Fed Crim Law Outline

7/31/2019 Fed Crim Law Outline

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Fed Crim Law Outline

OVERVIEW:

I. Statutory Interpretation Techniques

II. Major Themes

III. Establishing a federal offense

A. Jurisdictional Elements B. Substantive Elements

IV. Defenses (ENTRAPMENT, DURESS)V. Guilty Pleas

VI. Sentencing Guidelines

I. Statutory Interpretation Techniques

1. TEXT

What does the text say and what does it not say?2. CONTEXT

Look at the rest of the statute what is and what isnt defined.3. INTENT/PURPOSE

Evidence of intent/purpose is legislative history4. PRECEDENT

5. CANONS OF CONSTRUCTION

A. Rule of Lenity B. Federalism/Clear Statement Rule

o This is from Evans and Skilling C. Congress Adopts Common Law meaning of words D. General Criminal Law Principles

o Strict liability is disfavored E. Avoiding peculiar/absurd results

II. Major Themes

A. Selection of Cases for Federal Prosecution

Factors to consider in deciding whether a case will be prosecuted federally or at the state.

Circumstantial Factors:

Who built the case?o Amount of work investigating the crime is often the most significant factor.

Who has custody of the defendant? Substantive Factors:

When the laws favor one jurisdiction over another. Penal Factors:

Federal prosecution has more mandatory minimums, longer sentences Additionally, there is no parole in the federal system.

Procedural Factors:

Difference in juries Different rules of evidence Some states will provide for protection beyond that provided for in the Bill of Rights Judicial attitudes

B. Duplicative Prosecution

The Constitution does NOT prohibit multiple prosecutions either state/federal or federal/state for the

same conduct.

State Prosecution after federal case: Bartkus(1959) held that a who had already beenacquitted of an offense in federal court could be prosecuted for that same offense in state

court. It did not amount to a denial of due process under the 14th Amendment.

o BUT, some states wont prosecute after the feds have already done so, eventhough the Constitution doesnt prevent them from doing that.


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Federal Prosecution after federal case: Apply Blockburgerto see if its the sameoffense.

o Blockburger applies to both multiple prosecution and multiple punishment withpunishment its only a presumption that can be overcome by Congressional intent.

Federal Prosecution after state case: Abbate (1959) held that a who had beenconvicted of a state offense could be prosecuted for the same federal offense without

violating the due process clause of the Fifth Amendment.[In some instance, Congress has provided a bar to subsequent federal prosecution

when there has already been a state judgment of conviction or acquittal.]

But in general, the Petite policy says that after a state prosecution there should be no

federal trial for the same act unless three conditions are met [#4 is a DOJ policy]:

o (1) The matter involves a substantial federal interesto (2) The prior prosecution left that interest demonstrably unvindicated.o In general, all prior prosecutions vindicate federal interests UNLESS:

(A) When the prior prosecution DID NOT result in a conviction, because ofthe following sort of factors:

Incompetence; corruption; intimidation; undue influence; jurynullification; mistaken unavailability of evidence.

(B) When the prior prosecution DID result in a conviction, there was: (i) An inadequate sentence or (ii) Choice of charges was affected by factors listed above.

(C) Whether the prior prosecution DID or DID NOT result in a conviction, (i) The alleged violation involves a compelling federal interest

This is the same as (1). It seems like this has beenforgotten at times, or is at least more flexible.

o United States v. Barrett Barrett killed a stateofficer in a shoot out when they went to serve a

warrant on a meth lab. He was found guilty on

some things, but not on others.

Federal indictment filed after. Doesntseem as though theres a federal interest

plainly at issue.

(ii) The alleged violation involves egregious conduct loss of life,severe economic harm, impairment of govt agency

(iii) The result in the prior prosecution was manifestly inadequatein light of federal interest involved.

o (3) The government must believe that the defendants conduct constitutes afederal offense, enough to sustain a conviction.

o (4) Approval from the appropriate Assistant Attorney General. The reason its called the Petite policy was because in the case ofPetite v. United

States, the government filed a motion asking the Supreme Court to remand the case with

directions to dismiss the indictment.

o The effect of this policy is to collaborate and cooperate so that rational decisionsare made about the best prosecution strategies. It DOES NOT give any rights todefendants.

Principle of dual sovereignty: every citizen of the U.S. is also a citizen ofa State or territory. He may be said to owe allegiance to two sovereigns,

and may be liable to punishment for an infraction of the laws of either. The

same act may be an offense or transgression of the laws of both.

C. Prosecutorial Discretion


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III. Establishing a federal offense

A. Jurisdictional Elements

Under the CONSTITUTION, Congress must have the authority to enact the statute which proscribes

the conduct at issue. There are two categories under which Congress has the authority:

1. Direct Federal Interest

Congress authority to enact criminal statutes aimed at protecting the direct interests of the federal

government is derived from a number of enumerated powers in Article I, Section 8. to provide for the Punishment of counterfeiting the Securities and Coin of the Unites

States PURSE (this is the spending power)

toprovide for the general Welfare of the United States. PEOPLE, PROGRAMS,PROPERTY

o in combination with the necessary & proper clause. Protecting federal property, people, programs, purse.

2. Non-Federal Interest Crimes

Congress authority to enact criminal statutes NOT aimed at protecting the direct interests of the

federal government is derived from different enumerated powers.

COMMERCE POWER: The Congress shall have Power to regulate Commerce among the several

States

Three broad categories of activity that can be regulated under the commerce clause. (1) The channels of interstate commerce (2) The instrumentalities of interstate commerce

Channels and Instrumentalities are grouped together in reality to form A

SINGLE CATEGORY.

o I. Is jurisdiction based on the transportation of something tangible in interstatecommerce?

A. Some jurisdictions do not base jurisdiction purely on the fact thatsomething moved in interstate commerce. As in Alderman, these

jurisdictions examine the purpose of the statute to determine jurisdiction:

If it regulates a purely intrastate activity as in POSSESSION then it must go to Category 3. Alderman is explained in category

3below.

If it is directed at the movement in interstate commerce, then itfits into channels & instrumentalities.

B. Other circuits dont require examining the purpose of the statute at all.So long as something whether central to the purpose of the statute or

not has moved in interstate commerce, the requisite nexus can be

established.

Examples: Urbano (10thCir. 2009) (holding that if a firearm has traveled

across state lines, the minimal nexus with interstate commerce is

met and the statute can be constitutionally applied.).

Ames and Hoke laid the foundation for congressionalenactment of statutes where jurisdiction is based on the

transportation of items or parts of items that are not

themselves prohibited or, on their face, connected tocriminal activity.

o Ex: 2511(1)(b)(iii): Jurisdiction based on the factthat the accused knows or has reason to know that

the electronic device being used or a component

thereofhas been transported in interstate

commerce.

Statutory Interpretation Fitting in Categories 1 or 2: Engaged in, or otherwise in. 1961 RICO.


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United States v. Robertson (9th Cir. 1995) looked at thelanguage of RICO, and found that requiring that the enterprise be

engaged in or otherwise in interstate commerce placed RICO in

categories 1 or 2.

[Robertson financed a gold mining operation in Alaska,where supplies, proceeds and personnel traveled across

state lines to make the enterprise the mining operation work.]

Is in or affects interstate or foreign commerce. 247 DESTROYING RELIGIOUS PROPERTY.

United States v. Ballinger (11th Cir. 2005) burned down fourseparate churches, all of which were in their respective states,

though we dont know how close the temporal connection was. The

Court uses the S.T. technique of surplusage, saying that there

would be implausibly little, if any, conduct that the statute would

proscribe if the s interpretation were followed.

His conviction was affirmed.o II. Is jurisdiction based on the use of a facility of interstate commerce?

(At least some circuits agree. . . ) Using a facility in interstatecommerce provides jurisdiction under the commerce clause regardless of

whether there is proof that the specific use can be proved to have crossed

state lines. MacEwan (3d Cir. 2006).

REASONING: The facility is itself an instrumentality and channelof interstate commerce.

Therefore, MacEwans reception of child porn over theinternet satisfies the Commerce Clause.It is sufficient

that MacEwan downloaded those images from the Internet,

a system that is inexorably intertwined with interstate

commerce

(3) Activities that have a substantial relation to interstate commerce, i.e. thoseactivities that substantially affect interstate commerce.

o How much of an effect on commerce is needed? (a) For Economic Activity

o The law nowadays is essentially that from Gonzalez v. Raich.o Raich: Congress has the authority under the Commerce Clause to regulate

purely local intrastate activities that are part of a class of activities with

a substantial affect on interstate commerce.

Local use of marijuana affected supply and demand in the nationalmarijuana market, making the intrastate regulation of marijuana

essential to regulating the national market.

