Federal Criminal Law Outline

FEDERAL CRIMINAL LAW

VOGEL

SPRING 2012

Scope of Federal Criminal Law

Look for questions that propose new statutes or ask general questions about the enumerated powers.

Sources of Federal Crimes

Comes from statutes, common law crimes are unconstitutional. Common law criminal law is not dead, however, as it still controls the definitions and interpretations in statutes:

“where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, 342 US 246, 263

Congress can make any conduct a criminal offense so long as they can justify its illegality as being “necessary and proper” (see McCulloch) under one of its Article I powers. So summarized the Court in COMSTOCK:

· “[T]he Constitution, which nowhere speaks explicitly about the creation of federal crimes beyond those related to “counterfeiting,” “treason,” or “Piracies and Felonies committed on the high Seas” or “against the Law of Nations,” Art. I, §8, cls. 6, 10; Art. III, §3, nonetheless grants Congress broad authority to create such crimes. See McCulloch (“All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of Congress”)”

· “Congress routinely exercises its authority to enact criminal laws in furtherance of, for example, its enumerated powers to regulate interstate and foreign commerce, to enforce civil rights, to spend funds for the general welfare, to establish federal courts, to establish post offices, to regulate bankruptcy, to regulate naturalization, and so forth.”

COMSTOCK held that, because Congress has the authority to make crimes within the enumerated powers, and because it would be necessary and proper for congress to make laws regarding the imprisonment of people who violate those laws, it follows that congress can make laws that ensure the prison’s safe operation, even though those laws are not directly tied to any enumerated power.

Congress, in order to help ensure the enforcement of federal criminal laws enacted in furtherance of its enumerated powers, “can cause a prison to be erected at any place within the jurisdiction of the United States, and direct that all persons sentenced to imprisonment under the laws of the United States shall be confined there.” Moreover, Congress, having established a prison system, can enact laws that seek to ensure that system’s safe and responsible administration by, for example, requiring prisoners to receive medical care and educational training, and can also ensure the safety of the prisoners, prison workers and visitors, and those in surrounding communities by, for example, creating further criminal laws governing entry, exit, and smuggling, and by employing prison guards to ensure discipline and security.

Congress reasonably extended its longstanding civil-commitment system to cover mentally ill and sexually dangerous persons who are already in federal custody, even if doing so detains them beyond the termination of their criminal sentence. For one thing, the Federal Government is the custodian of its prisoners. As federal custodian, it has the constitutional power to act in order to protect nearby (and other) communities from the danger federal prisoners may pose

Commerce Clause Analysis

1. INSTRUMENTALITIES of commerce

2. Activities which AFFECT commerce

1. CHANNELS of commerce

PROHIBITED ACT + TRANSPORTATION

Initially, federal criminal laws passed under the Commerce Clause focused on prohibited items that crossed state lines. The jurisdictional hook under the Commerce Clause was the TRANSPORTATION ACROSS STATE LINES.

18 USC § 10 – “The term “interstate commerce”, as used in this title, includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia.” Remember that this includes the “channels” of interstate commerce, so if you do something purely intrastate that affects the channels of commerce (like blow up a major railroad or highway), you’ve invoked federal jurisdiction.

2. INSTRUMENTALITIES of commerce

These are offenses which are designed to protect the instrumentalities, i.e. things that move in interstate commerce. Includes destruction of an airplane; interruption of interstate transmission systems (e.g. phones or electricity); Persons or things in commerce

· Telephone communications across state lines and wire fraud (distinguish from Mail Fraud à different jurisdictional hook)

· Car Jacking Statute – becomes federal offense once you cross state lines.

· Felony Gun Laws – Felon cannot possess a gun that has crossed state lines.

Problems with focusing on TRANSPORTATION:

· Jurisdictional Gaps – If a corporation commits wire fraud, but all of the wires were sent in-state, then there is a jurisdictional gap that precludes prosecution under federal Wire Fraud Act.

· Merit – Jurisdiction gives no gauge as to the merit of prosecution. Further, the existence of federal jurisdiction does nothing to shed light on whether the wrongful act is really a federal crime or a state crime.

3. AFFECTING commerce

Theories of the ‘affecting commerce’ analysis:

1. Depletion of Assets Theory

a. Did the criminal activity deplete the assets of the victim so that the victim had less funds available to make purchases that would have involved goods shipped in interstate commerce? OR, alternatively;

b. Did the crime prevent use of an item that had recently been shipped in commerce?

2. Aggregation Theory

Congress can criminalize a class of activities that, in the aggregate, affect interstate commerce. The defendant will still be guilty even if his activities were purely intrastate, on the theory advanced by the Fillburn court, that Congress can deter a class of activities which affect commerce by making them illegal. RAICH.

Prior to LOPEZ, courts allowed any offense under the commerce clause, so long as it had a de Minimis effect on commerce. LOPEZ held that the activity must have a substantial effect on commerce.

United States v. LOPEZ

Government’s theory on why it DID effect commerce:

(1) National productivity argument: Guns disrupt education, education is essential to productivity, so guns will result in a less productive work force. This is how guns “affect commerce.” Rhenquist does not really address this argument. His concern, however, is that if you accept this argument, virtually anything can be federalized.

(2) Cost of crime theory: Cost of prevention is allocated across the country and all citizens bear the cost.

(3) Interstate travel: no one is going to want to come to San Antonio to visit if there are guns in public schools.

Rhenquist is afraid of a “general federal police power.” There are certain areas of law that are almost sacred for states (e.g. family, education)

a. If the federal government gets involved, you have two problems:

i. Reduces laboratory effect: states as laboratories for how to deal with certain problems. When the federal government take the lead and dictates what should be done, you have much higher stakes because it is binding on the entire nation.

ii. Preemption: Federal law will completely take away a state’s ability to regulate because federal law ALWAYS trumps state law.

How to argue whether something has a substantial effect on commerce:

(1) How much commercial activity is actually involved in the conduct? For example, buying wheat is a commercial activity (Wicker v. Filmore), taking a gun to school is not.

(2) Does the statute have a jurisdictional hook? In other words, how much is commerce an ‘element’ of the crime?

(3) How strong are the Congressional findings on these issues r