I. Bases for Federal Criminal Jurisdiction
A. Expressly Enumerated in the Constitution
1. Article I: counterfeiting, “piracies” and felonies on the high seas, offenses against “the Law of Nations,” and for Washington DC and other federal enclaves
2. Article III: treason
B. Enclave of Direct Federal Interest—involves protection of federally owned property, federal employees, and federal money
1. Bribery and gratuities paid to federal officials (18 USC § 201)
2. Assault on federal officials (18 USC § 111)
3. Conspiracy to defraud the United States (18 USC § 371)
4. Theft from the government (18 USC §§ 641-649)
5. Crimes occurring on federal property
6. Federal income tax fraud (26 USC § 7200)
7. Perjury in federal courts (18 USC § 621)
8. Obstruction of federal proceedings (18 USC § 1001)
9. False statements to federal officials (18 USC § 1503)
C. Commerce Clause
1. This is the basis used for enactment of most federal criminal statutes
2. Activities that may regulated by the Commerce Clause
a. Use of channels of interstate or foreign commerce
b. Protect instrumentalities of interstate commerce or persons or things in commerce (even if the threat only comes from intrastate activity)
c. Activities substantially affecting interstate commerce
i. The particular illegal conduct in the case affects interstate commerce
ii. Class of activity affects interstate commerce such that Congress can regulate it without proof of a jurisdictional hook in individual cases
3. Modern cases: determining whether something substantially affects interstate commerce
a. Can regulate purely local non-economic activity that, if the activity was aggregated, Congress could have reasonably believed had a substantial effect on interstate commerce (i.e., drug possession)
b. Does the statute contain an express jurisdictional element?
c. Legislative findings regarding the conduct’s effect on interstate commerce (note that this may not always be enough)
d. Is the link between the regulated activity and the effect on interstate commerce too attenuated?
4. Current open issues under the Commerce Clause
a. When the statute contains an express jurisdictional effect on commerce provision, does the Government still need to prove a substantial effect on interstate commerce in each individual case?
b. Does the substantial effect test still apply in cases involving the instrumentalities or channels of interstate commerce?
c. Is interstate movement required for conviction under the channels or instrumentalities of commerce provisions?
D. Be aware of statutes that require some sort of jurisdictional element to be proven, especially a connection to interstate commerce
II. Corporate Criminal Liability
A. Ways for a corporation or entity to become liable under federal criminal laws
1. Respondeat superior
2. Actual authority
3. Apparent authority
B. Unlike under the Model Penal Code, federal criminal law allows both management and non-management to serve as agent for liability purposes
C. Both the act and the mens rea of the actor are imputed to the entity
D. Employee must be acting within the scope of actual or apparent authority
E. Employee must be acting “with the intent to benefit the corporation”
1. Employee can have multiple intents; this just has to be one
2. Agent’s actions do not actually have to be to the corporation’s benefit
3. Corporate compliance program does not absolve corporate liability, although it might affect sen
ctim of money or property
i. What kinds of property
-Anything that would fall under traditional common law fraud
-Also includes deprivation of intangible property such as confidential business information
-Prior to actually being issued by the government, government licenses and permits are not property
ii. Some courts will require that the property obtained come from the victim of the fraud rather than a third party
b. Honest services fraud
i. Congress overruled McNally to make it clear that honest services fraud is included in the mail and wire fraud statutes (18 USC § 1346)
ii. Although some kind of fiduciary duty is required, it is difficult to explain exactly what that fiduciary duty is and how defendants are supposed to know requirements of duty
iii. Public fiduciaries
-Used against government officials who deprive their constituents of the “right to good government”
-Failures to disclose conflicts of interest, etc.
-Limits imposed by various circuits
>5th Circuit in Brumley: requires violation of some state law (although it is an open question of whether the law must be a criminal law)
>7th Circuit in Sorich: official must have obtained some sort of private gain, but the gain does not have to be money
iv. Private fiduciaries
-Even more problematic because nobody really knows where these duties come from and the duties may differ with different employers
