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Defense attorneys use a pejorative to describe when the feds parachute in and charge a defendant who’s already being prosecuted in state court: poaching.

But prosecutors call it something else: protecting the public.

The semantic difference describes a chasm between courtroom opponents that won’t be resolved as long as federal prison sentences are harsher for the same state crimes. For criminal lawyers on both sides of the table, the phenomenon — and their disagreement over it — is a fact of life.

Though it’s been going on for some time, local defense attorneys say that recently the Northern District U.S. attorney has pursued more and more defendants already being prosecuted in state court.

The practice raises old issues with defense attorneys and some judges, who wonder why the feds are grabbing cases that traditionally have been prosecuted in state court.

“Why did it go federal? I really have no idea,” defense attorney Colin Cooper said recently of a client charged with gun and drug violations. “He had minor, minor criminal convictions.”

In Cooper’s case, a 50-year-old Richmond man with a previous felony drug conviction was arrested for dealing cocaine out of his house and for keeping a gun. Cooper, of Berkeley’s Cooper Law Offices, said his client was looking at minimal jail time or even probation in state court. After the case went federal, Cooper considered himself lucky to negotiate a plea deal for eight years.

Besides exposing defendants to substantially higher prison terms, moving from state to federal court also forces a major shift in defense strategy, Cooper said, increasing the time and cost it takes to reach a resolution.

Others complain the practice can ambush lawyers, who have to stay on their guard to protect clients’ interests if the case goes federal. For example, a plea in state court can be used against someone in district court.

“Just because you have the right to do it doesn’t mean you should do it,” said Stuart Hanlon, a veteran of the San Francisco defense bar. There’s “no doubt,” he said, that the feds’ practice of grabbing cases out of state court has become more common.

But prosecutors say there hasn’t been an increase in state-to-federal filings. Defense complaints, they say, are nothing new, and they have little sympathy for them.

“I have not noticed anything that has jumped out at me,” said Ross Nadel, who has been criminal division chief for Northern District U.S. Attorney Kevin Ryan since August.

While defense attorneys have plenty of anecdotes to fuel their grousing, it’s difficult to confirm their perceptions with statistics.

The U.S. Department of Justice does not keep numbers on which cases started out local. In general, Ryan is charging fewer cases than his predecessor, Robert Mueller III.

According to numbers kept by the Northern District clerk’s office, Ryan’s office charged 581 felonies in 2003. In 2000, Mueller’s last full year, the office charged 848 felonies.

Northern District Federal Defender Barry Portman said his office doesn’t keep numbers on which cases started out in local district attorney’s offices either. But Portman said he hasn’t seen the uptick Hanlon and others describe.

County public defender’s offices in San Francisco and Contra Costa also have not noticed an increase in the number of cases.

However, Sheri Schoenberg, head of felony trials at the Alameda County public defender’s office, said she has seen the same phenomenon as Hanlon. The rise is most apparent, she said, in firearms cases. That offense is specifically targeted by the feds because felon-in-possession charges bring harsher sentences in federal court.

Northern District Chief Judge Marilyn Hall Patel has seen the same increase in firearms cases. Although she believes firearms are a “grave social concern,” Patel said most cases should probably remain in state court.

But others say it goes beyond guns.

Drug and gang filings — cases that normally would be handled by local DAs — are ending up in federal court, said solo practitioner Arthur Wachtel.

“Under our system the federal courts were created to prosecute a unique class of cases involving substantial federal questions. For example, immigration, tax code and drug and racketeering offenses,” Wachtel said. “Instead, now local federal authorities have moved away from those kinds of cases and increasingly to ones which are classically and historically state court prosecutions.”

Although Wachtel and others criticize the basis for many of these federal indictments — the amount of drugs are too small, critics say, or the defendant doesn’t have a substantial criminal history — Nadel said there’s nothing “untoward” about it.

He said prosecutors can’t even control the main reason defense attorneys get upset — higher sentences for their clients.

“That is something for Congress and the sentencing commission to determine,” Nadel said. “If that criticism is directed toward us, it’s really directed at the wrong institution.”

Nadel would not discuss the guidelines his office uses in deciding which cases to charge.

Cooper’s client, the man facing gun and drug charges, was likely prosecuted under one of several federal programs designed to go after felons with guns. More than a decade old, the anti-gun initiatives are part of a larger Department of Justice effort to clean up troubled neighborhoods.

Alameda County District Attorney Tom Orloff said he supports giving up local prosecutions to get stiffer federal sentences. “As a pragmatist, when you’ve got these really dangerous people, whatever system is more effective you should use,” he said.

Hastings College of the Law professor Rory Little, a former federal prosecutor who has studied the issue, said defense attorneys have complained for years. Two decades ago, when the federal system was more lenient, defense lawyers kvetched when cases moved in the other direction, Little said.

Since the feds can come in only when there’s a bona fide “federal interest,” Little said, he would like to see a better definition of exactly what that is.

“I say the principle should be a demonstrated state failure,” Little said, citing the 1950s civil rights movement, when federal authorities had to come in because states weren’t enforcing the law.

“It’s a fascinating social phenomenon,” he said. “If we’re going to have a system that has overlapping jurisdiction, we’re going to have this.”

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