Long story short:

If you plead guilty to a charge from some specific state (say Alaska) and accept a plea bargain in exchange, can the federal government then come in and charge you separately for the same crimes (perhaps under different federal statutes) then use your guilty plea to the state level charges as evidence against you for a larger case?

Long story long, my brother is currently incarcerated in Alaska on drug-related charges awaiting trial and was recently offered a seemingly light plea deal. He tells us horror stories of other people in the penitentiary who've pled guilty to state-level charges with a good plea deal only to be railroaded by the feds with a decades long sentence, using the guilty plea to lesser state-level charges as evidence in a larger case.

Can he be prosecuted on both federal, and state level charges for the same crime? If so, can the feds use his state-level guilty plea?

3 Answers 3



A person can be charged with and possibly convicted of both Federal and State crimes for the same set of events, if they involve violations of both Federal and State laws. Double jeopardy does not bar such a prosecution because they are considers two different crimes, and the double jeopardy clause reads:

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.

This is not considered the "same offense".

This is true whether or not a plea bargain is involved.

The Wikipedia article linked above says:

The government of the United States and of each State therein may each enact their own laws and prosecute crimes pursuant thereto, provided there is no prohibition by the Constitution of the United States or of the state in question. Such is known as the "dual sovereignty" or "separate sovereigns" doctrine

In United States v. Lanza, 260 U.S. 377 (1922) the US Supreme Court wrote:

The defendants insist that two punishments for the same act, one under the National Prohibition Act and the other under a state law, constitute double jeopardy under the Fifth Amendment, and, in support of this position, it is argued that both laws derive their force from the same authority -- the second section of the amendment -- and therefore that, in principle, it is as if both punishments were in prosecutions by the United States in its courts.


It follows that an act denounced as a crime by both national and state sovereignties is an offense against the peace and dignity of both, and may be punished by each. The Fifth Amendment, like all the other guaranties in the first eight amendments, applies only to proceedings by the federal government, Barron v. City of Baltimore, 7 Pet. 243, and the double jeopardy therein forbidden is a second prosecution under authority of the federal government after a first trial for the same offense under the same authority. Here, the same act was an offense against the state of Washington, because a violation of its law, and also an offense against the United States under the National Prohibition Act. The defendants thus committed two different offenses by the same act, and a conviction by a court of Washington of the offense against that state is not a conviction of the different offense against the United States, and so is not double jeopardy

It is interesting to note that as late as 1922 this court seemed to think that none of the bill of rights had been incorporated into the 14th amendment and thus made applicable to the states. But that would not have changed the decision in this case.

  • Thank you very much, I would upvote if I had the ability. Can a guilty plea to state level charges strengthen the federal case?
    – Bob
    Commented Mar 14, 2019 at 0:10
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    @Bob Any facts admitted in pleading to the state charge could, I would think, be used in the federal case, but this is something which a person should explore with his or her lawyer before pleading guilty to any crime. Exactly which facts would be relevant demands a knowledge of specifics which is beyond the scope of this site. If a lawyer did not advise a person of the consequences before peading guilty, there might be a claim for ineffective assistance of counsel, but that will depend very much of specific details. Commented Mar 14, 2019 at 0:30
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    Much appreciated David, we'll consult the family lawyer for specifics.
    – Bob
    Commented Mar 14, 2019 at 0:46
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    To provide a concrete example, a guilty plea to a state criminal offense is sometimes used to prove a federal immigration offense that makes someone deportable.
    – ohwilleke
    Commented Mar 15, 2019 at 14:26
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    "same sewt of events" typo for "set", I take it? Commented Mar 15, 2019 at 18:58

Usually yes, with caveats.

As David Siegel's answer says, constitutionally, the federal government can prosecute anyone for a crime which has already been prosecuted at the state level. But that's only the beginning of the story.

Start with the US Attorney's manual. This manual is not, in and of itself, a law. However:

A. Statement of Policy: This policy establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding. See Rinaldi v. United States, 434 U.S. 22, 27, (1977); Petite v. United States, 361 U.S. 529 (1960). Although there is no general statutory bar to a federal prosecution where the defendant's conduct already has formed the basis for a state prosecution, Congress expressly has provided that, as to certain offenses, a state judgment of conviction or acquittal on the merits shall be a bar to any subsequent federal prosecution for the same act or acts. See 18 U.S.C. §§ 659, 660, 1992, 2101, 2117; see also 15 U.S.C. §§ 80a-36, 1282.
The purpose of this policy is to vindicate substantial federal interests through appropriate federal prosecutions, to protect persons charged with criminal conduct from the burdens associated with multiple prosecutions and punishments for substantially the same act(s) or transaction(s), to promote efficient utilization of Department resources, and to promote coordination and cooperation between federal and state prosecutors.

