Federal Criminal Law Outline

Federal Criminal Law Outline

Klein Spring 2012

I. Commerce Clause

Federal versus State Resources

1. DOJ has 200 federal law enforcement agencies – DEA (over 10,000 employees), FBI (largest, with over 30,000 employees), U.S.Marshall’s Service, Alcohol Tobacco & Firearms. Crim. Div. has close to 500 prosecutors. 95 USAOs have close to 6,000 AUSAs. Types of Fed. cases, Figure A, CB p. 14 – primarily drugs and immigration.

2. The State System has close to 700,000 state/local police, and 26,000 prosecutors.

3. Compare fed. v. state caseload and systems, CB p. 12: FY 2007 fed. level, about 70,000 cases involving almost 90,000 Ds. FY 2005 state level – 2.5 million cases filed. States penal codes modeled on MPC, fed. crim. code is a hodge-podge of sections with no structure.

1) Why study fed. crim. law?

2) Why have concurrent federal-state Jurisdiction?

3) How should we police concurrent J?

A. Constitutional Controls – Commerce Clause, Double Jeopardy Clause

B. Administrative Control?

–Principles of Fed. Prosecution in USAM section 9-27.100 et seq., CB p. 87.

–Joint state/fed. task forces

B. Legislative Control

I. Bases of Fed. J.

A. Cn. expressly enumerates fed. crime.

1. Article I – Cg. empowered to punish counterfeiting and punish “piracies and felonies on high seas; and offenses ago the Law of Nations, II and for DC and other places of special J.

2. Article III – defines Treason and authorizes Cg. To declare its punishment.

B Enclave of Direct Fed interest – This involves protection federally owned property, employees, money. No controversy over Congressional authority here.

I. Bases of Fed. J.

C. Art 1, clause 8 authority to Regulate Commerce among the several states, to establish Post Offices, to Collect Taxes, Spending Power, or Enabling Clause of 14A are bases for the vast majority of federal crim. law today.

D. Commerce Clause is the most common basis.

United States v. Lopez, USSC 1995 (CB p. 28):

1. USE of CHANNELS of interstate or foreign commerce.

2. Protect instrumentalities of interstate commerce, persons or things in commerce, even though the threat may only from intrastate activity. Or come

3. Activities substantially affecting interstate commerce.

a) Particular illegal conduct must be proven to affect IC as element of the offense.

b) Class of activity affects IC, such that Cg. can regulate without proof of J hook in individual case.

The “Commerce Clause Revolution” – factors USSC found relevant in

category 3 cases (Affecting Commerce) :

1) Does the intrastate economic/commercial activity substantially affect commerce?

2) Does the statute contain an express jurisdictional element?

3) Are there legislative findings regarding the regulated conduct’s effect on IC?

4) Is the link between the regulated activity and effect too attenuated? ‘,-

–U.S. v. Morrison (USSC 2000) I CB p. 33

After “the Commerce Clause” Revolution ll :

1. Cg. can regulate purely intrastate activity that is NOT commercial if failure to regulate the class of activity would undercut the regulation of the interstate market in the commodity.

–Gonzalez v. Raich (USSC 2005) I CB p. 35 – May criminalize the production of homegrown marijuana through the commerce clause.

2. Anything left of CC limits on Cg’al authority.

Current issues in category 3 cases:

1) Is a “sub.” effect on IC needed where the statute contains an express jurisdictional link as an element of the offense?

–u.S. v. Griffin (7th Cir. 2006), CB p. 42

1. It is enough that the class of transaction or the types of businesses affected have a substantial effect on commerce, even if the specific event being prosecuted does not, in itself, have a substantial effect on commerce

2. This was said in reference to the Hobbs act, most courts of appeals have found that there only need to be a de minimis affect on commerce when the statute as a jurisdictional hook requiring a link to interstate commerce.

–u.S. v. McFarland (5th Cir. 2002) (en banc equally divided vote) (dissent), CB p. 43.

1. Fifth cir case that is not followed by any other circuit

2. Def charged with Hobbs act for robbing convenient stores in ft. worth texas.

3. Congressional intent was to prevent direct obstruction of goods in commerce, not present in this case. Dissent follows Lopez and Morrison.

a. Gov: Should apply Lopez category 2 – the business do have contact with interstate commerce, which is enough under this test. Court – that applies to instrumentalities of commerce, such as shipping lines, that is not the case with a local retail store.

b. Court: Should apply Lopez category 3 – Need to determine if the regulated activity affects interstate commerce. In this case it does not.

i. Gov – if you apply this, then you should use the aggregate principle which states that to determine if there is a substantial affect on interstate commerce, you look at all instances of the that would be covered by the statute, not the single instance in dispute.

ii.

2) Does intrastate “possession” of an item that was locally produced have a “sub.” affect on IC?

–u.S. v. Stewart (II) (9th. Cir. 2006) (machinegun), CB p. 51.

–u.S. v. Smith (11th Cir. 2006) (child porn), CB p. 53.

Current issues in category 1 and 2 cases:

3) What does it mean to be “in” commerce?

–u.S. v. Ballinger (11th Cir. 2005) (en banc) CB p. 56

4) Is movement of person/item through IC always sufficient?

–u.S. v. Al-Zubaidye (6th Cir. 2002) I CB p. 61

–u.S. v. Alderman (9th Cir. 2009) I CB p. 64

5) Do category 1 and 2 cases require interstate movement?

–u.S. v. MacEwa