Featured on Hexxen Studios, Chris Combs and Andrew Russek sat down to talk about federal criminal charges. In this video, you can learn about different types of federal charges, how they differ from state charges, and why it’s critical to bring in an expert federal criminal defense lawyer to protect you against these charges.
Episode Transcript
Scott Michael Dunn: Welcome back to Hexxen Studios. I’ve got Chris Combs and Andrew Russek from Combs Waterkotte, a leading criminal defense firm in both Missouri and Illinois. Today, we’re gonna talk about federal crime basics and jurisdiction. Chris, what is a federal crime?
Chris Combs: So, a federal crime is when you’re being charged by the United States government.
So the way the indictment is gonna read is the United States of America versus you, which is a whole lot different than the state of Missouri or the state of Illinois versus you. So that’s kind of your short answer on that.
Scott Michael Dunn: Can you explain, what are federal criminal charges?
Chris Combs: You know a wide, wide array of charges. I mean, you see– a lot of similar charges that you see in state court can also be federal charges. You know, there’s federal homicides and things like that.
But a lot of what you see are things across state lines. So drug conspiracies, a lot of kidnapping, computer crimes, a lot of computer crimes, a lot of financial crimes, Medicare/Medicaid fraud. So, typically, anything that crosses state lines is going to be considered a federal offense.
Scott Michael Dunn: Besides state lines, Andrew, when does the crime become federal?
Andrew Russek: So there does have to be federal jurisdiction. As Chris said, that could be “part of the crime happened in Illinois, part of it happened in Missouri.”
For drug conspiracy, a lot of times, there’s somebody from a border state sending the drugs in. You’re receiving them. That’s federal jurisdiction, even if you’re only selling the drugs in one state. Often, you’ll also see gun crimes because the gun was brought from out of state.
There has to be that jurisdictional connection, or it has to happen on federal territory. So things that happen on Fort Leonard Wood or Scott Air Force Base, the Arch grounds…even a DUI can technically be charged by federal if it happens on that federal ground. So we get DUIs out of the Arch all the time.
Scott Michael Dunn: Well, and that’s where it gets kind of confusing. What makes it a federal charge versus a state charge?
Andrew Russek: I mean, inherently, it’s the federal statute, United States criminal code. Again, there’s some overlap there: There’s homicides, sex crimes, and there are some things that are specific to federal code, like Medicare/Medicaid fraud. I mean, there may be an equivalent of that in state statutes, but you don’t really see it charged much.
But ultimately, it’s what agency investigated you. ATF, DEA – their cases are going to go to a United States prosecutor in some federal jurisdiction, some federal district. And then it’s that federal prosecutor running you through a federal grand jury and putting you in front of a federal magistrate.
Scott Michael Dunn: Now, when it comes to felonies, what’s the difference between a federal felony and a state felony?
Andrew Russek: I mean, one big difference is the range of punishment. On federal crimes, it’s a lot more serious. As Chris says, it’s the United States of America. So not only are they gonna have more resources, but the statutes are just more severe.
So mandatory minimums: On drug cases can be as low as five years, 10 years, up to 40. In Missouri, that same crime, maybe at worst, you could get 10 years as a max.
And then also just again, who you’re dealing with. You’re dealing with the United States prosecutor; it’s a little bit more of a sophisticated role, but also their resources are extremely more available and wide.
Chris Combs: Yeah. I mean, the United States government has unlimited time, money, and resources.
Scott Michael Dunn: Yes, they do! At least so they think they do.
Chris Combs: And with the Truth and Sentencing Act, you have to serve 85% of your sentence – whereas, you know, it’s your first time going to prison on a state charge, you’re doing like 10, 15%.
There are some 85 percenters in state court, but everything in Fed court is 85% of your sentence.
Scott Michael Dunn: So I’ve never heard it before. In my life. What would you say? What is a federal felony?
Andrew Russek: I would say the common things that you do not really see in state court are gonna be wire fraud, white collar crime.
Part of that is because, inherently, a cyber crime or something with the SEC, with the stock market, you know, you buy a stock, the company’s in Texas, your broker’s in New York City, and you’re receiving the money in Missouri.
So, I mean, the jurisdiction there. You’re just gonna bounce up to federal court, Medicaid/Medicare fraud, solicitation of minors, that does happen in state court.
But again: You’re on some app and accused of talking to somebody underage who’s in Oklahoma – the feds are gonna get involved in that, and that is when you’ll end up in federal court with a federal prosecutor.
Scott Michael Dunn: Yeah. What are some common examples of federal criminal charges?
Andrew Russek: So, wire fraud, Medicare/Medicaid fraud, conspiracy, – that’s something that you don’t see in state court much, so you can be charged with, essentially, working with other people to commit a crime separate from actually being charged with whatever that crime is that you may have committed – drug conspiracies, interstate drug transfer, felon in possession.
The feds are real big on that right now, which is, even if you’re caught downtown St. Louis City with a gun, and you have a felony from 10, 15 years ago, the feds can pick that up as their equivalent of unlawful possession of a firearm.
Scott Michael Dunn: Now, as a managing partner, Chris, over at Combs Waterkotte, what kind of federal crimes do you guys generally work with?
Chris Combs: So again, you know, with being one of the largest criminal defense firms in the metro East, we see a wide array of federal crimes. Again, a lot of cyber crimes because inherently they cross state lines. And conspiracies, as Andrew was just talking about. So you know, anytime you’re working in concert with others to commit a crime, that’s a federal charge.
What do we see? We see a lot of sex cases, because again, inherently, you’re on the internet a lot of times with those. Medicare/Medicaid fraud. We see a lot of felon in possession of firearms. As Andrew just alluded to, the federal government is really trying to crack down on felons possessing firearms.
