FEDERAL vs. STATE PROSECUTION
v Determinations as to who gets to prosecute:
· 1 – Amount of investigative work
· 2 – Who has legal advantage
· 3 – Who has custody
· 4 – Political clout
· 5 – Caseload and resources
· 6 – Policy considerations
v Duplicative Prosecutions
· Dual Sovereignty (United States v. Lanza)
§ No DJ when you have 2 sovereigns deriving power from different sources, capable of dealing with the same subject-matter within the same territory.
· Fed. acquittal and state pros. okay and federal pros. after state’s conviction okay
v Petite Policy Approach
· After a state prosecution there should be no federal trial for the same act or acts UNLESS THE REASONS ARE COMPELLING
· Precludes initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transactions(s) unless 3 substantive prerequisites are satisfied:
§ 1 – The matter must involve a substantial federal interest
o Case-by-case basis
§ 2 – The prior prosecution must have left that interest demonstrably unvindicated, and
o Presume that prior prosecution has vindicated the federal interest.
o May be overcome when there factors suggest otherwise
§ 3 – Applying the same test that is applicable to all federal prosecutions, the government must believe that the D’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.
· United States v. Lanza
§ Defined dual Sovereignty…
§ When a D in a single act violates the “peace and dignity” of 2 sovereigns by breaking the laws of each he has committed 2 distinct offenses.
· Heath v. Alabama
§ Broke the same law in 2 separate states.
§ Dual Sovereignty Doctrine – Whether the 2 entities seeking successively to prosecute a D for the same course of conduct termed sep. sovereigns
§ Determination turns on whether the 2 entities draw their authority to punish the offender from distinct sources of power.
v 18 U.S.C. § 1341 Frauds and Swindles
· SCHEME to Defraud (does not have to be completed)
· INTENT to defraud (often proven by failure to disclose)
§ Covers past actions and future intentions
· MAILING that is in furtherance and reasonably foreseeable (mailing requirement can be satisfied either by sending or receiving)
§ Has to further the scheme (repeat business in furtherance)… Schmuck
v 18 U.S.C. § 1346 Definition of a “Scheme or Artifice to Defraud”
· False representation of a “Material Fact” (necessarily past or present)
· Knowledge that the representation is false
· Victim must part with title to the property on the basis of the representation
v Key Concepts:
o Gap Filler
o Can be prosecuted simultaneously with other charges
o Can stack counts
o Charging based on use of the mails(every time you mail something)
v Elements of the offense of §1341
· Defendant engaged in a “scheme to defraud”
· Defendant made material misstatements or omissions
· Defendant acted w/ specific intent or purpose to defraud
· Defendant used or caused use of (a) US mail, (b) private courier service, (c) interstate or International wires
· Use of the mails, courier, or wires was in furtherance of the scheme to defraud
· Scheme resulted, or would result upon completion, in the loss of money or property, or in the deprivation of honest services
v Questions To Answer:
· What was D’s Purpose/Intent?
§ Personal Gain?
§ Harm to Victim?
· What was the object of the scheme or the fraud/property sought?
· What was the deception/concealment?
§ What distinguishes a fraud is the trickery
· Was the deception material?
· Who was the victim?
· What forms of non-property count as objects of fraud?
· What was the mailing/wiring?
§ Wiring à Interstate re
Defrauding citizens of right to honest services by making decisions with the objective of promoting their own self-interest . . . or falsifying votes.
· No actual loss to public (probably increased revenues), but case might have proceeded on public trust idea—ill gotten funds are the property of the government b/c of fiduciary duty.
v Private Sector
· Only look at the harm (have to show a tangible loss)
· Those with Fiduciary Duties (U.S. v. Hausmann)
· More problematic in the private sector (U.S. v. Frost)
v Critique of Honest Services Doctrine
· Broad Scope – Crime on duty to disclose and harm to the public tough to limit.
· First Amendment Issue – Could chill political speech
· Text – Nothing about this in congressional intent, statutory language or common cannons of statutory interpretation.
· Federalism concerns
· False analogy to fiduciary relationships
§ Fiduciary is private, based on implied or express K… this is a relationship between candidates/politicians and general citizenry…… whom is he a fiduciary to… what obligations does he owe…?
· Potential for abuse – Selective prosecution possible… gives huge political power
· Vagueness – Statute does not give fair warning to those potentially liable
v Potential Defenses
· Double Jeopardy
· Politician doing something at a private level… stricter standard
· Vagueness defense (honest services doctrine too vague)… doesn’t describe what actual violation is
· Was it actual property they received
· State issue and not federal issue