Federal Criminal Law – Class 1
Character of FCL: Broad Federal Law + Selective Enforcement
FCL is a thin field – no elaborate docrtrinal structure
o General Part - Federalism + Separation of Powers
o Special Part - Much of FCL is about grp crimes – over time, across space, ongoing (all pts in time), multiple ppl.
FCL is a small fraction of crim justice system
o But the number of offenders prosec is much higher
o Or one D will be charged w/crime committed by multiple actors
Ex. illegal weapons – seller + buyer, used as vehicle to take down gangs.
3 Defining Moments of the Field
o Potential for nationalized crimina justice system + failure of that potential to be realized
o Purpose – criminalize broadly to give law enforcers max opp to take politically advantageous cases.
o Substantive law vs. Enforcement
FCL occupes same territory as state crim law – fed enforcement occupies that territory only a little.
Fed and Local Law Enforcement
Legislators/judges define crimes
(now more legislative/textual than common law)
Police officers/fed agents/prosecs enforce
Law enforcers have effectively unlimited discretion
No judicial review of decision to arrest + prosec (or not) unregulated
Fed system is small (12k FBI, 650k police) – system of necessity = selective
Law enforcement rationed by size, not law – cases brought not by fxn of the law but number of enforcers
Q - Why does a system that‘s more budget-constrained behave as if it‘s better-funded?Why do
they take on harder cases with such few ppl?
A - Little that fed enforcers MUST do + enormous amt they CAN do (not true of state/local law)
Fed system is harsher – D‘s lost more often, always lose on something
Exception – terrorism Ds do well in fed ct, largely bc prosec under immigration law bc prosecs
doubt their ability to win on terrorism charges (prosec by proxy)
Key actors are politically independent (See 2006 Bush scandal - firing of US Attys)
Admin/Main Justice efforts to shape prosecutorial priorities of USAOs usually fails
USAO has politically indep authority – behave as indep actors + fed gov must treat them that way
Whereas, local prosec are elected officials, chief of police works directly for elected officials, and
many state ct judges are also elected.
o State crim justice – work by politicians
o Fed – politicians (Congr) + non-politicians
Local law enforcement cover majority of cases (not optional) whereas feds cherry pick (optional selection)
Congress also gets to do what it wants – doesn‘t HAVE to legislate, only CAN legislate if it chooses
FCL is creative – all made up by Congr, fed judges, sometimes prosecs
Enforcement is indirect – use offense to punish another crime (proxy) – gun possn to punish violent crime
o How do you know when either is doing a good job?
State - crime rates, prosec + convic rates, severity of sentences
Fed - strong measures are unavail to see if fed law enforcers are doing a good job
Not via crime rates – no one knows what fed crimes are (or knows how many extortions there are)
o Why should cases end up in fed ct? Should they be?
Political corruption (Blagojevich), drug cases, violent crime/gun cases
Maybe just bc Feds do it enough, so no pressure to make budgetary allocations for state authorities
Feds happy to take cases, so DAs don‘t pursue.
Good political headlines
Seeking harsher sentence
Tripartide negotiations - police + DA + USAO
Local police can play one DA‘s office off another – DA may be more amenable to police requests if
DA knows police can just take a case to the Feds of they want
Locals may bring cases to Feds after trying for awhile – frustration w/st system, harsher sentences
Many end up there by happenstance
Fed task force working alongside police/DAs
Threaten to bring fed charges against all violent crimes/guns + harsher sentences
o Use of FCL as tool to impose greater punishment
Fed officials give equiv of money/personnel to cash-strapped local officials
o Local cops stretched too thin, so send in FB agents
How does discretionary law enforcement change Congressional incentives?
o Even if you expand coverage of statutes, FBI agents aren‘t req to prosec anything.
o If Congr knows fed prosec will be unlikely to prosec legislation leads to nearly no prosec (See VAWA)
o Assume prosecs will use broader leg to convict narrower pool – convict same ppl more easily (See Fed gun laws – ie.
use gun/drug laws used to get gange members involved in slew of killings)
Make punishment easier in narrow slice of cases.
o All is a conseq of the New Deal model – ever-broader fed law + more selective enforcement
o If you criminalize too much, public goes after the prosec. If you criminalize too little, pub goes after Congr.
See Lewinsky – voters disproved of investigation/prosec and blamed Ken Starr, not Congr.
How do you know when fed prosecs/FBI agents are doing a good job?
Federal Criminal Law – Class 2
LAW OF FEDERAL JURISDICTION
First few classes: About the boundaries between federal and local justice. These border come from lots of different places!
-The law of federal criminal jurisdiction---the commerce clause.
-Federal law is jurisdictionally narrower but substantively much broader.
-People often focus on the prosecutors, but really local cops or FBI agents really make the decision that begins the enforcement
Corruption cases: Idea of legitimacy. Evidence that people obey the law, when they do so, not because of fear of adverse
consequences if they don‘t, but because they see the law that they are obeying and the system that enforces it, as fair and legitimate.
-Because they think people/neighbors like themselves obey it
-Impacted by perceptions of how more advantaged people are treated by the system
-We slam inner city gang members. The alternative would be to cultivate relationships with them, OR go out of your
way to target high profile cases for advantaged people, like Rod Blagojevich.
-―When there is corruption and violence at the top of society, there will be corruption and violence at the bottom.‖
-Politics of law of enforcement is weirdly geographically and demographically segmented---because crime is geographically and
demographically concentrated. Homicide happens in places like Detroit in high numbers, does not happen everywhere in equal
-Voters who elect the local DA‘s are not, by in large, those who have the largest stake in what the DA‘s are doing. Because
people in the affluent low-crime areas vote for the DA who serves in the high-crime area.
*Political law with federal law enforcement:
-Guilty plea rates are very high
-No clear lines of accountability (because federal law enforcers are mostly politically independent---don‘t really answer to
-People who are enforcing the law are much closer to being free agents than those in the other parts of the justice system.
Federal Jurisdiction and the Commerce Power:
*Why should the federal government punish vices like gambling, prostitution, loan sharking (Perez), illegal possession of a firearm by a
convicted felon (Scarborough), etc.?
-Guns move throughout the country
-Local law enforcement has trouble dealing with things that move (would be less of a problem if the local law
enforcement was done by states---because there is often a county-to-county problem).
-Crimes that Scarborough may commit with his weapons may well have substantial effects across borders (though
there is a case to be made for the fact that violence may not spillover from one locality to another, or across states---
-neighboring localities (Hyde Park and Cabrini Green) have very different murder rates, doesn‘t bleed over).
-Also true of the lending market loan sharks, affect the national lending market.
-What about loan sharking?
-Makes sense for these cases to be federal because the cases drag on and are very expensive. So, the federal
system takes them because they have options and can choose to spend a lot of resources on these cases, can afford
to be inefficient (DA‘s can‘t---they‘re too busy).
-What about gambling/vice more generally?
-Like loan sharking, these investigations are expensive and lengthy.
-Feds have the resources to investigate suburban drug crimes, they can bear the expense (locals only have the
resources to investigate inner-city drug cases, less costly).
So why did the commerce power become the focus of federal criminal jurisdiction?
-Commerce power is the only hook
-Crime is almost absent from the grant of enumerated powers to the Congress in the Constitution
-Congress found the jurisdictional authority because it was easy to get at these crimes. But the framers did not plan it that
way---they were really only contemplating piracy, counterfeiting, crimes of the sea, etc.
What‘s the strongest argument against punishment of these crimes federally?
-People have different definitions of vice (NEVADA!), variations of norms with respect to gun possession (less so with loan sharking, but
two outta three ain‘t bad).
-Federal punishment makes it harder for people in local jurisdictions to have different rules (many states would like a medical
marijuana federal law exception, they can‘t have it).
-Vice crimes (abortion, gay rights, etc.) always work there way up to federal law and federal government. They even reach
extraterritorially! We worry about abortion funding to lesser developed countries.
Champion v. Ames
Louisiana foisted a state-based national lottery on the rest of the country.
Issue: Can Congress regulate the carrying of lottery tickets from one state to another by a private express company?
Majority: Lottery tickets are subjects of traffic and therefore subjects of commerce.
-Commerce clause is subject to no limitations except such as may be found in the Constitution.
-If a state may guard the morals of its people, so can Congress.
HOLDING: Congress has plenary authority over such commerce, and may prohibit the carriage of such tickets from State to State.
