Federal Criminal Law Little Spring 2013
Constitutional Provisions:
Article 1:
§8: gives congress power to:
· Provide for the common defense and general welfare of the US.
· To regulate commerce w/ foreign nations, and among the states, and with the Indian tribes.
· To provide for the punishment of counterfeiting the Securities and current Coining of the United States
· To defines and punish Piracies and Felonies committed on the high seas and offences against the law of nations
· To make all laws, which shall be necessary and proper for carrying into execution the foregoing powers and all other powers, vested by the Constitution.
§9: Privilege of Writ of Habeas Corpus shall not be suspended unless when cases of rebellion or invasion the public safety may require it.
· No Bill of Attainder or ex post facto law shall be passed
· No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them shall, without the consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. (Bribery)
§10: No STATE shall pass any bill of attainder or ex post facto law.
Article II:
§2: The President … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
§3: He shall … take Care that the Laws be faithfully executed.
§4: The President, Vice President, and all civil Officers of the United States, shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
ARTICLE III
§2: ” The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be had in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
§3: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or Confession in open Court. “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
ARTICLE IV
§2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
§3 The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or Property belonging to the United States;….
Notes:
Substantive Crimes Mentioned in the Constitution: TreasonàArticle III, IV; PiracyàArticle I §8; CounterfeitingàArticle I §8; BriberyàArticle II §4
CONSTITUTIONAL AMENDMENTS
ARTICLE XIII
§9 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” . . . .
ARTICLE XVIII
§1 After one year from the ratification of this article [proposed to the States on December 18, 1917, and ratified by sufficient States on Jan. 21, 1919] the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.” “Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” . . . .
ARTICLE XXI
§1: The 18th article of amendment to the Constitution of the United States is hereby repealed. [Proposed to the States on Feb. 20, 1933, and ratified by sufficient States on December 5, 1933.]
§2: The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
Progression of Proof Beyond a Reasonable Doubt:
· Williams (1949) Hugo Blackàtextualist looks to intention of framers to interpret Constitution
· Hugo Black: progressive Southern Senator who would support New Deal. (with Douglas)
· “man of the people” àrepresented the poor.
· Progressiveness of this opinion: Discretion for judges in punishingà
o Williams endorses this discretionary regimeàaccepting discretionary punishment means accepting harsher penalties as well as softer (more lenient ones)
§ Judge hears capital murder charge & has power to override jury recommendation and give death.
§ Judge uses evidence that would be inadmissible @ trial to determine sentencing.
o Some evidence would be inadmissible due to rules of evidence
o Some evidence would be inadmissible b/c Defense argues against it (highly prejudicial)
· Winship (1970): have a right for a jury to find every fact beyond a reasonable doubt by a jury with pretrial notice.
· Almandmez Torres (1988): Do not have to prove the fact of prior conviction beyond reasonable doubt to a jury even if it raises the maximum. (Scalia dissented)
· Mistretta (1989): SCOTUS affirms sentencing guidelines
§ Under these guidelines cannot use the evidence used in Williams
· Cannot use secret evidenceàMust be proven beyond preponderance
· Apprendi (2000): where the legislature raises the maximum that fact has to be found by jury too.
§ Proceeded by Jones in 1999àeffectively overrules Williams
§ Statute at issue is §1326àreentry after removal.
· Reasoning
o Legislative intent: Statute does not require convictions to be an element of the offense
o Constitutionallyànot that important b/c prior convictions are reliable.
· Kajoyjn: judge asked prosecutor is X trueàprosecutor responded that there is nothing in the record supports that, but later it turns out it was true. Prosecutor was fired after judge brings disciplinary charges.
· Willams, Winship & ApprendiàUnifying idea is concern w/ reliability of fact finding.
§ There is an idea that it is not fair to increase the sentence w/o letting jury finding these facts.
§ Who does the fact finding jury v. judge.
o Blakely 2005àstate mandatory guidelines system unconstitutional
o Booker 2006àfederal guidelines are unconstitutionalàjudge has ultimate discretion
Williams v. New York (1949): Black
Issue: Can a sentencing judge use probation reports, which would otherwise be inadmissible at trial to determine guilt, to sentence a defendant to life in prison after the jury has recommended life in prison?
