Federal vs. State Crimes in Indiana: What Makes a Charge Federal and Why It Matters

· Written By Jerry L. Garner

Federal charges are criminal charges under a federal statute rather than the Indiana Code, such as 21 U.S.C. 841 for drug offenses or 18 U.S.C. 922(g) for firearm possession. In Evansville they are prosecuted by the United States Attorney’s Office for the Southern District of Indiana, while an Indiana charge is brought “in the name of the state of Indiana” (IC 35-34-1-1). The same conduct can fall under both, and the two systems differ on charging, detention, trial deadlines, sentencing, and credit time.

This post is for someone in Evansville, Rockport, Tell City, or Boonville facing a federal investigation or charge.

What Makes a Crime Federal

A crime is federal because a federal statute defines it. Some federal statutes also name a link to federal power, in their own text or through a definition:

  • Commerce: 18 U.S.C. 922(g) reaches firearm possession “in or affecting commerce”, and 18 U.S.C. 1343 a transmission by wire, radio, or television “in interstate or foreign commerce”
  • The mail: 18 U.S.C. 1341 reaches a fraud scheme that uses the mail or “any private or commercial interstate carrier”
  • A financial institution: 18 U.S.C. 1344 reaches a scheme “to defraud a financial institution”, which 18 U.S.C. 20 defines to include, among others, a federally insured bank or credit union
  • A health care benefit program: 18 U.S.C. 1347 reaches a scheme “to defraud any health care benefit program”, which 18 U.S.C. 24(b) defines as “any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual”

Section 841(a) of the federal drug laws (21 U.S.C. 841(a)) has no such words; the only qualifier in its text is “Except as authorized by this subchapter”.

When the Same Conduct Breaks Both Laws

The same conduct can violate an Indiana statute and a federal statute at once. A serious violent felon with a gun, for example, can fall under Indiana’s serious violent felon statute, IC 35-47-4-5, and under 18 U.S.C. 922(g)(1).

The Supreme Court reaffirmed in Gamble v. United States, 587 U.S. 678 (2019), that a crime under state law and a crime under federal law are not the “same offence” for double jeopardy purposes, so the Fifth Amendment does not stop a state and the federal government from each prosecuting the same conduct. Indiana’s own statute adds a limit: under IC 35-41-4-5, when the alleged conduct “constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction”, a former prosecution in the other jurisdiction is “a bar to a subsequent prosecution for the same conduct in Indiana” if it “resulted in an acquittal or a conviction of the defendant or in an improper termination” under IC 35-41-4-3, subject to the exceptions in IC 35-41-4-6.

That Indiana statute speaks only of a later prosecution “in Indiana”, not of a federal prosecution that follows an Indiana one.

How a Southern Indiana Case Ends Up in Federal Court

A case ends up in federal court when the conduct is charged under a federal statute, and court for the Evansville Division of the Southern District of Indiana “shall be held at Evansville” (28 U.S.C. 94(b)).

Drug Quantities

Under 21 U.S.C. 841(b), a violation “involving” “1 kilogram or more of a mixture or substance containing a detectable amount of heroin” carries a term that “may not be less than 10 years or more than life” (841(b)(1)(A)). For “100 grams or more of a mixture or substance containing a detectable amount of heroin”, the term “may not be less than 5 years and not more than 40 years” (841(b)(1)(B)).

Both subparagraphs set higher minimums “if death or serious bodily injury results from the use of such substance”, or after “a prior conviction for a serious drug felony or serious violent felony has become final”. Other cases involving “a controlled substance in schedule I or II” fall under 841(b)(1)(C): “not more than 20 years”, or “not more than 30 years” after “a prior conviction for a felony drug offense has become final”, with no minimum unless death or serious bodily injury results. An attempt or conspiracy carries “the same penalties as those prescribed for the offense” (21 U.S.C. 846).

A Firearm and a Prior Felony

Federal law makes it unlawful for a person “convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to “possess in or affecting commerce, any firearm or ammunition” (18 U.S.C. 922(g)(1)). The maximum for a knowing violation is 15 years (18 U.S.C. 924(a)(8)), but a person with “three previous convictions” for “a violent felony or a serious drug offense, or both, committed on occasions different from one another” must be “imprisoned not less than fifteen years” (18 U.S.C. 924(e)(1)). Our post on whether a felon can own a gun in Indiana sets this ban beside Indiana’s own.