Fuller‘s Dissent: Four Arguments
1) These tickets aren‘t items of commerce (put this argument aside)
2) A prohibition of commerce isn‘t the regulation of commerce
Harlan‘s response: No, regulation is more expansive than Fuller has in mind.
****Inverse of the current debate on healthcare: Regulation of commerce is not the same thing as mandating
commerce (with respect to the individual mandate).
3) This is morals legislation, not commercial legislation (an argument that was not contested at the time).
-Harlan‘s response: Lottery is a pestilence, it offends the nation’s morals and so Congress should be able
to regulate it. The justification for Harlan‘s majority is strangely the same reason why Fuller dissents (thinks
Congress can‘t regulate morals)!
4) Regulatory power over any given regulated subject matter is exclusive: If states have some power over lotteries, they
have all power over lotteries.
-Harlan‘s response: Shared or overlapping authority is fine.
Fuller‘s version of federalism: Layer cake federalism, no overlap between sovereign state and federal spheres
Harlan‘s version of federalism: Marble cake federalism, everything overlaps.
*Why does marble cake win?
-Because if we accept Fuller‘s version, the federal government gets no power. It would mean that if the states have anything, they‘d
have everything---it would eliminate the commerce power. An all or nothing character to the commerce power!
-So, either the Federal government can do anything it wants, or it can do nothing.
-To hold that Congress has general police power would be to hold that it may accomplish objects not entrusted to the General
Government, and to defeat the operation of the Tenth Amendment.
*Does the grant to Congress of the power to regulate interstate commerce impart the absolute power to prohibit it?!
Marble cake wins, shared authority is the norm (hermetically-sealed spheres are the exception.
Perez v. United States:
Issue: Whether Title II of the Consumer Credit Protection Act is a permissible exercise by Congress of its powers under the Commerce
Clause of the Constitution?
-Meant to target loan sharks
Majority: Yes. Linked to organized crime.
-Takes Stewart‘s argument very seriously. Why? Stewarts second argument: the pull of this tradition against federal criminalization.
An enduring feature of commerce clause doctrine is this idea that the federal government surely can‘t do this----because this is
something that states and localities traditionally cover.
1) The question here should be whether this defendant, Perez, affected interstate commerce (not whether all loan sharks together
affected interstate commerce)
2) Crime is traditionally the business of state and local governments; there ought to be a presumption against federal criminalization (a
reference to the 9th (any rights we didn‘t mention remain with the people) and 10th amendments (reserved body of state law)).
a. 9th and 10th amendments are used as legal backstops for tradition (―This is something that traditionally the federal
government does not do‖---we should honor that tradition).
Central debate: Whether the connection to interstate commerce is to be judged case by case (i.e. in Perez) or crime by
crime (whether loan sharking affects interstate commerce).
Scarborough v. United States
1) There‘s no criminal conduct here because I got these guns legally before my drug conviction. I‘m being punished for
inaction (failure to get ready of the guns).
2) There can‘t be any federal jurisdiction where the relationship between the state wide crossing has so little to do with
anything I did. The guns traveled across state lines before he got the guns---has nothing to do with him! What does guns
crossing state lines have to do with his gun crimes? The ―nexus‖ or ―relationship‖ issue.
a. There is a jurisdictional that happens at one end, and criminal conduct happens at another, and they have very
little to do with another---except that the both involve this thing (the gun)---very little functional connection.
-Refutes the first by saying: All possession offenses are in effect inaction offenses. Possession offenses are common in our
-Nexus really doesn‘t matter. The guns cross state lines, Scarborough possesses them, that is good enough!
Three key takeaways:
1) Authority over crime is shared, not unitary (See Champion)
2) Usually jurisdiction is judged case by case (cf. Perez or see Stewart’s defense in Perez----but wins
3) The relationship between jurisdictional facts and criminal facts can be very tenuous, and that’s just fine
Federal Criminal Law – Class 3
Debate: scope of fed pwr over crim law + ideological debate over doctrines of crim law + another debate behind the doctr
o See Marshall in Scarborough + Stevens in Raich (reminds us of an earlier time when the two sides were flipped).
o Right – Gog pwr over crim punishment seen as not problematic (as is, for example, property rights)
o 1930s – chief battle b/t jurisprudential L and R was Gov pwr to regulate
Crim punishment wasn‘t esp attractive to the L of the 30s and 40s, but they didn‘t see it as problematic
Majority of Raich = very New Dealish opinion (same as Scarborough)
Q not whether Gov has pwr to put Scarborough/Raich in prison, but whether Gov has right to say
something, and to regulate these enterprises
General Part (vs Special Part)
o Part that cuts across indiv crimes (mens rea, law of defenses)
State law - about law of culpability: conditions of fair crim punishment – what st must show, what
circumstances req to send D to jail
Fed law – about allocation of fed pwr, NOT D‘s culpability
2 big debates about allocation of power
o Vertical allocation – b/t fed and state law
o Horizontal allocation – lawmaking pwr b/t Congr and Fed judges
o These days in partic, the field is largely about these two debates
Mostly all contested issues are an argument about federalism and excessive lawmaking pwr
Phenomen – ―Jurisdictional Elements‖
o 2 ways Gov establishes FCL jx:
Showing that criminalized activity in general, in aggregate, has qualifying relationship w/interst commerce
Perez – If Perez + all loan sharks are taken together, will substantially affect interst comm
Raich – Raich + everyone else who might be charged w/possn has requisite effects on comm
Showing that THIS D‘s activity had qualifying relationship w/interstate commerce
Scarborough – gun he possessed, not guns in general, crossed st lines (diff doctr category fr Raich)
Lopez – not approp case for aggregation bc of nature of activity – it‘s about whether this conduct,
this offender has qualifying relationship
o To which of the two approaches does jx apply? Line b/t crim statutes that do and don‘t have jx elements
Any element of crime that reqs either movement in commerce of a thing/actor OR effect on commerce by
some relevant thing/actor
o Q: if jx elements generally req showing of effect on commerce and non-jx elements don‘t req showing, which of the
two categories is likely to define limits on the constitutionality of the commerce power? Raich or Scarborough
A: Raich – nothing in statute saying Gov must show anything for jx.
Only defines punishable conduct
Permisslbe bc commerce pwr extends to this crime
Scarborough – statutory case (a lot of talk about jx elements w/r/t firearm)
These cases don‘t all raise same doctrinal issue – some are fundamentally constl or fundamentally statutory
Doctrine exhibits discernible structure, but structure isn‘t immed visible – even to Js and lawyers
Why is pwr mixed up b/t state and Fed gov, as opposed to separated out? What would‘ve happened if
Fuller‘s argument won?
Fuller – if states can regulate some piece of this mkt, they can regulate ALL pieces
Outcome – all pwr is unitary – state pwr could pretty much do anything
Matters not for outcome, but way you get there – close call, not easy
If everything affects commerce to some degree, Gov should regulate everything
Stewart dissent – Tradition argument that jx cuts too far
―In order to sustain this law, we would have to distinguish it from local crime...‖
We have tradition of dealing w/ crime through st/local law enforcement
o Ie. local crimes don‘t have the requisite relationship
―But it‘s not enough to say ... for all crime is a national problem.‖
Stewart sounds like stronger argument than Breyer in Lopez
o Crime is responsib of st/local whether it‘s interstate or not
Jx is a close call in Perez – fed gov could do anything
This is a prob bc we have a legal tradition that allocates jx over crime chiefly to st/local actors
o Has nothing to do with interstate commerce, but it‘s a tradition
o Big picture underlying commerce clause cases
In the end, commerce clause cases aren‘t exclusively about commerce, but tension around defining a border
that‘s not easy to define + legal tradition of saying that fed gov isn‘t supposed to have jx
Everything or nothing argument
Illustrate fact that, comm clause, if done straight up (about interstate pwr), it seems poorly suited
to drawing fed-state laws – if you stick to commerce clause, fed gov can do everything or nothing
o Must find some mechanism to split the difference
o What is the required relationship? Nexus?
What did Scarborough do wrong? Why does he deserve punishment?
o Possess gun while belonging to a status that makes him more dangerous so that he
shouldn‘t be allowed to possess the gun.
What‘s the case for jx? Gun crossed state lines
What do these two questions have to do with each other?
