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Federal Criminal Law
Temple University School of Law
Shellenberger, James A.

Federal Criminal Law


Fall 2011

Part. I General Principles

I. Federal, State, and Local Criminal Enforcement Resources

General differences between state and federal law enforcement agencies:

1. Organization: Federal agencies are more centralized. Federal police perform a mostly investigative function (FBI, DEA, ATF, etc.) as opposed to state cops who perform both investigative and regulatory functions.

2. Training: Federal la enforcement officers are better trained, managed, educated, etc. There are no national minimum qualifications for state police.

Another important aspect of the federal system is the control exercised over the U.S. Attorneys by the Department of Justice. The DOJ manual instructs and at times limits the U.S. Attys.

*Note: There is an entire independent federal prison system and probation system, both are currently being choked by drug convictions.

A. Federal Criminal Enforcement Agencies

The FBI: The FBI exercises jurisdiction over more than 200 specific violation of federal criminal law. (This is almost every federal crime). When Congress passes a criminal law, it also assigns an organization to investigate the crime. When Hoover was in power, he got dirt on Congressmen and black-mailed them into increasing the power of the FBI.

a. Another function of the FBI is counter-intelligence. They investigate domestic espionage.

The DEA: Shifted to DOJ in 1973; primarily responsible for the enforcement of federal drug laws. It’s jurisdiction has expanded enormously over the past half century due to the increase in drug trafficking.

Other Federal Police Agencies: ATF is relatively small but they investigate interesting areas like illegal alcohol, guns and explosives. U.S. Marshall Service is responsible for the protection of the Federal Judiciary, transportation of prisoners, enforcement of federal court orders, and the witness protection program (no witness has ever been killed who has remained in the program).

The Criminal Division: Exercises supervisory control over the U.S. Attys in the field in an attempt to make federal prosecution uniform. Division also provides technical assistance and advice to U.S. Attys.

United States Attorneys: U.S. Attys are appointed by the POTUS, confirmed by the Senate and have a 4 year term. Typically, the senior senator of the President’s party recommends U.S. Atty candidates from their jurisdiction.

a. There are very demanding standard in the U.S. Atty offices because there are fewer cases, significant oversight, and the federal judiciary tends not to cut corners.

b. A case typically starts with a “process memo” – These memos serve two functions: 1) lay out in serious detail the facts of the case and why prosecution is just and 2) Ensure that the preparer has thoroughly thought through the case. This is an intra-departmental mechanism that ensures compliance with federal guidelines. (Note: DA’s offices can’t afford to do this because of the volume of cases.)

Drug Task Forces and Organized Crime Strike Forces: There have been efforts to employ joint federal-state task forces and other specialized units to attack particular types of criminal activity.

B. State and Local Criminal Enforcement Resources

1. Police: There approx. 700,000 state and local police in the U.S.

2. Prosecutors: The DA is typically locally elected. There are approx. 30,000 DAs in the U.S.

C. Federal and State Criminal Caseload

a. The old way of estimating crime was through the use of “uniform crime reports.” The numbers were grossly inaccurate as they dealt only with crimes reported to the police. But there are typically 3 to 4 times as many crimes as are reported (rape is the most under-reported, murder is the most reported).


Two dimensions of federal law:

o Substantive – the elements of the crime

o Jurisdictional

§ Statutory – explicit jurisdictional element of the crime. Must prove every element beyond a reasonable doubt – meaning that the statute will say “any person who does this crime in interstate commerce. ”

· Congress’ Art I Authority is creating its own jurisdictional element by actually putting it in the statute. The existence of the element can save the constitutionality of the statute

· Courts will interpret statutes narrowly to avoid constitutional interpretation

§ Constitutional – three most common

· Commerce

· Postal

o Most common early use

· Taxing power

o Basis for most fed drug laws until 1970 when a new comprehensive drug law was enacted based on commerce clause

A. Basis for Federal Criminal Jurisdiction

· Three categories of interstate commerce – as defined by US v Lopez

o highways (channels) –category 1

o Instrumentalities (moving in interstate commerce)– category 2

o Substantially effect interstate commerce – category 3

Transportation, etc. in Interstate Commerce

· Champion v. Ames (1903): Federal criminal jurisdiction under the commerce power can be achieved based on the direct crossing of an interstate boundary by way of transportation, shipping, traveling, etc. This was the “Lottery Ticket” case. Court held that power to regulate interstate commerce included the power to prohibit the transportation of certain items.

· Hoke v. U.S. (1913): Confirmed the holding in Champion by upholding the Mann Act which outlawed the transportation of women for the purposes of prostitution or debauchery. (Transportation of items includes property as well as persons.)

o Today, jurisdiction does not require that the item be moved in interstate commerce in furtherance of the crime, but rather that the item had once been moved interstate. (e.g. The Carjacking Statute prohibits the violent taking of a vehicle that has been transported, sold, received, etc. in interstate commerce).