Using or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime” that can be prosecuted in federal court, or possessing one “in furtherance of” such a crime, carries at least 5 years “in addition to the punishment provided for” that crime, at least 7 “if the firearm is brandished”, and at least 10 “if the firearm is discharged” (18 U.S.C. 924(c)(1)(A)).

Fraud Schemes

None of the four fraud statutes above carries a mandatory minimum. Sections 1341 and 1343 carry up to 20 years, or 30 if the violation “affects a financial institution” or “occurs in relation to”, or involves a benefit connected with, “a presidentially declared major disaster or emergency”; section 1344 carries up to 30; and section 1347 up to 10, or 20 if the violation “results in serious bodily injury”, and up to life if it “results in death”.

How the Two Systems Differ

Charging

The Fifth Amendment provides that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury”. Federal Rule of Criminal Procedure 7(a)(1) sets its own rule: an offense other than criminal contempt “must be prosecuted by an indictment if it is punishable: (A) by death; or (B) by imprisonment for more than one year.” Under Rule 7(b), an offense “punishable by imprisonment for more than one year” may instead be prosecuted by information if the defendant, “in open court and after being advised of the nature of the charge and of the defendant’s rights”, “waives prosecution by indictment”.

In Indiana, “Any crime may be charged by indictment or information” (IC 35-34-1-1(a)).

Detention Before Trial

Under 18 U.S.C. 3142(e), a federal judge orders detention before trial after a hearing, on finding that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community”. The hearing is held on a motion in the kinds of case 3142(f) lists, and it “shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance”. Except for good cause, a continuance may not exceed five days on the defendant’s motion or three on the government’s, not counting an intermediate Saturday, Sunday, or legal holiday, and “During a continuance, such person shall be detained”. For some offenses, including a Controlled Substances Act offense with a maximum of ten years or more and “an offense under section 924(c)”, the statute presumes, “Subject to rebuttal by the person”, that no condition will reasonably assure appearance and safety, once the judge finds probable cause (3142(e)(3)).

Speedy Trial

Under 18 U.S.C. 3161, an information or indictment “shall be filed within thirty days” of arrest or service of a summons, with “an additional thirty days” for a felony in a district where no grand jury has been in session during that period (3161(b)). After a not-guilty plea, trial must begin “within seventy days” of the charge being filed and made public or of the defendant’s appearance before a judicial officer of that court, whichever is later (3161(c)(1)). Certain periods of delay are excluded (3161(h)).

Under Indiana Criminal Rule 4, for a jailed defendant, trial must begin “no later than 180 days” from the filing of the charge or the arrest, whichever is later; a defendant held longer must be released on recognizance, though the charge continues (Rule 4(A)). After a jailed defendant moves for early trial, trial must begin “no later than seventy calendar days from the date of such motion” (Rule 4(B)), and no one may be held to answer a charge “for a period in aggregate exceeding one year” (Rule 4(C)). A defendant held beyond either of those limits may move for dismissal, and the charge must then be dismissed unless the State makes the showing Rule 4(D) requires for a ninety-day continuance. Each limit excludes delays the rule names, such as congestion of the court calendar or an emergency.

Sentencing

The Sentencing Guidelines are a separate matter from the statutory minimums above. Under 18 U.S.C. 3553(a), a federal judge must consider the sentencing range set by the Sentencing Commission’s guidelines along with the other factors the statute lists, and must impose a sentence “sufficient, but not greater than necessary” to serve the purposes the statute sets out. In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court removed the provision that made the federal Sentencing Guidelines mandatory, leaving them advisory: a federal judge must consult the Guidelines and take them into account, but is not bound to apply them.

Indiana uses the word “advisory” for something else: each felony level carries a range for a fixed term, with an advisory sentence written into the statute. For a crime committed after June 30, 2014, a Level 6 felony carries “between six (6) months and two and one-half (2 1/2) years, with the advisory sentence being one (1) year” (IC 35-50-2-7(b)). Our guide to Indiana’s felony levels and their sentence ranges covers every level.

