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Fed Crim Law Outline

OVERVIEW: I. Statutory Interpretation Techniques II. Major Themes III. Establishing a federal offense A. Jurisdictional Elements B. Substantive Elements IV. Defenses (ENTRAPMENT, DURESS) V. Guilty Pleas VI. Sentencing Guidelines I. Statutory Interpretation Techniques 1. TEXT What does the text say and what does it not say? 2. CONTEXT Look at the rest of the statute what is and what isnt defined. 3. INTENT/PURPOSE Evidence of intent/purpose is legislative history 4. PRECEDENT 5. CANONS OF CONSTRUCTION A. Rule of Lenity B. Federalism/Clear Statement Rule o This is from Evans and Skilling C. Congress Adopts Common Law meaning of words D. General Criminal Law Principles o Strict liability is disfavored E. Avoiding peculiar/absurd results II. Major Themes A. Selection of Cases for Federal Prosecution Factors to consider in deciding whether a case will be prosecuted federally or at the state. Circumstantial Factors: Who built the case? o Amount of work investigating the crime is often the most significant factor. Who has custody of the defendant? Substantive Factors: When the laws favor one jurisdiction over another. Penal Factors: Federal prosecution has more mandatory minimums, longer sentences Additionally, there is no parole in the federal system. Procedural Factors: Difference in juries Different rules of evidence Some states will provide for protection beyond that provided for in the Bill of Rights Judicial attitudes B. Duplicative Prosecution The Constitution does NOT prohibit multiple prosecutions either state/federal or federal/state for the same conduct. State Prosecution after federal case: Bartkus (1959) held that a who had already been acquitted of an offense in federal court could be prosecuted for that same offense in state court. It did not amount to a denial of due process under the 14th Amendment. o BUT, some states wont prosecute after the feds have already done so, even though the Constitution doesnt prevent them from doing that.

Federal Prosecution after federal case: Apply Blockburger to see if its the same offense. o Blockburger applies to both multiple prosecution and multiple punishment with punishment its only a presumption that can be overcome by Congressional intent. Federal Prosecution after state case: Abbate (1959) held that a who had been convicted of a state offense could be prosecuted for the same federal offense without violating the due process clause of the Fifth Amendment. [In some instance, Congress has provided a bar to subsequent federal prosecution when there has already been a state judgment of conviction or acquittal.] But in general, the Petite policy says that after a state prosecution there should be no federal trial for the same act unless three conditions are met [#4 is a DOJ policy]: o (1) The matter involves a substantial federal interest o (2) The prior prosecution left that interest demonstrably unvindicated. o In general, all prior prosecutions vindicate federal interests UNLESS: (A) When the prior prosecution DID NOT result in a conviction, because of the following sort of factors: Incompetence; corruption; intimidation; undue influence; jury nullification; mistaken unavailability of evidence. (B) When the prior prosecution DID result in a conviction, there was: (i) An inadequate sentence or (ii) Choice of charges was affected by factors listed above. (C) Whether the prior prosecution DID or DID NOT result in a conviction, (i) The alleged violation involves a compelling federal interest This is the same as (1). It seems like this has been forgotten at times, or is at least more flexible. o United States v. Barrett Barrett killed a state officer in a shoot out when they went to serve a warrant on a meth lab. He was found guilty on some things, but not on others. Federal indictment filed after. Doesnt seem as though theres a federal interest plainly at issue. (ii) The alleged violation involves egregious conduct loss of life, severe economic harm, impairment of govt agency (iii) The result in the prior prosecution was manifestly inadequate in light of federal interest involved. o (3) The government must believe that the defendants conduct constitutes a federal offense, enough to sustain a conviction. o (4) Approval from the appropriate Assistant Attorney General. The reason its called the Petite policy was because in the case of Petite v. United States, the government filed a motion asking the Supreme Court to remand the case with directions to dismiss the indictment. o The effect of this policy is to collaborate and cooperate so that rational decisions are made about the best prosecution strategies. It DOES NOT give any rights to defendants. Principle of dual sovereignty: every citizen of the U.S. 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 offense or transgression of the laws of both.

C. Prosecutorial Discretion

III. Establishing a federal offense A. Jurisdictional Elements Under the CONSTITUTION, Congress must have the authority to enact the statute which proscribes the conduct at issue. There are two categories under which Congress has the authority: 1. Direct Federal Interest Congress authority to enact criminal statutes aimed at protecting the direct interests of the federal government is derived from a number of enumerated powers in Article I, Section 8. to provide for the Punishment of counterfeiting the Securities and Coin of the Unites States PURSE (this is the spending power) to provide for the general Welfare of the United States. PEOPLE, PROGRAMS, PROPERTY o in combination with the necessary & proper clause. Protecting federal property, people, programs, purse. 2. Non-Federal Interest Crimes Congress authority to enact criminal statutes NOT aimed at protecting the direct interests of the federal government is derived from different enumerated powers. COMMERCE POWER: The Congress shall have Power to regulate Commerce among the several States Three broad categories of activity that can be regulated under the commerce clause. (1) The channels of interstate commerce (2) The instrumentalities of interstate commerce Channels and Instrumentalities are grouped together in reality to form A SINGLE CATEGORY. o I. Is jurisdiction based on the transportation of something tangible in interstate commerce? A. Some jurisdictions do not base jurisdiction purely on the fact that something moved in interstate commerce. As in Alderman, these jurisdictions examine the purpose of the statute to determine jurisdiction: If it regulates a purely intrastate activity as in POSSESSION then it must go to Category 3. Alderman is explained in category 3 below. If it is directed at the movement in interstate commerce, then it fits into channels & instrumentalities. B. Other circuits dont require examining the purpose of the statute at all. So long as something whether central to the purpose of the statute or not has moved in interstate commerce, the requisite nexus can be established. Examples: Urbano (10th Cir. 2009) (holding that if a firearm has traveled across state lines, the minimal nexus with interstate commerce is met and the statute can be constitutionally applied.). Ames and Hoke laid the foundation for congressional enactment of statutes where jurisdiction is based on the transportation of items or parts of items that are not themselves prohibited or, on their face, connected to criminal activity. o Ex: 2511(1)(b)(iii): Jurisdiction based on the fact that the accused knows or has reason to know that the electronic device being used or a component thereof has been transported in interstate commerce. Statutory Interpretation Fitting in Categories 1 or 2: Engaged in, or otherwise in. 1961 RICO.

United States v. Robertson (9th Cir. 1995) looked at the language of RICO, and found that requiring that the enterprise be engaged in or otherwise in interstate commerce placed RICO in categories 1 or 2. [Robertson financed a gold mining operation in Alaska, where supplies, proceeds and personnel traveled across state lines to make the enterprise the mining operation work.] Is in or affects interstate or foreign commerce. 247 DESTROYING RELIGIOUS PROPERTY. United States v. Ballinger (11th Cir. 2005) burned down four separate churches, all of which were in their respective states, though we dont know how close the temporal connection was. The Court uses the S.T. technique of surplusage, saying that there would be implausibly little, if any, conduct that the statute would proscribe if the s interpretation were followed. His conviction was affirmed.

II. Is jurisdiction based on the use of a facility of interstate commerce? (At least some circuits agree. . . ) Using a facility in interstate commerce provides jurisdiction under the commerce clause regardless of whether there is proof that the specific use can be proved to have crossed state lines. MacEwan (3d Cir. 2006). REASONING: The facility is itself an instrumentality and channel of interstate commerce. Therefore, MacEwans reception of child porn over the internet satisfies the Commerce Clause. It is sufficient that MacEwan downloaded those images from the Internet, a system that is inexorably intertwined with interstate commerce

(3) Activities that have a substantial relation to interstate commerce, i.e. those activities that substantially affect interstate commerce. o How much of an effect on commerce is needed? (a) For Economic Activity o The law nowadays is essentially that from Gonzalez v. Raich. o Raich: Congress has the authority under the Commerce Clause to regulate purely local intrastate activities that are part of a class of activities with a substantial affect on interstate commerce. Local use of marijuana affected supply and demand in the national marijuana market, making the intrastate regulation of marijuana essential to regulating the national market. Local activity has a substantial affect when that class of activities is aggregated, and the aggregated amount would substantially affect interstate commerce. Wickard. Perez (Pre-Lopez case, but its a good example). Perez threatened to send the victim and family to the hospital with a broken back as a method to collect loans. o There were Congressional findings in the CCPA, which stated that this class of activities (loansharking and organized crime), when aggregated, substantially affected interstate commerce. Stewart II (post-Raich application)

Stewart was in possession of a homemade machine gun. He made it, he possessed it. When aggregated, everyone who makes their own gun would have a substantial effect on the interstate shotgun market.

(b) For Non-Economic Activity o Lopez dealt with the regulation of possession of guns in a school zone which is non-economic activity. As Alderman showed, when there is a situation of noneconomic activity, we can apply the four-part test from Lopez: (1) Whether the statute seeks to regulate intrastate economic activity when aggregated. (2) Whether there is a case-by-case jurisdictional element. * AFTER LOPEZ, when this is present, many courts of appeal find that its not necessary to prove a substantial effect on commerce. Watkins (6th Cir. 2007); Turner (1st Cir. 2007). The underlying reasoning is that any effect, when aggregated will be substantial. * BUT, the McFarland eight-dissenting votes go the other direction, and actually provide a BETTER ARGUMENT. McFarland says that if a jurisdictional hook sufficed, then Congress could make anything constitutional with it. o The key principle here is that Raich says that for the aggregation principle to work, the activity must be economic. In McFarland, there were four armed robberies. The court says that robbery is NOT economic in nature. Therefore, its not something that can be aggregated, and there is no capability to reach the substantiality requirement of Category Three. United States v. Alderman (9th Cir. 2009) can be seen as a case that falls in line with both positions. Alderman entered a conditional guilty plea, admitting possession of body armor that crossed state lines. FIRST of all most courts would consider this a Category 1 or Category 2 case, but the majority points to the language of the statute, saying that it regulates possession of body armor, NOT body armor in its interstate shipment, and thus its Category 3. SECOND of all the dissent argues that the majority is aggregating a non-economic activity, and the substantiality requirement is not met. THIRD of all the majoritys argument is that the nature of the jurisdictional hook is such that it withstands analysis. o The hook has two features: o (1) It requires proof of interstate passage of the specific item at issue, different from other statutes that required proof of interstate passage of tenuously related things. Contrasted against McCoy, which said that the hook was useless where child porn was produced using materials that had been transported in interstate commerce.

(2) The Supreme Court supported use of this jurisdictional hook pre-Lopez in Scarborough. (3) Whether there were Congressional findings of an interstate effect. (4) How attenuated the link is between intrastate activity and commerce. o

POSTAL POWER o WIRE FRAUD/MAIL FRAUD/HONEST SERVICES TAX POWER

B. Substantive Crimes ** Jurisdiction Chart: -- 1341, 1343 Mail Fraud/Wire Fraud/Honest Services postal power -- 1951 Hobbs Act substantially affecting interstate commerce -- 201 direct federal interest -- 666 direct federal interest -- 841 commerce clause based on a finding from Congress, stating that there has been a categorical determination that all drugs substantially affect interstate commerce. -- 2339 ? Even though this is not about the commerce clause, theres another situation here in which categorical findings by Congress affect issues of law. - 1962 RICO ** Public Official Chart Punishable under: 1346 Honest Services 1951(b)(2) Extortion under color of official right all this really requires is a simple bribe. 201 666

1. WIRE FRAUD/MAIL FRAUD/HONEST SERVICES (i) What does it punish? Most mail fraud prosecutions are based upon facts that show fraud in the traditional sense conduct amounting to obtaining property by false pretenses. But the statute is increasingly being used to prosecute conduct not amounting to traditional criminal fraud but which may involve other crimes like bribery or extortion. (ii) How does it punish? Congress authority under 1341, 1343 and 1346 comes from the postal power. (iii) Elements of the crime: Whoever, 1. Having devised or intending to devise [1341] this is the actus reus somebody puts something together, or people knowingly participated in something that someone else devised. o In Durland, the was the one who sold phony bonds. 2. Any scheme or artifice [1341] (a) TO DEFRAUD (which NOW means HONEST SERVICES) o (i) Originally, under Durland, the language of 2(b) wasnt added yet. Durland argued that selling bonds which he never intended to make repayments on was not mail fraud because under common law, you could only be guilty of a fraud crime if you made a representation about a past or existing fact, NOT a future promise.