So, although there’s a state statute for that, the feds pick those up. Money laundering, you know, I could go on and on, but you know, we see everything. You name it, we’ve seen it.
Scott Michael Dunn: Now, we’re gonna sort of get into the federal investigations and early warning signs dealing with breaking federal laws.
What agency investigates a federal crime?
Andrew Russek: You have ATF, DEA, FBI. All those different – SEC, IRS – they all have law enforcement angles to them, but also state investigators.
When I was a violent crime prosecutor in the city of St. Louis, it wasn’t uncommon that we would get a case in front of us that technically we would’ve equivalent state statutes for, but for whatever reason – maybe our resources weren’t enough, or there was other things going on in other states – we would go. And our police, St. Louis Metropolitan Police, would be the ones to take it over to the federal office.
So even something that starts with a Missouri State Highway Patrol officer pulling you over can get you into federal court. It doesn’t have to be one of those alphabet organizations in order for your crime to get on an AUSA’s desk.
Scott Michael Dunn: Speaking of these agencies, what should somebody do if a federal agent contacts them/approaches them?
Andrew Russek: Contact an attorney immediately. Again, as Chris said, once the federal government has zeroed in on you, it’s not something that they forget about. They have resources to follow you for years.
We see cases sometimes where people are being monitored and followed for months and years, and by the time the feds come knock on your door, there’s already a file extremely thick with your information in it. They can access your phones. They’ll offer you to come in for an interview.
At that point, you need an attorney just to sit down with you and discuss what you’re at risk for, what your options are, because you’ve probably – there’s a file with your name on it, on a desk somewhere.
Chris Combs: And there’s – we always say this at Combs Waterkotte: call a lawyer. That should be the first thing you do before making any statements. But when you’re talking about being investigated by a federal agency, people often forget that lying to a federal agent is a crime in and of itself.
So you get contacted by any type of federal agent, you need to put a lawyer between yourself and the federal government. Because anything you say, again, that is untruthful, you can catch another charge on top of what you’re being investigated for, for lying.
So you have to put a lawyer between yourself and the United States government.
Scott Michael Dunn: Well, that’s the difference, right? Like, in the conversation from the go, at starting point with contact with a federal agent.
Chris Combs: You should never say anything.
Scott Michael Dunn: You cannot speak a lie from that point forward at all.
Chris Combs: I mean, you should literally not say a single word when being investigated – if you are approached or detained by the feds. Another thing is, a lot of times, people are terrified, right?
Your door gets kicked in at five in the morning by the US Marshals or SWAT, and they have you sitting there as they’re rummaging through your house with a search warrant.
And some of these agents are trying to get information, and– we have clients that think, “Oh, I have to do this. I’m absolutely screwed. I have to give them information.”
That is the worst thing you could possibly do. Because if you’re going to give them information, there’s a time and a place for that, where you can actually receive credit to get a downward departure in your sentencing guidelines.
But you’re not getting credit when you’re just spouting off information without a lawyer looping in a federal prosecutor.
Scott Michael Dunn: So let’s say I received a target letter. What should I do now?
Andrew Russek: Reach out to an attorney. Because again, if you’ve – what a target letter is, is telling you you are the target of an investigation, or you have some role in an investigation. What that inherently means is this is no longer getting pulled over by a police officer that was drinking coffee and saw you speed by, then this is their first contact with you.
By the time you get that letter, they know where you live. They know who you associate with. They know your social security. They know your past. 10, 15 years of employment, they know things about you, and they have – they are zeroing in on you, the United States of America, zeroing in on you.
So, not only do you need to speak to [a lawyer] because [the investigators] already know things about you. You’re not gonna be able to talk slick your way out of it.
But also, there are certain opportunities for mitigation or for us to interfere in a way that could help you. Maybe we can avoid you being indicted by going and having a conversation with them – explore other options.
So being proactive with the target letter can help you avoid worse consequences, but you need to make sure you’re doing it right. Because again, you are now dealing with a much more serious organization than a local police officer or a local prosecutor.
Chris Combs: And I think that’s a common mistake you see with people who are being investigated by the feds, is they think “Well, you know, I don’t wanna spend the money and I don’t want to get a lawyer until I’m officially charged.”
I cannot tell you, and Andrew could speak better to this than I could, how successful we are in shutting down cases and avoiding our clients getting indicted at all if they get us involved right outta the gate.
Scott Michael Dunn: Ah, that makes a big difference.
Chris Combs: Huge.
Scott Michael Dunn: Well, speaking of that, how do I know if I’m under a federal investigation?
Andrew Russek: So, a target letter is a common way to see it. Federal agents reaching out to you. Sometimes we get clients who – their friend has been indicted, or their friend has received a target letter.
Again, the federal government they have a lot of access to information. So if you’re potentially associated with that, we get a lot of clients who will call us and say, “I think this is coming down the pike on me as well,” and often it is. And again, we’re able to mitigate or avoid some of those more serious consequences by being proactive.
So it’s best to play it safe and contact [a lawyer]. The federal government does not have a duty to let you know that they’re looking into you until it gets to that target letter degree. So again, they may be watching you, or they may have been watching you for the past six months, and you don’t even know, which is why you need to get an attorney on the phone if you think there’s any reason they may be circling you.
Scott Michael Dunn: What is the – you said not to say a word, so, how’s that process work? If you’re approached by a federal agency, can you just not say anything?
Chris Combs: Yes, of course.
Scott Michael Dunn: I mean, should you call the attorney immediately, or what’s the process of that?
