignty doctrine means that even after your convicted, sentenced, and released from state prison, the federal government can prosecute you again for conduct you've already been punished for. This isn't theoretical. It happens.

Double Jeopardy Doesn't Mean What You Think It Means

Everyone knows about double jeopardy. You cant be tried twice for the same crime. Its in every legal drama, every cop show, every conversation about constitutional rights. Except its not actually true the way people understand it.

The Fifth Amendment says no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The critical words are "same offense." The Supreme Court has interpreted "same offense" to mean the same law under the same sovereign's authority - not the same factual conduct. So if your conduct violates both Alabama's felon-in-possession statute and the federal felon-in-possession statute (18 USC 922(g)(1)), those are two separate offenses even though its one gun and one moment in time.

Terance Gamble found this out the hard way. After serving his Alabama sentence and being released, federal prosecutors indicted him. He moved to dismiss on double jeopardy grounds. The argument was obvious: he'd already been prosecuted for possessing that gun. The district court denied the motion. The Eleventh Circuit affirmed. The Supreme Court granted certiorari and in Gamble v. United States (2019), the Court upheld the dual sovereignty doctrine 7-2. Justice Alito wrote for the majority that "a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate."

What "interest" did the federal government have in prosecuting a gun possession that occurred entirely in Alabama and had already been punished by Alabama? The opinion doesn't really answer that. It just says that because the federal government and state governments derive their authority from different sources, they can each prosecute conduct that violates their respective laws. Even if its the same conduct. Even if you've already served time for it.

The dual sovereignty doctrine goes back to United States v. Lanza (1922), where the Supreme Court allowed federal prosecution after state conviction for the same Prohibition-era alcohol violations. The Court stated: "We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject matter within the same territory." That doctrine has survived for over a century.

Theres something called the Petite Policy that's supposed to prevent this. Its an internal Department of Justice policy from 1959 that discourages federal prosecution after state prosecution unless certain conditions are met. But its discretionary. And it didn't stop the federal government from prosecuting Terance Gamble after Alabama already convicted him. The Petite Policy is a guideline, not a rule. Federal prosecutors can ignore it if they believe the case warrants dual prosecution.

So when people say "double jeopardy protects you," what they mean is: double jeopardy protects you from the same sovereign prosecuting you twice. It doesn't protect you from a different sovereign prosecuting you for the same conduct. If your conduct violates both state and federal law, both governments can charge you. Both can convict you. Both can sentence you. And you serve both sentences.

When One Crime Becomes Two Prosecutions

Heres how it actually works. Federal and state law enforcement agencies operate joint task forces. The FBI, DEA, ATF, and other federal agencies regularly work with state and local police on investigations. This isn't the FBI "taking over" a case - thats a myth. State and local law enforcement agencies are not subordinate to the FBI. Instead, investigative resources are pooled.

But pooled resources mean shared evidence. When state police execute a search warrant, federal agents on the task force see the same evidence. When state investigators interview witnesses, federal prosecutors get the reports. When you make statements to state investigators thinking your resolving a state case, those statements are available to federal prosecutors building a parallel case.

This creates situations were two investigations are running simultaneously. You might know about the state investigation because you've been arrested or questioned. You might not know about the federal investigation at all. Federal investigations often run for months or years before any charges are filed. By the time your indicted federally, they already have documents you forgot existed sitting in evidence boxes. They've already talked to people you haven't spoken to in years and taken detailed statements. Theyve already mapped out your financial transactions through bank subpoenas, your phone records through carrier requests, your email patterns through provider data.

The investigation did not start when you found out about it. It started long before that moment.

Sometimes cases start at the state level and get "adopted" by federal prosecutors. This happens when a crime violates federal law and federal prosecutors decide they want the case. Drug trafficking across state lines, for example. Firearms offenses involving felons. Fraud schemes that use the mail or wire. When federal prosecutors adopt a case, they're not taking it away from state prosecutors. Both can proceed. The state case might resolve first with a conviction and sentence. Then the federal case proceeds.

And heres the thing people miss: your cooperation in the state case can become evidence in the federal case. You give a statement to state investigators trying to work out a plea deal. You admit certain facts. You provide documents. All of that goes into the shared task force files. Federal prosecutors review it. Then, after your state case resolves, the federal indictment arrives. Your cooperation just made their job easier.

Theres no coordination requirement. The Petite Policy says DOJ should consider whether state prosecution already occurred, but its not binding. And even when DOJ follows the policy, the exceptions swallow the rule. If the state prosecution "left unvindicated" federal interests, dual prosecution is allowed. If the state sentence was "manifestly inadequate," dual prosecution is allowed.

What nobody tells you: concurrent jurisdiction is common. Drug crimes, gun crimes, fraud, robbery of federally insured banks - all of these can be prosecuted in either state or federal court. And when concurrent jurisdiction exists, prosecutors choose. Not you.