Local activity has a substantial affect when that class ofactivities is aggregated, and the aggregated amount would

substantially affect interstate commerce. Wickard. Perez (Pre-Lopezcase, but its a good example). Perez threatened to send the victim and family to the

hospital with a broken back as a method to collect loans.

o There were Congressional findings in the CCPA,which stated that this class of activities

(loansharking and organized crime), when

aggregated, substantially affected interstate

commerce.

Stewart II (post-Raich application)


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According to the plain meaning of the text, any scheme is more broadthan past or existing representations.

(ii) INTANGIBLE RIGHT TO HONEST SERVICES[1346] The intangible rightsdoctrinewas rooted in language of 1341, any scheme or artifice to defraud, OR for

obtaining property by means of The or supported interpreting any scheme or artifice

to defraud as including non-property interests, i.e. the intangible right to honest services.

o The element of deceit or misrepresentation was satisfied by nondisclosure ofdishonest or corrupt actions. In McNally (1987), Justice White said that Durlanddidnt uproot the mail

fraud statute from being tied to money or property. The court rejected the

honest services doctrine based on legislative history, indicating that the

purpose of the statute was to protect peoples property.

After narrowly interpreting 1341, White said, if Congress desiresto go further, it must speak more clearly.

o 1346 was passed one year later, Senator Biden saying that the intent ofCongress was to reinstate all pre-McNally caselaw.

o Under 1346 for there to be a scheme to defraud, there must be : (1) Fiduciary relationship between and victims

Can be public official, or a private fiduciary. (2) Non-disclosure

Hausmann (7th Cir. 2003) attorney referred injured clients to achiropractor, and used the clients $ to pay the chiro. 20% of that

money was going to pay off services that the attorney received.

There was a fiduciary relationship between attorney andclients, and he was getting a greater share of their $

without disclosure.

o This case would hold up after Skilling, as that is akickback within the meaning of 52(2).

(3) Of bribes/kickbacks Though the 9th circuit (in Weyhrauch) said that pre-McNally case

law covered BOTH bribes/kickbacks AND nondisclosure of material

information,Skilling says that 1346 is limited ONLY to

bribes/kickbacks.

In Skilling, the Court says that the definition ofbribe/kickbacklinks back to statutory definitions

elsewhere in the code.

FACTS: The CEO of Enron falsified reports, taking hugebonuses on false representations that the company was

doing great.

o In the face of a vagueness challenge, the Courtsays that the statute should be read to preserve its

validity. Needing to pair the statute down to its

core, the Court says that the non-bribery/kickback

pre-McNallycaselaw was simply disarray.

In sum, our construction of 1346establishes a uniform national standard,

defines honest services with clarity,

reaches only seriously culpable conduct,

and accomplishes Congresss goal of

overruling McNally. If Congress desires to

go further, we reiterate, it must speak

more clearly than it has.

Scalia dissented, saying that it was void-for-vagueness, asparing down can only be employed when the statute is


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reasonably susceptible to a limiting construction. And he

didnt think that was the case.

(***) Additional pre-McNally circuit-by-circuit requirements: 1346 reinstated pre-McNally caselaw. Any circuit that had

additional requirements that are consistent with Skilling, but

require proof of other elements will still have those requirements:

Ex The 7th

circuit also required proof of personal gain bythe defendant at the expense of the victim. Hausmann.

(b) TO OBTAIN MONEY OR PROPERTY BY MEANS OF FALSE OR FRAUDULENTPRETENSES, REPRESENTATIONS, OR PROMISES . . .

(i) Obtainingo Common sense tells us that there has to be some connection between the

obtaining the property and the victim surrendering the property.

United States v. Walters (7thCir. 1993): was an agent entering intosecret contracts with college athletes, giving them things which would

have violated NCAA regulations had they come to light.

The 7thCircuit said that the did not obtain property from thevictim. The didnt get $ from the NCAA scholarships he got

money once they made it to the pros.o [NOTE]: The reason thatSkilling was not under this heading is because of the

attenuated connection between what the victims lost and what the defendant

gained. Essentially the same reason as in Walters.

(ii)Propertyo (1) Property is not something defined under state law. Its an issue of federal law.

Cleveland said this in a footnote.o (2) To be considered property, it must be property in the hands of the victim.

Cleveland (2000) Cleveland made false statements on applications inorder to get a Video Poker License. They got the license. But the license

was not property in the hands of the victim. The states power to issue

VPLs relates to the states ability as a sovereign, NOT as a property

holder.

Unless something is property in the hands of the victim, its notthe type of activity that the statute was geared towards.

The Court is concerned that if the federal government canget involved in state regulation, the flood gates will open

up to the states area of enforcement.

o (3) Its not clear what distinctive principles should govern a definition of propertyunder 1341.

o Pasquantino(2005) suggested that property has a component of being aneconomic interest.

ran a scheme to deprive the Canadian government of tax revenue onliquor by buying it in MD, and hiring someone to drive it across the border.

The difference with Cleveland is that the right to be paid moneywas a form of property at common law, and in Cleveland thestates injury was purely regulatory, not economic.

NOTE the difference between a scheme to defraud Canadaof its revenue as in Pasquantino and a foreign officials

scheme to deprive his/her constituency of the right to

honest services, which is not what Congress meant to do

with 1346.

o a little bit further of a connection to economic interest,


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Other examples:o Pierce (4th Cir. 2005): falsifying records of bingo

games mailed to an organization lulled that

organization into a false sense of security, helping

to conceal the fraud.

o Boisture (7th Cir. 2009): falsifying data reportssubmitted to the Department of Natural Resourceswere part of a scheme to retain fraudulent

payments for work that the contractor failed to

perform.

Without the mailings, the discrepancy inthe contractors report would have been

suspicious.

o The relevant question articulated in Schmuck is:Whether the mailing is part ofthe execution of the scheme as conceived by the perpetrator at the time,

regardless of whether the mailing later, through hindsight, may prove to have

been counterproductive and return to haunt the perpetrator of the fraud.

The majority in Schmuck distinguished three other cases. In all threesituations, the post-fraud accounting among the potential victims and

long-term success of the fraud didnt turn on which victim ultimately borethe loss.

Parr obtained gas & other products through unauthorized useof a credit card. Mailing element was NOT satisfied by credit card

mailing invoices to the rightful owner of the card.

ON THE OTHER HAND, Schmuck NEEDED to make surethat retail customers were involved, otherwise this whole

scheme would have fallen flat.

(ii) If the mailing is legally required, some circuits require that the transmissionMUST be false or fraudulent. Lake (10th Cir. 2007).

o s devised a scheme to loot their own corporation by starting transactions andmergers that would result in large bonuses.

made filings with the SEC in which he didnt disclose personal use of thecorporate aircraft because the filings were simply incomplete, not false

or fraudulent, the conviction was reversed.

(C) Who Did the Mailing Sometimes the does the mailing him/herself. Sometimes the causesan innocent third party to make the mailing, and knew or

should have known (reasonably foresee) that use of the mails would result from his/her

(the s) action. Pereira (1954).

(D) Consequences for Using the Mails EACH USE OF THE MAILS IN FURTHERANCE OF A FRAUDULENT SCHEME IS A VIOLATION

OF THE ACT.Badders v. United States (1916).

oSometimes this reflects culpability, and sometimes it doesnt at all.

United States v. Brown (8th Cir. 1991) fraudulently claiming totalrather than partial disability every month through the mail resulted in 41

counts of mail fraud and a max sentence of 205 years.

4. Any matter or thing

5. For the purpose to defraud

(A) Mens rea of specific intent with regard to the SCHEMEo In Durland, the Court emphasized that the most important element of mail fraud

is the mens reaif somehow the thought that selling the bonds would

legitimately work, then he doesnt have the intent required.


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6. Materiality

Whether the scheme is to defraud or to obtain money/property by false pretenses, thescheme itself must be material according to Neder(1999). Its not clear whether this

will result in lower courts reading the statute more conservatively.

o The 11th Cir. in Svete (2009) took a step in that direction, saying that materialityis established when the defendant knows or should know that the victim will

regard a misrepresentation as material. Its not a defense to a prosecution for mail fraud that the victim should

have known better the focus is on the action of the violator, not the

victim.

This is consistent with the law in other circuits.2. HOBBS ACT

(i) What does it punish?

1951 criminalizes four things: robbery, extortion, attempting to do so, conspiring to do so.

Extortion breaks down into two distinct forms of conduct: (1) extortion by force, threator fear, and (2) extortion under color of law.

o Inchoate conduct is punished under the Hobbs Act as harshly as completedconduct any conspiracy OR attempt to affect commerce by robbery or

extortion. Congress pointed the MPC for the definition of attempt, which is actually

more broad than the common law.

(ii) How does it punish?

Congress authority under 1951 comes from category 3 under the commerce clause federal

jurisdiction exists if the conduct affects commerce or the movement of any article or commodity in

commerce.