· U.S. v. Page (1999): Here the court is dealing with the criminal component of the VAWA (which includes in it a jurisdictional nexus). D beat women, then put her in car and transported her across state lines. The court asks: Does the actual beating have to occur interstate, or is the transportation of the victim enough to satisfy the jurisdictional requirement of the act?

o Court holds that the transportation of the victim is enough to satisfy the requirements of the act and that this was exactly the type of activity Congress intended to criminalize.

Affecting Commerce

· Inclusion of the Jurisdictional Element in the Definition of the Crime (e.g. The Hobbs Act)

o Can we aggregate diverse and separate intrastate activity (robbery) in an attempt to attain commerce clause jurisdiction? So far, yes. The court of appeals have upheld the Hobbs Act in U.S. v. Hickman under the aggregation theory, noting that there was no need to prove a substantial impact on commerce. There are three main theories that courts use when deciding “affecting commerce” cases (p. 31):

§ Assets Theory: This is the theory courts have used in upholding the Hobbs Act. The question court will as is “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?”

§ Commercial Interference: The theory is that commerce was interfered with because the extortion prevented use of an item that had been recently shipped in commerce.

§ Cause and Effect: This theory is more rare and elaborate. In a Hobbs Act case, the court held that failure to prosecute drunk driving encourages more drunk driving which jeopardizes highway safety by causing more accidents and thereby interferes with highway travel.

· The Perez Doctrine – Affecting Commerce through a Class of Activities

o how much of an affect on commerce has to occur? And what theories can we use for finding that affect? Hobbs Act says “whoever in any way or degree obstructs, delays or affects commerce by robbery or extortion”

o Perez v. U.S. (1971): D is being federally prosecuted for loan sharking. He argues that loan sharking is an entirely intra-state activity and thus is not subject to congressional regulation under the commerce clause. Court looks at non-criminal AGGREGATION cases:

§ Wickard – growing wheat himself affected interstate commerce bc he wasn’t going out and buying it. If everyone did that it would greatly affect commerce

§ Darby – Congress can regulate local activity if its party of a class of activities, which when aggregated, substantially affects commerce

§ HERE – Congress has done studies to show

he movement that matters

· Dissent argues that local offense, arson, becomes federal. Usurp power

· Statutes requiring use of facility in interstate commerce – travel act and sex offenses

o Violence Against Women Act – requires interstate domestic violence, interstate stalking, and interstate violation of protection order

o US v Al-Zubaidy – rejected contention that after Lopez and Morrison there must be a substantial effect on commerce to sustain a criminal statute that regulates non-economic activity, even one that contains a requirement that a crime victim must be taken across a state line

o Sexual Offender Registration – valid under first two lopez categories because it just requires movement over interstate lines

o US v Alderman – convicted felon possessing body armor that he admits crossed state lines. All they have to do is prove that product manufactured in one state and defendant possessed in another

§ ct relies on Scarborough – holding that proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy nexus between possession of firearm and commerce

§ third lopez category – substantially affects statute regulating actual possession, not movement

§ most people would say that it moved in interstate commerce therefore you don’t even have to go to third category but this is not majority’s opinion

o proving movement in commerce requirement

§ direct evidence – manufacturing, sales, or transportation records

§ indirect evidence – US v Teleguz – expert who testified that 22 of 25 firearms at issue had crossed state lines/ US v Humphreys – nexus established by mere fact that gun manufactured outside of state in which it was possessed/ US v Urbano – if firearm traveled across state lines, minimim nexus is met

· Use of a Facility of Interstate Commerce

o 1st or 2nd Lopez – instrumentality or channel of commerce

o US v Marek – telephone, mail, ATM, etc is a facility of interstate commerce. Irrespective of whether particular transaction itself is wholly interstate

o US v MacEwan – ∆ possessed internet child porn. He argues that absent proof, no way to show porn was downloaded over state lines. Ct says image doesn’t have to come from another state. Nature of internet – data has traveled over interstate commerce. Internet is international global network, meaning it is a channel or instrumentality of interstate commerce – category 1 or 2


· Considerations that Affect the choice between Federal or State Prosecution

o Amount of investigatory work done by the respective jurisdictions

o Custody of the suspect

o Possibility of a duplicative prosecution

o Collaborative investigations

o Big case factor

o Caseload and resources

o Inter-agency relationships and relations among agents

o Legal advantages

§ Substantive law

§ Penalties

§ Procedures

§ Constitutional and other doctrines and statutory provisions which affect investigative techniques and evidence gathering

§ Judicial attitudes

§ Rules of evidence

o Policies

***Even if courts refuse to enforce it, equal protection obligates prosecutors to have a rational basis for distinguishing between offenders who are charged and those who are not. We don’t really want prosecutors forum shopping, so we have to have some kind of justification