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Federal Criminal Law
Thomas Jefferson School of Law
Kaye, Anders


a. COST- Entails huge & unnecessary costs (since the states have their own systems) on the federal government
b. FEDERALISM- Makes the federal government too powerful. Gives them power over local matters.
c. STATES AS LABORATORIES- States can be great laboratories for coming up with solutions to social problems- Federal criminal law may pre-empt states from experimenting (i.e. comprehensive federal drug laws regarding decriminalization of drugs) 50 labs v. 1.
d. LOCAL IS BETTER- State CJ systems can provide better services- local prosecutors & judges may be more sensitive to local issues. It’s more convenient to go to state courts. State prisons are more likely to keep prisoners closer to their families & communities which makes re-integration easier.
e. CITIZEN INSECURITY- Citizens have to be aware of two criminal codes and avoid violating both.

a. Cases involving federal interests- State CJ actors won’t enforce as aggressively because not as much interest
b. D’s in multiple states
i. States may have authority, investigative & jurisdiction limits
ii. Also more worried about protecting your own
c. Victims in multiple states
i. States may have authority, investigative & jurisdiction limits
ii. Also more worried about protecting your own
d. Cases of local reluctance (i.e. political corruption cases)
e. Cases of federal expertise (i.e. civil rights, terrorism, rare crimes)
f. Case that require federal resources (i.e. witness protection programs)

a. Power to regulate when there’s a DIRECT FEDERAL INTERST (i.e. counterfeiting clause)
b. Indirect Federal Interests- Commerce Clause, Tax Clause & Commerce Clause
i. Commerce Clause- Most federal criminal law today is grounded in the commerce clause. Two prongs:
1. Channels & Instrumentalities of Interstate Commerce- Authority to regulate the infrastructures and the people & things using the infrastructure.
a. Persons- Can criminalize conduct when a person has crossed state lines (i.e. kidnapper who takes victim across state lines)
b. Things- Can criminalize conduct that transports things across state lines (i.e. lottery tickets)
c. Communications- Can criminalize conduct involving communications crossing state lines (i.e. conduct over phone lines, extortion demand across state lines)
d. Has crossed in the Past- (i.e. Federal carjacking statute- If car has been shipped or transported in interstate commerce and then it’s carjacked, it’s a federal crime)
2. Affecting Interstate Commerce
a. Jurisdictional Element Approach (Hobbs Act)- Written right into the statute- Statute says the crime must affect IC so the prosecutor has to prove the crime & that the crime affected IC.
b. Class of Activities Approach- Some statutes don’t contain any specific jurisdictional element, prosecutor just has to prove the crime (i.e.- loan sharking act)- This is done when Congress decides that as a class, certain cond

he same punishment as an adult
ii. § 861- Selling drugs to a pregnant woman
1. Why heightened punishment?
a. Damaging effect to developing fetus
b. Society bears the cost of long-term medical care
iii. § 924- Use or carry a firearm during a § 841 crime
1. Why heightened punishment?
a. Likelihood of violent crime
e. § 848- Continuing Criminal Enterprise- Meant to get the big fish in the industry, the king pins of drug cartels
i. Series of drug violations
1. Amount hasn’t been decided, but S.C. has presumed that 3 violations were enough.
ii. D was a supervisor
1. Person having some authority over at least 5 other people who they issue orders to or direct that don’t have the authority to give orders back to.
2. “Foreman rule”- If you issue orders to someone that then issues orders to others, you are considered a supervisor of all those people
iii. D drew a substantial income from that series of offenses
1. Courts have refused to set a minimum amount
2. Don’t just look at the money D made, also look at the resources of the CCE (i.e.- the drugs on hand of the D or the enterprise at the time of the bust)
iv. The additional punishment
1. Minimum- 20 years to life
2. Repeat offender- 30 years to life