The 93% Conviction Rate Nobody Talks About

Federal prosecutors maintain a conviction rate of approximately 93-95%. State prosecutors have conviction rates around 68%. Thats a 27-percentage-point difference. Your 27% more likely to be convicted in federal court than in state court.

Why? Because federal prosecutors dont bring charges to see what sticks. They only charge cases theyve already won.

By the time your indicted federally, the investigation has been running for months or years. Grand jury subpoenas have been issued. Witnesses have testified. Documents have been produced. Financial records have been analyzed. The prosecution knows what the evidence shows before the indictment is filed.

This is different from state prosecution. State prosecutors often face enormous caseloads - hundreds of cases simultaneously. They don't have time to fully investigate before charging. Arrests happen based on probable cause and then prosecutors evaluate whether they can prove the case beyond a reasonable doubt. Sometimes they can't. State conviction rates reflect this uncertainty.

Federal prosecutors have fewer cases. They can devote more resources to each one. A position as a federal prosecutor is prestigious and competitive. And they have access to federal investigative resources - the FBI, DEA, ATF, Secret Service, IRS Criminal Investigation. These agencies have capabilities and funding that state and local police don't have.

The result: by the time you know your under federal investigation, they already have you. The evidence has been gathered. The witnesses have given statements. You're being charged because they already know they can convict you.

In 2022, out of 71,954 federal criminal defendants, only 290 went to trial and were acquitted. That's 0.4%. Another 1,379 went to trial and were convicted. The overwhelming majority - 89.5% - pled guilty.

Federal trials are nearly extinct. The trial rate dropped from 7% in 1998 to under 1% in 2022. Trials have become rarer over time because of whats called the "trial penalty." Defendants who exercise there constitutional right to trial face much higher sentences if they lose compared to what they were offered in plea negotiations.

So defendants look at the numbers. 95% conviction rate at trial. The plea offer might be 5 years. The guideline range after trial might be 15-20 years. Even if you think you have defenses, the math is brutal. This is why 89.5% of federal defendants plead guilty.

Compare this to state court. State trials are more common. State prosecutors have less time to prepare. State conviction rates are lower. The dynamics are different. But the statistical reality is that federal prosecution is structurally designed to produce guilty pleas and high conviction rates.

Why Federal Time Isn't State Time

Same crime. Same sentence on paper - lets say 10 years. The federal defendant serves 8.5 years. The state defendant serves 4-5 years. That's the difference.

The federal government eliminated parole in 1987 through the Sentencing Reform Act. The reason given was "truth in sentencing." If someone is sentenced to 10 years, they should serve close to 10 years. Not get paroled after 3 years.

So now federal prisoners serve at least 85% of their sentence. There's a small amount of good-time credit available, but that's it. No parole board. No discretionary early release. You serve your time.

Many states still have parole. The rules vary by state. Some states have abolished or limited discretionary parole. Others have systems where prisoners become eligible for parole after serving 50% or less for non-violent offenses. The practical impact: federal time is real time. State time might be half time or less.

This affects plea negotiations. If a federal prosecutor offers 10 years, you know your serving at least 8.5 years. If a state prosecutor offers 10 years in a state with robust parole, you might serve 4-5 years. The labeled sentence is the same, but the actual incarceration is vastly different.

Federal sentencing also involves the Federal Sentencing Guidelines. Judges must calculate the guideline range. The guidelines are advisory after United States v. Booker (2005), but judges still have to consider them. Most sentences fall within or near the guideline range.

Many federal offenses also carry mandatory minimum sentences. Drug trafficking, firearms offenses - these statutes specify minimum sentences that judges cant go below. 5 years, 10 years, 20 years. If the mandatory minimum applies, the judge has no discretion.

State sentencing varies widely. Some states use guidelines. Others give judges broad discretion. But across the board, federal sentences tend to be longer in actual time served. The combination of no parole, mandatory minimums, and sentencing guidelines means federal defendants serve more time.

Immigration consequences are also worse in federal court. Certain federal convictions trigger "aggravated felony" classifications under immigration law, making deportation mandatory with no discretionary relief. The same conduct prosecuted in state court might not be classified as an aggravated felony. But you dont get to choose which court prosecutes you. The prosecutor does.

Defendants know that federal time is real time. Thats why the threat of federal prosecution is so powerful. Your doing the time. And if your prosecuted by both state and federal governments for the same conduct, you serve both sentences. No credit for the state time already served. The sentences dont merge.

When The Prosecutor Chooses Your Fate

Heres something defendants dont realize until its to late: the prosecutors decision about where to bring charges is entirely discretionary and cannot be appealed.

If your conduct violates both state and federal law, prosecutors decide which court to file in. You have no say. You cant motion to transfer the case to state court. You cant appeal the prosecutors choice. Its completely within there discretion.

This decision determines everything:

• Conviction odds
• Sentence length
• Parole eligibility
• Immigration consequences
• Even jury composition

Immigration consequences are a huge example. If your not a U.S. citizen, where your prosecuted can determine whether you get deported. Certain federal convictions are classified as "aggravated felonies" under immigration law. Aggravated felonies make you deportable with no discretionary relief. Your deported.