Nexus b/t jx and crim conduct – formal, not functional, relationship (but not much more than that)
Champion v. Ames
o Relationship b/t jx and culpable conduct is formal, not functional
Wrong – sale of lotto tix (culpable conduct meriting punishment)
Why – ―widespread pestilence‖
Jx – comes from shipment, not sale of tix
Doctrinal Categories / Formulations
o Douglas in Perez – in order to make out FCL jx under comm clause, must fit relevant case into 1 of 3 boxes:
Channels of commerce
Channels + things in channels (things and ppl that cross state lines)
o Ie. lotto tix (Champion); guns (Scarborough)
―Easy‖ for FCL jx
Instrumentality of commerce
Things used to cross state lines – used to move goods
o Ie. highways (incl intrastate portions of them)
―Easy‖ for FCL jx
Qualifying effect on commerce
Legally sufficient effects on interstate commerce coming fr conduct outside of first two
Anthying the regulation of which is necessary and proper to any other interst regulation bc of its
effect on it
Meaning of ―qualifying effects‖ is going to be huge
All ―hard‖ cases are effects cases
o Scalia concurrence in Raich – added 4th category
Qualifying effects on regulatory schemes
Necessary and proper to a comprehensive regulatory scheme
Jx ok not bc of close relationship w/interst commerce, but jx ok bc if it weren‘t, that would mess up
Congr‘s system of [drug regulation]
Relationship b/t conduct and related statutes that deal with conduct
Hard to find clear doctrine that fits both outcomes of Lopez and Raich
Kitchen sink opinion – throw every poss argument out and see what sticks
Plant as many doctrinal seeds for future cases as poss (thinking about cases down the line)
Makes it hard to figure out what arguments actually count
Clearly written by Lopez dissenter
Chief point – not do distinguish Lopez, but recover as much as poss from losing Lopez
Lopez – 5 arguments
o Congr made no factual findings b/t relationship of guns and commerce
o GFSZ Act has no jx element (Lopez personally + commerce)
[Congr re-passed the Act to show connx b/t guns near schools + commerce, along with adding jx elements
– creates channel cases]
o State law governs
[Ct is wrong – no longer st law tradition of regulating possn of firearms – legal tradition begins in 1930s and
it‘s largely Fed to begin with]
o Everything or Nothing – if Congr can do this, can do anything
[See this argument all the time – Champion]
o Lopez wasn‘t engaged in econ activity – no justification to aggregate his conduct w/everyone else‘s
[THE BIG QUESTION]
Use a Lopez argument to argue that Raich was wrongly decided
o Crime: identical conduct of possessing something Ds weren‘t supposed to
No purchase/sale going on
Lopez – possessed gun ; Raich – possessed marijuana
o Argument: Either possn is an econ activity or it is not - Lopez says it isn‘t, so Raich should come out the same way
o Counterargument: (Scalia) This is part of an entire regulatory scheme – Raich is messing with that scheme
Whereas in Lopez, there was no regulatory scheme saying that one can‘t possess guns at all
Raich – bars all possession
Lopez – bars possession only in a particular place
Distinguishing Raich from Lopez
Lopez – if it‘s not econ activity, can‘t create nexus b/t conduct and comm in the same way you can in Perez
Maybe Congr didn‘t pass GFSZA to reduce purchase/sale of firearms, but only to elim possn in partic places
Possession in a partic place is not an economic activity, it‘s 2 steps away from the mkt activity
Small piece of mkt activity is banned
Whereas, Raich is only 1 step from the mkt – whole mkt was banned + conduct closely tied to mkt
Raich works backwards from Lopez
Congr banned more than less (not just small piece of mkt activity)
o Why didn‘t Congr do with guns what it did with marijuana?
Assumption before Heller that Congr can ban any gun conduct it wants
But, long tradition of gun ownership – politically impossible to ban the gun mkt
Idea that banning the whole mkt is a big deal
To say regulating a lot vs. a little is ok, means Congr must pay some political price for the regulation
Cf. Blum case – child porn
When Congr is thinking of banning an entire mkt of some good, Congr activity is regulated not by law of
FCL jx, but by voters – political process.
If Congr bans small piece of mkt, the political checks won‘t be effectual
If Congr is going to attack a whole mkt, it must criminalize every piece of it
o Something is wrong with this argument - What price did Congr pay when they enacted
the marijuana ban? None.
Federal Criminal Law – Class 4
3 Side Points
o Aftermath of Sep 11 – predictions in FCL
That we will see big changes – civ liberties will shrink significantly to accommodate Gov‘s goal of combating
terrorism + getting at suspects before terrorism occurs.
Bill of Rts doctrine that gov crim pro would be lesss protective – harsher application of FCL
Protections in crim pro/D/suspects procedural protections are greater today than before 9/11
FCL hasn‘t grown harsher, but more lenient
What has changed FCL is not terrorism, but crime rates dropping (rates of serious crime fell
significantly from 1990-early 2000s) – declining importance of crime as a political issue
o Serious crime is v geographically concentrated, but before 1990s, crime was everywhere
o Lopez, Raich, and stare decisis – hyper-attentiveness to stare decisis
See rising importance of stare decisis in SCT confirmation hearings - want nominees to talk about ―settled
law‖ and ―binding precedent‖
Ex. Sotomayor and gun rights
o Sotomayor talks about binding precedent, but some feel that she essentially took it back
in McDonald (QP - whether 2A rts apply to state cases as well as fed cases)/
o Ie. Sotomayor didn‘t seem to take Heller seriously as settled law
Important to get nominees to say this, yet they seem to do complete opposite once on the ct
o Ex. Brown v Board
Law would look diff if justices were freely candid about how they decide and/or more comfortable
about explicitly overruling
Lopez vs Raich
Binding precedent made it seem like Congr commerce pwr DID reach the statute even w/o a jx
element – anything that affects aggregate affects commerece.
o But Lopez changed the law.
o Raich also changed the law. Back.
Easiest to say that Lopez and Raich are at odds – neither were simple cases of stare decisis.
o The Tradition Argument of FCL
―this is traditionally governed by state law/local law enforcement‖
Wexler article – ―poltical safeguards of federalism‖
Congr will wind up protecting federalism w/o need for fed enforcement
Where are most restrictive jx elements? Hobbs Act
Matter of statute – Congr put that into defintion of relevant crime, not courts
Distinguishing Lopez and Raich
o Hard to argue that they are NOT in tension
o How to distinguish
Perez formula – channels, instrumentalities
Scalia formula – larger regulatory scheme
Perez Formula – 3 Steps
o In doing commerce clause analysis, one should aggregate the effects of econ or commercial activity
If crime is econ/commercial in character, to judge if crime comports with commerce clause, look at all such
behavior – not just individuals‘ behavior.
o Nothing commercial about banning gun in a particular place
o Raich‘s conduct is at least closer to economic/commercial activity bc she is part of mkt demand for the drug and the
relevant crim statute bans that mkt.
Based on last step, Gov does better by banning ALL possn rather than some
Ie. harder for ct to reach same conclusion had there been an exemption for med marijuana
Scalia Formula – 2 Steps
o GFSZ Act wasn‘t part of regulatory scheme – just free-standing ban on guns near schools
o Controlled Substances Act is part of a comprehensive regulatory scheme - larger the ban, easier to establish fed jx
Does Congr pay a political price?
o If Congr bans whole mkt, must pay some political price to do this (See: handguns)
Ensure that Congr/Fed pwr doesn‘t go too far
o If Congr bans little piece of mkt, it pays a small political price
No check on manner and degree Congr expands its pwr
o What‘s wrong w/ argument that Congr has to pay a political price if it bans the whole mkt w/r/t marijuana (if we
assume that would be the case with guns)? Fed marijuana ban doesn‘t seem to incur big political checks – why?
Raich is a sham case – no one actually wants to lock her up, or cancer patients
30M marijuana violators ea yr – yet 7k marijuana prosecs, and most of 7k aren‘t actually marijuana cases
but part of plea bargain resolution/lesser charges bc couldn‘t prove a bigger charge.