Chris Combs: Yes, sorry to interrupt you. But of course, yeah. You need to contact an attorney immediately. Just be respectful and just say, “I’m not going to make any comments whatsoever until I have an attorney involved.” The biggest mistake you can make is to start talking.
Scott Michael Dunn: How long do federal investigations generally last?
Andrew Russek: They generally – I don’t know if there’s a general to it, but they can go on for years. I mean, Chris and I have both seen conspiracy cases where again, they catch you with maybe some drugs or receiving something in the mail, and then all of a sudden, the materials we get from them show that they have you picking up packages for the past two years.
The statute of limitations in federal government are inherently longer than they are in state court. The investigations can span from when you used to live in Arizona two years ago to Missouri, because they don’t have jurisdictional lines like different state agencies do. So they will watch you until they’re content that they have a case.
Scott Michael Dunn: Mm-hmm.
Andrew Russek: Sufficient to bring – it’s not like state court, where it’s a lot more retroactive, right? When police arrive, and they start investigating. [The federal investigators] are investigating you before contact’s made 90% of the time, and that can be years in advance.
Chris Combs: And see that, you know. I mean, we get discovery on some of these drug conspiracies, and their banker’s box is worth of discovery.
Scott Michael Dunn: Wow.
Chris Combs: I mean, they’re recorded phone conversations dating back two years with anyone you’ve been communicating with that could be involved in this crime. We get videos of them watching you. It goes back to the unlimited time, money, and resources of the US government as opposed to the state investigating you.
Scott Michael Dunn: Now, Andrew, you were talking about the process, right? So, the federal court process: What is the difference between the federal court process and the state process?
Andrew Russek: So it’s, it’s inherently the same in that you’re charged via complaint or a direct indictment. You go in front of a magistrate. You can have a bond hearing. You can have arguments for pretrial release.
Eventually, either directly or later, there’s an indictment to make sure there’s probable cause. And then you have your plea negotiations, your discovery review. You have your similar rights to a trial, to challenge unconstitutional police work through motions.
So it’s similar in that broad sense. But it’s the federal government – again, because of their resources, both pre-indictment and post-indictment, because their attorneys have more resources, just like their law enforcement does.
It’s much more serious, if that’s a way to say it. Its court is more formal, court is more, well, I don’t know. It’s more formal.
There’s more legal arguments on the side of the federal government, and their attorneys, again, are inherently more experienced. They have more knowledge, they have more assistance in their office to help them.
So, you have to go through things with a much finer-tooth comb than you may in state court.
Chris Combs: And I would just say that you cannot compare the two. You know, state court – you can drag out a case for a considerable amount of time. Federal court, you really only get a couple of court dates.
I mean, you get arrested, you get your detainment pretrial release hearing to decide if they’re going to allow you to be out in the community while the case is pending. And then you really just get one court date, and that court date is to file pretrial motions, whether or not you’re gonna go to trial against the United States government.
Now, that can get continued a number of times, but you don’t see federal cases drag out like you do state cases. They move much quicker.
Scott Michael Dunn: And that’s what you’re getting into. Like, what is the difference between a federal and state court? What looks different and what feels different about the two of them?
Chris Combs: It couldn’t be any more different. I mean, my first few times in federal court, I was extremely intimidated. You walk into these federal buildings, and there’s 40-foot ceilings, and they’re like a mausoleum.
And you see people who look like they could work at McDonald’s, or anywhere that just look like any guy walking down the street, and then they pull up their shirt, and they’re a federal agent, you know?
Scott Michael Dunn: Right.
Chris Combs: And they do that on purpose. They’re kind of scruffy and dressed down to blend into the community.
So, it’s just a whole different vibe, you know. The judge sits way higher. It is meant to be more intimidating and much more serious. Again, you’re looking at judges with lifetime federal appointments and –
Scott Michael Dunn: Yeah.
Chris Combs: –You’re looking at a much – I hate to say this, I don’t want to offend any state prosecutors, but – you’re typically looking at a higher caliber prosecutor in the federal prosecutor’s office.
Scott Michael Dunn: They played to win.
Chris Combs: Yes. And I mean – and that’s why their conviction rate is so high. And one reason for that is, in the sentencing guidelines, you do get a reduction for accepting responsibility and pleading guilty. But another reason is, as Andrew was talking about with these investigations spanning potentially two years, they take their time, and then they get all their ducks in a row, and when that indictment drops –
Scott Michael Dunn: Right,
Chris Combs: – a lot of times they’ve got you boxed in pretty good.
Scott Michael Dunn: What is a federal indictment, Andrew?
Andrew Russek: A federal indictment is a federal grand jury: So instead of just a grand jury in St. Louis or Jackson County, it’s a grand jury from everybody in the Eastern District of Missouri, Western District of Missouri, Southern District of Illinois.
So you have a larger jury venire panel, but otherwise it’s the same, where they present – without you present, without your attorney present, it’s totally allowed.
The prosecutor presents their evidence to these grand jurors, and that gives them a finding of probable cause, which allows them to move you forward into district court. So some federal jurisdictions wait, put everything through the grand jury.
So, as Chris said, they get all their ducks in a row. By the time you’re even aware that they are coming after you, they’ve already secured a grand jury indictment. They have all their evidence indexed, documented; they have all their witnesses they’re gonna need lined up as opposed to state court, [which] is often a little retroactive. So, police arrive, they arrest you, you show up to court, prosecutor says, “Well, I haven’t even seen the discovery yet, Judge. We’re still waiting on the police to write the police report.”
Federal court’s not like that. The AUSA is ready to roll and could go to trial in a week by the time you walk in for your detention hearing, because you just got arrested. And that changes our– how we have to address the case as well, because we have to move a lot faster.