According to the plain meaning of the text, any scheme is more broad than past or existing representations. (ii) INTANGIBLE RIGHT TO HONEST SERVICES [1346] The intangible rights doctrine was rooted in language of 1341, any scheme or artifice to defraud, OR for obtaining property by means of The or supported interpreting any scheme or artifice to defraud as including non-property interests, i.e. the intangible right to honest services. o The element of deceit or misrepresentation was satisfied by nondisclosure of dishonest or corrupt actions. In McNally (1987), Justice White said that Durland didnt uproot the mail fraud statute from being tied to money or property. The court rejected the honest services doctrine based on legislative history, indicating that the purpose of the statute was to protect peoples property. After narrowly interpreting 1341, White said, if Congress desires to go further, it must speak more clearly. o 1346 was passed one year later, Senator Biden saying that the intent of Congress was to reinstate all pre-McNally caselaw. o Under 1346 for there to be a scheme to defraud, there must be: (1) Fiduciary relationship between and victims Can be public official, or a private fiduciary. (2) Non-disclosure Hausmann (7th Cir. 2003) attorney referred injured clients to a chiropractor, and used the clients $ to pay the chiro. 20% of that money was going to pay off services that the attorney received. There was a fiduciary relationship between attorney and clients, and he was getting a greater share of their $ without disclosure. o This case would hold up after Skilling, as that is a kickback within the meaning of 52(2). (3) Of bribes/kickbacks Though the 9th circuit (in Weyhrauch) said that pre-McNally case law covered BOTH bribes/kickbacks AND nondisclosure of material information, Skilling says that 1346 is limited ONLY to bribes/kickbacks. In Skilling, the Court says that the definition of bribe/kickback links back to statutory definitions elsewhere in the code. FACTS: The CEO of Enron falsified reports, taking huge bonuses on false representations that the company was doing great. o In the face of a vagueness challenge, the Court says that the statute should be read to preserve its validity. Needing to pair the statute down to its core, the Court says that the non-bribery/kickback pre-McNally caselaw was simply disarray. In sum, our construction of 1346 establishes a uniform national standard, defines honest services with clarity, reaches only seriously culpable conduct, and accomplishes Congresss goal of overruling McNally. If Congress desires to go further, we reiterate, it must speak more clearly than it has. Scalia dissented, saying that it was void-for-vagueness, as paring down can only be employed when the statute is

reasonably susceptible to a limiting construction. And he didnt think that was the case. (***) Additional pre-McNally circuit-by-circuit requirements: 1346 reinstated pre-McNally caselaw. Any circuit that had additional requirements that are consistent with Skilling, but require proof of other elements will still have those requirements: Ex The 7th circuit also required proof of personal gain by the defendant at the expense of the victim. Hausmann.

(b) TO OBTAIN MONEY OR PROPERTY BY MEANS OF FALSE OR FRAUDULENT PRETENSES, REPRESENTATIONS, OR PROMISES . . . (i) Obtaining o Common sense tells us that there has to be some connection between the obtaining the property and the victim surrendering the property. United States v. Walters (7th Cir. 1993): was an agent entering into secret contracts with college athletes, giving them things which would have violated NCAA regulations had they come to light. The 7th Circuit said that the did not obtain property from the victim. The didnt get $ from the NCAA scholarships he got money once they made it to the pros. o [NOTE]: The reason that Skilling was not under this heading is because of the attenuated connection between what the victims lost and what the defendant gained. Essentially the same reason as in Walters. (ii) Property o (1) Property is not something defined under state law. Its an issue of federal law. Cleveland said this in a footnote. o (2) To be considered property, it must be property in the hands of the victim. Cleveland (2000) Cleveland made false statements on applications in order to get a Video Poker License. They got the license. But the license was not property in the hands of the victim. The states power to issue VPLs relates to the states ability as a sovereign, NOT as a property holder. Unless something is property in the hands of the victim, its not the type of activity that the statute was geared towards. The Court is concerned that if the federal government can get involved in state regulation, the flood gates will open up to the states area of enforcement. o (3) Its not clear what distinctive principles should govern a definition of property under 1341. o Pasquantino (2005) suggested that property has a component of being an economic interest. ran a scheme to deprive the Canadian government of tax revenue on liquor by buying it in MD, and hiring someone to drive it across the border. The difference with Cleveland is that the right to be paid money was a form of property at common law, and in Cleveland the states injury was purely regulatory, not economic. NOTE the difference between a scheme to defraud Canada of its revenue as in Pasquantino and a foreign officials scheme to deprive his/her constituency of the right to honest services, which is not what Congress meant to do with 1346. o a little bit further of a connection to economic interest,

Catalfo (7th Cir. 1995) held that a futures and options traded deprived his firm of the right to control its risk of loss, which had a real and substantial value. Duff (N.D. Ill. 2004) held that a citys right to control its money and to contract with minority and women-owned firms constituted a property right.

and then further towards the right of control, and not economic interests Coffey (E.D.N.Y. 2005) held that the right to critical knowledge is a property right. Union welfare funds right to know that suppliers firms were tied to organized crime constituted a property right. Intellectual property rights are included. In Carpenter (1987), during the post-McNally, pre-1346 time, the Court said that confidential business information was property despite its intangible nature. A columnist for the WSJ had given confidential business info that he got for a column to stock brokers, who traded on the info.

3. Places in any post office or . . . depository for mail matter Need the act and the purpose to be satisfied, and need the to do the mailing or cause it. (A) The Act of Mailing/Wiring (i) 1341 MAIL Fraud only requires that something be placed in the mail. o Interstate or intrastate mailings suffice. Several courts have said that giving a thing to private delivery services suffices, even if they dont take the thing across state lines. United States v. Hasner (11th Cir. 2003); United States v. Gil (2d Cir. 2002); United States v. Photogrammetric Data Servs. Inc. (4th Cir. 2001). (ii) 1343 WIRE Fraud has been interpreted differently. o To be wire fraud, the transmission must be interstate. (A) Is the transmission a telegram or something similar? United States v. Bryant (8th Cir. 1985) a telegram needed to be interstate to provide the basis for jurisdiction. (B) Is the transmission over the internet? Generally speaking, use of the internet will enable proof that an internet wire transmission actually crossed state lines. There are no cases on point. The book suggests that its impossible to determine whether certain transmissions were interstate, and so as it pertains to the internet there maybe should be a presumption that everything is interstate. (B) The Purpose of the Mailing (i) The mailings must be used in furtherance of the scheme. o In Schmuck, the used car salesman ran a scheme in which he was selling cars with turned-back odometers to dealers. Dealers needed to mail titles in when they resold the cars. The mailing element is satisfied by a mailing that is incident to an essential part of the scheme, whether the mailings were innocent or not. This scheme wouldnt have worked if dealers lost faith in Schmuck or they were no longer able to re-sell the cars. The mailings were needed for the whole thing to work.

Other examples: o Pierce (4th Cir. 2005): falsifying records of bingo games mailed to an organization lulled that organization into a false sense of security, helping to conceal the fraud. o Boisture (7th Cir. 2009): falsifying data reports submitted to the Department of Natural Resources were part of a scheme to retain fraudulent payments for work that the contractor failed to perform. Without the mailings, the discrepancy in the contractors report would have been suspicious. o The relevant question articulated in Schmuck is: Whether the mailing is part of the execution of the scheme as conceived by the perpetrator at the time, regardless of whether the mailing later, through hindsight, may prove to have been counterproductive and return to haunt the perpetrator of the fraud. The majority in Schmuck distinguished three other cases. In all three situations, the post-fraud accounting among the potential victims and long-term success of the fraud didnt turn on which victim ultimately bore the loss. Parr obtained gas & other products through unauthorized use of a credit card. Mailing element was NOT satisfied by credit card mailing invoices to the rightful owner of the card. ON THE OTHER HAND, Schmuck NEEDED to make sure that retail customers were involved, otherwise this whole scheme would have fallen flat. (ii) If the mailing is legally required, some circuits require that the transmission MUST be false or fraudulent. Lake (10th Cir. 2007). o s devised a scheme to loot their own corporation by starting transactions and mergers that would result in large bonuses. made filings with the SEC in which he didnt disclose personal use of the corporate aircraft because the filings were simply incomplete, not false or fraudulent, the conviction was reversed. (C) Who Did the Mailing Sometimes the does the mailing him/herself. Sometimes the causes an innocent third party to make the mailing, and knew or should have known (reasonably foresee) that use of the mails would result from his/her (the s) action. Pereira (1954).

(D) Consequences for Using the Mails EACH USE OF THE MAILS IN FURTHERANCE OF A FRAUDULENT SCHEME IS A VIOLATION OF THE ACT. Badders v. United States (1916). o Sometimes this reflects culpability, and sometimes it doesnt at all. United States v. Brown (8th Cir. 1991) fraudulently claiming total rather than partial disability every month through the mail resulted in 41 counts of mail fraud and a max sentence of 205 years. 4. Any matter or thing 5. For the purpose to defraud (A) Mens rea of specific intent with regard to the SCHEME o In Durland, the Court emphasized that the most important element of mail fraud is the mens rea if somehow the thought that selling the bonds would legitimately work, then he doesnt have the intent required.

6. Materiality Whether the scheme is to defraud or to obtain money/property by false pretenses, the scheme itself must be material according to Neder (1999). Its not clear whether this will result in lower courts reading the statute more conservatively. o The 11th Cir. in Svete (2009) took a step in that direction, saying that materiality is established when the defendant knows or should know that the victim will regard a misrepresentation as material. Its not a defense to a prosecution for mail fraud that the victim should have known better the focus is on the action of the violator, not the victim. This is consistent with the law in other circuits. 2. HOBBS ACT (i) What does it punish? 1951 criminalizes four things: robbery, extortion, attempting to do so, conspiring to do so. Extortion breaks down into two distinct forms of conduct: (1) extortion by force, threat or fear, and (2) extortion under color of law. o Inchoate conduct is punished under the Hobbs Act as harshly as completed conduct any conspiracy OR attempt to affect commerce by robbery or extortion. Congress pointed the MPC for the definition of attempt, which is actually more broad than the common law. (ii) How does it punish? Congress authority under 1951 comes from category 3 under the commerce clause federal jurisdiction exists if the conduct affects commerce or the movement of any article or commodity in commerce. Look to (iii)(2) for the full explanation. (iii) Elements of the Crime: 1. Whoever, The Supreme Court stated in Wilkie v. Robbins (2007) that public officials taking action intended to benefit the government are not within the scope of the Hobbs Act. Looking to the common law definition of extortion, the Court said that extortion was about private gain through public or private means. But the definition at common law did not include the harm caused by overzealous efforts to obtain property on behalf of the government. 2. In any way or degree affects commerce by The Hobbs Act speaks in broad language, manifesting a purpose to employ the fullest extent of federal authority under the commerce clause. Given the full extent of commerce authority, the Hobbs Act does not require an actual effect on interstate commerce; a potential effect on commerce is sufficient to trigger jurisdiction. Hobbs Act extortion by fear, threat, force this seems to be the easiest place for jurisdiction to be established, as Edwards requires that there be a specific economic loss at issue to make out this offense. Hobbs Act extortion under color of official right the depletion of assets theory might not be precisely applicable in this context, but theoretically, jurisdiction here is very broad as well because those in position of public authority will inherently have within the scope of their duties, SOMETHING that affects commerce. o In Wright (5th Cir. 1986), a prosecutor and defender took bribes to fix DWI cases. The failure to prosecute DWI cases jeopardized highway safety, causing more accidents and potentially interfering with interstate travel.