7k voters isn‘t enough to check politics
But if law did authorize for Raich to go to prison, law wouldn‘t last
o Conseq is fact of US con law – no body of law that defines implementation of ―faithfully
4k robberies, yet only a sliver are prosecuted – usually small political check on laws that Congr writes
How should the line b/t these commerece clause cases be drawn?
o If this body of law is so dysfunctional, what would be a better way of drawing the line?
o Could say crimes have to be either state or fed and can‘t overlap
o Constl limit lurking in th background – ask how strong is the Gov interest in what‘s being challenged, and how strong
is the individual interst in stopping fed pwr
Common way of defining limits of fed pwr is thorugh a kind of interest balancing
Raich would come out diff here – bc suggest fed gov interst is very smallk or else there would be more fed
prosecs (and not just 7k of 30M)
o In sum – legal doctrine changes in big ways
Ideas that seem legally unthinkable now somehow become legally thinkable
Stewart – arguments for and against FCL jx
o Stewart - ban on possn of machine guns; ban has no jx element (equiv of marijuana ban in Raich)
o Arguments against FCL jx
No jx element
Not a channels/Scarborough case, so must be effects case
Under Lopez, possn isn‘t econ activity – hence, you can‘t aggregate effects
o Arguments for FCL jx
Scalia‘s framework – ban fits into larger scheme
This isn‘t possn in a place (like Lopez), it‘s possn period (like Raich)
o Stewart = argument b/t Lopez and Raich
Raich side likely to win if statute can be closely compared to Raich statute – ie. global ban
Blum – arguments for and against FCL jx
o Arguments against FCL jx
Says jx happens if not all, but if one element is satisfied, BUT also says if ―anything‖ used in connx crossed
st lines, that has jx
Takes Scarborough way farther than Scarborough actually goes
Scarborough – gives jx if you possess criminalized thing
Here – criminalizes any piece of this thing (ie same argument of why cash crossing st lines
o Arguments for FCL jx
Same Raich argument – ban on the mkt (analogous to Stewart case)
If ban on mkt is good enough in Raich, seems to be similar ban here – network of laws banning whole mkt.
Alderman – arguments for and against FCL jx
o Body armor w/Scarborough style jx element
o Arguments against FCL jx
Is Scarborough still good law? Or did Lopez sufficiently change the landscape?
Very tough to distinguish from Scarborough
Perez dissent – talking about affects, yet this is a channels case
Diff b/t ―in commerce‖ or ―effecting commerce‖ ( this is IN – ie. Scarborough)
Do Scarborough-style channels cases still work after Raich?
o Lopez didn‘t limit jx all that much.
o Robbery that in ―any way affects commerce‖
o Hobbs Act jx supposed to extend as far as the constution extends
McCormick – arguments for and against FCL jx
o D robs drug dealer of $100k from mutual funds
o Arguments against FCL jx
Doesn‘t have interstate economic effect- everything happened w/in a jx
This is a garden variety robbery – this is traditional state law biz (tradition argument)
o Arguments for FCL jx
This isn‘t just ordinary robbery – mutual funds involved; the amt matters ($100k)
Principle – robbery of rich individuals, at some level of wealth, qualifies as FED robbery
Victims vs Perpetrators
o Gov can show jx by showing that the victim, or victim‘s activities, are sufficiently economic
BUT Lopez – only look at whether perpetrator is engaged in sufficiently economic activity
o Jimenez/McCormick – show that victim CAN get you fed jx – add this to the arguments
Now: 4 Arguments Winning Arguments on the Gov‘s side
o Sufficiently commercial/economic perpetrator
o Sufficiently commercial/economic victim
o Sufficiently commercial/economic regulatory scheme
o Something/someone sufficiently tied to this crime crosses state lines (Scarborough)
Federal Criminal Law – Class 5
I. Cts don‘t always accurately describe the legal doctrine they make – esp in these cases that we‘re dealing with.
i. Clark (foreign commerce case): ct says repeatedly that jx based on the the foreign comm pwr is BROADER
than interst comm pwr – not true. Foreign comm. pwr is more restrictive.
ii. Hobbs Act robbery cases: ct says that satisfying Hobbs Act jx element (reqs that robbery be somehow in or
effecting comm.) equals satisfying comm. clauses‘s constl req – that jx element is as broad as constl req –
1. Cf. Raich to McCormick (Hobbs Act jx attaches bc robbery involved shares of mutual fund and
substantial amt of money - $100k – amounting to substantial comm. effects). Hobbs Act jx is
clearly a great deal narrower than comm. effect needed for fed jx in Raich, which is constl,
whereas Hobbs is statutory. Constl and statutory jx req are not the same.
a. Jx element – link b/t crime and comm. must almost always be case-specific.
b. Constl – need ont be case-specific.
i. Jx attaches in Raich not bc Riach was a big deal mkt player, but bc a lot of ppl
like Raich taken together might have some significant relationship to the
marijuana mkt (don‘t see this type of argument in jx cases – key distinction b/t
two bodies of law).
b. Be suspicious when you see general descriptions of the doctrine – play close attn to not just what cts say, but also
what they do.
II. There is no such thing in Amer law as a doctrine of stare decisis that applies to legal method.
a. Brogan is about legal method: how you interpret fed crim statutes, whether cts can read limitations into statutes
when limitations aren‘t in statute‘s text.
b. But this debate doesn‘t just happen in Brogan – happens in most cases we read for today‘s assignment. And
interestingly, same side doesn‘t always win.
i. Ex. Majority opinion (Breyer in Small) can take exact opp position of Scalia majority in Brogan.
1. The law hops back and forth.
2. Generalizations that fall short of hard and fast doctrine.
c. Issues of legal method – how do you approach legal statute?
i. Get fought out crime by crime, case by case. Never resolved once and for all.
d. This is a puzzling phenomenon and incredibly important: means that great debates of constl law, whether we
construe C acc to text, or hist of relevant provision, or acc to neither text nor hist by taking looser style of C
interpretation – that central q of constl law, what‘s the right approach, is fought out in every case where the q
i. Astonishing – how can that be?
e. Ex. 4th Am cases – some say squarely that whatever counts as reasonable search and seizure is what counted at time
of comm. law, when statute was written. Others say that you don‘t look at that and instead balance effect on law
enforcement vs. indiv priv interests.
i. No such thing as methodological stare decisis – means SD means a lot less than you would imagine.
ii. Would be a bigger deal if SD covered ―here‘s how you approach this legal text/legal issue.‖
III. US v. Clark
a. Clark mostly though not exclusively lives in Cambodia and, while there, hires young boys to have sex.
b. Charged under PROTECT Act w/commercial sex acts in or affecting foreign commerce.
c. Q: does Gov have jx? / A: Yes.
d. Gov argument
i. Commerce argument part is built into crime itself.
ii. Foreign argument – he traveled to Cambodia.
1. Like Scarborough – channels – though even stronger than Scarborough.
2. Scarborough was guns crossing border, whereas here, Clark himself, not some implement crossing
intl border, is crossing border to commit crime – causally connected: Clark can‘t commit crime
unless crosses border.
3. Even if Clark didn‘t in fact travel to Cambodia with intent to buy sex, the link b/t the border
crossing and Clark‘s crim conduct, is much more substantial than in Scarborough.
4. If any version of Scarborough applies to foreign comm. pwr, Clark obviously loses – and would obv
lose as a domestic case.
e. Clark argument
i. If Gov wins this case, it wins everywhere = core argument.
1. Legal Tradition argument - this is a prob bc just as st law traditionally defines crime, and local law
enforcement enforces st law, here we have a legal tradition of no extraterritoriality – countries
enforce their own law against their own citizens and within their own territory.
ii. Gov says this is an easy case under domestic stds, but Clark says this isn‘t a domestic case: if extraterr
matters, we need to worry ab def of foreign comm. that essentially makes every D who crosses border and
commits crime, an Amer crime that is prosecutable.
f. Ct is not as sweeping – goes out of its way to say non-comm sex acts would be a diff story, and case would come
i. Conclusion – foreign comm. pwr is narrower than interst comm. pwr.
ii. This is easy Scarborough case if Clark wins or not.
iii. Both foreign part + comm part are satisfied by Clark‘s travel – don‘t need commercial sex transaction (true
if this were a domestic case).
IV. What arguments win?
a. For Ds, there‘s one winning argument: if the gov wins this case, the gov wins all the time. This is a prob bc of legal
tradition: st law defines crime, local law enforcers enforce crim law.
i. Ex. Torruella concurrence in Jimenez-Torres: if the majority is right, this means that we can prosec a
robbery of a child‘s lemonade stand.
1. Prob bc there‘s nothing special or unusually commercial about robbing lemon stand – no special
ii. Is it obvi that this Tradition argument should pack some punch? Why does it?
1. Generic federalism argument can be made ab any ex of fed pwr, but what‘s really striking ab these
cases is that federalism-based restrictions are more substantial here than elsewhere.
a. There is no equiv to Hobbs Act cases outside fed crim law (not true that fed crim law is
just a subset of st law).