Scott Michael Dunn: I hear you mention federal indictment, federal grand jury indictment. Is there a difference? And what is a federal grand jury indictment?
Andrew Russek: So an indictment comes out of a grand jury.
Scott Michael Dunn: Okay.
Andrew Russek: So it’s through a grand jury. Now, the federal government also uses their grand jurors to get subpoenas. So they may be subpoenaing your financial records.
All that is presented to a grand jury where they’re laying out their evidence, with their witnesses, in front of a grand jury that is just making sure there’s at least that standard of probable cause, which is a relatively low standard. Most of the time [it’s] very easy for them to meet.
Scott Michael Dunn: Now, what do we have to look forward to, or, if I were indicted and dealing with a federal case, with prison sentencing and penalties? How does the federal sentencing work?
Andrew Russek: So I’d say one of the big differences in federal court versus state court is [in] state court, if a witness in a domestic case gets over it after two years, you may be able to get that case to go away or get a much better result. You may have a police officer retire, and by the time it goes to trial, it’s a headache for the prosecutor. So they’ll cut you a good deal– you may be able to get out of it via mitigation.
You don’t have that in federal court. They have their facts, they have their evidence. There are legal arguments, and there may be factual arguments, but you are much more often dealing with a case that, again, they are ready to try a week after you have your first detention hearing. So it’s a lot more serious for that reason, as well as there are resources, and their statutory punishments are inherently higher.
Scott Michael Dunn: What kind of penalties do federal convictions carry in?
Chris Combs: I mean, there’s a wide array. The federal courts, unlike state courts, they’re bound by sentencing guidelines, and this is all laid out in the United States criminal code.
It looks like– you know, they say lawyers don’t like math; well, if you’re going to be a federal defense attorney, you better be good at math because you’re looking at a sentencing guideline chart. And you’re looking for ways to get under some of these mandatory minimums. There’s safety valves, there’s K1s to get downward departures, all kinds of different things you can do to try to get under these mandatory minimums and things like that.
But again, I just can’t emphasize enough: It is a whole other world in federal court than it is in state court.
Scott Michael Dunn: And you talked about mandatory minimums, but Andrew, what is a mandatory minimum? And do these federal penalties and these convictions– what does it carry? What is the mandatory minimum?
Andrew Russek: A mandatory minimum is what a statute can allow for the least punishment. So a lot of federal crimes will say “no less than five years, no more than 40 years.” That’s a very common one we see on drug cases. But depending on what kind of drug you have and what percent, or what amount and what purity, you can get up to “no less than 10, no more than 40.”
A lot of sex crimes will have high mandatory minimums, and you don’t always see that in state court. And as Chris said a little bit earlier, you have to think in federal, unless you have one of these safety valves that an attorney can work out for you, you’re doing 85% of your time.
So in state court, when we’re talking seven years, maybe you do well in prison, you’re gonna do two. Federal court, we’re talking 10 years, you’re doing eight and a half on good behavior, if you’re lucky. And sometimes with a lot of these meth or fentanyl cases, if you go up for 10, that’s the minimum, unless your attorney can work out a way to get you a downward departure, first step, safety valve, things of that nature. So it’s more percentage of your time, and it’s higher time.
Chris Combs: And it’s just very rigid, right? I mean, there’s not– the room for negotiations in state court are infinite, whereas in federal court, they are not.
You’re bound by the sentencing guidelines, and there’s a point system, and you really have to know those sentencing guidelines and that point system. That’s why I said you better be good at math if you’re a federal lawyer, because you have to be able to calculate.
And we’ve had cases where the government’s gotten wrong: “Hey, we see your guy’s a level five, and that puts them in this range of how many months,” (they do months instead of years in federal court).
But you have to be able to really know that sensing guideline handbook, front and back, to be able to calculate where our clients may land, and make sure that the government has gotten it correct too, based upon criminal history and how you get these different points to end up on this chart of sentencing guidelines.
Scott Michael Dunn: So the chart you’re talking about kind of describes how much of a federal felony sentence that you actually serve? Is that what we’re getting into? And how do you determine that?
Andrew Russek: There’s a book that’s quite thick called your “Sentencing Guidelines,” and there’s a matrix.
So you’re gonna start with a crime itself, depending on how you’re charged or what you’re convicted of, it’s gonna give you points. Then you add on points for various factors, like if a gun was involved, it can be two points.
If there were threats of violence in conspiracy cases, it’s– there’s an argument of how high on the totem pole you are– if you’re low, you can see some point deductions there. If you’re high up on the totem pole, or the government is trying to allege you’re high up, you can get extra points there. And the difference between two points on here or there– I mean, you could start adding on. 10, 15, 20 months, after a while.
Scott Michael Dunn: Oh, wow.
Andrew Russek: Then, once you get that number, you’re cross-referenced with your criminal history. That’s a whole other fight because an Oklahoma drug conviction may give you this many points, where a drug conviction with a certain amount of time in Missouri– that’s all things you need an attorney to fight for you, because you want to be lower on that matrix, because that gives the range that the judge will sentence you between, for the most part.
Chris Combs: There’s a lot of criminal defense firms, it just will not touch fed cases for this reason. Because it’s–
Scott Michael Dunn: Complicated.
Chris Combs: Yes, exactly. They’re very complex. They’re extremely time-consuming. And you can’t just dabble in federal criminal defense law. You either do it or you don’t.
Scott Michael Dunn: Does every federal felony result in prison time?
Chris Combs: The answer to that is no.
However, you’re talking probation for first, second offenses– depending on what they are in the level of felony– in state court on a semi-regular basis. You’re not talking about probation very often in federal court.
Not saying we don’t get probation for our federal clients, but that’s just not common in federal court.
