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Federal Criminal Law
University of Kentucky School of Law
Wisdom, Charles

Federal Criminal Law Outline

Spring 2016

Professor Wisdom

First day assignment: Introduction and Chapter 2 (Federal, State and Local Criminal Enforcement Resources). Not substantive law and not included in this outline.


93 Us Attorneys in 94 Districts (Guam and some other place share one)

USAs determine the focus of each jurisdiction’s prosecutions

Office of the Attorney General oversees all of this

Focus of crime and each office has shifted as policy and crime shifts (i.e.: generally no more federal prosecutions for marijuana)
Chief Justice of SCOTUS releases a report each year of the federal case load

Chapter 3: Scope of the Federal Criminal Laws pp.19-49

Every federal crime has two dimensions: jurisdictional hook & the substantive coverage

Bases for Federal Criminal Jurisdiction:

Involves direct federal interests or does not
Direct Federal Interests: those that involve the protection of federally owned property, persons employed by the federal government, federal programs, the federal purse, immigration policy, piracies, and offenses against the laws of nations
Congress’ authority to enact criminal statutes protecting the direct interests of the federal government derives from Article 1, Section 8 of the Constitution

This is rarely challenged as it is expressly allowed in the Constitution

Congress’ authority to enact criminal statutes not aimed at direct federal interests is always based on one of the enumerated powers.

3 most commonly used: commerce power, postal power, and the taxing power
Commerce power is the most frequently used

Commerce Power: Article 1, Section 8, paragraph 3 “The Congress shall have the Power…to regulate Commerce…among the several States.”

Jurisdiction is usually based on interstate commerce
United States v. Lopez, 514 U.S. 549 (1995)(school shooting case from Con Law 1)

“Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.”

(1) Congress may regulate the use of the channels of interstate commerce
(2) Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities
(3) Congress’ commerce authority includes the power to regulate…those activities that substantially affect interstate commerce*

Lopez trivia: first case in 60 years where SCOTUS held that Congress had overstepped its reach with the Commerce Clause

Earliest approaches to federal criminal jurisdiction were based on the direct crossing of an interstate boundary either by transporting or shipping a physical object or by a person traveling

This authority can be extended to transportation of the victim across a state line (sex trafficking; kidnapping)
Interstate travel exposes you to the Commerce Clause (see Affordable Care Act from Con Law 1)

Affecting Interstate Commerce

This has recently become the most common method of regulating federal criminal activity
In these cases, the effect on interstate commerce in each particular case is an element of the federal criminal offense and must be proven to a jury BRD.
Hobbs Act, 18 USC § 1951(a): “Whoever in any way or degree obstructs, delays, or affects commerce by robbery or extortion…”

SCOTUS: the language of the Hobbs Act manifests “a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery, or physical violence.”

Issues with this method: identifying the theory on which effect on commerce can be based and how much effect is needed, both for constitutional purposes and as a matter of statutory interpretation. (see drama surrounding ACA & Obama)
Wickard v. Fillburn, 317 U.S. 111 (1942)

Most far reaching example of substantially effecting interstate commerce
Farmer was growing his own wheat for consumption. There was a violation of some agricultural act because he had harvested more wheat than was allotted.
Court said that even though he was growing the wheat for his own private consumption, this did have a substantial affect on interstate commerce because it effected the amount of wheat that he would otherwise be purchasing. Thus, the market was effected.

United States v. Morrison, 529 U.S. 598 (2000)

Plaintiff was a rape victim filing suit for relief under the Violence Against Women Act because she was a victim of gender motivated violence.
Court held that this act did not substantially effect interstate commerce because violence against women was not economic activity jurisdictional element was not satisfied.
Rejected the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. Intrastate violence not directed at the instrumentalities, channels, or good involved in interstate commerce has always been the province of the States.

Chapter 4: Selection of Cases for Federal Prosecution pp. 79-147

Come back to this. He just lectured. Notes are at home. Pretty sure there was a guest speaker that day.

Chapter 5: Official Briberies and Gratuities pp. 167-94; 194-248

The bribery and illegal gratuities provisions criminalize the conduct of both the corrupt public official and the person who pays the bribe or gratuity.

§ 201. Bribery of Public Officials and Witnesses

Public Official means– Member of Congress, either before or after such official has been qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency, or branch of the Government in any function, under or by authority of any such department, agency, or branch of government, or a juror.
Whoever, directly or indirectly, corruptly (MR) gives, offers, or promises anything of value to any public official or person who has been selected to be a public official…with intent to influence any official act
Whoever directly or indirectly gives (No MR), offers, or promises anything of value… because of any official act performed or to be performed by such public official…

United States v. Sun-Diamond Growers of California, 526 U.S. 398 (1999)

Issue: Does conviction under the illegal gratuity statute require any showing beyond the fact that a gratuity was given because of the recipient’s official position?
Holding: The government must prove a link between the thing of value conferred upon a public official and a specific “official act” for or because of which it was given

Both bribery and gratuity require this nexus between the offer/receipt of some thing of value and some particular official act
Bribery alone requires a quid pro quo. The illegal gratuity statute on its face is one sided. It’s more like a tip because it has no MR. Bribery has an MR (corruptly) and thus requires a quid pro quo. Quid pro agreement to influence an official act.
§ 201 can be an inchoate offense because the offense is considered complete when the bribe or gratuity is offered or solicited, not when the “official act” occurs.
The phrase “anything of value” has generally been construed to encompass anything that has subjective value to the recipient and can also include intangible benefits. The question is whether the intangible benefit has subjec

that although McCormick was a statutory construction opinion, it probably also controls §§ 201 and 666 as “extortion and bribery are but ‘different sides of the same coin.’”

Chapter 6: The Hobbs Act pp. 249-305

Hobbs Act = § 18 U.S.C. 1951

Criminalizes three distinct areas of criminal conduct: (1) robbery, (2) extortion by force, threat, or fear, (3) extortion under color of law.
Derived from the Anti-Racketeering Act of 1934

Enacted in response to a decision of the Court giving the ARA a narrow interpretation

Extortion by Force, Violence, or Fear

United States v. Edwards, 303 F.3d 606 (5th Cir. 2002)

Extortion by wrongful use of fear includes fear of economic harm. This harm must take the form of a particular economic loss, not merely the loss of a potential benefit.

Bribery v. Extortion: the private context

The force and fear prong is not limited to the cases arising in the public sector. Congress was actually more concerned with extortion in the private sector.
The application of Hobbs Act extortion to private sector cases raises distinctive policy issues, particularly in cases involving labor disputes and commercial bribery.
There is no federal law making commercial bribery illegal. Some prosecutors have tried to use the Hobbs Act to fill the gap.

Sekhar v. United States

General counsel was threatened with the exposure of his affair
Issue: whether attempting to compel a person to recommend that his employer approve an investment constitutes “the obtaining of property from another” under the Hobbs Act?
The act defines “extortion” to mean: “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”
Extortion requires the obtaining of items of value, typically cash, from the victim. This was coercion, not extortion. The item of value in question (the counselor’s approval of the investment) wasn’t considered real property to meet the elements of the statute.

Extortion Under Color of Right

Evans v. US, 504 U.S. 225

Issue: Does mere acceptance of a bribe (as opposed to initiating the transaction) constitute an implicit promise to use an official position to serve the interests of the bribe giver?
Holding: the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts. Mere acceptance is enough.

Campaign contributions can only be sustained as extortion under color of right if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act. (To hold otherwise, wades into murky violations of the First Am. Territory; and receiving campaign donations based upon a politician’s intentions to do something is the entire purpose of campaign fundraising.)