2. There must be some idea underlying cases that:
a. Crim punishment is more dangerous that other kinds of fed pwr - an esp dangerous form
of gov pwr.
b. Crim punishment is esp dangerous when done by fed gov pwr.
b. 4 Categories of relationships for winning Gov arguments
i. Relationship b/t interst comm. and D
1. Commercial D is winning argument in Raich – that fed jx applies to med marijuana cases like Riach
bc Raich was close enough to being an actor in the interst mkt for marijuana to justify aggregating
Raich‘s effects on that market with the effects of all the other Raiches of the world on that mkt
a. Raich is close enough to being a commercial actor to count.
b. Lopez, on the other hand, is not close enough to being a commercial actor.
c. Effects vs. Possesion – Raich is closer than Lopez to interst mkt than Lopez.
2. This argument doesn‘t seem to work in Hobbs Act cases.
a. Business/Rich indiv – involves money, and anything involving money is close to interst
3. Where this argument applies, the argument seems broad/powerful (ie. even Raich qualifies)
4. Argument doesn‘t apply everywhere – it‘s a way to get jx over crimes that have no jx element (like
Raich) – don‘t tend to satisfy jx element in crimes that have one.
ii. Relationship b/t interst comm. and V
1. Winning argument in Hobbs Act cases.
2. Robbery of business/rich indivs is covered by fed crim jx and other robberies are not.
3. Argument satisfies not just constl jx (statutes w/o jx element), but also w/statutes that do have jx
4. In Hobbs Act, commercial V argument is case-specific (unlike Raich – no aggregation of all robbery
cases) = commercial effects of this robbery based on links b/t interst comm. and these particular
iii. Relationship b/t interst comm. and regulatory scheme (system of which this statute is a part).
1. Scalia‘s argument in Raich – this is the diff b/t Raich and Lopez – ie. Controlled Substances Act is a
piece of comm. regulation, whereas Guns Free School Zone Act is not.
2. Notice how this argument plays out wrt crimes that do and don‘t have jx elements.
a. Works in cases like Raich where no jx element is on the table, and its ab scope of relevant
constl authority (scope of constl comm. pwr)
b. Doesn‘t work in jx element cases bc it‘s not case-specific – Scalia‘s arguent about
regulatlry schemes isn‘t ab Raichs‘s conduct or crime, it‘s an argument about the body of
law of which this particular marijuana statute is one part – ab the system (like a case of
c. Systemic arguments can work wrt constl jx, but not jx elements.
iv. Relationship b/t comm. and particular transaction/border crossing (Scarborough)
1. Relevant border crossing gets fed jx even in cases with jx element bc it‘s a cse-specific argument
2. Get jx even if D‘s relationship to border corssing is tenuous (see Scarborough)
3. What counts is not relationship to the D, but relationship b/t the border crossing/relevant comm.
transaction and the crime.
a. Ie. Scarborough wasn‘t charged with robbery, but with possessing guns that crossed
i. Weak connxn b/t border crossing and Scarborough himself, but strong
connection b/t border corssing and crime.
4. Need case-specific arguments to win if you‘re the gov if there are jx elements, need systemic
argument if there are no jx elements.
V. Another legal tradition: seeing comm. law def of fed crimes as dangerous.
a. This premise underlies all arguments we see in Chap 3 cases.
i. Presmise has been around in system for long time – at least since Hudson & Goodwin (1812).
ii. This tradition did not exist at all in 1812 or 1912 or even 1950 wrt st crim law – majority of doctrines you
read ab in first yr crim law are doctrines defined initially by cts, not by leg.
1. St crim law may be leg field today, but it hasn‘t always been that way for most of US hist, and
most never considered problematic.
2. Here, with fed crim law, regarded as seriously problematic. WHY?
b. What is everyone worried about? What‘s the danger?
i. Specter of Brogan – bad things will happen if fed judges get the idea that they can make up doctrines like
exculpatory no and make up exceptions to crim liab that Cong didn‘t specify in the text = dangerous pwr.
1. Not equally dangerous everywhere in fed cts (see mens rea standards), but historically not thought
dangerous at all wrt state law.
ii. Accountability Argument/Democracy Argument - St judges are elected officials, whereas fed judges are life
appointed, so you can reign st judges.
1. Separation of Power argument – judges who aren‘t sufficiently accountable, exercising
undemocratic pwr – how do you protect democracy? By making sure Congr has more law making
pwr, and judges have less.
2. Reigning in undemocractic power argument rests on proposition that democracy is esp important
when it comes to crime def – bc comm. law is not deemed equally dangerous everywhere in fed
a. Something about crime punishment, crim law, that in combo with comm. law, seems
iii. Constl Limits on Fed Power Argument - Without Hudson & Goodwin, it becomes hard to enforce limits on
fed pwr, generally.
1. Federalism argument
2. Danger is not fed judicial pwr, but fed pwr – relevant limits come fr Art I; only way to make Art I
lims constrain cts, is to req that crim law come fr statutes and not comm. law.
3. Hudson & Goodwin is a means of enforcing Art I.
iv. Breadth of Crim Law Generally Argument
1. Federalism argument
2. Might fear that comm. law crimes would yield excessively broad crim liab generally – comm. law
crimes expanding fed pwr too far and evading constl lims on fed pwr. Comm law also expands crim
law generally too far, creating potential for unfair crim punishment – ex. maybe you think seditious
libel shouldn‘t be a crime at all.
v. At time of Hudson & Goodwin – chief concerns appear to hav been Federalism concerns, today, chief
concerns appear to be democracy concerns (whatever this danger is, the danger seems to have changed its
character over time).
1. Brogan reads diff than Hudson in part bc authors are worried about diff things, bc prediction that
underlay Hudson (that themore comm. law, the broader fed pwr will be), has largely turned out to
2. Today, ex of comm. law making pwr by fed judges, generally works to constrain/lim fed crim liab,
not to expand it.
vi. Thus, 2 big things have changed in these cases over the yrs
1. Democracy seems to loom larger than it did before, whereas federalism less large than it did
2. Arguments no longer match up the same way they once did, in terms of who‘s on side of broader
vs. narrower crim law (Brogan is representative of the way things are now).
VI. Brogan – reps the great debate in Amer law today: how closely must judges stick to allegedly binding statutory/constl legal
a. System is vastly more textual than it used to be (ie. Scalia‘s interpretation).
b. Class Debate: how would you defend Scalia‘s approach to interpreting the False Statement statute - ―The text wins
period‖ approach vs. Breyer (in Small)/Stevens approach.
i. Scalia Approach
1. Democracy + Limited power argument
2. Only way we can really be sure that crim law will be democratic, is to follow the lang Congr voted
on – only way we know what elected officials actually thought.
3. If you don‘t stick close to the text, who knows what fed judges will do – could be undemocratic
AND unconstrained pwr.
ii. Breyer/Stevens Approach
1. Must ask what legal rules does Congr want? Whom does Congr want to see punished? - argument
that democracy cuts their way, not Scalia‘s.
2. Congr wouldn‘t have intended this
3. In the past, we have considered the intent of Congr
4. The literal text can be broader than the intended impact
a. Crim law shouldn‘t be broad
5. Congr has motive to draft broadly, not narrowly – so go after what Congr IDs as the harm.
6. Breyer argues that democracy cuts our way.
a. Congr didn‘t say how they wanted the text interpreted – Congr could want cts to interpret
focusing on intent.
iii. Which interests are and aren‘t rep‘d in legislative process, and how might they be protected by judges?
Federal Criminal Law – Class 6
I. CRIMINAL INTENT
a. Like law of defenses, comm. law doctrines have shaped law of defenses.
b. Many fed offenses do have statutory mens rea terms – so law of crim intent is bound to be more statutory (mix of
comm. law and statutory text).
c. Debate in fed crim law: strict liability vs. proposition that gov must prove some kind of wrongful intent (at least in
cases not involving prosecution of large businesses).
i. Latter side won (gov must prove wrongful intent).
II. Historical Debate
a. US v. Dotterwich
i. FACTS: Pharma co + pres and general mgr charged for violating Fed Food, Drug, Cosmetic Act for shipping
misbranded and adulterated drugs in interstate commerce.
ii. ISSUE: Whether ct properly left q of the responsibility of the co‘s pres. for the shipment of adulterated
drugs to the jury?
1. Food & Drugs Act of 1906 – touches lives and health of ppl who are beyond self-protection.
2. No conventional req for crim conduct – awareness of some wrongdoing.
3. Type of legislation whereby penalties serve as effective means of regulation.
a. In the interest of the larger good to put burden of acting at hazard upon person who is
otherwise innocent, but stands in responsible relation to a public danger.
b. Place hardship on those who have opp of informing themselves of existence of conditions
imposed for protection of consumers before sharing in illicit comm., rather than throwing
hazard on innocent public.