Hobbs Act robbery there is the greatest resistance to jurisdiction in robbery of the three types of conduct punished. o Making the argument FOR jurisdiction here relies on the depletion of assets of a business/individual. The more the business/individual looks like theyre involved in commerce, the better you are.

(A) MAJORITY VIEW The purpose and structure of the Hobbs Act allow for jurisdiction to be based on a de minimis impact on commerce, WITHOUT having to engage in the Lopez four-pronged test. (i) Depletion of assets of a BUSINESS o There must only be a showing that the action prohibited by the Hobbs Act would have depleted the assets of a business. [Potential effect suffices.] United States v. Urban (3d Cir. 2005): City plumbing inspectors were convicted of extorting payments from the plumbers whose work they inspected, even though the plumbers testified that the payments did not actually affect the amount they spent in interstate commerce. United States v. Stillo (7th Cir. 1995): FBI informant working with a law firm presented a sham case to a judge, who agreed to take a bribe to fix the case. Though the judge got cold feet and didnt actually accept the bribe, it would have potentially diminished the assets of the lawfirm by $1,000-$2,000. United States v. Curtis (10th Cir. 2003): Eight robberies of retail outlets where amounts taken ranged from $15-$700 sufficied to show the depletion of a businesss assets. United States v. Elias (2d Cir. 2002): robbed a grocery store, diminishing its assets to buy goods, which were sold in interstate commerce (beer brewed in Mexico, and fruit from other areas of the country). United States v. Rodriguez (9th Cir. 2004): agreed to rob the stash house of a drug dealer. was convicted of conspiracy to commit robbery. argued that it was a sting, and there could not be a showing of a de minimis effect because there were no potential victims. The 9th circuit said that impossibility is not a defense the government need not show that the actual criminal activity had an impact on commerce; rather, the government need only show that the class of acts has such an impact. (ii) Depletion of assets of an INDIVIDUAL o Depletion of the assets of an individual, who may or may not be employed with a company doing business in interstate commerce, is insufficient. The 2nd circuit identified circumstances in which the jurisdiction element would be satisfied when the target was an individual instead of a business: (1) Where the individual victim directly participated in interstate commerce. (kind of like Jamison). United States v. Jamison: robbed a business man in his home, taking money from his safe money which was used to buy clothing, drugs, which came from out of state. (2) Where the targeted the victim because of her status as an employee at a company participating in interstate commerce. (kind of like Fabian, where the thought he was robbing a loan shark, though he was really just robbing a cab driver).

(3) Where the assets of a company engaged in interstate commerce were, or would have been depleted as a result of the harm or potential harm, respectively, to the individual victim. (4) Where the targeted the assets of a business engaged in interstate commerce rather than an individual. United States v. Wilkerson (2nd Cir. 2004) fits under BOTH (ii)(2) and (ii)(3), but it could also be a (i) depletion of a business case. o There was evidence that Wilkerson targeted the Lopez brothers because they would have had cash on hand from their landscaping business (thats #2). And, robbing the Lopez brothers would have depleted the assets for their landscaping business (thats #3).

(B) McFARLAND VIEW: No other circuit follows the eight-judge dissenting view in McFarland, that the decisions of Lopez and Morrison must apply when deciding whether there is jurisdiction. Lopez and Morrison are about the outer limits of the commerce clause and thats what the Hobbs Act calls upon going as far as Congress can. o This opinion says that the commerce clause doesnt reach these four robberies of local convenience stores because robbery is NOT commercial activity. The opinion says that infliction of economic harm does not make something into economic activity. o Without commercial/economic activity, the aggregation principle does NOT apply. Without the aggregation principle, there cannot be a substantial affect as required by category 3. [NOTE: The justification to extend jurisdiction to the three types of crimes under the Hobbs Act is probably strongest with extortion under color of official right, then extortion by threat, violence, fear, and then robbery.] 3(a) Robbery Its a pretty standard definition of robbery in 1951(b)(1): the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

3(b) Extortion Defined in 1951(b)(2) as: (1) Obtaining o Scheidler II clarified this precise point, saying that the anti-abortion protests might have deprived NOW of use of their own property, but the protestors did not obtain that property from the plaintiffs. Interfering, disrupting, and in some cases completely depriving one of his/her ability to exercise property rights is NOT acquiring property as required under the statute. (2) Property of another o Scheidler II defined property as something of value that could be exercised, transferred or sold.

In Gotti (2d Cir. 2006), the 2nd circuit said that when the Gambino family took control of the ILA union, ensuring that it would be controlled by organized crime, the s obtained the property of union members. That property was jobs & wages; free speech and democratic participation in their organization. The Gambino family told delegates who to vote for and controlled their performance. Not all courts would be willing to take this definition as far as the 2nd circuit did in Gotti, as the right to free speech and democratic participation is an attenuated application of a thing of value. [[**NOTE: This definition of property seems to be a bit more narrow than property under 1341. All we really know for sure is that property under 1341 has to be property in the hands of the victim from Cleveland. The requirement here that the property interest needs to be something that the can intend to transfer/sell/exercise does NOT exist under 1341.]]

(3) With his consent (4)(a) Induced by wrongful use of actual/threatened force, violence, fear. Wrongful use is threatening to (or actually) depriving a victim of FAIR TREATMENT. Thats what makes it extortion. Extortion is NOT made out when theres a threat to (or actually) deprive a victim of PREFERENTIAL TREATMENT. o The actual or threatened force, violence or fear MUST be specific to a particular economic loss, NOT merely missing out on a potential benefit. United States v. Edwards (5th Cir. 2002). Cecil Brown and Bobby Johnson threatened to make it impossible for people to obtain licenses if they did not pay money to the governor. The 5th circuit said that a reasonably jury could have found that the victims were afraid that theyd lose the right to compete totally. Thats more than missing out on a benefit. o In Capo (2d. Cir. 1987), the 2nd circuit boiled it down to the difference between buying an advocate [NOT covered by 1951] vs. buying off a thug [covered by 1951]. The Capo court said that employees who accepted bribes in exchange for referring people for lucrative jobs in the company only amounted to seeking preferential treatment, NOT extortion. (4)(b) Under color of official right. THIS IS REALLY SEPARATE FROM EXTORTION BY FORCE, THREAT, OR FEAR. There is NO requirement that under color of official right be induced. Here, the government must 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. o (i) A public official Private citizens may be prosecuted for aiding/abetting or conspiracy to commit extortion under color of official right. (1) By acting as a middle man McLeczynsky (7th Cir. 2002): was a private driving instructor who was an intermediary between state officials and private persons who paid the officials to obtain fraudulent permits. (2) By doing more than just paying the public official (not in all jurisdictions). Ex: Spitler (4th Cir. 1986): conviction for conspiracy to commit extortion under color of official right where Spitler

was almost a director of bribes, authorizing his employees to accede to a government officials demands for payments in exchange for awarding his company a government contract. BUT NOT in Brock (6th Cir. 2007) payors of bribes cannot be characterized as conspiring to extort property from themselves.

o o o

(ii) Obtained payment (iii) To which he/she was not entitled (iv) Knowing that payment was in return for official acts All circuits that have considered the issue have adopted the view that the standard for a quid pro quo varies on whether the case involved a campaign contribution. (A) CAMPAIGN CONTRIBUTION CASES There must be an explicit quid pro quo. McCormick o An explicit promise or undertaking by the official to perform or not to perform an official act. (B) NON-CAMPAIGN CONTRIBUTION CASES Even though Evans dealt with so-called campaign contributions, the implicit quid pro quo in that case has been applied to non-campaign contribution cases. o One possible reason is that there was $7k in cash given in Evans separate from a $1k check, which was clearly labeled a campaign contribution. Justice Kennedy concurred to clarify the meaning of an implicit quid pro quo. According to his definition, that means that the public official must intend that the payor believes that payment will have an affect, and without payment the same effect wont exist. [He agreed that there was a QPQ in Evans.] An implicit quid pro quo does not require a connection between specific benefits and a specific act. o United States v. Ganim (2d Cir. 2007): helped friends get city contracts, and in exchange they gave him cash, meals, clothes, jewelry and more whenever he wanted it. The court said there need not be a link between a specific benefit and a single act.

In Evans (1992), a member of the DeKalb County Board of Commissioners accepted $7k in cash and $1k check to his campaign after an undercover FBI agent sought Evans assistance to re-zone a 25 acre tract for residential use. o claimed that he didnt induce the agent to pay the money. The Court said that theres no requirement to induce under the color of official right prong for two reasons: (1) The structure of the statute the word induced doesnt run through the whole statute. It just hits the first part, and the word or separates that portion from under colour of official right. (2) At common law, the term under colour of official right was the rough equivalent to taking a bribe no inducement requirement. Theres no contrary indication from Congress that they intended the term to mean something different.

3(c) Attempts to [affect commerce by robbery or extortion] 3(d) Conspires to [affect commerce by robbery or extortion] 3(e) Commits or threatens physical violence This is the prong that is addressed in Scheidler III. NOW [the womens group] says that this prong is a THIRD venue besides robbery and extortion punished under 1951. The Court said that element is NOT freestanding Congress did not intend to create a freestanding physical violence offense in the Hobbs Act. If 3(e) were freestanding, it would federalize much ordinary criminal behavior. o What does this 3(e) add to our understanding of the Hobbs Act? Its been rendered essentially superfluous by Scheidler III if its just giving context, right?

3. PUBLIC CORRUPTION 201 Bribery of & Illegal Gratuities by Federal Officials (i) Who does this punish? This statute criminalizes giving AND getting bribes [201(b)(1) and 201(b)(2) respectively.] It also criminalizes giving AND getting illegal gratuities [201(c)(1)(A) and 201(c)(1)(B) respectively.] o It does NOT apply to prosecutors representing the government. United States v. Singleton (10th Cir. 1999) (holding that the language whoever does not encompass the United States as sovereign, particularly where the application of the statute in question would deprive the government of its practice to grant leniency in exchange for testimony. (ii) How does it punish? Given that the statute is about federal officials, theres a direct federal interest here. No need to derive jurisdiction from the Commerce Clause. (iii) Why do we punish these things? For bribery the idea is pretty straightforward: corruption. For official gratuities the classic statement of the rationale comes from United States v. Evans (5th Cir. 1978): Even if corruption is not intended by either the donor or the donee, there is still a tendency in such a situation to provide conscious or unconscious preferential treatment of the donor by the donee, or the inefficient management of public affairs. (iv) What is the punishment? 15 years in jail for bribery, and to 2 years in jail for illegal gratuities. (v) Elements of the crimes: 1. Any thing of value o Encompasses anything that has subjective value to the recipient. o Even if it doesnt have actual value or is intangible, it can be considered a thing of value if at the time of the s action, the public official subjectively found it to be of value. thought stock would be worth lots of money, though it turned out to be a sham. United States v. Williams (2nd Cir. 1983): Senator Harrison Williams accepted stock in three sham corporations anticipating that they

would receive $100 million in loans from a fictitious entity created by the FBI. bought a plane ticket for a public officials girlfriend so she could accompany the official on an international trip. Sun-Diamond. was bribed with the promise of a lucrative job with a law firm. Biaggi. The only thing that were given an example of that is NOT a thing of value is the governments promise of leniency in exchange for testimony.

