What is the staute of limitation on a drug trafficking charge?
2 attorney answers
I agree with Mr. Lowther's analysis but have a few additional remarks. In making these remarks, I assume that the federal charges involve the same underlying conduct that was the subject of the plea agreement with the State.
Normally, the Double Jeopardy Clause of the U.S. Constitution prohibits charging a person twice for the same offense. However, the law of this country has long been that it does not violate the Double Jeopardy Clause when the United States charges a defendant previously charged in state court--whether the defendant was acquitted or tried and convicted--because the United States and each state are "different sovereigns," while the Double Jeopardy Clause only bars the same sovereign from charging a person twice.
On the other hand, the Department of Justice has long adhered to the "Petite policy," which is the policy that once a state has already prosecuted a defendant, the U.S. will not prosecute the defendant again for the same conduct unless there is an "unvindicated federal interest." During my own 10-year tenure doing criminal tax cases for the Department of Justice, I rarely saw this principle ignored, since the feds have limited resources and do not want to waste time on someone who has already been prosecuted by the state, especially where that person was found guilty and punished.
The problem is that courts have held that the "Petite policy" is merely an internal administrative policy that defendants cannot enforce. So as a practical matter, it only makes a difference when it comes to trying to talk the feds into not going forward with an indictment or making a more lenient plea offer.
Regarding your last question, if your attorney in state court did not explain to you that the deal into which you were entering would not protect you from additional federal charges, and/or if you were led to make statements when entering into your state court plea that the feds could use against you for another prosecution, it is possible that you could seek to vacate the state court plea on Constitutional grounds.
The above remarks are not intended to serve as legal advice or as a recommendation concerning how you ought to proceed in this matter. I have not reviewed any of the documents in any of your cases, have not performed any case-specific legal investigation or research, and have no opinion how you ought to respond to the new federal charges.
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The federal government is not bound by any agreement made between an accused and a state government (except in certain circumstances, which do not seem to apply in this case). Therefore, the federal government may charge someone with a federal crime after that person has already been convicted of those charges in state court. Usually, the charges in federal court are different than the charges in state court, and as an aside, most state laws prohibit the state government from charging someone with a state crime after that person has already been convicted of those charges in federal court. Nonetheless, the statute of limitations on drug crimes in federal court is five (5) years from the date of the illegal act, or in the case of a conspiracy, five (5) years from the date of (1) the last act in furtherance of the conpiracy; (2) the date on which the goal of the conspiracy was completed; or (3) the date upon which the accused withdrew (in a legal sense) from the conspiracy.
-Joshua Sabert Lowther, Esq.