The due process clause does not make a sentence void because a judge gets additional out of court information to sentence a defendant. àFed Constitution does not restrict the view of the sentencing judge to information received in open court.
Analysis:
· Within limits fixed by statutes, judges are given broad discretion to decide the type and extent of punishment for convicted defendants.
· 14th Amend provides no person shall be tried and convicted of an offense unless given reasonable notice of the charges against him and is afforded an opportunity to examine adverse witnesses.
o Due process clause provides these protects where question for consideration is the guilt of the defendantàbut Courts have treated rules of evidence applicable to the trial procedure and the sentencing process differently. àrules of evidence do not apply the same way to sentencing as trial.
§ Historical basisàbefore America and since Courts practiced a policy under which Sning judge could exercise a wide discretion in sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law. (original intent of framers was to allow this evidence)
§ Practical Reasons for the Distinctionà
· Rules of evidence for trials rest in part on necessity to have efficient (not time consuming) trialsàproving 30 burglaries @ sning would waste too much time!
o At Sningàother “collateral” issues become relevant to sentencing.
§ Point is it will be relevant to sentencing when judge relies on it to determine sentencing.
§ Modern Punishment Philosophy: Also designed to prevent tribunals concerned w/ issue of guilt to be influenced to convict based on other evidence.
§ Sning judge is not confined to narrow issue of guilt. àHis task w/I fixed statutory Constitutional limit is to determine the type and extent of punishment after guilt has been determined. àD§s life & characteristics are highly relevant to modern philosophy of punishment.
o Modern Philosophy of penology is that punishment should fit offender an not merely crimeàRetribution is no longer the dominant objective of criminal law. Reformation & rehabilitation of offenders have become important goals of criminal law.
§ Judge should consider: (Ulman Article)à Factors involve w/ individual basis.
· Protection of society against D; Punishment/discipline of D; Reformation & rehab of D; Deterrence of others from commission of same crime.
o Fed Const does not restrict view of sning judge to info received in open court. àDue process clause does restrict evidential procedure of sentencing in the mold of trial procedure. àDoes not mean sning procedure is not immune from scrutiny under the due process clauseàjust not in this case!
o Does not mean sning procedure is immune from scrutiny under the due process clause
o (Townsend v. Burke)àCannot rely on false evidence.
Murphy Dissent:
· After jury has recommended a sentence, sning judge should not increase it w/o scrupulous regard for rights of D.
o The record before us indicates that the judge exercised his discretion to deprive a man of his life in reliance on material made available to him in a probation report w/ evidence that would be inadmissible at trial.
o In a capital case, against the unanimous recommendation of a jury, where the report would concededly not have been admissible @ the trial, and was not subject to examination by the defendant, Due process commands were not obeyed.
In Re Winship (1970):
12-year-old boy charged with stealing money and proof was established by preponderance of the evidence.
Issue: What is the standard of proof in a juvenile case.
Every fact needed to prove the crime must be proven beyond a reasonable doubt. (Substantive meaning found in due process clause so applicable to states as well.)
· Applies to states as well (not found anywhere else in the Constitution.)
Analysis:
Court bases ruling on:
· American criminal justice system;
· Precedents use the phrase;
· High stakes: deprivation of liberty, causes stigma
· Faith in criminal justice system b/c the burden is so high.
· Brennan says we’ve said this before, just never required it.
o 6th amendmentàright to jury trial
o And we have said proof beyond reasonable doubt
§ Standard throughout history.
§ Can never know the truth w/ absolute certainty so cannot have an absolute certainty standard
§ Even actors acting in good faith will sometimes come to the wrong conclusion.
o Need higher burden for criminal case b/c stakes are higher
§ Libertyàjail
§ Stigma
§ Community Confidence
Apprendi v. New Jersey (2000)
· D fired several bullets into the home of an African American family that had recently moved in to a previously all white neighborhood.
· Apprendi admitted that he was a shooter. He also made a statement (which he later retracted) to the effect that despite not knowing the occupants of the house personally, he did not want them in the neighborhood because they were black.