The same conduct prosecuted in state court might not be classified as an aggravated felony. This creates situations where the prosecutor's choice of venue - which you can't appeal - determines whether you lose your immigration status.

Todd Spodek and Spodek Law Group have handled cases where we fought to keep charges in state court instead of federal court, specifically because of immigration consequences. Sometimes we succeeded. Sometimes we didn't. But the point is: defendants have no formal right to choose the forum.

Discovery rules also differ. In federal court, defendants don't get depositions. Federal discovery is generally more restrictive than state discovery. This affects your ability to prepare for trial.

Prosecutors know all this. When they decide whether to charge a case in state or federal court, theyre considering there strategic advantage. Federal court gives them higher conviction rates, harsher sentences, and trial penalties that discourage defendants from fighting.

The decision is driven by several factors:

• Seriousness of the conduct
• Amount of loss or harm
• Defendants criminal history
• Whether mandatory minimums apply
• Whether the state case is already filed

Sometimes federal prosecutors "adopt" state cases. The case starts as a state investigation. Then federal prosecutors review it and decide they want it. They file a federal indictment. The defendant ends up in federal court even though the case started in state court.

Defendants cant stop this. You cant argue that federal prosecution is unfair because state prosecution is available. The prosecutors discretion is nearly absolute.

This is why understanding the difference between state and federal prosecution matters so much. Its not just about knowing the law. It's about knowing which government is prosecuting you and what that means for your case.

If you're facing charges in concurrent jurisdiction, you need to fight to keep the case in state court. That means early negotiation with prosecutors. It means understanding what federal prosecutors look for when deciding whether to adopt a case. It means sometimes cooperating with state prosecutors to resolve the case quickly before federal prosecutors get involved.

What To Do When Both Governments Want You

If you're under investigation by both state and federal authorities, here's what you need to know.

First: get a lawyer who handles both state and federal cases. Not all criminal defense attorneys practice in federal court. Federal court requires separate admission to the bar. It requires knowledge of the Federal Rules of Criminal Procedure, the Sentencing Guidelines, and the practices of U.S. Attorneys offices.

Second: dont make statements to law enforcement without a lawyer present. Anything you say to state investigators can be shared with federal prosecutors through joint task forces. Your cooperation in the state case can become evidence in the federal case.

Third: understand that resolving the state case doesnt end your exposure. If you plead guilty in state court, serve your sentence, and get released, federal prosecutors can still charge you for the same conduct. Dual sovereignty means your state conviction doesnt bar federal prosecution.

Fourth: if federal prosecutors are involved, assume the investigation is already complete. By the time your indicted federally, they already have the evidence. This affects your leverage in negotiations.

Fifth: if your not a U.S. citizen, prioritize immigration consequences in any plea negotiation. The difference between state and federal conviction can determine whether you get deported. Your criminal defense lawyer needs to work with an immigration attorney to evaluate the consequences before you accept any plea.

Sixth: if you have a choice, keep the case in state court. Better discovery. Better trial odds. Better sentencing outcomes. Parole eligibility. If federal prosecutors are considering adoption, your lawyer needs to argue against it.

Seventh: if the case is already federal, understand the pressure your under to plead guilty. The 93% conviction rate, the trial penalty, the mandatory minimums - all of these are designed to induce guilty pleas. You need to go into plea negotiations with eyes open about what trial really means.

Eighth: if you've already been convicted in state court and federal prosecutors are considering charges, your lawyer needs to invoke the Petite Policy. Its a DOJ policy that discourages dual prosecution after state prosecution. This doesnt always work but sometimes it does.

Spodek Law Group represents clients facing both state and federal charges. We handle cases where concurrent jurisdiction exists and both sovereigns are looking at the same conduct. We understand the strategic differences between state and federal prosecution. We know how to negotiate with both state and federal prosecutors.

If you're facing criminal charges and there's any possibility of federal involvement, call 212-300-5196. The decisions you make early in the case - whether to cooperate, what to say, how to negotiate - determine whether you end up in state or federal court. And that difference determines everything.

The dual sovereignty doctrine isn't going away. The Supreme Court reaffirmed it in 2019 in Gamble v. United States. The constitutional protection against double jeopardy doesn't prevent dual prosecution by separate sovereigns. You can be convicted in state court, serve your time, and still face federal charges for the same conduct.

Understanding the difference between state and federal prosecution could be the most important thing you learn. Because the difference isn't just legal - it's the difference between 5 years and 15 years, between parole and no parole, between staying in the country and being deported.

Prosecutors choose which government prosecutes you. You dont. But understanding how they make that choice gives you some control in a system designed to take control away from you. Spodek Law Group has been handling these cases for years. We know what prosecutors look for. We practice in both state and federal court. If both governments want you, call 212-300-5196.