Credit Time

Under 18 U.S.C. 3624(b), a federal prisoner “serving a term of imprisonment of more than 1 year”, other than a life term, may receive credit “of up to 54 days for each year of the prisoner’s sentence imposed by the court”, subject to the Bureau of Prisons determining that during that year the prisoner “has displayed exemplary compliance with institutional disciplinary regulations”. The prisoner is released at the end of the term less that credit (3624(a)). Section 3624 also refers to “time credits under section 3632”, not described here. The federal parole statutes were repealed for offenses committed after the repeal took effect on November 1, 1987, so federal parole does not apply to those offenses.

In Indiana, for an offense committed after June 30, 2014, a person in Class A earns “one (1) day of good time credit for each calendar day or partial calendar day” the person is imprisoned for a crime, confined awaiting trial or sentencing, or on pretrial home detention; Class B earns one day for every three, Class C one for every six, and Class D none (IC 35-50-6-3.1). A person who is not a credit restricted felon starts in Class A if imprisoned for “a Level 6 felony or a misdemeanor” and in Class B for any other crime (IC 35-50-6-4). Earlier offenses use Classes I to IV (IC 35-50-6-3). Our post on Indiana good time credit covers the classes.

Frequently Asked Questions About Federal and State Charges

What are federal charges?

Criminal charges under a federal statute rather than the Indiana Code, such as 21 U.S.C. 841 for drug offenses, brought in federal court.

Is a federal charge worse than a state charge?

It depends on the charge. Some differences:

  • Some federal statutes carry mandatory minimums, each tied to a condition the statute states
  • A federal offense punishable by more than one year, other than criminal contempt, must be prosecuted by indictment unless the defendant waives it “in open court and after being advised of the nature of the charge and of the defendant’s rights”
  • For some federal drug and firearm offenses, once the judge finds probable cause, the detention statute presumes, “Subject to rebuttal by the person”, that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community”
  • Under 18 U.S.C. 3624(b), a federal prisoner serving more than one year, other than a life term, may receive credit for satisfactory behavior of up to 54 days for each year of the sentence imposed, if the Bureau of Prisons determines the prisoner, during that year, “has displayed exemplary compliance with institutional disciplinary regulations”; Indiana’s good time credit runs from one day per day (Class A) to none (Class D)

Can you be charged by the state and federally for the same crime?

The same conduct can violate an Indiana statute and a federal statute at once. The Supreme Court reaffirmed in Gamble v. United States, 587 U.S. 678 (2019), that a crime under state law and a crime under federal law are not the “same offence” for double jeopardy purposes, so the Fifth Amendment does not stop a state and the federal government from each prosecuting the same conduct. Indiana’s own statute adds a limit: under IC 35-41-4-5, when the alleged conduct “constitutes an offense within the concurrent jurisdiction of Indiana and another jurisdiction”, a former prosecution in the other jurisdiction is “a bar to a subsequent prosecution for the same conduct in Indiana” if it “resulted in an acquittal or a conviction of the defendant or in an improper termination” under IC 35-41-4-3, subject to the exceptions in IC 35-41-4-6.

Who prosecutes federal crimes in Evansville?

The United States Attorney’s Office for the Southern District of Indiana, which “prosecutes violations of federal criminal law” and has an office in Evansville. Court for the Evansville Division “shall be held at Evansville” (28 U.S.C. 94(b)).

What crimes are federal?

Any crime a federal statute defines, including the drug, firearm, and fraud statutes discussed above: 21 U.S.C. 841, 18 U.S.C. 922(g), and 18 U.S.C. 1341, 1343, 1344, and 1347.

Jerry L. Garner is a retired FBI Special Agent, with 23 years of service from 1990 to 2013 among his 36-plus years in the law, and he defends federal cases in federal court in Evansville with a working knowledge of how federal investigations are built.

Our pages on federal criminal defense and the federal court in Evansville, and our post on what a federal target letter means, go further. He represents clients in Evansville, Rockport, Tell City, and Boonville.

Contact Us for Help

If a federal agent has contacted you or you have been charged in federal court, the earlier a defense begins, the more can be done. Call our office at (812) 301-6221 or contact us online. The first consultation is free.

Remember: federal and Indiana rules differ from charging to credit time; speak with a lawyer before you answer an agent’s questions.

This blog post is for informational purposes only and does not constitute legal advice. Every case is unique, and outcomes depend on specific circumstances. Contact our office to discuss your particular situation.