Look to (iii)(2) for the full explanation.(iii) Elements of the Crime:

1. Whoever,

The Supreme Court stated in Wilkie v. Robbins (2007) that public officials taking action intended to

benefit the government are not within the scope of the Hobbs Act.

Looking to the common law definition of extortion, the Court said that extortion wasabout private gain through public or private means. But the definition at common law did

not include the harm caused by overzealous efforts to obtain property on behalf of the

government.

2. In any way or degree affects commerce by

The Hobbs Act speaks in broad language, manifesting a purpose to employ the fullest extent of federal

authority under the commerce clause.

Given the full extent of commerce authority, the Hobbs Act does not require an actual effect

on interstate commerce; a potential effect on commerce is sufficient to trigger jurisdiction.

Hobbs Act extortion by fear, threat, force this seems to be the easiest place forjurisdiction to be established, as Edwards requires that there be a specific economic lossat issue to make out this offense.

Hobbs Act extortion under color of official rightthe depletion of assets theory mightnot be precisely applicable in this context, but theoretically, jurisdiction here is very broad

as well because those in position of public authority will inherently have within the scope

of their duties, SOMETHING that affects commerce.

o In Wright (5th Cir. 1986), a prosecutor and defender took bribes to fix DWI cases.The failure to prosecute DWI cases jeopardized highway safety, causing more

accidents and potentially interfering with interstate travel.


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Hobbs Act robbery there is the greatest resistance to jurisdiction in robbery of the threetypes of conduct punished.

o Making the argument FOR jurisdiction here relies on the depletion of assets of abusiness/individual. The more the business/individual looks like theyre involved in

commerce, the better you are.

(A) MAJORITY VIEWThe purpose and structure of the Hobbs Act allow for jurisdiction to be based on a de minimis impact

on commerce, WITHOUT having to engage in the Lopez four-pronged test.

(i) Depletion of assets of a BUSINESSo There must only be a showing that the action prohibited by the Hobbs Act would

have depleted the assets of a business. [Potential effect suffices.]

United States v. Urban (3d Cir. 2005): City plumbing inspectors wereconvicted of extorting payments from the plumbers whose work they

inspected, even though the plumbers testified that the payments did not

actually affect the amount they spent in interstate commerce.

United States v. Stillo (7th Cir. 1995): FBI informant working with a lawfirm presented a sham case to a judge, who agreed to take a bribe to fix

the case. Though the judge got cold feet and didnt actually accept the

bribe, it would have potentially diminished the assets of the lawfirm by$1,000-$2,000.

United States v. Curtis (10th Cir. 2003): Eight robberies of retail outletswhere amounts taken ranged from $15-$700 sufficied to show the

depletion of a businesss assets.

United States v. Elias(2d Cir. 2002): robbed a grocery store,diminishing its assets to buy goods, which were sold in interstate

commerce (beer brewed in Mexico, and fruit from other areas of the

country).

United States v. Rodriguez (9th Cir. 2004): agreed to rob the stashhouse of a drug dealer. was convicted of conspiracy to commit robbery.

argued that it was a sting, and there could not be a showing of ade minimis effect because there were no potential victims.

The 9th circuit said that impossibility is not a defensethe government need not show that the actual criminal

activity had an impact on commerce; rather, the

government need only show that the class of acts has

such an impact.

(ii) Depletion of assets of an INDIVIDUALo Depletion of the assets of an individual, who may or may not be employed with a

company doing business in interstate commerce, is insufficient.

The 2nd circuit identified circumstances in which the jurisdiction elementwould be satisfied when the target was an individual instead of a business:

(1) Where the individual victim directly participated in interstatecommerce. (kind of like Jamison).

United States v. Jamison: robbed a business man inhis home, taking money from his safe money which was

used to buy clothing, drugs, which came from out of state.

(2) Where the targeted the victim because of her status as anemployee at a company participating in interstate commerce.

(kind of like Fabian, where the thought he was robbing a loan

shark, though he was really just robbing a cab driver).


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(3) Where the assets of a company engaged in interstatecommerce were, or would have been depleted as a result of the

harm or potential harm, respectively, to the individual victim.

(4) Where the targeted the assets of a business engaged ininterstate commerce rather than an individual.

United States v. Wilkerson (2nd Cir. 2004) fits underBOTH (ii)(2) and (ii)(3), but it could also be a (i) depletionof a business case.

o There was evidence that Wilkerson targeted theLopez brothers because they would have had cash

on hand from their landscaping business (thats

#2). And, robbing the Lopez brothers would have

depleted the assets for their landscaping business

(thats #3).

(B) McFARLAND VIEW:

No other circuit follows the eight-judge dissenting view in McFarland, that the decisions ofLopez and

Morrison must apply when deciding whether there is jurisdiction.

Lopez and Morrison are about the outer limits of the commerce clause and thats whatthe Hobbs Act calls upon going as far as Congress can.

o This opinion says that the commerce clause doesnt reach these four robberies oflocal convenience stores because robbery is NOT commercialactivity.

The opinion says that infliction of economic harm does not makesomething into economic activity.

o Without commercial/economic activity, the aggregation principle does NOT apply. Without the aggregation principle, there cannot be a substantial affect as

required by category 3.

[NOTE: The justification to extend jurisdiction to the three types of crimes under the

Hobbs Act is probably strongest with extortion under color of official right, then extortion

by threat, violence, fear, and then robbery.]

3(a) Robbery

Its a pretty standard definition of robberyin 1951(b)(1): the unlawful taking or obtaining of

personal property from the person or in the presence of another, against his will, by means of actual

or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or

property in his custody or possession, or the person or property of a relative or member of his family

or of anyone in his company at the time of the taking or obtaining.

3(b) Extortion

Defined in 1951(b)(2) as:

(1) Obtainingo Scheidler II clarified this precise point, saying that the anti-abortion protests

might have deprived NOW of use of their own property, but the protestors did not

obtain that property from the plaintiffs. Interfering, disrupting, and in some cases completely depriving one of

his/her ability to exercise property rights is NOT acquiring property as

required under the statute.

(2) Property of anothero Scheidler II defined property as something of value that could be exercised,

transferred or sold.


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In Gotti (2d Cir. 2006), the 2nd circuit said that when the Gambino familytook control of the ILA union, ensuring that it would be controlled by

organized crime, the s obtained the property of union members.

That property was jobs & wages; free speech and democraticparticipation in their organization. The Gambino family told

delegates who to vote for and controlled their performance.

Not all courts would be willing to take this definition as faras the 2nd circuit did in Gotti, as the right to free speechand democratic participation is an attenuated application of

a thing of value.

o [[**NOTE: This definition of property seems to be a bit more narrow thanproperty under 1341. All we really know for sure is that property under 1341

has to be propertyin the hands of the victim from Cleveland. The requirement

here that the property interest needs to be something that the can intend to

transfer/sell/exercise does NOT exist under 1341.]]

(3) With his consent (4)(a) Induced by wrongful use of actual/threatened force, violence, fear.

Wrongful use is threatening to (or actually) depriving a victim of FAIR TREATMENT.Thats what makes it extortion. Extortion is NOT made out when theres a threat to (or

actually) deprive a victim of PREFERENTIAL TREATMENT.

o The actual or threatened force, violence or fear MUST be specific to a particulareconomic loss, NOT merely missing out on a potential benefit. United States v.

Edwards (5th Cir. 2002).

Cecil Brown and Bobby Johnson threatened to make it impossible forpeople to obtain licenses if they did not pay money to the governor. The

5th circuit said that a reasonably jury could have found that the victims

were afraid that theyd lose the right to compete totally.Thats more than

missing out on a benefit.

o In Capo (2d. Cir. 1987), the 2nd circuit boiled it down to the difference betweenbuying an advocate [NOT covered by 1951] vs. buying off a thug [covered

by 1951].

The Capo court said that employees who accepted bribes in exchange forreferring people for lucrative jobs in the company only amounted to

seeking preferential treatment, NOTextortion.

(4)(b) Under color of official right.THIS IS REALLY SEPARATE FROM EXTORTION BY FORCE, THREAT, OR FEAR. There is NO

requirement that under color of official right be induced.

Here, the government must show that a public official has obtained a payment to which

he was not entitled, knowing that the payment was made in return for official acts.

o (i) A public official Private citizens may be prosecuted for aiding/abetting or conspiracy to

commitextortionunder color of official right. (1) By acting as a middle man

McLeczynsky (7th Cir. 2002): was a private drivinginstructor who was an intermediary between state officials

and private persons who paid the officials to obtain

fraudulent permits.

(2) By doing more than just paying the public official (not in alljurisdictions).

