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

Federal Criminal Law Outline

Spring 2017

Professor Charles Wisdom

Introduction; Federal, State, and Local Law Enforcement Resources

Considerations that affect the choice between federal or state prosecution:

1) Primary investigation and the practice of cross-designation

The most significant determinant of whether a case is prosecuted in the state of the federal system, where it could be prosecuted in either, is often the amount of investigatory work done by the respective jurisdictions
Cross-designation– a federal prosecutor receives a special, temporary appointment as a state prosecutor, or vice versa, can be used to permit the prosecutor who was involved in the development of the case to pursue the prosecution under the laws and in the courts of the other jurisdiction

2) Custody of the suspect

Custody gives the custodial jurisdiction a greater measure of control over the choice of the forum
When other jurisdictions wish to proceed, they may be able to negotiate with the jurisdiction that originally obtained custody

3) Possibility of a duplicative prosecution

the fact that one jurisdiction decides to prosecute may not prevent the other from also prosecuting, even for essentially the same conduct
There are statutes or constitutional provisions in many states prohibiting a prosecution for conduct previously prosecuted in another jurisdiction, and there is a policy restricting such prosecutions in the federal system

4) Collaborative Investigations

there seems to be an increasing trend toward collaborative investigations by state and federal law enforcement agents

5) The big case factor

there is sometimes competition between state and federal offices to prosecute notorious cases that are subject of media attention
where there is a state-federal conflict, there may be no official who has the legal authority to resolve the dispute, although the prosecutorial office with the greater degree of political clout will often win
disputes between two US Attorneys, however, may be resolved by the Justice Department

6) caseload and resources

lack of resources, especially in a time of very tight state and local budgets, has been cited when some state prosecutorial offices have announced cutbacks in prosecuting misdemeanors as well as minor drug offenses

7) Inter-Agency relationship and relation among agents

the formal and informal network and working relationships between law enforcement and prosecutorial agencies and their personnel can play an important role in the choice of the forum of prosecution
where there is hostility between individuals or intense competition between agencies, the choice is more likely to be made by the jurisdiction which builds the case first or has the offender(s) in custody

8) Legal advantage

the choice of state or federal prosecution is often heavily influenced by the fact that it may be legally more advantageous to file charges in one rather than the other jurisdiction

Substantive Law– definitions of offenses; statutes of limitations; defenses; and other general criminal law doctrine
Penalties– relative severity; availability of mandatory minimum and penalty enhancement provisions; prohibition and parole provisions; severity of penalties, etc.
Procedures– extradition versus removal; joinder; speedy trial requirements; availability of a grand jury
Rules of evidence– where key evidence may be admissible in on jurisdiction and not in the other jurisdiction
Constitutional and other doctrines and statutory provisions which affect investigation techniques and evidence gathering– doctrines relating to search and seizure, interrogation, and pre-trial identification; electronic surveillance
Judicial attitudes– in interpreting and applying the foregoing

Forum shopping can occur in some federal criminal cases even when there is no overlapping state crime that could be charged, because the case could be brought in more than one federal district

9) Policies

whether there are applicable policies at the federal or state level that are intended to guide or control that decision

10) Length of sentence

Federal sentencing is much stricter and much longer than state sentencing
The federal system does not have parol

Dual Sovereignty and the Petite Policy

Petite policy– which addresses the issue of federal prosecution after a prior state prosecution for essentially the same conduct

The policy deals with duplicative federal prosecution after a prior state prosecution

Dual Sovereignty

Constitutional doctrine that permits successive prosecutions (Double Jeopardy Clause) by the federal government after a prior state prosecution or by state prosecution after a prior federal criminal case
(Bartkus v. Illinois)

the Court upheld the state prosecution of a defendant who had already been acquitted of the same offense in federal court
rejecting the claim that such a successive prosecution would amount to a denial of due process under the Fourteenth Amendment
Principle of dual sovereignty (Quote)

Every citizen of the United States is also a citizen of a State or territory
He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either
The same act may be an offence or transgression of the laws of both

(Abbate v. United States)

extended this rationale to the Double Jeopardy Clause of the Fifth Amendment, holding that a federal prosecution commenced after a state conviction based on the same conduct was not a violation of that constitutional protection

If the States are free to prosecute criminal acts violating their laws, and the resultant state prosecution bar federal prosecutions based on the same acts, federal law enforcement must necessarily be hindered

Petite Policy Approach

Petite policy– which addresses the issue of federal prosecution after a prior state prosecution for essentially the same conduct

The policy deals with duplicative federal prosecution after a prior state prosecution

Dual prosecution is not barred by double jeopardy; none of the other creative solutions has been adopted, and federal preemption has not generally been used as a means to address the problem
Petite v. United States
Petite policy has been used to refer to both

1) the policy restricting dual federal-state prosecutions and
2) the policy to try together several federal of

al offenses is the commerce power.

The Constitution of the United States gives Congress the power “to regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes.”
“Congress may regulate the use of the channels of interstate commerce,” “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,” and “regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” U.S. v. Lopez, 514 U.S. 549 (1995).
Many federal statutes used in the prosecution of white collar crime employ the commerce clause as the jurisdictional basis.

For example, wire fraud (18 U.S.C. § 1343) requires interstate commerce. A racketeering prosecution requires an “enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” (18 U.S.C. § 1962).
Likewise, the Hobbs Act requires that the robbery or extortion affect commerce.

The conduct itself, under certain federal criminal statutes, can be purely local and yet be prosecuted as a federal offense.

These local activities are part of a class of activities that Congress determines warrants congressional intervention because of their impact on commerce.
In Perez v. U.S., 402 U.S. 146 (1971) the Supreme Court affirmed a conviction under the Consumer Credit Protection Act. (18 U.S.C. § 891 et seq.).

The Court found that although petitioner’s loan sharking may have been intrastate, he was a member of a class that engaged in “extortionate credit transactions” that affected commerce.
The Court found that “loan sharking in its national setting is one way organized crime holds its guns to the heads of the poor and the rich alike and syphons funds from numerous localities to finance its national operations.”

Most federal criminal statutes using the commerce clause as its jurisdictional base predicate the action on direct transportation in interstate commerce or conduct that actually affects interstate commerce.

In U.S. v. Lopez the Supreme Court held that the Gun-Free School Zone Act, prohibiting possession of a weapon in the vicinity of a school, exceeded Congress’ Commerce Clause authority in that it involved intrastate activity not involved in commerce and not economic activity.
Likewise, in U.S. v. Morrison, 529 U.S. 598 (2000), the Court held that a provision of the Violence Against Women Act of 1994 failed to contain a jurisdictional element premised on the commerce clause.