The boldfaced statement cites a number of specific laws which actually do bar federal prosecution following a state prosecution. Let's use 18 USC 659 (which they cite above) as an example:

[snip multiple paragraphs, which essentially amount to "stealing from an interstate or international cargo shipment is a crime."]

A judgment of conviction or acquittal on the merits under the laws of any State shall be a bar to any prosecution under this section for the same act or acts. Nothing contained in this section shall be construed as indicating an intent on the part of Congress to occupy the field in which provisions of this section operate to the exclusion of State laws on the same subject matter, nor shall any provision of this section be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this section or any provision thereof.

I'm not sure why, but for some reason, Congress decided to combine two different provisions into one big paragraph:

  1. If a person is either acquitted or convicted "on the merits" (meaning the case actually produced some kind of verdict rather than having its charges dropped or something similar) in state court, then federal prosecution is barred.
  2. This law does not preempt state laws unless it directly conflicts with them in some way.

A provision essentially identical to #1 can be found in most of the above cited laws, but I was unable to find it in 18 USC 1992, and 15 USC 1282 has been repealed.

Anyway, let's go back to the manual. As mentioned before, it is not law, but it might as well be, because the Department of Justice is a very rules-oriented organization. It does not simply charge random people with random crimes whenever any US Attorney thinks they can win. There are processes to follow and rules to satisfy, and as quoted above, one of those rules pertains to prior state prosecutions. If the rule says not to prosecute someone, then that person very likely will not be prosecuted.

We can skip past several paragraphs of preliminaries to the meat of the policy, in section D. It is quite long, so I will not quote all of it, but here is my executive summary. There are three requirements:

  1. The case must "involve a substantial federal interest." The policy says relatively little about this but does cite another manual for more details.
  2. The state prosecution must have "left that interest demonstrably unvindicated." The policy goes into considerable detail about this, but in short, it's not about the result. It's about whether the state prosecution was demonstrably deficient in certain specific ways, or was frustrated by various problems not related to the defendant's guilt, or by external factors such as the availability of evidence. In principle, this requirement could be met even in the case of a conviction (the example given in the manual is "a state prosecution for assault and battery in a case involving the murder of a federal official").
  3. The government must believe that the defendant is actually guilty and that it can obtain a conviction. The manual says that "[t]his is the same test applied to all federal prosecutions." No surprises here - the DoJ is generally quite averse to bringing weak cases.

If all three requirements are met, the law does not have one of the specific statutory carve-outs listed above, and the non-substantive requirements of the policy are also met, then the DoJ can and will prosecute (subject to all of their other rules and procedures, of course).

  • The "not a law" is called the Petite Policy, in case you wanted to look it up. It is not a law, but something DOJ does by it's own choosing as it's a lot of work to bring a case to trial. That said, a crime that breaks both a federal law and a state law can be prosecuted by both the Federal and State's governments, however, the Feds choose to not prosecute when the state brings trial (even if the state trial results in aquittal.).
    – hszmv
    Commented Jan 27, 2021 at 13:16

I have counted and there is way more than double jeopardy:

  1. state;
  2. federal;
  3. military (if your brother was miitary at the time of the alleged offense then it may be a separate military offense);
  4. tribal (if your brother is a member of a Native tribe or the alleged offense occurred on a tribal reservation);
  5. international (the United States has criminalized certain actions taken by non-resident aliens outside the US borders ... your brother's actions may have violated the laws of one or more foreign nations)
  6. civil (your brother's plea agreement can be used against him in civil litigation)

As a practical matter, I think your brother should be primarily worried about federal jerks but there are at least 4 other exposures.

It seems your brother is being offered a post-conviction plea deal - which seems curious and strange to me.

IANAL but it seems that the feds could use the fact of a state conviction to the same effect as a guilty plea. If my idea is correct, then as long as your brother pleads guilty to a set of offenses less than or equal to the set of offenses for which he has already been convicted, then he should be OK.

OTH if the state just wanted to reduce your brother's sentence they could achieve that unilaterally without any action on your brother's part. He does not have a right to be incarcerated. They can just kick him out of prison just because they feel like it and he has absolutely no right to appeal that decision. Thus, the fact that they are seeking his "buy-in" suggests they are seeking to rat-fuck him.

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    Military and US are the same sovereign. The only way to be tried in both systems (assuming you are subject to the jurisdiction of both which is often the case) is for the offense to be different in each system, the same standard that would apply to two different federal prosecutions. There are not infrequently military offense that are not available as federal crimes with overlapping conduct, but you can't, for example, be acquitted of homicide in a federal trial and then convicted of a homicide offense in a military trial.
    – ohwilleke
    Commented Jan 27, 2021 at 19:54
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    Civil matters are outside the domain of double jeopardy entirely which pertains only to criminal offenses.
    – ohwilleke
    Commented Jan 27, 2021 at 19:55

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