Ex: Spitler (4th Cir. 1986): conviction for conspiracy tocommit extortion under color of official right where Spitler


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3(c) Attempts to [affect commerce by robbery or extortion]

3(d) Conspires to [affect commerce by robbery or extortion]

3(e) Commits or threatens physical violence

This is the prong that is addressed in Scheidler III. NOW [the womens group] says that thisprong is a THIRD venue besides robbery and extortion punished under 1951. The Court said that

element is NOT freestanding Congress did not intend to create a freestanding physical violence

offense in the Hobbs Act.

If 3(e) were freestanding, it would federalize much ordinary criminal behavior.o What does this 3(e) add to our understanding of the Hobbs Act? Its been

rendered essentially superfluous by Scheidler III if its just giving

context, right?

3. PUBLIC CORRUPTION

201 Bribery of & Illegal Gratuities by Federal Officials

(i) Who does this punish?

This statute criminalizes giving AND getting bribes [201(b)(1) and 201(b)(2)respectively.]

It also criminalizes giving AND getting illegal gratuities [201(c)(1)(A) and201(c)(1)(B) respectively.]

o It does NOT apply to prosecutors representing the government. United States v. Singleton (10th Cir. 1999) (holding that the language

whoever does not encompass the United States as sovereign, particularly

where the application of the statute in question would deprive the

government of its practice to grant leniency in exchange for testimony.


Given that the statute is about federal officials, theres a direct federal interest here. Noneed to derive jurisdiction from the Commerce Clause.

(iii) Why do we punish these things?

For bribery the idea is pretty straightforward: corruption. For official gratuities the classic statement of the rationale comes from United States

v. Evans (5thCir. 1978): Even if corruption is not intended by either the donor or the

donee, there is still a tendency in such a situation to provide conscious or unconscious

preferential treatment of the donor by the donee, or the inefficient management of public

affairs.

(iv) What is the punishment?

15 years in jail for bribery, and to 2 years in jail for illegal gratuities.

(v) Elements of the crimes: 1. Any thing of value

o Encompasses anything that has subjective value to the recipient.o Even if it doesnt have actual value or is intangible, it can be considered

a thing of value if at the time of the s action, the public official

subjectively found it to be of value.

thought stock would be worth lots of money, though it turned out to bea sham. United States v. Williams (2nd Cir. 1983): Senator Harrison

Williams accepted stock in three sham corporations anticipating that they


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would receive $100 million in loans from a fictitious entity created by the

FBI.

bought a plane ticket for a public officials girlfriend so she couldaccompany the official on an international trip. Sun-Diamond.

was bribed with the promise of a lucrative job with a law firm. Biaggi. The only thing that were given an example of that is NOT a thing

of value is the governments promise of leniency in exchange fortestimony.

2(a) Given/offered/promised 2(b) Demanded/sought/received/accepted

o This covers inchoate conduct. Offering is sufficient. United States v. Valle (5thCir. 2008): ICE agent solicited a bribe from

an immigrant in return forremoving charges from the immigrants file,

even though he never intended to follow through. Even though he couldnt

actually complete the offer, the offer itself sufficed.

3. To/by a public officialo Includes state and local government employees AND employees of private

corporations if a person occupies a position of public trust with official federalresponsibilities. Dixson v. United States (1984).

In Dixson, the defendants accepted responsibility for a federal urbanblock renewal grant, saying that theyd distribute these resources.

Examples: Strissel (4th Cir. 1990) (executive director of cityhousing authority who distributed HUD funds)

United States v. Thomas (5th Cir. 2001) (prison guard employedby private company with a federal contract to run the prison was a

public official).

o 4(generally) Mens rea ofillicit intent[** this is how to distinguish the crimes.] 4(a): Under 201(b), bribery requires a quid pro quobecause the word corruptly

comes before giving or receiving.

o (i) Intent to influence or induce/be influenced or induced with respect tocommitting/omitting official acts. [[I call this PURPOSE.]]

United States v. Traitz (3d Cir. 1989) summed up the mens rearequirement as offering a thing of value with the intent and expectation

that in exchange for the thing, the public official would be influenced.

At least one circuit has said that the corrupt intent requirementwas made out where a produce wholesaler gave money with intent

to influence official acts of a USDA produce inspector, regardless of

the s claims that he was being extorted to give that money.

United States v. Alfisi (2d Cir. 2002).

o (ii) Bribery is ALWAYS forward-looking.

4(b): Under 201(c), illegal gratuities DOES NOT require the quid pro quo only need toshow giving/receiving for or because ofany official act performed/to be performed.

o (i) There must be a link between the thing of value provided/received and theofficial act.

The Sun-Diamond Growers gave the Secretary of the Department of Agabout $6k in gifts. The association had two interests in front of the

Secretary categorizing their organization as small size, and getting

their pesticide through EPA regulations.

For or because of requires a connection between receiving thething of value and a particular official act. Sun-Diamond


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Growers of California (1999). Giving a benefit merely because

someone is in a position of power does NOT suffice to meet the

mens rea requirement under 201(c).

Scalia based this decision on a number of things: The fact thatofficial act is defined in 201(a)(3) the

act of defining it seems pregnant with the requirement

that some particular official act be identified and proved. That too much conduct would be criminalized if there were

no requirement to prove a link a complimentary lunch

for a public official would violate the statute.

That when Congress has wanted to adopt such a broadlyprophylactic criminal prohibition upon gift giving, it has

done so in a more precise and more administrable

fashion.

o (ii) Official gratuities can be giving a thing of value for something TO BE DONE orsomething thats ALREADY BEEN DONE. [[I think that KNOWLEDGE suffices as a

mens rea.]]

5. The Object of the Bribe/Gratuityo Courts have generally read the requirement that a bribe/gratuity relate to an

official act.

CIRCUIT SPLIT Most jurisdictions read this broadly, saying thatany action taken

on a matter brought before the public official in his official capacity

is within the scope of the statute. Biaggi (2d Cir. 1988).

THIS IS THE RIGHT PERSPECTIVE THE VALDES CASEWOULD GUT THE STATUTE IF FOLLOWED.

DC Circuit went the opposite direction, holding that there had to bea formal relationship between the action at issue and the official

duties.

Valdes v. United States (D.C. Cir. 2007): Informantpretended to be a judge and asked cop to search for

people who owed money to the judge in exchange for

cash. Court reversed the conviction as lacking a sufficiently

formal relationship to the officers regular duties.

666 FEDERAL PROGRAM BRIBERY

(i) Who does this punish?

666 criminalizes giving and getting bribes. Lower courts are divided as to whether 666 also covers illegal gratuities.


Given that the statute is about federal program bribery, theres a direct federal interesthere. No need to derive jurisdiction from the Commerce Clause.

o Even without requiring a nexus between a particular bribe and federal funds, 666does not exceed the scope of Congress power under the Spending Clause.Sabri

(2004). The power of the Spending Clause in combination with the necessary &

proper clause is VAST.

(iii) Elements of the crime:

1. Any thing of value 2. Given/received, offered/sought 3. With intent to influence 4. To/by agent of organization or state/local/tribunal government 5. Monetary thresholds for the act in question and the federal program.

o (a) What youre trying to influence is worth $5,000 or more.


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o (b) Organization/government/agency receives > $10,000 in federal funds as partof a federal program in any one year period.

Fair to assume that virtually every city and county receives federal fundsof more than $10k per year.

Salinas v. United States (1997): No need for the bribe in question to affect the federal funds that

the organization/government/agency receives. A federal prisoner paid the sheriff off so that he could have some alone time for conjugal

visits. Salinas was the chief deputy who arranged the visits and allowed them to happen,

and in exchange got a pair of designer watches and a pickup truck.

o That result was mandated by the language of the 666, which prohibits acceptinga bribe by a covered official who intends to be influenced or rewarded in

connection with any business, transaction, or series of transactions of the

organization, government or agency.

The key word is any.4. FEDERAL DRUG ENFORCEMENT

(i) Who does it punish?

801 et seq. covers both narcotic and dangerous drugs it gets at people in all phasesof the drug trade. Those who:

o [841] Knowingly or intentionally Manufacture, Distribute, Possess with intent to manufacture/Possess with intent to distribute

[846] ATTEMPTING or CONSPIRING to do any of theaforementioned.

[ 844] Simply possess(ii) How does it punish?

Congress employed its authority under the Commerce Clause, but the statute requires noproof of a nexus to commerce in individual cases.

o Its based instead on findings from Congress that a major portion of the traffic incontrolled substances flows through interstate and foreign commerce. Incident of

the traffic such as manufacture, local distribution, and possession, nonetheless

have a substantial and direct effect upon interstate commerce .

Thats based on the notion that local distribution and possessioncontributes to swelling the interstate traffic in such substances.

(iii) What are the punishments?