I mean, what would you say about that, Andrew?
Andrew Russek: I would agree with that for multiple reasons. Again, we’re talking about higher levels of mandatory minimums. We’re talking about stronger cases. But we’re also talking about the federal government is more selective in their cases. So you’re not, accidentally, oh, [catching] a DUI on your way home from the bar, and you otherwise have a great history, and the prosecutor cuts you a deal just to cut you a deal.
You’re talking much more serious investigations, meaning the government is that much more involved in it. So they’re more rigid because they’re taking everything just that much more seriously. Same thing for the judges,
Chris Combs: And they’re bound by the sentencing guidelines.
Scott Michael Dunn: Yeah.
Chris Combs: So that’s why there’s not as much negotiation in federal court. They’re bound by these guidelines,
Scott Michael Dunn: But what I’m hearing is that it’s still possible. Can I get bail or probation with a federal felony? Is it still possible?
Andrew Russek: It is certainly possible. We have quite a few federal clients with federal charges who are currently out on what is called “pretrial release”, but inherently it’s the same thing.
Scott Michael Dunn: Probation?
Andrew Russek: Well, not probation. It’s pretrial release, so it’s like bond.
Scott Michael Dunn: Oh, like bond.
Andrew Russek: So they’re out in the community and everything. And then you can also get probation after conviction, but it takes a lot more than it would in a state case. Both negotiating with the prosecutor, but also doing a sentencing hearing with the judge.
In state court, you often have the judge just [sign] off on whatever you and your local prosecutor can agree to. Even if the AUSA wants to be nice to the client, the judge is the one making the decision, and they’re basing that on these guidelines they have. So it’s a much more complex, serious process to come out with probation in any federal case than it is in a state case.
Scott Michael Dunn: This is unlikely?
Andrew Russek: It takes a lot of work, and a lot higher percentage of federal cases do end up with some kind of time to serve.
Scott Michael Dunn: Mm-hmm. Let’s get into the, the drug aspects of federal crime and federal drug charges. What makes a drug charge Federal?
Andrew Russek: So normally it’s A. When you have these conspiracy cases we’re talking about– we have one right now in the Western district, where the drugs were coming out of Arizona through the US Postal Office into Missouri. So, Arizona to Missouri, that’s federal jurisdiction. As well as the post office.
Also, it’s the amount of drugs. A lot of federal investigators I’ve heard, they’ve told me they’re not gonna get outta bed for personal amounts of fentanyl or personal amounts of methamphetamine. So when you’re talking hundreds of grams, pounds of certain substances, that’s when the federal government will get involved.
Or if you have connections, especially outta country into Mexico, things of that nature. Or when we have a conspiracy. Which is a multi-drug ring that you’re accused of being a part of. State prosecutors don’t have the resources to fight those kind of cases, so they’ll send ’em over to the federal government.
Scott Michael Dunn: Well, speaking of moving drugs over state lines: What, what constitutes a federal drug trafficking charge?
Andrew Russek: It will be– it’s a federal government charge, “possession of a controlled substance with the intent to distribute,” is what you see a lot.
Scott Michael Dunn: Okay.
Andrew Russek: So it is, “Are you distributing drugs? Are you accused of distributing drugs?”
Again, the amount matters, as well as, can they show that the drugs were coming from out of state. I mean, that’s really all they need is either the amount and/or that they were coming from out of state. So we see that a lot in Missouri on 44 and 70, cars being pulled over–
Scott Michael Dunn: Mm-hmm.
Andrew Russek: They were in Texas the day prior– believe it or not, the federal government will find out where your car was today prior– that gives them the federal jurisdiction, that gives the federal government the interest in coming after you.
Chris Combs: Yeah, with the technology today and the license plate readers, they can tell you where your car was.
It’s scary how much information the federal government has. I’ve sat in some of these meetings, and I’ve walked out with kind of that pit feeling in my stomach of like, “Wow, they have a lot of information.”
Scott Michael Dunn: Everything.
Chris Combs: Pretty much everything, yes.
Scott Michael Dunn: And when does it become a conspiracy? I mean, what is a federal drug conspiracy?
Andrew Russek: A conspiracy is that you are doing the conduct with the intent to commit the crime. So you don’t even actually have to finish the crime.
A lot of times, you’ll see conspiracy– there’s an agent involved, and there’s no drugs, and it’s you and another individual making all the means and efforts to purchase drugs or to ship drugs. But inherently, it’s multiple people working together to commit a crime. Very often, it’s drug trafficking or drug distribution.
So again, we’ll see these multi-defendant cases: There’s one from another state who’s sending the drugs, one who’s packaging them, one who’s moving the money, one who’s putting them on the street, and one who’s facilitating it all.
They can all be put together on one indictment: Conspiracy. And then they can have their individual crimes for their individual roles they played.
Scott Michael Dunn: Can federal drug charges ever be reduced or dismissed?
Andrew Russek: They theoretically can be, but that’s all part of fighting the case: Either getting them reduced or getting mitigation on the sentencing guidelines.
Scott Michael Dunn: So, what are the federal drug schedules?
Andrew Russek: That’s another– kind of like the matrix, you have to be good at math, and you have to be able to read through, because there are chapters and chapters dedicated to that. It depends on how much fentanyl you had.
Chris Combs: Purity levels.
Andrew Russek: Yeah, purity level for methamphetamine versus what is colloquially called “ice,” which will be a higher percentage of pure meth.
You can have the same amount, but if you have pure stuff, you’re higher mandatory minimum, you’re in more trouble.
Scott Michael Dunn: It’s, it’s all points, right?
Andrew Russek: It’s–
Scott Michael Dunn: An accumulation of points, that?
