State or Federal Prosecution

Key Takeaways

 

Jurisdiction

  • The decision on whom to prosecute and which office should handle the prosecution is based on which office has laws that are most advantageous to convict the violent offender.

Witness Intimidation

  • Witness intimidation is prevalent in violent crime cases. Police and prosecutors should identify how best to improve witness cooperation and reduce intimidation in NIBIN-related cases. Approaches to consider include videotaping witness statements, obtaining protective orders, and assigning victim/witness advocates to at-risk witnesses associated with NIBIN-related cases.

Training

  • Local and federal prosecutors should receive training on NIBIN, eTrace, the role of the ATF CGIC, and the CGIC local support program and processes.

 

Jurisdiction

 

Once a NIBIN-related arrest has been made, a decision is needed as to whether the case will be prosecuted by the local or federal prosecutor. In some instances, the venue will have been decided during the investigative phase of the case and the arrest will go directly to the designated office and, sometimes, to a previously assigned prosecutor. More commonly, the arrest will initially go to the local prosecutor’s office and discussions will occur regarding whether the case should be transferred to the U.S. Attorney. It is advantageous to determine the appropriate jurisdiction as early as possible and have a protocol in place between the local prosecutor’s office and the U.S. Attorney’s Office outlining how they will make the determination. This can be accomplished by close and continuous communication between investigators and prosecutors during the investigation phase of the case.

The decision should also be based on the offender’s current violent conduct, as revealed through NIBIN evidence and other investigative leads, rather than solely on prior criminal history. The decision on whom to prosecute and which office should handle the prosecution is based on which office has laws that are most advantageous to convict the violent offender.

Whenever possible, all gun cases should be prosecuted vertically by the same prosecutor from arrest to conviction, or if that is not possible, in the same unit or division of the prosecutor’s office to ensure consistency in prosecution.

 

Considerations Related to Federal Prosecution

 

If federal laws are more advantageous, then federal prosecutors should consider taking cases involving possession of a weapon by a previous offender where NIBIN evidence demonstrates the offender is a trigger puller.

If a long-term investigation is determined to be the best way to remove identified active gun offenders from the community, federal prosecutors should consider using the Racketeer Influenced and Corrupt Organizations Act (RICO) and Violent Crimes in Aid of Racketeering (VICAR) statutes based on NIBIN linkages. However, the investigative and prosecutorial priority should be to quickly remove identified active gun offenders from the community. Long-term (RICO and VICAR) investigations and prosecutions should only be considered as a strategic approach if it is determined that this would result in holding offenders responsible for the full nature of their criminal activities.

In addition, prosecutors should also routinely share information about defendants who are charged locally with illegally possessing a firearm. Investigators can cross-check these cases with those currently being investigated. This will further coordinate the investigation and prosecution of gun-related violence.

 

Continuing Investigation and Witness Intimidation

 

Once the prosecution commences, investigators will continue to collaborate with the prosecutor to build the strongest possible case. As additional information about the suspect is developed, investigators should provide timely, updated information to the prosecutor so that it can be considered at every stage of the prosecution, including bail review, plea bargaining, evidentiary hearings, trial, and sentencing.

Witness intimidation is prevalent in violent crime cases. Police and prosecutors should identify how best to improve witness cooperation and reduce intimidation in NIBIN-related cases. Approaches to consider include videotaping witness statements, obtaining protective orders, and assigning victim/witness advocates to at-risk witnesses associated with NIBIN-related cases.

 

Training

 

Local and federal prosecutors should receive training on NIBIN, eTrace, the role of the ATF CGIC, and the CGIC local support program and processes. This can be accomplished during joint investigator and prosecutor training. Not only is it important for investigators to understand the impact NIBIN and eTrace have on investigations, prosecutors must also understand how NIBIN and eTrace can impact prosecutions and other court-related matters. For example, associated or new NIBIN leads related to a charged offender may be exculpatory information, so prosecutors need to understand how NIBIN links cases and individuals. This awareness will enable prosecutors to communicate effectively with investigators so possible exculpatory information is not omitted during court proceedings.

Training on NIBIN and eTrace should be developed for local, state, and federal judges as well. Educating the bench on ballistic imaging and NIBIN could result in more NIBIN™ information being admitted into court proceedings. Training local, state, and federal judges can be accomplished by working with prosecutors who can identify venues to engage judges and provide them information on NIBIN and eTrace.