4. Ct won‘t define formula embracing wide variety of conduct where person stands in responsible
a. Discretion – good sense of prosecutors, guidance of judges, judgment of juries must be
b. System of crim justice depends on ―conscience and circumspection in prosecuting
iv. HOLD: Q of responsibility of pres for shipment was properly left to the jury.
1. No evidence of guilt – no claim that D knew that adulterated drugs were intro‘d into commerce or
actively participated in their intro.
2. D found guilty solely on basis of authority and responsib as pres of the co.
3. Guilt is personal and shouldn‘t be imputed to D who has no evil intent or consciousness of
4. In absence of clear statutory authorization, it‘s inconsistent w/estab canons of crim law to rest liab
on act in which D didn‘t particip and of which he had no knowledge.
a. Before placing stigma of crim convic on D, legislative mandate must be clear and
5. Blind resort to good sense of prosecutors is what constl system seeks to avoid – legislative pwr to
restrain liberty and imperil good reputation of citizens can‘t rest upon variable attitudes and
opinions of those who interpret and enforce the law.
1. 2 Problematic results
a. If law reqs gov to prove D knew drugs were adulterated: D + host of regulated actors like
him would be unconvictable.
b. If doesn‘t req proof of knowledge: crim punishment would be imposed in cases with no
evidence of personal guilt.
2. Gov has strong interest in req drugs to be safe, but indiv Ds have strong interest to avoid prison
sentences for merely negligent conduct.
3. Fix? Civil regulations: law can regulate the conduct of Ds w/o criminally punishing them.
a. Civ regs that impose SL and hefty fines (even for individual violators like D) can ensure
safety w/o need for crim prosec.
4. Today, crim punishment seen as special form of gov pwr, limited in special ways.
a. Diff perception of New Deal generation (Dotterwich = product of New Deal-era debates)
i. Pro-New Deal: fear that if law restricted crim prosec too much, the regulatory st
would be unable to regulate effectively.
ii. Anti-New Deal: want to lim fed pwr generally – hope to lim authority of many
gov agencies that FDR created.
5. US v. Hong
a. Hong runs co whose inadeq waste filtration system led to discharge of waste into
Richmond, VA‘s sewer system, in violation of co‘s permit and Clean Water Act.
b. Hong charged and convic of 13 counts of illegal discharge of waste, fined $300k, 3 yrs in
c. 4th Circ cites Dotterwich for proposition that Hong was ―responsible corp officer‖ and thus
liable for illegal discharges he neither committed nor supervised.
i. Hong had authority to exercise control over the activity that caused discharges.
ii. Gov may satisfy its burden of proof by intro‘ing ev sufficient to warrant finding
that D had, by reason of his position in the co responsib and authority either to
prevent in the first instance, or promptly correct, the violation.
b. Morissette v. US
i. FACTS: Gov had prop, used as a bombing range, on which private citizens hunted deer despite "keep out"
signs. D removed spent bomb casings fr prop, believing prop was abandoned and of no value to the gov,
salvaging casings for $ 84. D charged w/ unlawfully, willfully and knowingly stealing and converting gov
1. D is citizen of good standing, no attempt to conceal acts.
2. Trial ct refused to allow counsel to argue to jury whether D acted w/innocent intention – q of
intent was whether he intended to take the prop, not felonious intent.
ii. ISSUE: Whether ct will expand the doctrine of crimes without intent (ie public welfare offenses) to include
crime of knowingly stealing and converting gov prop.
1. Some precedent construes the silence of crim statute on the issue of criminal intent as dispensing
with it, but this literal reasoning would sweep out the culpable state of mind req from all fed
crimes, except when expressly mentioned.
2. Need for ―vicious will‖ - injury can amount to a crime only when inflicted by intention.
3. Crime = evil-meaning mind + evil-doing hand.
a. Wrongdoing must be conscious to be criminal.
4. Comm law – as comm law of crimes was codified, even if statutes were silent on intent, cts
assumed omission didn‘t mean disapproval of the principle but that intent was so inherent in the
idea of the offense that it req no statutory affirmation – implied intent req taken fr comm. law.
5. Exception to intent req: Public Welfare offenses
a. Industrial rev – wide distrib of goods becomes instrument of wide distrib of harm.
b. As a matter of policy, don‘t specify req of intent.
c. Small penalties, convic does no grave dmg to offender‘s reputation.
d. Legislative purpose – regulatory measures in the exercise of police pwr, where emphasis
of statute is achievement of soc betterment rather than punishment of crime.
e. Relation of lack of intent req with peculiar nature and quality of the offense.
f. Balint/Behrman cases rep new offenses in general law (pub welfare offense), so can‘t be
used as authority for eliminating intent fr an offense like larceny, which is so well-defined
in comm. law and incoporated fr comm. law.
6. Cts have consistently retained req of intent for larceny-type offenses – intent req is inherent in this
class of offense, even when not expressed in a statute.
7. Issue of ―knowingly‖ converting prop – knowledge is not identical with intent.
8. The isolated fact that he intended to take the prop is not adeq basis on which jury should find crim
intent to wrongfully deprive another of possn of prop.
a. Whether that intent existed, jury must look at not just act of taking, but that along with
9. Jury could‘ve decided that casings appeared abandoned, lack of consc desprivation of prop or
intentional injury was indicated by D‘s good character, openness of the taking, crushing and
transporting of them, and candor with which it was admitted.
iv. HOLD: mere omission fr statute of any mention of intent will not be construed as eliminating that element fr
1. J. Jackson says jury ―might have refused to brand Morisette a thief,‖ but doesn‘t specify conditions
that would support such a refusal.
2. Morisette applies ―convential req‖ mentioned in Dotterwich (J. Frankfurter) that crim conduct req
awareness of some wrongdoing.
3. Diff fr st law: proof of ―awareness of some wrongdoing‖ is NOT part of conventional mens rea
doctrine in US.
a. St law crimes req proof of either:
i. general intent
1. intended to engage in the conduct that constituted the crime.
ii. or specific intent
1. general intent + also intended to bring ab the illegal result.
b. Morisette could‘ve been guilty under either general or specific intent, but seems plain that
he acted w/o awareness of wrongdoing.
4. Before Harrison Narcotics Act, use of opium products was legal and common in US.
a. Use/sale of drugs didn‘t stop immed after Act.
b. Gov tried to speed along process by prosec drs who prescribed the drugs and otherwise
legit businesses that sold them w/o permission.
c. Takes time for ordinary ppl to under that rules changed and prev OK conduct is now
i. D‘s claim – can‘t be expected to know ab every legal change.
ii. Prosec‘s claim – if Ds can excuse violations by claiming ignorance of the law,
new legal rules will be unenforceable and fed crim law won‘t be able to adapt to
5. Bomb casings were clearly unimportant, why was Morisette even prosecuted?
a. From Gov‘s pov, meant to send a msg: military equip stored on gov land is off limits,
III. Factual Knowledge
a. Staples v. US
i. FACTS: Natl Firearms Act – unlawful to possess machinegun that‘s not properly registered with Fed Gov.
1. D argues that to convict him under Act, gov must prove beyond reasonable doubt that he knew his
weapon had characteristics bringing it w/in statutory def of a machine gun.
2. Machinegun included within Act‘s term of ―firearm‖ = fully automatic weapon.
3. Appears that gun had been modified to be capable of fully automatic fire, though D insists he only
ever operated it semiautomatically.
4. D claims his ignorance of automatic firing capability should shield him fr crim liab for failure to
a. Requests jury instruction that Gov must prove beyond reasonable doubt that D knew gun
would fire automatically.
5. Dis ct jury instruction was instead: enough to prove that D knew he was dealing w/dangerous
device of a type that would alert one to likelihood of regulation.
ii. ISSUE: Whether Act reqs proof that D knew of the characteristics of his weapon that made it a ―firearm‖
under the Act (Q of statutory construction).
1. What level of knowledge suffices?
a. Knowledge simply of possn of obj?
b. Knowledge + that obj is dangerous?
c. Knowledge, beyond dangerousness, of characteristics that render obj subj to regulation –
awareness that weapon is a machinegun?
1. Lang of statute provides little guidance of Congr intent.
2. Act is silent ab mens reas required for a violation, but silence on this pt by itself doesn‘t suggest
Congr intended to dispense w/conventional mens rea element.
a. Would req that D know facts that make his conduct illegal.