Andrew Russek: That’s what it ultimately comes out to look like, yes: Points. What your base pointage would be.
So you can start– I’m making up the number here ’cause I don’t have it in front of me– but start with 15 points. But again, if Chris has the same amount and he’s charged, but it’s more pure, he’s starting with 20 points. And [those five points], that can be five years in prison, that is interchangeable.
Scott Michael Dunn: Wow. How is intent determined in a federal drug case?
Andrew Russek: So it’s similar to a state case, but again, they have wider resources.
So a lot of times in these drug cases, they’re gonna have cell phone records. They’re gonna have an undercover officer that maybe talked to somebody within the conspiracy. They’re maybe gonna flip some people, or they’re gonna try and flip people. And they’ll probably have somebody who actually did a hand-to-hand transaction with an undercover informant– I mean, an undercover officer or a confidential informant is how they’re referred to as. So again, they’re building these cases with multiple different instances over time.
It is not the same as a state case where you have a bag of weed in your pocket, and there’s a debate over its personal use versus you’re selling it. They’re gonna have those transitions from the product moving, money being exchanged, money not being reported. Those things. And it’s all cumulative.
Scott Michael Dunn: Now, let’s talk about federal murder and homicide. So, when does a case– or, a murder case– become federal?
Andrew Russek: So again, you need that jurisdictional connection, technically. Now that’s relatively easy for them to do, so it’s really, when does the federal government have an interest in taking a federal case?
Now I was, again, a violent crime prosecutor in the city. We would get murders that the federal government would have interest in for a variety of reasons. Sometimes there’s other things going on, like it was a murder as part of a wider drug conspiracy. Sometimes the individual has a murder from another state. They commit one here, or they flee to another state. The feds will get interested in that, and they can create their jurisdiction for a variety of different reasons.
A lot of times, pay for homicide– so kill for hire– the federal government will take interest in those. Or, St. Louis and Southern District of Illinois, the river, a lot of things will happen to cross over.
So I prosecuted a case temporarily in the city where it’s a gunfight that starts in Illinois, ends in Missouri with a death, and the federal government came and picked that up.
Scott Michael Dunn: Oh, wow.
Andrew Russek: Because, for all we really knew, the death happened while they were crossing the bridge. So it’s those kinds of situations where the federal government will come in.
Scott Michael Dunn: There’s obviously a difference, but what is a federal homicide or a federal murder? What’s the difference between the two?
Andrew Russek: Well, a homicide, whether it’s federal or state, is just any death that was caused by another. And not an accidental, [or] “I died of old age,” anything of that. So involuntary manslaughter, voluntary manslaughter, all those things are homicides.
Murder is when there’s an intentionality to it. Different jurisdictions are gonna define that differently. But, murder is more, “I deliberately took a life.” Homicide is [death] that happened for unordinary circumstances.
Scott Michael Dunn: Is the death penalty possible in a federal murder case?
Chris Combs: It is. You don’t see the death penalty a lot in Missouri, in state or federal court.
There have to be some very serious aggravating circumstances before the death penalty’s on the table, and I’ll let Andrew speak to that as well.
Andrew Russek: There are aggravators that they have to find: So, kill for hire again. That will– that can invoke the death penalty. Torture, really malicious things, separate from just a gunfight that results in a death.
The federal government, specifically, there’s a political element to it, too. They have to go to DC and get approval to seek the death penalty for their cases. And sometimes that can change things, just whether or not that’s worth it to them.
But it’s definitely on the table, no matter what state you happen to be in, if it’s federal government.
Scott Michael Dunn: Do you have any caseload right now? Do you have any active cases that would pique interest in a federal murder or homicide?
Andrew Russek: We do not have any active cases where they’re seeking the death penalty. As Chris said, it’s just not as common in this day and age.
We do have cases in state and federal court where technically, it’s something the prosecutor could try and do, but again, it’s quite rare where a prosecutor actually decides, “I’m gonna seek the death penalty.”
More often, you see it as a veiled threat from the prosecutor that maybe they’ll go do it someday if you don’t cooperate or that you can’t work something out.
Scott Michael Dunn: Well, let’s talk about federal sex crimes. What, what are federal sex crimes?
Andrew Russek: So the–
Scott Michael Dunn: How are they classified? The charges?
Andrew Russek: The most common sex crimes, I’d say you see, are, for lack of a better term, trafficking, solicitation, or enticement of a minor.
Those are gonna be either crossing state lines to meet a minor, or, really, the most common we’ll see is communicating with minors from other states, because again, you’re using the wire, which is the Internet, to communicate with them.
Child porn being sent online, all the federal– I mean, even technically sending child porn in the mail, anything like that, the federal government will pick up–
Chris Combs: Even– sorry to interrupt you– but even possession of child pornography. Because, again: Internet. Downloading it. So that’s another common sex– that’s probably the most common sex crime you see in federal court, is possession of child pornography.
Scott Michael Dunn: So what makes it federal? I mean, what makes this– a sex crime– federal rather than state?
Chris Combs: Crossing state lines, the internet being involved.
Andrew Russek: That’s what gives them the jurisdiction. A big thing with any federal crime, I would say is, is the federal government interested in you?
Scott Michael Dunn: Mm-hmm.
Andrew Russek: There’s a lot of overlap here where the state could charge you, or federal. It’s not uncommon that we’ll see state charges at first, and then the federal government picks up, and they actually run simultaneously.
So a big part of it is, is the federal government interested? They will find their jurisdictional basis if they want it, because again, the resources and the law, they have it all.
It’s why are they interested in you? So is it a large cache of child porn? Is it repeated enticement of minors?
Chris Combs: Are you manufacturing or producing this child porn?
