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Federal Criminal Law
University of Kentucky School of Law
Welling, Sarah N.

Federal Criminal Law
I.       Comparing State v. Federal Criminal Law
A.    Difference in resources. Federal generally has more money than states.
i.        There are some specialists in federal criminal law.
ii.      Federal public defenders make more money-as much as federal prosecutors by federal law.
B.     Political character
i.        State-judges and prosecutors elected; eye on re-election; less likely to prosecute crimes that are not supported by the community.
ii.      Federal-
(1)   Judges-life appointment
(a)    Isolated from community sentiment.
(2)   Prosecutors-US Attorney appointed by President; lower prosecutors usually won’t change even when USA changes.
(a)    Less isolated from community sentiment than judges, but their career depends on Washington.
C.     Investigative System
i.        State: state and local police
ii.      Federal: FBI, DEA, Postal Inspector, ATF,
D.    Federal criminal law has no coherent code (like the MPC)
i.        Laws passed when Congress feels like it (about every two years)
ii.      Some overlap
E.     Federal crime does not have the MPC-like mens rea terms (knowing, reckless, etc.)
F.      Federal and state crimes overlap; most federal crimes have already been defined in state law. The question is thus not whether the acts should be criminal, but whether the crimes is more suited as a federal crime than a state crime. There are a few federal crimes that are not state crimes.
II.    Introduction
A.    Every federal crime must have
i.        A jurisdictional basis.
(1)   Explanation of where jurisdiction comes from in the language of every law.
ii.      Substantive coverage
B.     Bases for Federal Criminal Jurisdiction
i.        Interests of the gov’t can be either
(1)   Direct-those that involve the protection of federally owned property, persons employed by the federal government, or the federal purse.
(a)    Source of Congress’ authority to enact criminal statutes aimed at protecting the direct interest of the federal gov’t → Constitution, mostly §8
(b)   Counterfeit-Gov’t has the power to mint money and gets the corollary power to run the mint correctly and prevent counterfeiting
(2)   Indirect-everything else
(a)    Source of Congress’ authority to enact statutes protecting indirect federal interest → the commerce clause (most often) and less frequently the taxing power and the postal power.
(b)   We focus on this type of jurisdiction-more below in II.
C.     Separate sovereigns
i.        Double jeopardy does not prevent a defendant from being prosecuted in both state and federal court. 
ii.      No law allocating who prosecutes first.
iii.    Generally, people are not prosecuted in both systems b/c it is a waste of valuable resources.
iv.    “Petit policy:” If states have prosecuted, the federal system will not.
(1)   Just a policy, not law.
(2)   Don’t always follow, especially in compelling cases. (McVey, Rodney King Police Officers)
A.    Every crime must have a jurisdictional base!
i.        Postal Power
(1)   Fed gov’t is in charge of the mail, so Congress can make it a crime to send fraudulent materials through the mail.
(2)   Used a lot in white collar fraud.
ii.      Taxing Power
(1)   Can make it a crime to evade tax or tax fraud.
(2)   Used in a lot of drug crimes.
iii.    Commerce clause: Most frequently used jurisdictional base.
(1)   Something specifically in the crime “travels in commerce” or
(a)    Some piece of the crime has to cross a state line. Usually, federal criminal jurisdiction under the commerce clause is based on the direct crossing of an interstate boundary by way of transportation, shipping, traveling, or the like.
(b)   Auto theft: cross state lines
(c)    Gun crimes: frequently based on the idea that guns traveled in interstate commerce at some time during its existence as a gun. The gun did not have to be owned by the defendant when it traveled in interstate commerce. 
(2)   “Effects commerce”
B.     US v. Page (6th Cir.)
i.        Jurisdictional element sometimes distorts the substantive elements of the crime. The jurisdictional basis in many federal criminal statutes causes Congress to define statutes oddly-the central element of the offense becomes the transportation in interstate commerce, not the egregious conduct itself.
ii.      This case involves the Violence Against Women Act which criminalized interstate domestic violence and interstate violation of protection orders. D was convicted interstate violence under VAWA and appeals, raising two questions:
(1)   Since the physical violence occurred before interstate travel it cannot satisfy the “in the course of conduct” requirement of VAWA. 
(2)   Whether a threat of violence that results in the aggravation of pre-existing injuries can be a crime of violence causing bodily injury for purposes of the statute
(3)   Issue here: Did defendant’s conduct fall within the statutory definition?
(a)    Sometimes statutory elements get muddled and it is hard to determine the actual elements of the crime. 
C.     Notes
i.        Increased level of federal prosecutions in areas near state lines-happenstance.
IV.Affecting Commerce
A.    Inclusion of the Jurisdictional Element in the Definition of the Crime
i.        As stated above, another jurisdictional basis derived from the commerce clause is something that “affects interstate commerce.” [this language would be included in the statute] (1)   Example: Hobbs Act-whoever affects commerce by robbery or extortion.
ii.      Note: Purely intrastate activities could “affect interstate commerce”
(1)   NLRB v. Jones & Laughlin Steel: intrastate activities that have such a close and substantial relationship to interstate commerce that their control is essential

ative economic effect on a national level.)
(c)    All rejected-gov’t reasoning leaves no limitation on federal power, even in areas which have traditionally been regulated by the states.
(5)   Held: The GFSZ Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce → the law is an unconstitutional exercise of the federal commerce power.
iii.    Post-Lopez Rewritten Law 18 U.S.C. §922 (q)
(1)   Findings
(a)    Not really necessary anymore since the “movement in i/c” was expressly added to (2) & (3).
(b)   Covering all bases
(2)   Law-possession illegal
(3)   Law-discharge illegal
iv.    Fallout of Lopez
(1)   The USSC rejected the claim that Lopez had extended the “substantial effects” test to all commerce clause legislation. 
(a)    Robertson→ the substantial effects test was developed to define the extent of Congress’ power over purely intrastate commercial activities that nonetheless had substantial interstate effects.
(2)   Civil action in VAWA declared unconstitutional because the civil § of the statute did not require proof of a nexus to commerce in the individual case.
(3)   Cts of Appeal use it a lot.
V.    Substantive Coverage of the Federal Criminal Code-Brief Survey
A.    Many traditional crimes which are subject to prosecution in state court are also subject to prosecution in federal courts when the offense occurs on federal property, or where federal moneys are affected or federal personnel are injured or killed.
B.     Travel Act
C.     Mail Fraud
D.    RICO
E.     Gambling
I.       Introduction
A.    The statute under which most white collar prosecutions take place;
B.     Mail Fraud Statute
i.        §1341
(1)   Whoever
(2)   Having devised or intending to devise
(3)   A scheme or artifice to defraud or obtain property or deal in counterfeit material [practically, no one ever deals w/counterfeit material] (a)    Durland v. US
(b)   Neder v. US
(4)   For the purpose of executing the scheme
(5)   Uses the mail
(a)    Or an interstate carrier
ii.      §1343
C.     Mail Fraud covers:
i.        Obtaining Property by false pretenses.
ii.      Way to prosecute bribery and kickbacks
Conduct that deprives someone of their honest services →Intangible Rights