3. Must construe Act in light of background rules of comm. law, where req of some mens rea is firmly
4. Gov claim – case fits in precedent of ―public welfare‖ offenses.
a. Congr intended Act to regulate/restrict circulation of dangerous weapons, so presumption
favoring mens reas doesn‘t apply.
b. Ex. Balint – held that Narcotic Act of 1914, intended to minimize spread of addictive drugs
by criminalizing undocumented sales of certain narcotics, req‘d proof only that D knew he
was selling drugs, not that he know specific drugs sold were ―narcotics‖ under the statute.
i. Type of public welfare leg where penalties serve as effective means of reg.
ii. Dispense w/conventional req of awareness of wrongdoing.
iii. Statutes regulating potentially harmful/injurious items.
iv. As long as D knows he‘s dealing w/dangerous device of a char that places D in
responsible relation to pub danger, he should be alerted to regulation
c. US v. Freed – prosec for possn of unregistered grenades.
i. D knew items in possn were grenades; didn‘t req Gov to prove the D also knew
grenades were unregistered.
ii. Grenades as highly dangerous offensive weapon.
iii. Applying Freed: guns, no less than grenades, are highly dangerous devices that
should alert owners to probability of regulation.
d. But Freed addresses diff q than here – proof of knowledge that firearm is unregistered.
5. Gov glosses over distinction b/t grenades and guns.
6. Must avoid construing statute to dispense w/mens rea where doing so would criminalize broad
range of apparently innocent conduct.
7. Liparota – food stamp can‘t be compared to a grenade.
a. Held: statute reqs proof that D knew possn of foodstamps was unauthorized.
8. Tradition of lawful gun ownership - common experience.
a. Tradition doesn‘t apply to drugs or grenades.
b. One wouldn‘t be surprised to learn possn of hand grenade isn‘t an innocent act.
9. Just bc gun is dangerous in some general sense, doesn‘t suggest that it‘s not entirely innocent.
a. Dangerous items can be commonplace and generally avail such that we don‘t consider
them to alert indivs to likelihood of regulation.
b. Guns generally can be owned in perfect innocence.
10. Regulation itself isn‘t sufficient to place gun ownership in same category of sale of narcotics.
a. Food stamps are likewise subj to comprehensive regulations, but the statute there wasn‘t
understood to dispense with mens rea req.
b. Owning gun is licit and blameless conduct – buying shotgun/rifle is simple transaction that
wouldn‘t alert someone to regulation more than buying a car would.
i. Car could also be seen as ―dangerous‖ device – could make it a crime to operate
car w/o proper emission control, but doubtful Congr intended someone to go to
jail if they didn‘t know their car‘s emission levels exceeded legal limits.
11. Gov‘s construction of statute would impose crim sanctions on ppl whose mental state – ignorance –
makes their actions innocent.
12. Harsh Penalty
a. Penalty imposed is significant consideration in determining whether statute should be
construed as dispensing w/ mens rea.
i. Public welfare statutes – light penalties such as fines or short jail sentences, not
ii. ―Felony‖ – as bad a word as you can give to man.
b. Where dispensing w/mens rea would req D to have knowledge only of traditionally lawful
conduct, a severe penalty suggests Congr didn‘t intend to eliminate the mens rea req.
iv. HOLD: Congr did not intend to eliminate a mens rea req for violation of the Act.
1. Nature of particular device subjected to regulation + expectations indivs have in dealing w/
2. Penalty suggests Congr didn‘t intend to elim mens rea.
v. CONCURRENCE (Ginsburg)
1. Although the word ―knowingly‖ doesn‘t appear in law‘s text, cts generally assume that Congr,
absent contrary indication, means to retain mens rea req.
2. Congr chose to place under a registration req only very limite cls of firearms, considered esp
a. The generally dangerous character of all guns doesn‘t suffice to give indivs cause to
inquire ab need for registraion.
3. Act reqs proof that D knew he possess not simply a gun, but a machinegun.
vi. DISSENT (Stevens)
1. Although the lack of an express knowledge req isn‘t dispositive, its absence suggests that Congr
didn‘t intend to req proof that D knew all facts that made his conduct illegal.
2. Legislative history
a. Orig statute covered narrow category of weapons such as submachineguns and sawed-off
shotguns used by dangerous gangsters.
b. Act would‘ve had little application to guns used by hunters, so Congr could reasonably
presume that person found w/machinegun intended to use it for crim purposes.
3. In light of precedent, statute dictates that crime of possn of unregistered machinegun is in
category of ―public welfare‖ crimes.
4. National Firearms Act – unquestionably a public welfare statute.
a. Freed – statute is a regulatory msr in the interest of the public safety.
5. Majority erroneously relies on traditional innocence of gun ownership to find that Congr must‘ve
intended for Gov to prove knowledge of all characteristics that make weapon a statutory firearm.
a. Finds that guns are more analogous to food stamps than to hand grenades.
6. D knowingly possessed a semiautomatic weapon that was readily convertible into a machinegun –
not just mere possn of an ordinary rifle or pistol that doesn‘t alert one to possibility of regulation.
a. The character and nature of this particular weapon is sufficiently hazardous to place
possessor on notice of poss of regulation.
b. No big dif b/t req duty to register and duty to determine whether weapon has been
converted to a machinegun.
1. Thomas‘ goal – req enough proof of intent to ensure that only culpable D‘s were criminally
a. Contrary to Thomas, comm. law doesn‘t req D to know facts that make conduct illegal.
b. Ct is instead making new intent doctrine adapted to particular circumstances of fed crim
2. Natl Firearms Act – New Deal-era regulatory statute that sought to punish professional gangsters.
a. Act targeted criminals, not crimes.
b. Criminals in q were traditionally responsibility of local police/prosec, not FBI agents and
c. New Dealers didn‘t want to displace local officials/st law but sought to supplement them
and get some political cred for fighting crime.
i. Criminalize easily proved misconduct in order to punish harder-to-prove crimes
indirectly (ie going after Capone)
3. US v. X-Citement Video – interpretation of mens rea req of a fed crim law touching on First Am
a. Shipped porn vids showing underage actress to a fed undercover agent in violation of
Protection of Children Against Sex Exploitation Act
b. Issue: whether the term ―knowingly‖ modifies the phrase ―the use of a minor.‖
c. Held: Gov must prove knowledge that at least one of the actors in the vid was a minor.
i. If ―knowingly‖ construed to only modify ―transports, ships, receives, distributes,
reproduces,‖ we would sweep within the ambit of the statute actors who had no
idea they were dealing w/sex explicit material.
ii. Reluctance to simply follow most grammatical reading of statute bc of cases
interpreting crim statutes to incl broadly applicable scienter reqs, even where
statute doesn‘t explicitly contain.
iii. Not a pub welfare offense.
1. No expectation that contents of mags and films are generally subj to
stringent pub regulation.
iv. Statute more akin to comm.-law offense agsinst ―st, person, prop, or pub
morals‖ (See Morisette) – presumes scienter req.
v. Concern w/harsh penalties.
4. US v. Jones
a. D convic of transporting underage girl across st lines to act as a prostitute at a truck stop.
b. Held: ―knowingly‖ modifies only ―transports‖
i. Imposing a mens rea req of proving knowledge of V‘s age would permit adults to
prey on minors as long as they claim they are ignorant of their age.
ii. Nonsensical to req proof of knowledge of V‘s age when statute exists to provide
special protection for all minors, incl those who could be easily mistaken as
iii. Distinguishing from Staples/X-Citement
1. Fact that V is a minor doesn‘t distinguish actions fr what would
otherwise be innocent conduct, bc transportation of ANY indiv for
prostitution is already illegal.
5. Flores-Figueroa v. US – D charged w/aggravated ID theft (Jones may no longer be good law)
a. Held: ―knowingly,‖ when it appears in fed crim statutes, ordinarily modifies ALL elements
of those statutes.
i. Doesn‘t make sense to read statute‘s lang as heavily penalizing person who
transfers, possess, or uses, w/o lawful authority, something, but does not know
that the something is a means of ID.
ii. Wouldn‘t apply law making it unlawful to knowingly possess drugs to a D who
steals a bag w/o knowing bag has drugs.
6. Similarity b/t holdings of Staples and Flores-Figueroa, though the ID theft statute contains
―knowingly,‖ gun law didn‘t contain intent term.