2(a) Given/offered/promised 2(b) Demanded/sought/received/accepted o This covers inchoate conduct. Offering is sufficient. United States v. Valle (5th Cir. 2008): ICE agent solicited a bribe from an immigrant in return for removing charges from the immigrants file, even though he never intended to follow through. Even though he couldnt actually complete the offer, the offer itself sufficed. 3. To/by a public official o Includes state and local government employees AND employees of private corporations if a person occupies a position of public trust with official federal responsibilities. Dixson v. United States (1984). In Dixson, the defendants accepted responsibility for a federal urban block renewal grant, saying that theyd distribute these resources. Examples: Strissel (4th Cir. 1990) (executive director of city housing authority who distributed HUD funds) United States v. Thomas (5th Cir. 2001) (prison guard employed by private company with a federal contract to run the prison was a public official). o 4(generally) Mens rea of illicit intent [** this is how to distinguish the crimes.] 4(a): Under 201(b), bribery requires a quid pro quo because the word corruptly comes before giving or receiving. o (i) Intent to influence or induce/be influenced or induced with respect to committing/omitting official acts. [[I call this PURPOSE.]] United States v. Traitz (3d Cir. 1989) summed up the mens rea requirement as offering a thing of value with the intent and expectation that in exchange for the thing, the public official would be influenced. At least one circuit has said that the corrupt intent requirement was made out where a produce wholesaler gave money with intent to influence official acts of a USDA produce inspector, regardless of the s claims that he was being extorted to give that money. United States v. Alfisi (2d Cir. 2002). o (ii) Bribery is ALWAYS forward-looking. 4(b): Under 201(c), illegal gratuities DOES NOT require the quid pro quo only need to show giving/receiving for or because of any official act performed/to be performed. o (i) There must be a link between the thing of value provided/received and the official act. The Sun-Diamond Growers gave the Secretary of the Department of Ag about $6k in gifts. The association had two interests in front of the Secretary categorizing their organization as small size, and getting their pesticide through EPA regulations. For or because of requires a connection between receiving the thing of value and a particular official act. Sun-Diamond

Growers of California (1999). Giving a benefit merely because someone is in a position of power does NOT suffice to meet the mens rea requirement under 201(c). Scalia based this decision on a number of things: The fact that official act is defined in 201(a)(3) the act of defining it seems pregnant with the requirement that some particular official act be identified and proved. That too much conduct would be criminalized if there were no requirement to prove a link a complimentary lunch for a public official would violate the statute. That when Congress has wanted to adopt such a broadly prophylactic criminal prohibition upon gift giving, it has done so in a more precise and more administrable fashion. (ii) Official gratuities can be giving a thing of value for something TO BE DONE or something thats ALREADY BEEN DONE. [[I think that KNOWLEDGE suffices as a mens rea.]]

5. The Object of the Bribe/Gratuity o Courts have generally read the requirement that a bribe/gratuity relate to an official act. CIRCUIT SPLIT Most jurisdictions read this broadly, saying that any action taken on a matter brought before the public official in his official capacity is within the scope of the statute. Biaggi (2d Cir. 1988). THIS IS THE RIGHT PERSPECTIVE THE VALDES CASE WOULD GUT THE STATUTE IF FOLLOWED. DC Circuit went the opposite direction, holding that there had to be a formal relationship between the action at issue and the official duties. Valdes v. United States (D.C. Cir. 2007): Informant pretended to be a judge and asked cop to search for people who owed money to the judge in exchange for cash. Court reversed the conviction as lacking a sufficiently formal relationship to the officers regular duties. 666 FEDERAL PROGRAM BRIBERY (i) Who does this punish? 666 criminalizes giving and getting bribes. Lower courts are divided as to whether 666 also covers illegal gratuities. (ii) How does it punish? Given that the statute is about federal program bribery, theres a direct federal interest here. No need to derive jurisdiction from the Commerce Clause. o Even without requiring a nexus between a particular bribe and federal funds, 666 does not exceed the scope of Congress power under the Spending Clause. Sabri (2004). The power of the Spending Clause in combination with the necessary & proper clause is VAST. (iii) Elements of the crime: 1. Any thing of value 2. Given/received, offered/sought 3. With intent to influence 4. To/by agent of organization or state/local/tribunal government 5. Monetary thresholds for the act in question and the federal program. o (a) What youre trying to influence is worth $5,000 or more.

(b) Organization/government/agency receives > $10,000 in federal funds as part of a federal program in any one year period. Fair to assume that virtually every city and county receives federal funds of more than $10k per year.

Salinas v. United States (1997): No need for the bribe in question to affect the federal funds that the organization/government/agency receives. A federal prisoner paid the sheriff off so that he could have some alone time for conjugal visits. Salinas was the chief deputy who arranged the visits and allowed them to happen, and in exchange got a pair of designer watches and a pickup truck. o That result was mandated by the language of the 666, which prohibits accepting a bribe by a covered official who intends to be influenced or rewarded in connection with any business, transaction, or series of transactions of the organization, government or agency. The key word is any. 4. FEDERAL DRUG ENFORCEMENT (i) Who does it punish? 801 et seq. covers both narcotic and dangerous drugs it gets at people in all phases of the drug trade. Those who: o [841] Knowingly or intentionally Manufacture, Distribute, Possess with intent to manufacture/Possess with intent to distribute [846] ATTEMPTING or CONSPIRING to do any of the aforementioned. [ 844] Simply possess (ii) How does it punish? Congress employed its authority under the Commerce Clause, but the statute requires no proof of a nexus to commerce in individual cases. o Its based instead on findings from Congress that a major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incident of the traffic such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce. Thats based on the notion that local distribution and possession contributes to swelling the interstate traffic in such substances. (iii) What are the punishments? (A) ELEMENTS OF PUNISHMENT Four factors go into the computation of whether or not there is (a) a mandatory minimum, (b) what the maximum sentence is, and (c) what the maximum fine is: Regarding (a) Mandatory Minimums: o The four elements listed below (1-4) will establish the offense. The Supreme Court in Harris said that if theres a factor that is relevant to sentencing that triggers a mandatory minimum, it wouldnt be necessary to prove to the jury beyond a reasonable doubt. This will come into play with quantity of drugs could see a situation where a quantity invokes a mandatory minimum, but does not increase the maximum. So long as the sentence is below the statutory maximum authorized by the jurys factual findings, all but two circuits hold that the judge can find quantities triggering mandatory minimum penalties using the preponderance standard at sentencing.

Regarding o 1. o 2.

3.

4.

The other two circuits hold that the threshold quantities must be alleged in the indictment to trigger the mandatory minimum. (b) and (c) Maximum Sentences and Maximum Fines: The type of drug The quantity of drug When determining the quantity of drugs, the quantity need not be pure. As per the Grant case, its sufficient to show that the quantity is a mixture or substance containing a detectible amount. Thats the language of the statute that appears a number of times. Grant plead guilty to conspiracy to distribute 10 or more grams of a mixture or substance containing a detectable amount of LSD after he was found with 103.7 grams of LSD mixed with water, but only 0.1263 grams of LSD, which was more than 2500 doses of LSD. The Court says that the statutory penalties wouldnt really make sense if the pure quantity was required, and theyre looking at the plain text of 841(b)(1)(A). o Drug carriers are free to choose their mediums and can calibrate their future sentencing accordingly. Other examples of cases that follow this line: Gentry (8th Cir. 2009): Entire liquid solution containing meth should be considered meth. Lopez-Gil (1st Cir. 1992): Weight of suitcases was the quantity considered when the dissolved cocaine into fiberglass suitcases. Berroa-Medrano (3d Cir. 2002): Container meant to fool buyers with trace amounts of heroin was weighed as the entire container. o BUT not all circuits agree. 4th Cir. in 1995 said that liquid LSD in the statute was intended to mean pure LSD, which might be suspended in a liquid solvent. Other circuits draw a distinction when the mixture contains another substance that CANNOT be used for health reasons some courts will not include that in the calculation: Stewart (7th Cir. 2004): A mixture with poisonous chemicals should not have been considered in its entirety. Whether the offender has any priors Under Apprendi, this does not have to be proved beyond a reasonable doubt to the jury. Whether death or serious bodily injury resulted Any factor besides the offenders prior convictions that increases the penalty beyond the otherwise applicable statutory maximum must be submitted to the jury and proved beyond a reasonable doubt, or admitted by the defendant. Apprendi. In Apprendi, the jury found the defendant guilty of assault, and then the judge found that it was a hate crime which added five

years to the sentence. That element needed to be proved beyond a reasonable doubt to the jury. But factors that trigger mandatory minimums do not need to be proved at trial beyond a reasonable doubt only ones that increase the maximum sentence. Harris. Attempt and Conspiracy are punished as if they were the completed offense.

(B) CHART - MEANS THAT IT DID NOT RESULT IN DEATH/SERIOUS BODILY INJURY. * MEANS THAT IT DID RESULT IN DEATH/SERIOUS BODILY INJURY Weight and type of Controlled Substance Low Quantity [841(b)(1)(C)] < 100 grams heroin mandatory min < 500 grams cocaine maximum < 28 grams cocaine base maximum fine < 5 grams meth < 50 grams meth mixture < 1 gram LSD =/> 50 kg or plants marijuana Medium Quantity [841(b)(1)(B)] =/> 100 grams heroin =/> 500 grams cocaine =/> 28 grams cocaine base =/> 5 grams meth =/> 50 grams meth mixture =/> 1 gram LSD =/> 100 kg or plants marijuana High Quantity [841(b)(1)(A)] =/> 1 kg heroin =/> 5 kg cocaine =/> 280 grams cocaine base =/> 50 grams meth =/> 500 grams meth mixture =/> 10 gram LSD =/> 1000 kg or plants marijuana Prior Convictions None One Two or more -None *20 -None *life -None * life -20 *life -30 *life -30 *life - $1 mil* -$2 mil* -$2 mil*

mandatory min maximum maximum fine

-5 *20 -10 *life -40 *life -life* -$5 mil* -$8 mil*

-10 *life -life* -$8 mil*

mandatory min maximum maximum fine

-10 *20 -20 *life -life* - life* -$10 mil* -$20 mil*

-life* -life* -$20 mil*

(C) PIGGYBACK PROVISIONS Piggyback provisions are elements that authorize higher maximum penalties than otherwise would be provided under 841(a). (i) Elements of Piggyback Provisions: o (1) School Zone Piggyback o 860 Attaches to 841. o Violating 841(a) within 1,000 feet of certain places, within 100 feet of other places. ONLY requirement is that the distance needs to be proved beyond a reasonable doubt. United States v. McCall (5th Cir.). Theres no mens rea requirement its a strict liability offense. In reality, this is probably very easy to prove United States v. Pitts (9th Cir. 1990) (noting that about 80% of the city of Spokane fell within this provision because of schools, playgrounds, pools, video arcades, etc.)