(A) ELEMENTS OF PUNISHMENT

Four factors go into the computation of whether or not there is (a) a mandatory minimum, (b) what

the maximum sentence is, and (c) what the maximum fine is:

Regarding (a) Mandatory Minimums:o The four elements listed below (1-4) will establish the offense. The Supreme Court

in Harris said that if theres a factor that is relevant to sentencing that triggers amandatory minimum, it wouldnt be necessary to prove to the jury beyond a

reasonable doubt.

This will come into play with quantity of drugs could see a situationwhere a quantity invokes a mandatory minimum, but does not increase

the maximum.

So long as the sentence is below the statutory maximumauthorized by the jurys factual findings, all but two circuits hold

that the judge can find quantities triggering mandatory minimum

penalties using the preponderance standard at sentencing.


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The other two circuits hold that the threshold quantitiesmust be alleged in the indictment to trigger the mandatory

minimum.

Regarding (b) and (c) Maximum Sentences and Maximum Fines:o 1. The type of drugo 2. The quantity of drug

When determining the quantity of drugs, the quantity need not be pure.As per the Grantcase, its sufficient to show that the quantity is amixture or substance containing a detectible amount.Thats the

language of the statute that appears a number of times.

Grant plead guilty to conspiracy to distribute 10 or more grams ofa mixture or substance containing a detectable amount of LSD

after he was found with 103.7 grams of LSD mixed with water, but

only 0.1263 grams of LSD, which was more than 2500 doses of

LSD.

The Court says that the statutory penalties wouldnt reallymake sense ifthe pure quantity was required, and theyre

looking at the plain text of 841(b)(1)(A).

o Drug carriers are free to choose their mediums andcan calibrate their future sentencing accordingly.

Other examples of cases that follow this line: Gentry (8th Cir. 2009): Entire liquid solution containing

meth should be considered meth.

Lopez-Gil (1st Cir. 1992): Weight of suitcases was thequantity considered when the dissolved cocaine into

fiberglass suitcases.

Berroa-Medrano (3d Cir. 2002): Container meant to foolbuyers with trace amounts of heroin was weighed as the

entire container.

o BUT not all circuits agree. 4th Cir. in 1995 said that liquid LSD in the

statute was intended to mean pure LSD,

which might be suspended in a liquid

solvent.

Other circuits draw a distinction when themixture contains another substance that

CANNOT be used for health reasons some

courts will not include that in the

calculation:

Stewart (7th Cir. 2004): A mixturewith poisonous chemicals should

not have been considered in its

entirety.

o 3. Whether the offender has any priors

Under Apprendi, this does not have to be proved beyond a reasonabledoubt to the jury.

o 4. Whether death or serious bodily injury resulted Any factor besides the offenders prior convictions that increases the

penalty beyond the otherwise applicable statutory maximum must be

submitted to the jury and proved beyond a reasonable doubt, or admitted

by the defendant. Apprendi.

In Apprendi, the jury found the defendant guilty of assault, andthen the judge found that it was a hate crime which added five


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Running a sting operation in a school zone is not an attempt tomanufacture federal jurisdiction, as there would be jurisdiction

over the drug transaction no matter where it takes place.

Its not entrapment either if was predisposed and thegovernment merely afforded an opportunity.

o (2) Employing a Minor/Selling to Pregnant Woman Piggybacko 861 Attaches to 841o Violating 841(a) by:

(1) employing or using a person under the age of 18 in the commission ora drug offense, or

Most courts say that it doesnt matter if knewminors age or

not.

(2) knowingly distributing drugs to a pregnant woman.o (3) Using a Firearm Piggybacko 924Attaches to 841 or to a violent crime.o LOOK TO SECTION ON FIREARM OFFENSES.

Its basically committing a violent crime or drug offense while using orcarrying a firearm in its commission.

o (4) Using a Communication Facility Piggybacko 843 Attaches to 841o Using a communications facility in committing a drug trafficking crime.

But 843 cannot be used to transform a drug buy [MISDEMEANOR] into afelony. (i) A drug purchaser, or (ii) a victim, or (iii) someone in special

need of protection, or (iv) when a statute defines a crime requiring two

people for its commission, the second person cant be as an accomplice. In

this case, the drug purchaser couldnt be found guilty as an accomplice for

the sellers felony.Abuelhawa (2009).

Therefore, 843 is strictly something to piggyback on top of whatis already a felony. The language of the statute furthers that

interpretation:

It shall be unlawful for any person to use anycommunication facility in committing any act or acts

constituting a felonyunder any provision

o (5) Continuing Criminal Enterprise Piggybacko 848 Attaches to 841o A piggyback designed to reach the top brass in drug rings as opposed to the

lieutenants and foot soldiers.

Elements of CCE: (a) Federal felony controlled substances offense

(b) Committing that offense as part of a continuing series of offenses

[PREDICATES]

(i) Which offenses may qualify as predicates: The Supreme Court held that the Double Jeopardy Clause

prohibits imposing multiple punishmentsfor the sameoffense only when it has the effect of exceeding the

punishment intended by the legislature.

o The relevant question is what did the legislatureintend?

In Rutledge (1996), the Supreme Courtheld that the legislature did not intend to

allow multiple punishments for CCE and a

predicate drug conspiracy under 846

[conspiracy to violate 841(a)]. 846 or a


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different conspiracy predicate is likely

to be the only issue in establishing

predicate offenses under 848.

In Garrett, the Court suggestedthat the legislature didnt intend for

double jeopardy to apply to

complex-compound crimes.o [NOTE: The double jeopardy protection for multiple

punishment only applies where Congress wants it

to apply a constitutional test determined by what

Congress wants.]

EVEN WHERE CONGRESS INTENDS IT TO APPLY, there areexceptions to the same offense rule.

o Where at the time of a predicate offense, theentire conduct being prosecuted in the end has not

been committed. Diaz.

(ii) The required relationship between the predicates: The temporal relationship between those offenses must

span a definite period of time.United States v. Jones

(8th Cir. 1986) there isnt much more clarity on thatpoint.

(iii) Proving the predicates: The jury must be unanimous about which the specific

offenses that make up the predicates. Richardson v.

United States (1999).

(c) In concert with five or more [CONSPIRACY]

Seven of the circuits agree that the jury need not be unanimous infinding five specific participants. However, it does need to be a

unanimous finding that there were five people under the

defendants management.

The reason is that the statute is only concerned with thesize of the enterprise, NOT the identities of the

subordinates. Therefore, it just must be that there were 5

underlings.

(d) As an organizer, supervisor, or manager [MANAGEMENT] This element is satisfied according to the Eighth Circuit when the

exerts some type of influence over another, as exemplified by

compliance with directions, instructions or terms.

A mere buyer-seller relationship would not make out thesupervisory element. Even fronting drugs is not enough

under United States v. Jones (8th Cir. 1986).

o HOWEVER, Sedelmeier sold drugs for Mathison in the end, turning all of his proceeds over, which

indicated that the drugs belonged to Mathison theentire time and he was acting on Mathisons

terms.

(e) Resulting in substantial income or resources for the . (ii) Punishment under the Piggyback Provisions:

o The first offense under (1) 860 or (2) 861 is double what it would be otherwise.o Any subsequent offense under (1) 860 or (2) 861 results in tripling the

punishment.

(3) 924 provides for an additional five years.


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(4) 843 provides for an additional four years. It can be 8 years if theresa prior controlled substance conviction and 10 if the intent was to facilitate

the manufacture of methamphetamine.

(5) 848 sets a mandatory minimum of 20 years, and a maximum of lifeimprisonment.

(a) The mandatory minimum jumps to 30 years when thedefendant has one prior conviction under 848.

(b) The sentence jumps to life imprisonment when (i) The defendant is the principal or one of several

principals, AND

o (1) the instant violation involved 300x thatprohibited in 841(b)(1)(B), the medium quantity,

(unless its meth, in which case its 200x)o ORo (2) the enterprise in which the was the principal

received over $10 million over a one-year period

as a result of an 841(b)(1)(B) violation.

[NOTE: This is a perfect situation to applyApprendi and Harris. The additional facts

increasing the sentence to at least 30years, or to life imprisonment NEED NOT

be proved to a jury beyond a reasonable

doubt because the statutory maximum is

life imprisonment.]

(c) The maximum sentence jumps to the death penalty when: (i) the person is working in furtherance of CCE, OR

841(b)(1)(A), and intentionally

kills/commands/induces/procures the intentional killing of

another, or

(ii) the person is working in furtherance of ANY controlledsubstance felony, and intentionally kills/causes to be

intentionally killed, a federal, state or local law

enforcement officer.

5. FEDERAL FIREARMS OFFENSES

The federal firearms offenses cover a lot of conduct requiring licensure for those in business,

prohibiting sale/delivery of machineguns, restricting that conduct with respect to ammunition, and

prohibiting the interstate movement of guns by unlawful drug users. Were focusing is particularly on

922 and 924 -- 922 prohibits specific kinds of sales, shipments, deliveries, and possession by

certain categories of persons, or possession at certain locations, or possession of certain types of

guns.

