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Advanced Criminal Law
University of Dayton School of Law
Chaffee, Eric C.

Federal Criminal Law
I.        Basis for Federal Criminal Jurisdiction:
A.     Direct Interest of the Government
1.      Federally owned property.
2.      People employed by the government.
3.      Federal Purse- National Treasury
B.     Indirect Interest of the Government- (Enumerated Powers)
1.      Postal – mail fraud
2.      Taxing
3.      Commerce
a)      Categories of Activity that Congress can regulate
(1)   Channels of Interstate Commerce
(a)   Example: Case of woman who was beaten up by her bf and then transported across state lines and left at a hospital.
(b)   Example #2: VAWA § 2261A
i)        that interstate travel occurred
ii)      that D’s intent was to injury or harass another person
iii)    That the person he intended to harass or injure was placed in reasonable fear of death or serious bodily injury to herself or a member of her family as a result of that travel.
(c)   Example #3: Travel Act §1958: case where D used a money wiring service to pay for her husband’s murder.
(2)   Instrumentalities/Person & Things in Interstate Commerce
(a)   Example: Travel Act § 1958: case where D used a money wiring service to pay for her husband’s murder.
(3)   An activity having a substantial effect on interstate commerce.
(a)   Lopez case: child brings gun to school, and is charged under the 922(q) the Gun Free School Act. Later the SCT, bring up this discussion of economic impact v. commercial impact. The Court found that this was not a store that was selling guns. It was just about possession-a child possessing a gun. The court wants to give more substance to what is economic v. non-economic.
(b)   When analyzing the 3rd prong of this test look to see if there is an express jdx element (look for specific lang. w/in the text of the statute) (if you have jdx element you don’t have con law issue). If yes, then it would not be unconstitutional for the federal government to intervene.
(c)   If no jdx element then conduct Lopez Test below to see if the federal gov could intervene.
i)        TEST = Lopez Test
a.      Need a close nexus between activity and interstate commerce i.e. (aka activities)
b.      Findings of fact have to show substantial connection betwn activity and interstate commerce
c.      The power to regulate those activities having a substantial relation to interstate commerce.
ii)      Morrison Case dealt w/ the 3rd prong of the Lopez Test above.
a.      Different tests for “Affecting Interstate Commerce
1)      Some courts require a substantial effect.
2)      Some courts require an aggregation effect.
3)      Some courts allow even a de minimis effect on IC to meet the jdx element.
II.      Mail Fraud § 1341 and Wire Fraud §1343
A.     18 USC § 1341 – Mail Fraud
1.      Elements
a)      Scheme to defraud – does not have to be completed
b)     Intent to defraud – often proven by failure to disclose
c)      Use of the mail was an incidental part of the scheme
(1)   Example: Schmuck v. United States: case of car dealer who bought cars and rolled back the odometers for resale. Used the mail to file for a title application from the state. The Court said that this usage of the mails was integral to the completion of the scheme. W/o the titles, the tampered cars would not have been able to be re-sold to customers. To be part of the execution of mail fraud, use of the mails need not be an essential element of the scheme; it is sufficient for the mailing to be INCIDENT to essential part of the scheme or a step in the plot.
B.     Intangible Rights Theory § 1346
1.      Argument that mail fraud can reach schemes that defraud people of rights to honest services, privacy, fiduciary duties.
2.      McNally – Renunciated theory
a)      §1346 is promptly enacted and says that = there must be some sort of duty to provide an honest service.
(1)   Who can be prosecuted under §1346?
(a)   public fiduciaries: it is enough to prove D’s breach of loyalty alone. (Any breach is enough, you don’t need to show reasonable foreseeability or materiality.)
i)        Example: case of D who was receiving monies from lobbyist for selling her votes and for controlling the votes of the board members. D had a fiduciary relationship to the public. Lopez-Lukis
(b)   private fiduciaries:breach of loyalty + inherent harm of parties’ relationship.
i)        No need to show actual harm but must show intent:
a.      Whether employee should have foreseen that employer might suffer economic harm (reasonable foreseeability) OR
b.      Materiality (of harm to victim)
1)      Whether misrepresentation has a natural tendency to or is capable of influencing employer’s behavior.
(2)   Materiality
(a)   materiality of false hood is an element of mail fraud.
(3)   Mailing
(a)   Including mailing or causing to be mailed any matter or thing, to be sent or delivered by any private or commercial character.
(4)   In-furtherance
(a)   Relevant question at all times, is whether the mailing is part of the 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.
i)        causing to be mailed is enough
a.      agents

b)     public official can be bribed by quid pro quo
4.      With intent to influence any official act
a)      or to induce PO to do or omit to do any act in violation of the lawful duty of such official or person
D.     Bribery against the person bribed 201(b)(2)
1.      a public official or a person who has been selected to be a PO
a)      a person who occupies a position of public trust with official federal responsibilities
b)     always includes federal officials, but can include state, local, and private individuals who administer federal programs.
2.      corruptly
3.      directly or indirectly demanded, sought, received, excepted, or agreed to accept personally or for any other person or entity
4.      anything of value
5.      in return for being influenced in the performance of any official act or being induced to do or omit to do any act in violation of the official duty of such official person.
E.     Gratuity 18 USC 201(c)
1.      Elements
a)      giving something to a public official for their act
b)     public official = employees of state and local government as well as employees of private corporations carrying out fed responsibility.
c)      intends to entice but it’s not done corruptly
d)     NO quid pro quo needed
e)      NOT future looking = could be a gift for future act you intend to commit or an act done that was done in the past. If it’s a reward for a future act – bribery covers this already
f)       No monetary limit on the thing of value.
F.      Federal Program Bribery § 666
1.      Prosecutors use this statute for federal prosecution of bribery and corruption of persons who are not federal employees
a)      Elements
(1)   Organization that receives benefits in excess of 10k in any one year period, even if the money has not been fully disbursed.
(2)   TEST: Salinas
(a)   No link between bribe and federal funds is necessary – just that the federal funds touch the transaction by involving a federal program in general
(b)   Federal funds can be anticipated in 12 months to reach the 10k threshold