o o o

o o o

o o o

o o o

Running a sting operation in a school zone is not an attempt to manufacture federal jurisdiction, as there would be jurisdiction over the drug transaction no matter where it takes place. Its not entrapment either if was predisposed and the government merely afforded an opportunity. (2) Employing a Minor/Selling to Pregnant Woman Piggyback 861 Attaches to 841 Violating 841(a) by: (1) employing or using a person under the age of 18 in the commission or a drug offense, or Most courts say that it doesnt matter if knew minors age or not. (2) knowingly distributing drugs to a pregnant woman. (3) Using a Firearm Piggyback 924 Attaches to 841 or to a violent crime. LOOK TO SECTION ON FIREARM OFFENSES. Its basically committing a violent crime or drug offense while using or carrying a firearm in its commission. (4) Using a Communication Facility Piggyback 843 Attaches to 841 Using a communications facility in committing a drug trafficking crime. But 843 cannot be used to transform a drug buy [MISDEMEANOR] into a felony. (i) A drug purchaser, or (ii) a victim, or (iii) someone in special need of protection, or (iv) when a statute defines a crime requiring two people for its commission, the second person cant be as an accomplice. In this case, the drug purchaser couldnt be found guilty as an accomplice for the sellers felony. Abuelhawa (2009). Therefore, 843 is strictly something to piggyback on top of what is already a felony. The language of the statute furthers that interpretation: It shall be unlawful for any person to use any communication facility in committing any act or acts constituting a felony under any provision (5) Continuing Criminal Enterprise Piggyback 848 Attaches to 841 A piggyback designed to reach the top brass in drug rings as opposed to the lieutenants and foot soldiers. Elements of CCE: (a) Federal felony controlled substances offense (b) Committing that offense as part of a continuing series of offenses [PREDICATES] (i) Which offenses may qualify as predicates: The Supreme Court held that the Double Jeopardy Clause prohibits imposing multiple punishments for the same offense only when it has the effect of exceeding the punishment intended by the legislature. o The relevant question is what did the legislature intend? In Rutledge (1996), the Supreme Court held that the legislature did not intend to allow multiple punishments for CCE and a predicate drug conspiracy under 846 [conspiracy to violate 841(a)]. 846 or a

different conspiracy predicate is likely to be the only issue in establishing predicate offenses under 848. In Garrett, the Court suggested that the legislature didnt intend for double jeopardy to apply to complex-compound crimes. o [NOTE: The double jeopardy protection for multiple punishment only applies where Congress wants it to apply a constitutional test determined by what Congress wants.] EVEN WHERE CONGRESS INTENDS IT TO APPLY, there are exceptions to the same offense rule. o Where at the time of a predicate offense, the entire conduct being prosecuted in the end has not been committed. Diaz. (ii) The required relationship between the predicates: The temporal relationship between those offenses must span a definite period of time. United States v. Jones (8th Cir. 1986) there isnt much more clarity on that point. (iii) Proving the predicates: The jury must be unanimous about which the specific offenses that make up the predicates. Richardson v. United States (1999).

(c) In concert with five or more [CONSPIRACY] Seven of the circuits agree that the jury need not be unanimous in finding five specific participants. However, it does need to be a unanimous finding that there were five people under the defendants management. The reason is that the statute is only concerned with the size of the enterprise, NOT the identities of the subordinates. Therefore, it just must be that there were 5 underlings. (d) As an organizer, supervisor, or manager [MANAGEMENT] This element is satisfied according to the Eighth Circuit when the exerts some type of influence over another, as exemplified by compliance with directions, instructions or terms. A mere buyer-seller relationship would not make out the supervisory element. Even fronting drugs is not enough under United States v. Jones (8th Cir. 1986). o HOWEVER, Sedelmeier sold drugs for Mathison in the end, turning all of his proceeds over, which indicated that the drugs belonged to Mathison the entire time and he was acting on Mathisons terms. (e) Resulting in substantial income or resources for the .

(ii) Punishment under the Piggyback Provisions: o The first offense under (1) 860 or (2) 861 is double what it would be otherwise. o Any subsequent offense under (1) 860 or (2) 861 results in tripling the punishment. (3) 924 provides for an additional five years.

(4) 843 provides for an additional four years. It can be 8 years if theres a prior controlled substance conviction and 10 if the intent was to facilitate the manufacture of methamphetamine. (5) 848 sets a mandatory minimum of 20 years, and a maximum of life imprisonment. (a) The mandatory minimum jumps to 30 years when the defendant has one prior conviction under 848. (b) The sentence jumps to life imprisonment when (i) The defendant is the principal or one of several principals, AND o (1) the instant violation involved 300x that prohibited in 841(b)(1)(B), the medium quantity, (unless its meth, in which case its 200x) o OR o (2) the enterprise in which the was the principal received over $10 million over a one-year period as a result of an 841(b)(1)(B) violation. [NOTE: This is a perfect situation to apply Apprendi and Harris. The additional facts increasing the sentence to at least 30 years, or to life imprisonment NEED NOT be proved to a jury beyond a reasonable doubt because the statutory maximum is life imprisonment.] (c) The maximum sentence jumps to the death penalty when: (i) the person is working in furtherance of CCE, OR 841(b)(1)(A), and intentionally kills/commands/induces/procures the intentional killing of another, or (ii) the person is working in furtherance of ANY controlled substance felony, and intentionally kills/causes to be intentionally killed, a federal, state or local law enforcement officer.

5. FEDERAL FIREARMS OFFENSES The federal firearms offenses cover a lot of conduct requiring licensure for those in business, prohibiting sale/delivery of machineguns, restricting that conduct with respect to ammunition, and prohibiting the interstate movement of guns by unlawful drug users. Were focusing is particularly on 922 and 924 -- 922 prohibits specific kinds of sales, shipments, deliveries, and possession by certain categories of persons, or possession at certain locations, or possession of certain types of guns. 924 provides for the penalties for violating 922, BUT IT ALSO provides for increased penalties when, during and in relation to a crime of violence or a drug trafficking crime, a person uses or carries a firearm in furtherance of that crime. (i) Elements of 924(c) TWO WAYS TO ESTABLISH THIS OFFENSE the (a) track and the (b) track. (A) TRACK Any person

who, (2)(a) [during an in relation to] (3)(a) any crime of violence or drug trafficking crime (1)(a) Uses or carries a firearm

In Muscarello (which came after Bailey), the Court said that Congress intended that these two words have particular, non-superfluous meanings. o USE In 1995, the Supreme Court construed the term uses narrowly in Bailey. The defendant was convicted under 924(c)(1)(a) after being found with 30 grams of cocaine and a loaded firearm in the trunk of his car. The court ruled that there had to be active employment of the firearm to establish use in relation to the predicate offense. Active employment was construed to include brandishing, displaying, bartering, striking with, and firing or attempting to fire. The gun must be made use of actively as an operative factor in relation to the predicate offense. Though Smith was decided before Bailey (1993 and 1995 respectively), its rule was upheld in Watson (2007): trading a gun for drugs is using the gun during and in relation to a drug trafficking offense. o Ginsburg concurred in Watson, arguing that Smith should be overruled, and use in 924(c)(1)(A) means use as a weapon, NOT in a bartering transaction. However, getting a gun in exchange for drugs is NOT using it, just as a seller does not use a buyers consideration. Watson. o The Court in Watson says that we must respect the text, as the statutes purpose comes from its text. o CARRY Muscarello (1998) said that carry is distinct from use and should not be construed narrowly. The 5th Circuit interpreted Muscarello, holding that a defendant violated 924(c)(1)(a) when he carried a gun under the drivers seat when he drove to complete a drug transaction. Even though he didnt retain immediate access to it throughout the time of the transaction, he still carried it in the course of the unlawful activity. United States v. Franklin (5th Cir. 2009). OR (B) TRACK [this portion of the statute was added in a 1998 amendment] Any person who, (1)(b) possesses a firearm (2)(b) in furtherance of o The in furtherance of inquiry is a fact-based inquiry into the nexus between possession of the firearm and the drug crime, including factors as proximity, accessibility, and strategic location of the firearms in relation to the locus of drug activity. United States v. Hector (9th Cir. 2007) cited in Gonazlez. A gun that is available as a device to lend courage during a drugtrafficking offense is possessed in furtherance. Vazquez-Guadalupe. A gun that helps to gain trust during a drug trafficking offense is possessed in furtherance. Gonzalez (9th Cir. 2008). Agent Rogers testified that he wouldnt leave an unarmed officer alone with that much marijuana. The fact that Gonzalez had a gun was crucial to his decision. ULTIMATELY, ITS JUST ABOUT FACILITATING THE CRIME, SOMEHOW POSSESSION OF THE GUN MAKES THE CRIME EASIER TO COMMIT. (3)(b) any crime of violence or drug trafficking crime

(ii) Punishment for 924(c) Whether the person is convicted on the (a) track or the (b) track, that person shall be (i) Sentenced to not less than five years; (ii) if the firearm is brandished not less than 7 years o Brandishing is: (1) displaying the firearm or making its presence known to another, AND (2) doing so to intimidate another [mens rea requirement]. (iii) if the firearm is discharged, not less than 10 years. o Discharging does NOT have a mens rea component to it. If the gun goes off, youre strictly liable. Dean. Brandishing and discharging are sentencing factors, NOT elements of separate offenses. We know that theyre factors and not elements because of the structure of the statute. Harris (2002). Federal laws generally list all elements in a single sentence and separate the sentencing factors into subsections as is the case here. The nature of the conduct proscribed reaffirms that interpretation, as brandishing and discharging are just ways to carry out the basic conduct the elements of the offense. o If these sentencing factors increased the maximum penalty, then they would be treated as if they were elements and would have to be proved beyond a reasonable doubt to the jury because of Apprendi. As it stands in the Harris case, they only increase the mandatory minimum and thus dont need to be proved beyond a reasonable doubt to the jury. (iii) Elements of 922(g) Unlawful for any person (1) who has been convicted of a felony, or [at issue in this case], who has been convicted in any court of a misdemeanor crime of domestic violence. o Misdemeanor crime of domestic violence is defined in 921(a)(33)(A), and has two requirements: (a) Use/attempted use of physical force, or threatened use of deadly weapon, and (b) committed by a person with a domestic relationship with the victim. United States v. Hayes (2009), the court reverses the 4th circuit, which had held that the predicate offense needed to have an as element of the offense a domestic relationship between the offender and victim. Hayes had a prior ASSAULT & BATTERY misdemeanor conviction, the victim being a woman that he shared a child with and was effectively a spouse. o The courts statutory interpretation techniques are at issue: The Court said that Congress was sloppy in drafting 922(g)(9) and thus we should look beyond the letter of the text. Practical considerations supported a more broad reading of 922(g) to include people who physically abuse spouses, whether or not the offenses theyre charged under require identity of the victim as an element. (2) to possess [in or affecting interstate commerce] any firearm. (iv) 924(e) Armed Career Criminal Act

The ACCA provides a mandatory 15-year prison term for anyone convicted of possession of a firearm by one of the 922(g) categories, AND also has three prior convictions for a violent felony or a serious drug offense. Serious drug offense o 924(e)(2)(A)(i) says that a serious drug offense is a violation of the Controlled Substances Act for which there is a maximum term of imprisonment for 10 years or more (or the equivalent under state law). In Rodriquez (2008), even though a base offense maximum was only five years, the offense was doubled to ten by a state anti-recidivism statute. That was considered a serious drug offense. Violent felony o 924(e)(2)(B) says that a violent felony is: (i) Punishable by more than a year (unless a juvenile conviction) (ii)(A) has an element of use/attempted use of physical force OR (ii)(B) is burglary/arson/extortion involving the use of explosives, or otherwise presents risk of physical injury to another In James v. United States (2007), the Court stated that attempted burglary in Florida was a violent felony by looking at the definition of the offense. The ultimate question was whether the risk posed by the attempted burglary was comparable to that posed by its closest analog among the completed offenses, completed burglary. In Begay v. United States (2008), the Court held that DUI was not a violent felony under the categorical approach taken in James by Justice Alito. In Chambers v. United States (2009), the Court held that a state failure-to-report-to-jail statute was not a violent felony. In concurrence, Alito called upon Congress to clarify the language of the ACCA by providing an express list of crimes triggering the ACCAs sentence enhancements. o [[this is a place similar to the case in Hayes where Congress drafted so poorly, that interpreting this statute would probably require looking beyond the language of the text and applying various techniques.]] 6. RICO Racketeer Influenced and Corrupt Organization In 1962(a) and (b), the enterprise is the victim of the persons pattern of racketeering. In 1962(c), the enterprise is a tool/vehicle through which the person uses/engages in a pattern of racketeering. START BY IDENTIFYING POTENTIAL ENTERPRISES, and then fit pieces together. 1962(d) is the conspiracy provision. The Purpose of RICO to protect legitimate business from criminal individuals and also to protect the public, especially under 1962(c). (i) The Elements of the Offenses A person Defined in 1961(3) as any individual or entity capable of holding a legal or beneficial interest in property. The RICO person could be a corporation. An enterprise