924 provides for the penalties for violating 922, BUT IT ALSO provides forincreased penalties when, during and in relation to a crime of violence or a drug

trafficking crime, a person uses or carries a firearm in furtherance of that

crime.(i) Elements of924(c)

TWO WAYS TO ESTABLISH THIS OFFENSE the (a) track and the (b) track.

(A) TRACK

Any person who,

(2)(a) [during an in relation to] (3)(a) any crime of violence or drug trafficking crime (1)(a)Uses or carriesa firearm


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In Muscarello (which came after Bailey), the Court said that Congress intended that

these two words have particular, non-superfluous meanings.

o USEIn 1995, the Supreme Court construed the term uses narrowly inBailey. The defendant was convicted under 924(c)(1)(a) after being found with

30 grams of cocaine and a loaded firearm in the trunk of his car. The court ruled

that there had to be active employment of the firearm to establish use in

relation to the predicate offense. Active employment was construed to include brandishing, displaying,

bartering, striking with, and firing or attempting to fire.

The gun must be made use of actively as an operative factor inrelation to the predicate offense.

Though Smith was decided before Bailey (1993 and

1995 respectively), its rule was upheld in Watson (2007):

trading a gun for drugs is using the gun during and in

relation to a drug trafficking offense.

o Ginsburg concurred in Watson, arguing thatSmithshould be overruled, and use in

924(c)(1)(A) means use as a weapon, NOT in a

bartering transaction.

However, getting a gun in exchange for drugs is NOTusing it, just as a seller does not use a buyers

consideration.Watson.

o The Court in Watsonsays that we must respectthe text, as the statutes purpose comes from its

text.

o CARRYMuscarello (1998) said that carry is distinct from use and shouldnot be construed narrowly.

The 5th Circuit interpreted Muscarello, holding that a defendant violated924(c)(1)(a) when he carried a gun under the drivers seat when he

drove to complete a drug transaction. Even though he didnt retain

immediate access to it throughout the time of the transaction, he still

carried it in the course of the unlawful activity. United States v. Franklin

(5th Cir. 2009).

OR

(B) TRACK [this portion of the statute was added in a 1998 amendment]

Any person who,

(1)(b) possesses a firearm (2)(b) in furtherance of

o The in furtherance of inquiry is a fact-based inquiry into the nexus betweenpossession of the firearm and the drug crime, including factors as proximity,

accessibility, and strategic location of the firearms in relation to the locus of drug

activity.United States v. Hector (9th Cir. 2007) cited in Gonazlez.

A gun that is available as a device to lend courage during a drug-

trafficking offense is possessed in furtherance.Vazquez-Guadalupe. A gun that helps to gain trust during a drug trafficking offense is

possessed in furtherance.Gonzalez (9th Cir. 2008).

Agent Rogers testified that he wouldnt leave an unarmed officeralone with that much marijuana. The fact that Gonzalez had a gun

was crucial to his decision.

ULTIMATELY, ITS JUST ABOUT FACILITATING THE CRIME, SOMEHOW

POSSESSION OF THE GUN MAKES THE CRIME EASIER TO COMMIT.

(3)(b) any crime of violence or drug trafficking crime


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The ACCA provides a mandatory 15-year prison term for anyone convicted of possession of a firearm

by one of the 922(g) categories, AND also has three prior convictions for a violent felony or a

serious drug offense.

Serious drug offense

o 924(e)(2)(A)(i) says that a serious drug offense is a violation of the ControlledSubstances Act for which there is a maximum term of imprisonment for 10 years

or more (or the equivalent under state law). In Rodriquez (2008), even though a base offense maximum was only five

years, the offense was doubled to ten by a state anti-recidivism statute.

That was considered a serious drug offense.

Violent felony

o 924(e)(2)(B) says that a violent felony is: (i) Punishable by more than a year (unless a juvenile conviction) (ii)(A) has an element of use/attempted use of physical force

OR

(ii)(B) is burglary/arson/extortion involving the use of explosives, orotherwise presents risk of physical injury to another

In James v. United States (2007), the Court stated thatattempted burglary in Florida was a violent felony by looking at the

definition of the offense. The ultimate question was whether the risk posed by the

attempted burglary was comparable to that posed by its

closest analog among the completed offenses, completed

burglary.

In Begay v. United States (2008), the Court held that DUI wasnot a violent felony under the categorical approach taken in

James by Justice Alito.

In Chambers v. United States (2009), the Court held that astate failure-to-report-to-jail statute was not a violent felony.

In concurrence, Alito called upon Congress to clarify thelanguage of the ACCA by providing an express list of

crimes triggering the ACCAs sentence enhancements.

o [[this is a place similar to the case in Hayes where Congress drafted so poorly,that interpreting this statute would probably require looking beyond the language

of the text and applying various techniques.]]

6. RICO Racketeer Influenced and Corrupt Organization

In 1962(a) and (b), the enterprise is the victim of the persons pattern of racketeering.

In 1962(c), the enterprise is a tool/vehicle through which the person uses/engages in a pattern

of racketeering.

START BY IDENTIFYING POTENTIAL ENTERPRISES, and then fit piecestogether.

1962(d) is the conspiracy provision.

The Purpose of RICO

to protect legitimate business from criminal individuals and also to protectthe public, especially under 1962(c).

(i) The Elements of the Offenses

A person

Defined in 1961(3) as any individual or entity capable of holding a legal or beneficial interest in

property.

The RICO person could be a corporation.An enterprise


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Defined in 1961(4). An enterprise need not be a legitimate organization. Turkette. It can be a

wholly illegal group/organization. Ultimately, it breaks down into either:

(1) A legal entityo For a legal entity, gauge how closely the entity compares to the prototypical

RICO enterprise. Fitzgerald.

The Jackson Hewitt case held thatthe firm must be shown to use itsagents or affiliates in a way that bears at least a family resemblance to theparadigmatic RICO case in which a criminal obtains control of a legitimate

firm and uses the firm as the instrument of his criminality.

(2) An association-in-facto Boyle refines what an association-in-fact enterprise must have:

(a) A PURPOSE In Boyle, the group got together to rob banks.

(b) RELATIONSHIPS among those associated In Boyle, there was no hierarchy, no particular leader, but people

would get together and hand out different roles.

Facts such as payment, hierarchy, chain of command,fixed roles would be helpful in proving an association-in-

fact, but theyre NOT required.

(c) LONGEVITY sufficient to permit these associates to pursue theenterprises purpose

in Boyle, they got together and robbed banks for 10 years.o Boyleclarifies that there is no need for an ascertainable structure beyond the

inherent pattern of racketeering. Theres no need to say that structure is

required in the jury instructions.

** Theres no requirement that the legal entity or association-in-fact have a financial

motive to be considered an enterprise.Scheidler I.

o This is a matter of textual analysis nothing in 1961 or 1962(c) gives anyindication of economic motive requirement. 1962(a) and (b) require some sort of

economic link in that (a) has an investment component and (b) has an

acquiring/maintaining interest component. But that doesnt apply for (c) where the

enterprise is a vehicle, not a victim.

Theres no ambiguity in the statute, and thus the rule of lenity doesntapply.

Pattern of racketeering activity

Look to 1962(c) section for full explanation.

(ii) The Conduct Proscribed

1962(a)

[[Using or investing income derived from a pattern of racketeering activity to acquire an enterprise

engaged in or affecting in commerce.]]

(1) A personwho (2) receives income derived directly or indirectly (3)(a) From a pattern of racketeering activity, OR

(3)(b) Through collection of an unlawful debt where the person is a principal (4) to use or invest any part of such income in (5) an enterprise, (6) which is engaged in or affects interstate or foreign commerce.

1962(b)

[[Acquiring an interest in such an enterprise through a pattern of racketeering activity.]]

(1) A person (2) Acquires or maintains any interest in, or control of (3)(a) Through a pattern of racketeering activity, OR


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(3)(b) Through collection of an unlawful debt (4) an enterprise (5) engaged in or activities of which affect interstate commerce

1962(c)

[[Conducting the affairs of an enterprise through a pattern of racketeering activity]]

(1) A person (2) employed by or associated with

o The Distinctness Principle This element requires some distinctness between theperson and the enterprise as there cannot be that type of relationship with

oneself.

In King (2001), a corporate owner was held as being distinct from thecorporation itself. The entire point of incorporation is to create a distinction

between the individual and the corporation.

Corporations + Subsidiaries: corporations and their subsidiaries

are not distinct from one another as a matter of law. A parent and

its wholly owned subsidiaries no more have sufficient distinctness

to trigger RICO liability than to trigger liability for conspiring in

violation of the Sherman Act.Bucklew (7th Cir. 2003).