Scott Michael Dunn: Oh, wow.
Andrew Russek: Yes. So that’s when the federal government will say, “This is now worth our attention.”
Scott Michael Dunn: Do the federal sex crimes require the same kind of sex offender registration, or are they different?
Andrew Russek: They do. You become a sex offender. The application of it will depend on the state you happen to live in, but yes, you’ll still end up on a sex offender registry. Obviously, sex crimes in the federal government, when we’re talking those mandatory minimums, [are] exponentially higher than what you see in state court.
Especially child porn. You could be talking mandatory minimums of 40 years, just for a couple images, a couple videos, if not borderline life sentences.
But sex offender will apply to that. All those collateral consequences of having to register and not being allowed to live near certain areas. That all translates into the federal convictions as well.
Scott Michael Dunn: When you were kind of getting into that– what penalties apply to federal sex crime convictions?
Andrew Russek: I mean, it’s the same mandatory minimum, mandatory maximums. But, the Southern district of Illinois, we see a lot that they like to do the, “to catch a predator,” for lack of a better term, where it’s a fake individual pretending to be an underage child.
“Hey, come to my house.” You arrive, and they charge you with that enticement, that conspiracy, any charges. And I mean, it’s not uncommon– that’s kind of where I got the 40-year number from– to see mandatory minimums of 40 years on a case out of there. And again, that’s drastically different than what you see in state court.
Chris Combs: And another thing that’s much different from, and it’s all different from federal to state court, but another thing is, state probation is nothing compared to supervised release, which is what you get when you get out of BOP (Bureau of Prisons), which is federal prison.
So when you’re on supervised release and talking about sex crimes, a lot of times you find yourself not only on the sex offender registry, but on lifetime supervised release.
Scott Michael Dunn: Oh, wow.
Chris Combs: So that means till you die, the feds are monitoring your life. What electronic devices you’re using, are they approved?
So you see lifetime supervision a lot. Where you don’t see lifetime probation in state court very often, if ever.
Scott Michael Dunn: Yeah. And should someone hire an attorney that has experience in federal defense? Is that important?
Chris Combs: No, they should just go at it by themselves.
Scott Michael Dunn: [Laughing] Just go at it. Right? They should just… What, what do you call that when you represent yourself in a federal pro case?
Chris Combs: Pro se.
Scott Michael Dunn: A pro se?
Chris Combs: Yeah. No, I’m gonna cancel my– I’m having back surgery later this year, and I think I’m just gonna watch some YouTube videos and maybe do it myself.
Scott Michael Dunn: You may– Yeah. That’s fair. That’s fair.
Chris Combs: No, I know we’re kidding around here, but yes. On these podcasts, we always talk about the importance of having a lawyer. With federal court, you know, I’m repeating myself here, but putting an attorney between yourself and the federal government could not be any more important.
And the sooner you do that, the better off you’re gonna be.
Scott Michael Dunn: Oh, for sure.
Chris Combs: And I’ll let Andrew kind of talk to the importance of having an attorney and the complexities of these federal cases. And while you have to have someone who does this all the time.
Andrew Russek: Yeah, it’s the major leagues, again, we’ve talked about it: There are resources. You need to hire attorneys. We have law clerks that can help us with these things, paralegals, investigators, because you’re putting up a much more serious fight. You have to have an attorney that is not only willing to go to federal court, but is able to navigate a much more complex and less friendly system.
You have to understand the sentencing guidelines, and those are extremely complex. I like to think that the AUSAs that I work with, like me, but this is not state court, where you can go in and kind of work something out, maybe a little probation, but work on restitution, friendly behind the scenes with the prosecutor.
I mean, these are– this is the major leagues, so you need an attorney that knows what they’re doing, is willing to do it, is willing to go to trial if it’s necessary, and has gone to trial. This is not something you can throw your jacket on and a tie, and show up and work out a sweet deal for your client.
This is as serious as it gets. There’s nothing more serious than a United States courtroom.
Scott Michael Dunn: Yeah. I mean, I think they’re terrifying.
Chris Combs: They are. I mean, the first handful of times I walked into them, I was intimidated. And I didn’t do anything wrong, and I was an attorney. I mean, it’s meant to be intimidating.
Scott Michael Dunn: Yeah. I mean, I’ve seen them on TV– I’ve not stepped foot into a federal courtroom, but they just look…incredibly intimidating.
Chris Combs: You cannot compare a federal courthouse to a state courthouse. Would you agree?
Andrew Russek: I mean, they’re beautiful architecture to a degree, but they’re also more serious.
As Chris said, the judges sit higher. How beautiful they are will remind you how much more resources they have to come after you, than your small rural county in Missouri may be able to expend.
Scott Michael Dunn: This may sound silly, but I always say, “I’m not gonna cut my own hair. I’m not gonna work on my own teeth. And I’m not gonna do surgery on myself.”
And I think there’s no difference in fighting, going to war with the law, than any of those.
Chris Combs: And if you’re going to war with the United States government, you better have a team behind you. And that’s something that Combs Waterkotte offers is: We’re not one lawyer and a secretary. You get a full-blown team behind you with us.
We’ve got seven, eight lawyers now, and five support staff, senior litigation paralegal. Brilliant law clerks. So you get a lot of sets of eyes on your discovery and on your case, and the evidence that’s being used against you at our firm.
It’s not just one guy reading through everything. You get multiple sets of eyes, and we have a very stringent discovery review process, so it really sets us apart.
Scott Michael Dunn: Well, how important is that? The difference?
Chris Combs: I don’t know how much more you could really explain how important it is to have multiple sets of eyes on a set of discovery that could be a banker’s box, you know?
Scott Michael Dunn: Mm.