Defined in 1961(4). An enterprise need not be a legitimate organization. Turkette. It can be a wholly illegal group/organization. Ultimately, it breaks down into either: (1) A legal entity o For a legal entity, gauge how closely the entity compares to the prototypical RICO enterprise. Fitzgerald. The Jackson Hewitt case held that the firm must be shown to use its agents or affiliates in a way that bears at least a family resemblance to the paradigmatic RICO case in which a criminal obtains control of a legitimate firm and uses the firm as the instrument of his criminality. (2) An association-in-fact o Boyle refines what an association-in-fact enterprise must have: (a) A PURPOSE In Boyle, the group got together to rob banks. (b) RELATIONSHIPS among those associated In Boyle, there was no hierarchy, no particular leader, but people would get together and hand out different roles. Facts such as payment, hierarchy, chain of command, fixed roles would be helpful in proving an association-infact, but theyre NOT required. (c) LONGEVITY sufficient to permit these associates to pursue the enterprises purpose in Boyle, they got together and robbed banks for 10 years. o Boyle clarifies that there is no need for an ascertainable structure beyond the inherent pattern of racketeering. Theres no need to say that structure is required in the jury instructions. ** Theres no requirement that the legal entity or association-in-fact have a financial motive to be considered an enterprise. Scheidler I. o This is a matter of textual analysis nothing in 1961 or 1962(c) gives any indication of economic motive requirement. 1962(a) and (b) require some sort of economic link in that (a) has an investment component and (b) has an acquiring/maintaining interest component. But that doesnt apply for (c) where the enterprise is a vehicle, not a victim. Theres no ambiguity in the statute, and thus the rule of lenity doesnt apply. Pattern of racketeering activity Look to 1962(c) section for full explanation. (ii) The Conduct Proscribed 1962(a) [[Using or investing income derived from a pattern of racketeering activity to acquire an enterprise engaged in or affecting in commerce.]] (1) A person who (2) receives income derived directly or indirectly (3)(a) From a pattern of racketeering activity, OR (3)(b) Through collection of an unlawful debt where the person is a principal (4) to use or invest any part of such income in (5) an enterprise, (6) which is engaged in or affects interstate or foreign commerce. 1962(b) [[Acquiring

an interest in such an enterprise through a pattern of racketeering activity.]] (1) A person (2) Acquires or maintains any interest in, or control of (3)(a) Through a pattern of racketeering activity, OR

(3)(b) Through collection of an unlawful debt (4) an enterprise (5) engaged in or activities of which affect interstate commerce

1962(c) [[Conducting the affairs of an enterprise through a pattern of racketeering activity]] (1) A person (2) employed by or associated with o The Distinctness Principle This element requires some distinctness between the person and the enterprise as there cannot be that type of relationship with oneself. In King (2001), a corporate owner was held as being distinct from the corporation itself. The entire point of incorporation is to create a distinction between the individual and the corporation. Corporations + Subsidiaries: corporations and their subsidiaries are not distinct from one another as a matter of law. A parent and its wholly owned subsidiaries no more have sufficient distinctness to trigger RICO liability than to trigger liability for conspiring in violation of the Sherman Act. Bucklew (7th Cir. 2003). Corporations + Corporate Family: applying the principle that a statute will not be interpreted to produce an absurd result, the Chrysler case holds that this would encompass every fraud case against a corporation. To avoid this absurdity, do the following: o (1) Identify the prototypical situation to which the statutes applies, AND then o (2) Figure out how closely the proposed application is to that situation. o One-Way Street an employee may be the person and the corporation the enterprise, but a corporation cannot be the person and the corporation + employees the enterprise because of the natural meaning of employed by or associated with. Kushner. (3) an enterprise (4) conducts or participates in the enterprises affairs o ** Some circuits differentiate between insiders and outsiders 1st circuit says that Reves operation or management test applies only to people outside of a RICO enterprise. o The Operation or Management Test One cannot be liable under 1962(c) unless one has participated in the operation or management of the enterprise itself. Reves (1993). The Court came to that conclusion because the word conduct involves direction, and the word participate requires some part in that direction. The word participate makes clear that RICO liability is not limited to those with primary responsibility for the enterprises affairs but some part in directing the affairs is required. Arthur Young is the alleged person in Reves, and he failed to mention that there were valuation problems with an asset, and because he didnt bankruptcy resulted. Refining the operation or management test In Cummings, the 5th circuit said that the issue was that no one participated in the operation or management of the enterprise. The test that they come up with to determine whether or not someone has participated in

operation/management is by looking to whether or not control was exercised over an agencys core functions. o In James Cape (7th Cir. 2006) the defendants controlled the outcome of a state contract bidding process, but NOT the manner in which the department went about awarding the contract, and thus did not control its core functions. NEED TO DISTINGUISH: Viola (2nd Cir. 1994): 2nd circuit said that simply taking directions and performing necessary or helpful tasks is insufficient to bring a defendant within the scope of conducting or participating in the enterprises affairs. Lemaire (8th Cir. 1997): 8th circuit said that professional advice for a client, even when the client happens to be a RICO enterprise will not rise to the level of participation sufficient to satisfy Reves. Theres a difference between being an advisor and a participant. Getting around the operation or management test (i) Accomplice Liability If RICO is a substantive crime, one would assume that ordinary accomplice liability applies to it. Any assistance is the actus reus requirement for accomplice liability. Specific intent/purpose to promote the criminal activity is the mens rea requirement for accomplice liability. (ii) Conspiratorial Liability 1962(d) makes it unlawful to conspire to do 1962(a-c). (1) An agreement between (2) Two or more persons (3) The defendant knowingly joined the conspiracy with the intent to work with the other parties to achieve the objective. The specific intent requirement is with respect to the ultimate objective of the enterprise, NOT the predicate acts. Salinas. o Reasoning that RICO was intended to broaden coverage of conspiracy, it wouldnt make sense to adopt a position requiring that the defendant agreed to commit each predicate act, a position thats conceivably more narrow than common law conspiracy law. Even if Salinas didnt accept or agree to accept two bribes, there was ample evidence that he knew about Marmolejo committing two acts of racketeering activity, and Salinas agreeing to facilitate the scheme. (4) The defendant knowingly agreed to facilitate a scheme which included the operation/management of an enterprise. [Cummings]. Neither of the two s in Cummings (Morris or Cummings) conspired to facilitate the activities of someone in operation/management, as Morris was an outsider who contacted his friends to help him do skip tracing, and his friends on the inside were pretty low-level employees. ALL THEY HAD was access to the IDES system.

Though there was originally a circuit split in which some circuits went beyond this, requiring that a conspirator conspire to operate or manage, all circuits agree with this position now. Pinkerton is a vehicle to hold conspirators liable for 1962(c) offenses.

(5)(a) through a pattern of racketeering activity o (i) Through There must be a connection between the enterprise and the pattern of racketeering activity. o (ii) Pattern -- 1961(5) defines pattern as requiring two acts of racketeering activity, but the definition doesnt go further than that. In H.J. Inc, the Court looked at the definition of pattern in the dictionary, and saw that the definition requires a relationship between acts. Looking for more specific guidance, the court looked to legislative history, which showed a flexible concept of a pattern. Sen. McClellans report (principal sponsor) from the Congressional Record noted that there must be a relationship between the predicates and the threat of continuing activity. [In concurrence, Scalia disagreed about (b) and (c), but wasnt sure what else was needed.] (a) At least 2 acts within 10 years of one another (b) Relatedness between predicates Factors to consider for relatedness: Purpose; results; participants; victims; methods of commission; other distinguishing characteristics. o In H.J., the acts of bribing commissioners to carry out their duties to win approval for unfairly and unreasonably high rates in favor of Northwestern Bell were related by a common purpose. o In Heller Financial Inc., dissimilar purposes and dissimilar results proved to be a fatal flaw for relatedness. (c) Amounts to or poses a threat of continued criminal activity Where the acts of the defendant or the enterprise were inherently unlawful, courts generally have concluded that the requisite threat of continuity was adequately established by the nature of the activity, even though the period of time was relatively short. When theres just one event or just one victim, continuity is very hard to prove. (1) Continuity as a closed concept: o Closed period of repeated conduct. Its been generally held that there must at least be a oneyear period. Pelullo (3d Cir. 1992). In H.J., the bribes happened frequently over a 6-year period. That might be sufficient to satisfy. But they also had more (below) (2) Continuity as an open concept: o Depends on whether the predicates proved establish a threat of continued racketeering activity. This is a fact-specific inquiry.

In H.J., the bribes were a regular way of conducting business, which helps to show that theyd continue so long as Northwestern Bell continued in business. In Richardson (D.C. Cir. 1999), the court ruled that a series of robberies committed over a 3.5 month period met the continuity requirement, as there was no end in sight after 12 robberies, five of which resulted in death.

(iii) Racketeering Activity Altogether the total offenses covered by 1961(1) is about 100-200. But racketeering activity is more than just the completed offenses. The statutory language refers to any act or threat involving the listed offenses. (1) Categories of Offenses That May Be Predicates Substantive Offenses as Predicates The offenses themselves need only be chargeable courts have usually concluded that state rules precluding conviction for whatever reason even though the offense was committed do not prevent reliance on the offense as a predicate act of racketeering. Only the conduct, not the individual, needs to be chargeable under state law. Conspiracy as a Predicate (a) When conspiracy involves one of the listed offenses (b) When conspiracy is an indictable offense under an enumerated federal statute. o 371 is NOT an enumerated statute, so thats not a RICO predicate offense. (2) Offenses that Have been Prosecuted as Predicates When prior is a STATE offense, double jeopardy doesnt bar RICO because there are significantly different interests. When prior is a FEDERAL offense, need to apply the Blockburger test to determine whether or not its the same offense as RICO. ** Cannot have been acquitted in a prior federal prosecution and then re-litigate guilt on that as a predicate for the purposes of RICO. Ultimately, Scalias point in H.J. that theres a potential challenge to RICO as being unconstitutionally vague would fail here, given that people of ordinary intelligence would know that repeated criminal acts constitutes a pattern of racketeering activity. This action is not totally innocent.