Corporations + Corporate Family: applying the principle that astatute will not be interpreted to produce an absurd result, the

Chrysler case holds that this would encompass every fraud case

against a corporation.

To avoid this absurdity, do the following:o (1) Identify the prototypical situation to which the

statutes applies, AND then

o (2) Figure out how closely the proposed applicationis to that situation.

o One-Way Street an employee may be the person and the corporation theenterprise, but a corporation cannot be the person and the corporation +

employees the enterprise because of the natural meaning of employed by or

associated with.Kushner.

(3) an enterprise (4) conducts or participates in the enterprises affairs

o ** Some circuits differentiate between insiders and outsiders 1st circuit says that Reves operation or management test applies only to

people outside ofa RICO enterprise.

o The Operation or Management Test One cannot be liable under 1962(c) unlessone has participated in the operation or management of the enterprise

itself.Reves (1993).

The Court came to that conclusion because the word conduct involvesdirection, and the word participate requires some part in that direction.

The word participate makes clear that RICO liability is not limited to

those with primary responsibility for the enterprises affairs but somepart in directing the affairs is required.

Arthur Young is the alleged person in Reves, and he failed tomention that there were valuation problems with an asset, and

because he didnt bankruptcy resulted.

Refining the operation or management test InCummings, the 5th circuit said that the issue was that no

one participated in the operation or management of the

enterprise. The test that they come up with to determine

whether or not someone has participated in


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o Though there was originally a circuit split in whichsome circuits went beyond this, requiring that a

conspirator conspire to operate or manage, all

circuits agree with this position now.

Pinkerton is a vehicle to hold conspiratorsliable for 1962(c) offenses.

(5)(a) through a pattern of racketeering activityo (i) Through

There must be a connection between the enterprise and the pattern ofracketeering activity.

o (ii) Pattern-- 1961(5) defines pattern as requiring two acts of racketeering activity, but

the definition doesnt go further than that. In H.J. Inc, the Court looked at the

definition of pattern in the dictionary, and saw that the definition requires a

relationship between acts. Looking for more specific guidance, the court looked to

legislative history, which showed a flexible concept of a pattern. Sen. McClellans

report (principal sponsor) from the Congressional Record noted that there must be

a relationship between the predicates and the threat of continuing activity.

[In concurrence, Scalia disagreed about (b) and (c), but wasnt sure whatelse was needed.]

(a) At least 2 acts within 10 years of one another (b) Relatedness between predicates

Factors to consider for relatedness: Purpose; results; participants; victims; methods of

commission; other distinguishing characteristics.

o In H.J., the acts of bribing commissioners to carryout their duties to win approval for unfairly and

unreasonably high rates in favor of Northwestern

Bell were related by a common purpose.

o In Heller Financial Inc., dissimilar purposes anddissimilar results proved to be a fatal flaw for

relatedness.

(c) Amounts to or poses a threat of continued criminal activity Where the acts of the defendant or the enterprise were

inherently unlawful, courts generally have concluded that the

requisite threat of continuity was adequately established by the

nature of the activity, even though the period of time was

relatively short.

When theres just one event or just one victim, continuity is

very hard to prove.

(1) Continuity as a closed concept:o Closed period of repeated conduct. Its been

generally held that there must at least be a one-

year period. Pelullo (3d Cir. 1992). In H.J., the bribes happened frequently

over a 6-year period. That might be

sufficient to satisfy. But they also had

more (below)

(2) Continuity as an open concept:o Depends on whether the predicates proved

establish a threat of continued racketeering

activity.

This is a fact-specific inquiry.


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In H.J., the bribes were a regularway of conducting business, which

helps to show that theyd continue

so long as Northwestern Bell

continued in business.

In Richardson (D.C. Cir. 1999),the court ruled that a series ofrobberies committed over a 3.5

month period met the continuity

requirement, as there was no end

in sight after 12 robberies, five of

which resulted in death.

o (iii)Racketeering ActivityAltogether the total offenses covered by 1961(1) is about 100-200. But

racketeering activity is more than just the completed offenses. The statutory

language refers to any act or threat involving the listed offenses.

(1) Categories of Offenses That May Be Predicates Substantive Offenses as Predicates

The offenses themselves need only be chargeable courts have usually concluded that state rules precludingconviction for whatever reason even though the offense

was committed do not prevent reliance on the offense as

a predicate act of racketeering. Only the conduct, not the

individual, needs to be chargeable under state law.

Conspiracy as a Predicate (a) When conspiracy involves one of the listed offenses (b) When conspiracy is an indictable offense under an

enumerated federal statute.

o 371 is NOT an enumerated statute, so thats nota RICO predicate offense.

(2) Offenses that Have been Prosecuted as PredicatesWhen prior is a STATE offense, double jeopardy doesnt bar

RICO because there are significantly different interests.

When prior is a FEDERAL offense, need to apply the

Blockburger test to determine whether or not its the same

offense as RICO.

** Cannot have been acquitted in a prior federalprosecution and then re-litigate guilt on that as a predicate

for the purposes of RICO.

Ultimately, Scalias point in H.J.that theres a potential challenge to RICO as

being unconstitutionally vague would fail here, given that people of ordinary

intelligence would know that repeated criminal acts constitutes a pattern of

racketeering activity. This action is not totally innocent.

(iii) Penalties

1963 spells out the penalties 20 year maximum for the substantive offenses, 20 yearmaximum for the conspiracy.

1964 spells out the civil remedies any person injured in his business or property byreason of a violation of 1962 can sue and recover threefold damages and attorneys fees.

7. ANTI-TERRORISM

2339A Providing Material Support in Aid of Terrorist Crimes

(i) Elements of the Offense


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I. the substantive offense

(1)(a) ProvidesOR

(1)(b) Conceals, disguises the nature, location, source, or ownership of (2) Material support or resources

o Defined in 2339A(b)(1) as any propertyservicelodging, training, expertadvicefalse documentation or identification, communications equipment,facilities, weapons, lethal substance, explosives, personnel transportation

In Stewart, the government proved that the form of material support orresources Stewart provided was personnel in the form of the body of

Sheik Rahman to his followers.

Look to 2339B for more information on personnel,distinguishing independent advocacy.

(3) Knowingly or intentionally, thattheyare to be usedo (a) in preparation for or in carrying out a violation of,

OR

o (b) in preparation for or in concealment of an escape from*** RE:#3: It seems as though the mens rea element in this statute

requires proof of TWO THINGS:

(1) That the knowingly or intentionally provided/concealed,etc. material support.

- Thats supported because of the word they in thestatute addressing the mens rea requirement.

o In Stewart, the evidence showed that Stewartknew she was providing material support with

some of the off-hand comments she made about

being an actress and pulling the scheme off.

(2) That the knew that his/her support would be used to violatethe law.

It need not be demonstrated that the knew whichstatute was being violated, just generally violated.

*** RE:#3: The support need only to be used it need not actually beused. This is super inchoate.

(4) a violation of the listed statutesII. Attempts or conspires to do such an act.

Adopt the definition of attempt and conspiracy from common law because its not defined in this

provision.

2339B Providing Material Support to Foreign Terrorist Organizations

(i) Elements of the Offense

I. the substantive offense

(1) Knowinglyo This is one of the elements that the Court addressed in Humanitarian Law

Project, where the plaintiffs argued that the statute should be interpreted asrequiring specific intent in order to avoid constitutional issues. But the majority

relies on a straight textual analysis and says that knowledge is all thats

required.

(2) Provides (3) Material support or resources

o In the Humanitarian Law Projectcase, the court says that the planned politicaladvocacy on behalf of the PKK and the LTTE could possibly be personnel or

services. But no matter what it is, the statute is not unconstitutional under the


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First Amendment because the definition under material support or resources

specifically distinguishes independent advocacy.

The Court relies heavily on Congressional findings for the notion thatanything listed under the statute as material support or resources,

distinguishable from independent advocacy is fungible support to an

FTO.

Theres no firewall between the terrorist ends and thehumanitarian ends, so any contribution to an FTO is a contributionto terrorism.

The Court treats the question of whether FTOs segregatesupport of legit activities from terrorism is an empirical

question, and therefore outside of the courts province to

handle that question.

o Ultimately, the court deferred to Congress, whodeferred to the executive for the fact findings for

the underlying evidence that gets plugged into the

First Amendment analysis.

(4) To a foreign terrorist organizationo This is something designated by the secretary of state and theres an appeals

process available.

II. Attempts or conspires to do so

Differences between 2339A/B and Accomplice Liability** The mens rea requirement of

knowledge in both 2339A and 2339B is lower than that of accomplice liability. Additionally, the

actus reus here is specifically defined in the definitions section, which is different from any

assistance as would be required otherwise. Finally, one can be liable under this provision even when

the object crime isnt committed.