Chris Combs: Could be this big. So if you’re dealing with a federal drug conspiracy and you have to go over a hundred hours of audio and video, I mean, we’re not the United States government, but the law firm has to have the resources to fight the US government.
So, it just being one guy and a secretary– that’s tough. Not saying that you can’t do it. And there are some good, successful federal defense attorneys in town, but that’s pretty much all they do. They don’t do a lot in state court. But again, with Combs Waterkotte, you get a full team behind you.
And I think that that’s critical.
Scott Michael Dunn: You need an armory, and you need good weapons. And if you’ve got experience– and I think you guys at Combs Waterkotte have the experience, the know-how, the team– to lead folks on the right path.
And it is a scary situation for anybody to be in with any kind of federal charges.
I mean, what, we fight for probation, we fight for dismissal. Let’s wrap up talking about what that’s like with federal criminal charges.
Chris Combs: Just the kinda sentencing and?
Scott Michael Dunn: What if you try to get probation or you’re trying to get a dismissal or– how does that work on a federal level?
Chris Combs: I’ll talk briefly about it, and I’ll hand it over to Andrew.
So, as I mentioned, once you get your pretrial release hearing and they decide whether or not they’re gonna detain you till the outcome of your case, or they’re going to release you into the community, again, you just get that one court date to file pretrial motions.
So if you can’t work something out, and/or upon our thorough discovery review, we find legal maneuvers and motions that are worth filing to get counts dismissed.
Scott Michael Dunn: Mm-hmm.
Chris Combs: It’s, again, it’s just critical that you’ve got a team behind you to work on that. Now, there’s multiple avenues towards reduced sentences, and charges getting dismissed by filing those pretrial motions.
There’s also something called a proffer, where if the government thinks you have information that could behoove them and is a benefit to them, you sign an agreement– and this is going back to why you never just talk to the agents on scene, right?
You’re never getting credit for that. You have to loop in a federal prosecutor. Defense attorney, your client, federal prosecutor, go sit in a room and, there’s only really two agreements to, to a proffer– correct me if I’m wrong: If you talk about anything violent or homicide that can be used against you, and you can’t lie. Other than that, they expect you to spill your guts.
Andrew Russek: Yes.
Scott Michael Dunn: Or they expect you to flip.
Chris Combs: Yes. Or, or they’ll have you– If you’re under indictment, they don’t really want you to be a registered CI– confidential informant– because that can look bad on the government and, people who are wrapped up in the federal court system, more often than not, they know what’s going on.
They are much more in tune with what’s happening than your state court clients, because they talk, they do their research. And we see that a lot too. But, that being said… I mean, Andrew, what do you think?
Andrew Russek: On a proffer, it can be a good avenue to secure you the best outcome, whatever that may be.
Scott Michael Dunn: Mm-hmm.
Andrew Russek: That you can see it as a way to get points off your final disposition. You can see it as a way to potentially avoid indictment if you’re not yet indicted, and it’s a pre-indictment proffer.
You can maybe see it as a way to get a better deal, which maybe some of your counts [get] dismissed.
As Chris said, the important part there is that when you sit down with them, they know everything about you. Most likely, the first 10 questions they ask you, they already know the answer to, and they’re just seeing if you’re being honest.
So, A. You need an attorney to make sure that you are advised: “Here’s what they know, here’s why. You can’t necessarily try and hide this. Here’s what they want to know.”
It’s not always just that they want you to flip. Sometimes they want you to explain what these checks mean, help them understand how a process worked, et cetera. That’s maybe helping them with other investigations, or your investigations. Sometimes you’re snitching on yourself, and you’re just being forthright with things, but you’re gonna get credit for that when you’re in front of a judge.
So a proffer can be an extremely important tool. You do it by yourself, you could be walking yourself into a lion’s den. That’s why it’s important to have an attorney there to help you with everything. Work out the agreement, make sure it’s used right at sentencing, but also that you don’t catch a charge for lying to them during a proffer, or leaving something out.
Chris Combs: And there’s certain things– sorry– there’s just certain things federal prosecutors hate. So you need the experience of an attorney to say, “Look, you go in there and minimize your involvement, you’re gonna anger and frustrate these federal prosecutors.”
So there’s certain just, minutia-type, tricks of the trade, for lack of a better term, that you just need to know, and you need to be navigating in and out of these federal courts on a regular basis to be able to know these things.
Scott Michael Dunn: It sounds vital to get a team together to support fighting against any kind of federal charges. That you’d get a team that will go to war for you with the intent to win.
Chris Combs: Of course.
Scott Michael Dunn: Yeah. You know, that’s what’s odd about the– You’ll find representation just simply because you need it. But in reality, you gotta find a team like Combs Waterkotte that’s willing to go to war for you, and has all of the armory to do just that.
Chris Combs: Yeah, I completely agree. I mean, when you look at a federal indictment with your name on it, and you see the United States of America versus Chris Combs.
You better believe that– again, I’m repeating myself– they have unlimited time, money, and resources.
You better be hiring a firm that has at least some type of similar time [and] resources. And of course, we didn’t talk about this, but federal charges are much more expensive than state charges.
Scott Michael Dunn: Sure.
Chris Combs: Because of what it takes to fight these cases.
Scott Michael Dunn: Well, this is a lot of great information.
Chris, Andrew, we’re so grateful that you joined us here, and I hope this helps you guys at home better understand how important it is to get the right legal representation for federal charges. It’s vital.
We’ll see you next time on Hexxen Studios.
If you’re facing federal charges, don’t wait – call Combs Waterkotte now. You can reach our legal team any time of day or night at (314) 900-HELP, or contact us online for a free, confidential consultation.