(iii) Penalties 1963 spells out the penalties 20 year maximum for the substantive offenses, 20 year maximum for the conspiracy. 1964 spells out the civil remedies any person injured in his business or property by reason of a violation of 1962 can sue and recover threefold damages and attorneys fees. 7. ANTI-TERRORISM 2339A Providing Material Support in Aid of Terrorist Crimes (i) Elements of the Offense

I. the substantive offense (1)(a) Provides OR (1)(b) Conceals, disguises the nature, location, source, or ownership of (2) Material support or resources o Defined in 2339A(b)(1) as any propertyservicelodging, training, expert advicefalse documentation or identification, communications equipment, facilities, weapons, lethal substance, explosives, personnel transportation In Stewart, the government proved that the form of material support or resources Stewart provided was personnel in the form of the body of Sheik Rahman to his followers. Look to 2339B for more information on personnel, distinguishing independent advocacy. (3) Knowingly or intentionally, that they are to be used o (a) in preparation for or in carrying out a violation of, OR o (b) in preparation for or in concealment of an escape from *** RE:#3: It seems as though the mens rea element in this statute requires proof of TWO THINGS: (1) That the knowingly or intentionally provided/concealed, etc. material support. - Thats supported because of the word they in the statute addressing the mens rea requirement. o In Stewart, the evidence showed that Stewart knew she was providing material support with some of the off-hand comments she made about being an actress and pulling the scheme off. (2) That the knew that his/her support would be used to violate the law. It need not be demonstrated that the knew which statute was being violated, just generally violated. *** RE:#3: The support need only to be used it need not actually be used. This is super inchoate. (4) a violation of the listed statutes II. Attempts or conspires to do such an act. Adopt the definition of attempt and conspiracy from common law because its not defined in this provision. 2339B Providing Material Support to Foreign Terrorist Organizations (i) Elements of the Offense I. the substantive offense (1) Knowingly o This is one of the elements that the Court addressed in Humanitarian Law Project, where the plaintiffs argued that the statute should be interpreted as requiring specific intent in order to avoid constitutional issues. But the majority relies on a straight textual analysis and says that knowledge is all thats required. (2) Provides (3) Material support or resources o In the Humanitarian Law Project case, the court says that the planned political advocacy on behalf of the PKK and the LTTE could possibly be personnel or services. But no matter what it is, the statute is not unconstitutional under the

First Amendment because the definition under material support or resources specifically distinguishes independent advocacy. The Court relies heavily on Congressional findings for the notion that anything listed under the statute as material support or resources, distinguishable from independent advocacy is fungible support to an FTO. Theres no firewall between the terrorist ends and the humanitarian ends, so any contribution to an FTO is a contribution to terrorism. The Court treats the question of whether FTOs segregate support of legit activities from terrorism is an empirical question, and therefore outside of the courts province to handle that question. o Ultimately, the court deferred to Congress, who deferred to the executive for the fact findings for the underlying evidence that gets plugged into the First Amendment analysis. (4) To a foreign terrorist organization o This is something designated by the secretary of state and theres an appeals process available.

II. Attempts or conspires to do so Differences between 2339A/B and Accomplice Liability** The mens rea requirement of knowledge in both 2339A and 2339B is lower than that of accomplice liability. Additionally, the actus reus here is specifically defined in the definitions section, which is different from any assistance as would be required otherwise. Finally, one can be liable under this provision even when the object crime isnt committed. 8. CONSPIRACY (1) Theory behind punishing conspiracy The principle of group criminality is that were less likely to withdraw because of pressure from others. There are greater resources when people are pooled together, which increases the likelihood that the object crime will be committed. People working in a group are also more likely to do more than just one offense it creates a greater likelihood of violence. (2) Advantages of charging conspiracy There are a number of major advantages to prosecutors to charge conspiracy: o Substantive Advantages: See Pinkerton section. o Procedural Advantages: In his concurrence in Krulewitch, Justice Jackson discussed four major advantages: (i) Joinder Joining a large number of defendants for a single trial. (ii) Venue Charges can be brought anywhere that the agreement was entered into or where any act was done in furtherance of the objective of the conspiracy. (iii) Hearsay Statements made by a co-conspirator during the course of and in furtherance of the conspiracy can be used against all conspirators.

There are no Crawford issues with these statements because theyre almost universally non-testimonial, as theyre made in furtherance of the conspiracy. (iv) Statute of Limitations The statute of limitations doesnt run until the very last act that is committed.

(3) Elements of Conspiracy No need for the object crime to have been committed. (A) How to Prove Conspiracy Generally (i) An agreement between two or more persons to commit a crime o (1) The Number of People in the Agreement o Whartons Rule protects defendants from being convicted of conspiracy when the substantive offense requires the participation of two people. 3rd Party Exception: Iannelli articulated the third-party exception, which said that when there are more than the number of people required to commit the crime, a conspiracy can exist. Even though Iannelli was about 1955, which has a specialized conspiracy provision in it, Whartons Rule applies to all conspiracy. o In addition to the third-party exception, Whartons Rule has other exceptions. Immediate Consequences Exception: Whartons Rule applies only to activities where the immediate consequences of the crime rest on the parties themselves rather than on society at large. In Ruhbayan, the immediate consequences of the s witness tampering and subornation of perjury crimes fell on society at large and on the criminal justice system itself, rather than on Ruhbayan and Goodman only. Conviction upheld. o The core application of Whartons Rule is to buying/selling illegal drugs, bigamy, prostitution, etc. o (2) The Number of People Who Agree o The federal system takes a bi-lateral approach to conspiracy: there must be at least a basic agreement between two or more persons. The agreement must exist between two or more persons, and as a matter of law, there can be no conspiracy between a defendant and a government agent. United States v. Paret-Ruiz (1st Cir. 2009). Paret-Ruiz definitely had an agreement with a government agent, but the evidence about whether or not he had an agreement with two others was insufficient. They had negotiations Paret-Ruiz wanted more money than the others were willing to give, so they never agreed on the terms. o There are other situations where an agreement had been reached, though precise terms werent worked out. The basic agreement was reached. Nelson-Rodriguez. (ii) The defendant knowingly joined the conspiracy with the intent to achieve that objective. This breaks into two pieces knowledge of the conspiracy, and purpose with regard to the conspiracys object. o (1) The defendant had knowledge of the conspiracys objectives and its scope, Conspirators need not know of every member of a conspiracy, but they must have a general awareness of objectives and scope.

In United States v. Evans (10th Cir. 1992) there were 10 people charged and five convicted of 841 and 846 (conspiracy to commit 841) for transporting powder cocaine from Cali to Oklahoma and then converting it to crack before distributing it. Brice had purchased four ounces of crack from one of the co-conspirators, and lent scales to two other coconspirators to help them weigh crack. o The court looks to common sense and asks, What did Brice think she was joining? Brice was in a much smaller conspiracy. o (2) The defendant had the specific intent to achieve its objectives with the others. This element was also lacking in Evans. Realistically speaking, (ii)(1) needs to be established in order to even reach this point. Proving the mens rea depends on what the object of the conspiracy is: (a) Drug Conspiracies o Because the manufacture, sale, and use of drugs is illegal, participants are presumptively aware of the existence of the illegal venture (b) Seemingly Innocuous Conspiracies o Where the conspiracy is about something like obtaining fraudulent loans, the government must do more than prove that a defendant participated in a transaction with false documentation it must show that each defendants actions benefited the common venture. (iii) ** OVERT ACT requirement (for 371) o In addition to the actus reus [agreement] and mens rea [knowledge of conspiracy + purpose to achieve its ends], 371 required an additional element: OVERT ACT exists to make sure that there is something required more than just thought. Where this requirement exists, it can be satisfied by very minimal action. o Other statutes that do not explicitly have the overt act requirement are interpreted to NOT have the requirement. Ex: 846 [Whitfield], 1956(h) [Shabani].

(B) Duration of a Conspiracy The duration of the conspiracy is relevant for substantive and procedural purposes Pinkerton liability is the substantive result, and the four procedural advantages listed above by Justice Jackson in his Krulewitch concurrence become at issue too. (i) A conspiracy terminates when there is affirmative evidence of abandonment, withdrawal, or disavowal. o In Jiminez Recio, the 9th Circuit said that defeat of the conspiracys object does not terminate a conspiracy, as at the time that a conspiracys object has been defeated by police or some other reason, conspirators are unaware of whats happened, and group criminality dangers remain. (ii) Burden of proof RE: abandonment, withdrawal or disavowal o In most places, the bears the burden of production, and o The government bears the burden of persuasion that the did not abandon/withdraw/disavow the conspiracy.

(C) Liability for Taking Part in a Conspiracy (i) Punishment for being a co-conspirator. 371 is 5 years Specialized conspiracy provisions are usually punished as if the co-conspirator committed the completed offense. (ii) Punishment for substantive offenses Pinkerton Liability The Pinkerton case says that a party to the conspiracy does not have to personally participate in the commission of a substantive offense to be held liable for that offense, when that offense is the object of the conspiracy. o Theres a CIRCUIT SPLIT as to how far Pinkerton liability extends: 10th Circuit doesnt extend as far as the 11th: (1) The substantive offense has to be within the scope of the unlawful project, AND (2) Reasonably foreseeable as a necessary AND natural consequence of the unlawful agreement. 11th Circuit says Pinkerton liability applies when: (1) The substantive offense was done in furtherance of the conspiracy (2) The defendant is more than a minor participant. (3) The substantive offense was reasonably foreseeable as the necessary OR natural consequence. Pinkerton liability applies here even though the substantive offense might have been originally unintended. In Alvarez, three people who were more than minor participants (look-out, facilitator, and manager of motel where transaction went down) in a MAJOR DRUG DEAL were liable for murder, even though it wasnt originally intended. DIFFERENCE BETWEEN AND & OR. (4) Specialized Conspiracy Provisions Congress has enacted numerous conspiracy provisions tied to specific substantive crimes. Usually theyre contained in the same section (Hobbs Act) or in a separate subsection (federal kidnapping statute), and sometimes in a separate statutory section altogether (1349 various types of fraud). 9. AIDING/ABETTING 18 U.S.C. 2(a) is the federal aiding/abetting provision: (i) Elements of aiding/abetting (1) Specific intent to facilitate the commission of a crime by another (2) Had the requisite intent to commit the underlying substantive offense (3) Assist/Participate in the commission of the underlying substantive offense (4) The principal committed the underlying offense. (*) Some circuits 9th circuit add a substantial step requirement.

IV. Defenses A. Selective Prosecution It is a cognizable claim that a was impermissibly selected for prosecution in violation of the Equal Protection Clause of the 14th Amendment, which has been reverse-incorporated through the 5th Amendment, though this claim is a narrow one. The Supreme Court in Wayte (1985) applied a two-part test to determine whether there was selective prosecution: o (1) That the enforcement system had a discriminatory effect, AND

(2) The enforcement system was motivated by a discriminatory purpose. A would have to prove this by showing that similarly situated persons were treated differently. In Wayte, the court found that the government treated all nonregistrants of the draft similarly. In Armstrong, the s supported their motion for discovery alleging selection for federal prosecution because they were black with an affidavit from the Federal Defenders, stating that the was black in every single one of the 24 crack cases brought in 1991. Supreme Court said that the failed to make a threshold showing that the enforcement scheme was motivated by a discriminatory purpose. The courts reasoning rested on the notion that this is a core executive function, and we dont want the government to have to reveal too much information, so were going to limit the ability to bring an action on these grounds. o [Kind of a catch-22 - needed discovery to make that claim, but was prevented from getting discovery because of lack of evidence.] B. Void-for-Vagueness A conviction fails to comport with due process if the statute under which it is obtained: (1) fails to provide a person of ordinary intelligence with fair notice of what is prohibited, OR (2) is so standardless that it encourages seriously discriminatory enforcement. o C. Protection under the Speech or Debate Clause of the Constitution [Art. I, 6, Cl. 1] The Speech and Debate Clause does not bar prosecution under 201, as the acceptance of a bribe is not a legislative act, BUT the government may NOT introduce evidence from a members legislative act in a prosecution under 201. D. Entrapment Though theres no statute on this defense, it is assumed that Congress intended for the entrapment defense to exist. (i) Elements of the defense: (1) Government induced an individual to commit a crime (2) The defendant was NOT predisposed to commit that crime. o TWO DIFFERENT TESTS FOR PREDISPOSITION: o 1st Circuit Test: How the defendant likely would have reacted to an ordinary opportunity to commit the crime. o 7th Circuit Test: o That breaks down into two components, and both are needed to prove lack of predisposition: (a) Mental state disposition Desire to commit the crime. (b) Ability to commit the crime position Means, ability, experience, training, and contacts. In United States v. Knox, the court found that the government failed to prove that the leader of the church was in a position to launder money absent the government involvement, and thus they did not prove predisposition. (ii) Burden of proof:

The government must prove beyond a reasonable doubt that the defendant was NOT entrapped. o In other words, the government must show that the defendant was predisposed. The idea here is that if the government is arguably going to set someone up, its fair that the government has to prove that they didnt set that person up theyd have the resources to carry the burden.