8. CONSPIRACY

(1) Theory behind punishing conspiracy

The principle of group criminality is that were less likely to withdraw because of pressurefrom others. There are greater resources when people are pooled together, which

increases the likelihood that the object crime will be committed. People working in a group

are also more likely to do more than just one offense it creates a greater likelihood of

violence.

(2) Advantages of charging conspiracy

There are a number of major advantages to prosecutors to charge conspiracy:o Substantive Advantages:

See Pinkerton section.o Procedural Advantages:

In his concurrence in Krulewitch, Justice Jackson discussed four majoradvantages:

(i) Joinder

Joining a large number of defendants for a single trial. (ii) Venue

Charges can be brought anywhere that the agreement wasentered into or where any act was done in furtherance of

the objective of the conspiracy.

(iii) Hearsay Statements made by a co-conspirator during the course of

and in furtherance of the conspiracy can be used against

all conspirators.


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In United States v. Evans (10th Cir. 1992) there were 10 peoplecharged and five convicted of 841 and 846 (conspiracy to

commit 841) for transporting powder cocaine from Cali to

Oklahoma and then converting it to crack before distributing it.

Brice had purchased four ounces of crack from one of theco-conspirators, and lent scales to two other co-

conspirators to help them weigh crack.o The court looks to common sense and asks, What

did Brice think she was joining?

Brice was in a much smaller conspiracy.o (2) The defendant had the specific intent to achieve its objectives with the others.

This element was also lacking in Evans. Realistically speaking, (ii)(1)needs to be established in order to even reach this point.

Proving the mens rea depends on what the object of theconspiracy is:

(a) Drug Conspiracieso Because the manufacture, sale, and use of drugs is

illegal, participants are presumptively aware of the

existence of the illegal venture

(b) Seemingly Innocuous Conspiracieso Where the conspiracy is about something like

obtaining fraudulent loans, the government must

do more than prove that a defendant participated

in a transaction with false documentation it must

show that each defendants actions benefited the

common venture.

(iii) ** OVERT ACT requirement (for 371)o In addition to the actus reus [agreement] and mens rea [knowledge of conspiracy

+ purpose to achieve its ends], 371 required an additional element:

OVERT ACT exists to make sure that there is something required morethan just thought.

Where this requirement exists, it can be satisfied by very minimalaction.

o Other statutes that do not explicitly have the overt act requirement are interpretedto NOT have the requirement.

Ex: 846 [Whitfield], 1956(h) [Shabani].

(B) Duration of a Conspiracy

The duration of the conspiracy is relevant for substantive and procedural purposes Pinkerton

liability is the substantive result, and the four procedural advantages listed above by Justice Jackson

in his Krulewitch concurrence become at issue too.

(i) A conspiracy terminates when there is affirmative evidence ofabandonment,withdrawal, or disavowal.

oIn Jiminez Recio, the 9

th

Circuit said that defeat of the conspiracys object doesnot terminate a conspiracy, as at the time that a conspiracys object has been

defeated by police or some other reason, conspirators are unaware of whats

happened, and group criminality dangers remain.

(ii) Burden of proof RE: abandonment, withdrawal or disavowalo In most places, the bears the burden of production, and o The government bears the burden of persuasion that the did not

abandon/withdraw/disavow the conspiracy.


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(C) Liability for Taking Part in a Conspiracy

(i) Punishment for being a co-conspirator.

371 is 5 years

Specialized conspiracy provisions are usually punished as if the co-conspirator

committed the completed offense.

(ii) Punishment for substantive offenses

Pinkerton LiabilityThe Pinkerton case says that a party to the conspiracy does not have to personallyparticipate in the commission of a substantive offense to be held liable for that offense,

when that offense is the object of the conspiracy.

o Theres a CIRCUIT SPLIT as to how far Pinkerton liability extends: 10th Circuit doesnt extend as far as the 11th:

(1) The substantive offense has to be within the scope of the unlawfulproject, AND

(2)Reasonably foreseeable as a necessary AND natural consequence ofthe unlawful agreement.

11th Circuit says Pinkerton liability applies when:

(1) The substantive offense was done in furtherance of the conspiracy (2) The defendant is more than a minor participant. (3) The substantive offense was reasonably foreseeable as the necessary

ORnatural consequence.

Pinkerton liability applies here even though the substantiveoffense might have been originally unintended.

In Alvarez, three people who were more than minorparticipants (look-out, facilitator, and manager of motel

where transaction went down) in a MAJOR DRUG DEAL

were liable for murder, even though it wasnt originally

intended.

DIFFERENCE BETWEEN AND &OR.

(4) Specialized Conspiracy Provisions

Congress has enacted numerous conspiracy provisions tied to specific substantive crimes. Usually

theyre contained in the same section (Hobbs Act) or in a separate subsection (federal kidnapping

statute), and sometimes in a separate statutory section altogether (1349 various types of

fraud).

9. AIDING/ABETTING

18 U.S.C. 2(a) is the federal aiding/abetting provision:

(i) Elements of aiding/abetting

(1) Specific intent to facilitate the commission of a crime by another (2) Had the requisite intent to commit the underlying substantive offense (3) Assist/Participate in the commission of the underlying substantive offense (4) The principal committed the underlying offense. (*) Some circuits 9th circuit add a substantial step requirement.

IV. Defenses

A. Selective Prosecution

It is a cognizable claim that a was impermissibly selected for prosecution in violation of the Equal

Protection Clause of the 14th Amendment, which has been reverse-incorporated through the 5th

Amendment, though this claim is a narrow one.

The Supreme Court in Wayte (1985) applied a two-part test to determine whether therewas selective prosecution:

o (1) That the enforcement system had a discriminatory effect, AND


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o (2) The enforcement system was motivated by a discriminatory purpose. A would have to prove this by showing that similarly situated persons

were treated differently.

In Wayte, the court found that the government treated allnonregistrants of the draft similarly.

In Armstrong, the s supported their motion for discoveryalleging selection for federal prosecution because they were blackwith an affidavit from the Federal Defenders, stating that the

was black in every single one of the 24 crack cases brought in

1991.

Supreme Court said that the failed to make a thresholdshowing that the enforcement scheme was motivated by a

discriminatory purpose. The courts reasoning rested on

the notion that this is a core executive function, and we

dont want the government to have to reveal too much

information, so were going to limit the ability to bring an

action on these grounds.

o [Kind of a catch-22 - needed discovery to makethat claim, but was prevented from getting

discovery because of lack of evidence.]B. Void-for-Vagueness

A conviction fails to comport with due process if the statute under which it is obtained:

(1) fails to provide a person of ordinary intelligence with fair notice of what is prohibited,OR

(2) is so standardless that it encourages seriously discriminatory enforcement.C. Protection under the Speech or Debate Clause of the Constitution [Art. I, 6, Cl. 1]

The Speech and Debate Clause does not bar prosecution under 201, as the acceptance ofa bribe is not a legislative act, BUT the government may NOT introduce evidence from a

members legislative act in a prosecution under 201.

D. Entrapment

Though theres no statute on this defense, it is assumed that Congress intended for the entrapment

defense to exist.

(i) Elements of the defense:

(1) Government induced an individual to commit a crime (2) The defendant was NOT predisposed to commit that crime.

o TWO DIFFERENT TESTS FOR PREDISPOSITION:o 1st Circuit Test:

How the defendant likely would have reacted to an ordinary opportunityto commit the crime.

o 7th Circuit Test:o That breaks down into two components, and both are needed to prove lack of

predisposition:

(a) Mental state disposition

Desire to commit the crime. (b) Ability to commit the crime position

Means, ability, experience, training, and contacts. In United States v. Knox, the court found that the

government failed to prove that the leader of the church

was in a position to launder money absent the government

involvement, and thus they did not prove predisposition.

(ii) Burden of proof:


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The government must prove beyond a reasonable doubt that the defendant was NOTentrapped.

o In other words, the government must show that the defendant was predisposed. The idea here is that if the government is arguably going to set someone

up, its fair that the government has to prove that they didnt set that

person up theyd have the resources to carry the burden.

E. Duress

(i) Elements of the defense:

Duress does not defeat an element of the offense, but it is an affirmative defense that must be

established by the defendant. Duress is a difficult defense to establish, requiring proof of:

[[these three elements come from Gonzalez(2d Cir. 2005), and are basically the same as

in Dixon.]]

(1) Threat of force directed at the defendant at the time of the defendants conduct (2) Threat sufficient to induce a well-founded fear of death/serious bodily injury (3) Lack of reasonable opportunity to escape harm other than by engaging in illegal

activity.

o In Gonzalez, the court found that Gonzalez failed on this element her subjectivebelief that going to the police would have been futile is insufficient to

demonstrate that she had no reasonable a

Documents

Fed Crim Law Outline