· The trial judge held an evidentiary hearing on the issue of Ds purpose for the shooting.
· D had several witness and a psychologist testify that he did not have a reputation for racial bias. He also took the stand saying his actions were due to drunken belligerence and not racism. He denied his statement to the police had been accurately describe
in different jurisdictions.
· There is a goal and value to uniformityàthe same laws (of congress) will be applied essentially the same way across the US)àcentral to fairness.
o If this is trueàhow do we deal with it in different states where there are differences
o Jackson says you do not selectively prosecute, but you have to mindful of the community’s interests, concerns in choosing priorities.
§ All of this is language directed to policy, which is often dictated by priorities (always the case w/ limited resources).
§ Do not look at ppl to discover crimesàlook at crimes to discover perpetrator.
· When you target ppl you will most likely discover crime, but this is not the way to conduct job.
o i.e. death penalty is an example of local process v. federal process
§ Local prosecutor makes recommendation for death eligible cases.
§ Then US attorney charges as a death eligible case assuming they have enough evidence to sustain a convictionàmakes decision there is enough evidence then recommends whether to pursue DP
§ That recommendation is reviewed by DOJ after reviewing all DP eligible cases, it takes into account the community in which the crime occurred but does not give weight to the fact that a community is anti DP
· Post of Federal DA has been safeguarded by presidential appointment and Senate confirmation.
o But responsibilities cannot be wholly surrendered to Washington
o To promote uniformity of policy and action, to establish some standards of performance and to make available specialized help, some degree of centralized administration is necessary.
§ There should be a rededication to the spirit of fair play and decency that should animate the federal prosecutor.
§ Must be diligent, strict and vigorous in law enforcement they should also be just. Even if government loses casesàit really wins if justice has been done.
· Important reason why prosecutor should have a detached a impartial view of all groups in his community.
o Everyone can be found of committing a crime
o Prosecutors must select cases for offenses that are most flagrant, public harm is the greatest, and the proof is most certain.
o The most dangerous power of the prosecutor is that he will pick people he thinks should get prosecuted rather than pick cases that need to prosecuted.
· Qualities of a good prosecutor are as elusive and as impossible to define those which mark a gentlemenàthose who need to be told would not understand it anyway.
· Justice is done not with a conviction but a fair determination
United States v. Williams (1992): (9-0 ruling)
· D, an investor was indicted by a federal GJ for knowingly making a false statement or report for the purpose of influencing the actions of a federal bank.
· After AN, D was granted disclosure of all exculpatory portions of grand jury transcripts.
· D moved to dismiss indictment b/c government failed to fulfill its obligation to present substantial exculpatory evidence to the grand jury. àpurported evidence directly negated essential element of charged offense.
· DC and Court of appeals found that government with-held evidence that was relevant.
Issue: May a court dismiss an otherwise valid indictment because the government failed to disclose to the grand jury substantial exculpatory evidence in its possession?
· If the target of investigation goes to prosecutor and asks to give GJ evidence, does prosecutor have to show that to the GJ?
· Scalia says NO
The government has no Constitutional obligation to disclose exculpatory evidence to the grand jury.
· Basic policy is that grand jury is accusatory not adversarial.
Analysis:
· Don’t have a right to counsel at grand jury because it is not where prosecution beginsàmay be critical but not part of the prosecution (charging)
· D does not claim 5th amendment requires prosecutor to disclose substantial exculpatory evidence in his possession to the GJ, but federal courts may formulate procedural rules not required by Constitution or Congress and lower courts holding was consistent with supervisory power
o Court rejects this: supervisory power deals with court power to control their own procedures.
o Grand jury is independentàcourts have no power to write rules for the GJ.
A. Grand Jury Proceeding Procedural Rules are not Governed by Judiciary
· Grand jury is in bill of rights but not in body of Constitution
o Not an article 3 functionàalthough grand jury normally operates in courthouse and under judges the judges direct involvement in the functioning of the grand jury has generally been confined to constitutive one of calling grand jurors together and administering their oaths of office.
· Any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is very limited, not comparable to power they maintain over their own proceedings. Does not permit judicial reshaping of grand jury institutions.