E. Duress (i) Elements of the defense: Duress does not defeat an element of the offense, but it is an affirmative defense that must be established by the defendant. Duress is a difficult defense to establish, requiring proof of: [[these three elements come from Gonzalez (2d Cir. 2005), and are basically the same as in Dixon.]] (1) Threat of force directed at the defendant at the time of the defendants conduct (2) Threat sufficient to induce a well-founded fear of death/serious bodily injury (3) Lack of reasonable opportunity to escape harm other than by engaging in illegal activity. o In Gonzalez, the court found that Gonzalez failed on this element her subjective belief that going to the police would have been futile is insufficient to demonstrate that she had no reasonable alternative. She also admitted that she voluntarily gave a different phone number to be more easily reached, and she even asked Padua (who threatened her) to give her a ride at one point. (ii) Burden of Proof The defendant bears the burden of proving duress by a preponderance of the evidence. Dixon (2006). The defendant need not negate the mens rea established by the government, but instead avoids liability because coercive conditions or necessity negate a conclusion of guilt. o The Court looked at the statute prohibiting Dixons conduct - 922(n) acquiring a firearm while under indictment and said that at the time that was passed in 1968, we can assume that Congress was familiar with the long-established common law rule requiring the defendant to bear the burden of proving the existence of duress. The fact that Congress didnt mention the defense of duress suggests that it wouldve expected courts to apply a similar approach to common law. F. Insanity The insanity defense is codified at 17. It was enacted as part of the Insanity Reform Act of 1984 in response to a jury finding John Hinckley not guilty by reason of insanity on all charges arising out of his attempt to assassinate Ronald Reagan. (i) Elements of the defense Its an affirmative defense to a prosecution under any federal statute that: o (1) The defendant had a severe mental disease or defect o (2) As a result of that disease or defect o (3) Was unable to appreciate the nature and quality or the wrongfulness of his acts. (ii) Burden of proof The defendant has the burden of proving insanity by clear and convincing evidence.

V. Guilty Pleas (i) Nolo Contedere vs. Alford Pleas vs. Guilty Pleas

Nolo is no contest the defendant doesnt challenge the government and accepts the courts right to impose a sentence. This requires approval from the court. o A defendant would plea nolo when he/she is also facing potential civil liability this is to avoid the criminal judgment being used against the defendant civilly. Alford is a guilty plea except that the defendant is protesting his innocence. The court has to treat an Alford plea like a guilty plea which requires a colloquy. Pleading guilty but maintaining innocence doesnt sound like the defendant is knowingly, intelligently and voluntarily entering into the plea. o There isnt really a GOOD reason to plea Alford. Its more just something thats allowed. (ii) Support for Guilty Pleas In Santobello, the Supreme Court said that guilty pleas are an essential component of the administration of justice, protecting the public from people who are prone to continue criminal conduct while on pretrial release. It leads to final disposition. And in the ideal world, people are accepting responsibility for their crime and choosing to rehabilitate themselves. (iii) Constitutional Requirements -- Brady held that a guilty plea is valid under the Fifth Amendment if entered into (a) voluntarily and o Threatening to prosecute a s wife unless he pleads guilty doesnt undermine the voluntariness of the plea unless the prosecutors threats were made in bad faith. United States v. McElhaney (5th Cir. 2006). (b) intelligently/knowingly. o A plea is entered into knowingly and intelligently when the defendant is aware of: (i) Elements of the crime shes pleading to In United States v. Kelly (D.C. Cir. 2009), the argued that he wasnt aware of the mens rea element of his PWID charge. The court was unpersuaded, finding a sufficient colloquy. (ii) The maximum possible sentence, and (iii) The trial rights that shes waiving. -- A guilty plea is made knowingly UNLESS there were threats, misrepresentations, or improper promises. United States v. Jackson (1968). -- A judge engages a defendant in a Rule 11 colloquy to make sure that (a) and (b) are satisfied. (iv) The Plea Itself (a) Plea Negotiations Pearce and Blackledge held that the due process clause is violated when a defendant is retaliated against for lawfully attacking his conviction. Bordenkircher says that the give-and-take negotiation common in plea bargaining is very different from that situation. It was not a due process violation for a prosecutor to carry out threats made during plea negotiation that he would go back to the grand jury and add charges if the defendant didnt plea guilty. A charging decision does not levy an improper penalty unless it results solely from the defendants exercise of a protected legal right, rather than the prosecutors normal assessment of the societal interest in prosecution. (b) Plea Agreements Plea bargains are treated as contracts between the government and the defendant. Ricketts When the breached the plea agreement, the prosecution threw the agreement out the window and went after him, convicting him and he got the death penalty. Three types of plea agreements:

11(c)(A): Charge Bargains o plead guilty to one charge and other charges will be dropped. 11(c)(B): non-binding sentence recommendations o The judge can follow whats recommended, but NEED NOT do so. 11(c)(C): specific sentence bargains o In (C) there are a lot of different options to agree to sentences, sentencing ranges, factors, policy statements, and to agree that they do or dont apply. If the judge doesnt follow the agreement here, theres an opportunity for the defendant to withdraw from the plea.

VI. Proffers and Immunity Agreements Proffer agreements come into play before plea agreements. The government wants to make sure that they figure out whether the defendants cooperation will be beneficial to them. Formal Statutory Immunity 6002. Giving immunity can be grounds to force an unwilling witness to testify in a grand jury or trial without violating his Fifth Amendment privilege against self-incrimination. o If the government prosecutes later on, the government bears the heavy burden of showing that ALL the evidence it proposes to use was derived from legitimate independent sources, not the proffer. o [[The testimony could also be used directly against such a witness in a prosecution for perjury.]] Just as Ricketts said that contract law governs plea agreement, McKnight stands for the proposition that contract law governs proffer agreements. The Court says that McKnight should have bargained for protection from the French government too if he wanted that. The plain terms of the agreement govern, and it wasnt breached. VII. Sentencing Guidelines (i) The Old System Prior to the Sentencing Reform Act, sentencing judges had largely uncontrolled discretion, sentences were indeterminate given that the Parole Commission ultimately determined release date based on rehabilitation, and appellate review was largely unavailable. Under this system, similarly situated defendants were getting hugely different punishments. (ii) Goals of the Sentencing Reform Act (1) To address issues of DISPARITY. (2) To move away from rehabilitation as a theory of punishment. o Incapacitation is a big idea under the SRA, as is deterrence. (iii) What the SRA did: It created the Sentencing Commission an administrative agency assigned to the judicial branch with administrative agency authority authority to make law, promulgate rules and regulations. o It did that by creating mandatory sentencing guidelines, which bound the courts unless a particular aggravating/mitigating factor is present. Those reasons had to be stated. * The provision making the guidelines mandatory was 3553(b)(1), saying that a judge MUST sentence within the guidelines range unless the court finds an aggravating/mitigating factor not taken into account by the committee. [This is excised by Booker.] (iv) Procedural Requirements for Sentencing

Bookers merits majority held that the Sentencing Reform Act violates the sixth amendment right to a jury trial, in that a judge imposed a higher penalty than that authorized by the jury verdict something explicitly prohibited by the Court in Apprendi. In Booker, the jury found that Booker possessed 50g of crack, though the judge found that the defendant possessed an additional 566g of crack, and sentenced to 360 months, whereas the jurys verdict wouldve put the defendant in the 210-262 month range. I. Calculate the Guidelines Range: Theres a seven-step process that still must be undertaken after Booker. o (1) Determine Base Offense Level o (2) Determine Specific Offense Characteristics o (3) Apply Chapter Three Adjustments o (4) Make Adjustments for Multiple Counts o (5) Apply Acceptance of Responsibility Reduction (if applicable) o (6) Assess s Criminal History o (7) Determine the Sentencing Range For steps (1-3), take the highest of the offense levels and add on adjustments to account for multiple harms. II. Allow parties to argue III. Apply the 3553(a) factors to the facts to make an individualized assessment. IV. Explain the reasoning. Procedurally, judges may either (i) vary or (ii) depart. A variance is a sentence thats outside the range. A departure is a term of art about following a specific provision in the guidelines whereas varying is about choosing to look AWAY from the guidelines. o A safety valve is an example of a departure. Two different ways for a defendant to get the safety valve protection: (1)(a) No criminal history (1)(b) No use of violence/credible threats of violence/gun or weapon (1)(c) No serious injury/death resulted (1)(d) Not in a position of a leadership with others in the offense. (1)(e) The defendant truthfully provided all information and evidence that the defendant had about the offense. (2) Substantial Assistance to Authorities Government has to ask for this by writing whats called a 5K letter. [[Note: Multiple counts under the sentencing guidelines will add to the base offense level, but it wont double it.]]

(v) Substantive Requirements for Sentencing Important to note two things from the Booker remedial majority, and how saved the sentencing guidelines: (1) By removing 3553(b)(1), which had made it mandatory, the sentencing guidelines became effectively advisory, requiring a court to consider the Guidelines range, but permitting the court to tailor the sentence in light of other statutory concerns as well in 3553(a). o After Booker, the substantive sentence must comply with 3553(a), which says that a judge shall impose a sentence sufficient, but not greater than necessary to comply with the purposes set forth (2) By removing 3742(e), which required de novo review of sentencing errors, the standard of review for the substantive decision of a sentencing court would be reasonableness or abuse-of-discretion. o (a) Sentences within the guidelines range:

The Supreme Court said in Rita that appellate courts may but need not apply a presumption of reasonableness to sentences within the guidelines range. The Court is saying that if the sentence is within the guidelines range, were deferring to the trial judge AND to the sentencing commission to its double-deference. (b) Sentences outside of guidelines range: (i) Based on Factual Determinations The Supreme Court said in Gall that under the abuse-of-discretion standard, the trial court is allowed to give weight to factual determinations when sentencing. A finding that the defendant is NOT within the mine run of cases not the core situation that the guidelines captured helps the case that the sentence was reasonable. [That was the suggestion in dicta in Kimbrough.] o In Gall there was no more need for specific deterrence, as the had turned his life around, and general deterrence wouldnt have been served by heavily punishing someone who had already done a lot of good since admitting his guilt. (ii) Based on Policy Disagreement The decision to vary based on policy may be given closer scrutiny than when the decision is based on a finding that the case is outside the core cases to which the sentences apply. But in Kimbrough, the decision to vary was supported by the Sentencing Commission, which had expressed disagreement with the 100-1 crack-powder ratio. o In Johnson (6th Cir. 2009), the 6th circuit relied on a ruling from Spears, which held that even in the mine-run case, a sentencing court would not abuse its discretion in varying based purely on a disagreement with the crack-to-powder ratio.

11/24/2011 7:37:00 AM

11/24/2011 7:37:00 AM