7. US v. Yermian
a. D lied on a security questionnaire he filled out when applying for job as defense
contractor and charged w/violating fed false statement statute.
i. ―in any matter w/in the jx of any dept or agency of the US, knowingly and
willfully makes any false statements or representations.‖
b. D claim – although he may have known that his statements were false, didn‘t know that
he mde them on a matter w/in jx of a gov agency.
c. Held: doesn‘t matter, bc Congr placed the jx clause before ―knowingly and willfully.‖
i. Congr has pwr to impose crim sanctions for deliberately false statements
submitted to a fed agency, regardless of whether the person who made such
statements actually knew they were being submitted to Fed Gov.
d. Gov still had to prove that D knew or should‘ve known that false statements were made
within the jx of a fed agency.
IV. CLASS NOTES
a. Brogan Debate cont‘d
i. Fed prosec/agents got interested in Brogan, not bc he lied to FBI agents and said he didn‘t take money fr
employer that also employed union members he rep‘d, but interested bc they thought he took bribes to sell
out his members – labor racketeering by a union official.
ii. Labor Racketeering statute is complicated
1. Designed to forbid taking bribes to sell out membership if you rep union members, but it doesn‘t
bar accepting money fr anyone who employs union members.
2. Often union members work at same place that employ members.
3. Very complex exemptions from Labor Racketeering
4. Has stringent SOL – gov agents weren‘t sure if they could pin any conduct w/in SOL on Brogan at
time they approached him.
5. The False Statements charge (subj of opinion in Brogan was a backstop – not actual reason for
a. Had that been only crime they thought he committed, chances he would‘ve been
prosecuted at all were pretty much zero.
b. Not just a quirk of Brogan – this is the norm in enforcing the Fed Falst Statements
statute, and all misrepresentation statutes, incl perjury statutes.
c. Ex. Steroids litigation
i. Bonds facing perjury charges for lying to grand jury.
ii. Perjury statute being enforced directly and not as a proxy for something else.
iii. Chances gov would go after Bonds for steroid-related offenses are slim.
iv. Ordinarily, perjury is used as a backstop just in case they couldn‘t make out
iii. Was Brogan treated fairly in being prosec for lying to FBI agents, when reason for going after him was not
lying to FBI?
1. Gov was unsure ab making case under Labor Racketeering, so pursued under False Statements.
2. You‘re on notice when an FBI agent is questioning you under investigation to not lie to them – fair
3. Idea pervasive in the law of police interrogation /miranda doctrine: level of police coercion tracks
degree of police control over phys space where questioning happens.
a. You don‘t need miranda to protect ppl like Brogan, who are ―protected‖ in their own
4. There‘s some empirical ev that ppl like Brogan, crim offenders, are systematically, unrealistically
optimistic ab their own ability to talk their way out of trouble.
a. Lawyers always advise to say nothing.
b. Police are just as happy for someone to lie as they are for them to tell the truth – simply
poke holes in lies in cross-examination.
iv. Assume that Congr knew ab this prosecutorial charging pattern (using for ex. False Statements statute,
misrepresentations, perjury as backstop charge and not as a primary charge), every time it revised the 1001
statute – does that make any diff to the way Congr may have thought ab or not thought ab ―exculpatory
no‖ exception q in Brogan?
1. Ex. Tax Evasion used to get at ppl like Capone – org crime – before RICO statutes.
a. Wasn‘t easy to get witnesses to testify, to prove these crimes.
2. Congr knowledge of how statute is enforced may lead to bias in one direction or another.
a. Congr knows majority of ppl who will be prosec are going to be ppl like Brogan, whom
gov believes have committed other, more serious crimes, and should be punished more
3. Congr likely to be less careful in defining scope of crim liab if you know statute will be used vs. ppl
a. Likely Brogan is crook more generally, will repeat, and not just crook w/regard to
4. When you intro unreviewable enforcement discretion (that Congr knows of and approves of), you
change legislative incentives.
a. Same cases that are likely to be regarded as too sympathetic to punish by members of
Congr, are also likely to be regarded that way by FBI agents, prosecs.
b. Broad crim liab, which may seem unfair punishment in some cases, might look v diff to
members of Congr depending on pool of cases to which this liab will likely be imposed.
5. Congr cont to enact these types of misrepresentation statutes (ex. Obstruction of Justice) that
potentially apply to a lot of conduct, which if engaged in by another person who is not a career
criminal, seems unfair.
a. This statute is simply meant for a diff class of ppl.
6. How much can/should you trust Congr intent to criminalize Brogan‘s conduct based on text of
statute and fact that it has never been limited in way that exculpatory no suggests?
7. Scalia: democracy in this context reqs textualism.
a. If you are going to have dem fed crim law, must follow texts of the statutes that elected
members of Congr enact.
8. Stevens/Breyer: no, democracy is more complicated: reqs that judges be faithful agents of
members of Congr. As a general matter, principals want their agents to exercise discretion when
acting on principals‘ behalf.
a. Fact that Congr didn‘t incl exculp no doesn‘t mean they don‘t want that prov, may just
mean they never considered the issue.
b. Breyer in Small – viability of Jp crim convic in triggering felon part in felon in possn
c. Congr didn‘t intend anything – they simply didn‘t think about it. And in those
circumstances, they would want us, the judges, to think about it.
9. Scalia response: well, democracy isn‘t the only thing at stake - you go down that rd, and the end
pt is essentially unconstrained judicial pwr.
a. [you might think judicial pwr in statutory interpretation cases is always constrained bc
Congr an come along and overturn rulings it doesn‘t like]
i. BUT it takes a lot to get any issue on Congr agenda to degree nec to get a
statute under consideration.
ii. Even if Congr has in fact thought ab exculp no over yrs when amendments to
statute have arisen, even if Congr had wanted this exception in 1001, it doesn‘t
follow that Congr would nec write such a section into 1001 – v hard to get
anything on a Congr agenda (most powerful force in leg body is inertia: Congr
doesn‘t have to addr any q‘s it doesn‘t want to, whereas cts have to answer the
10. These arguments are made across the board, not just in fed crim cases. Other arguments specific
to fed crim cases?
a. Most of the time when Congr legislates, there are powerful interests on both sides on
pretty much every issue – but crim lawmaking isn‘t like that – no organized lobby for
potential crim Ds.
i. Can‘t trust competing interests in crim statutes as we do with other statutes, bc
these interests don‘t exist – only interest grp Congr hears fr is prosec.
b. Maybe crim Ds are already protected in the doctrine, bc there‘s a lot of constl law aimed
squarely at protecting their interests (crim pro).
c. Scalia-type argument – crim D‘s interests aren‘t rep‘d, but neither are crime V‘s interests.
i. Crime V‘s and perps live side-by-side.
ii. Disproportionately poor/minority ppl with little political power.
d. See such hard crim penalties bc affluent white voters w/political pwr, who exper little
crime, like harsh crim legislation.
v. Who wins the debate in fed crim law?
1. Are crim statutes diff in some relevant way that suggests they should be interpreted diff than other
kids of statutes?
vi. Historically, it‘s clear that when crim liab has expanded, at st and fed level, it has expanded through leg;
when scope of crim liab has contracted, it has contracted through judicial decision-making.
1. Whatever was widely assumed at time of Hudson & Goodwin, that comm. law was going to be
force for expanded crim liab, the above proposition has been true.
2. See law of defenses and law of mens rea.
a. Two bodies of fed crim law where judges have enjoyed most influence are defenses/mens
b. These bodies of law have RESTRICTED crim liab.
3. Decisions like Brogan, that text trumps all, tend to be decisions that work in the opp direction –
they don‘t lim crim liab, they tend to extend it.
vii. One assumption – democratic crime def is an obviously good thing. Why is that so? Is that actually so?
1. Completely at odds w/approach we take to law of crim pro: that crim Ds can‘t be expected to
protect their rights in crim process – so, need protection defined through constl law, which is
largely defined by fed judges.
a. So then how can the argument that democratic approach in defining crimes is best?
b. The doctrine: 3 key background principles that shape the role of the comm. law in fed crim law.
i. Crime-specific law vs. transsubstantive law
1. Dixon: transsubstantive – scope of duress defense, which applies to fed crimes in general, not to
any fed crime in particular.
2. Staples: partially transsubstantive – logic of ct‘s opinion lies well beyond the offense for which
Staples was charged.
3. Same is true for mens rea cases – Morisette
a. Morisette written as opinion about mens rea law generally, not ab fed theft particularly.
4. Trans law made by cts; crime-specific usually made by leg/Congr.
a. Not Congr defining scope of duress def in Dixon, it‘s SCT justices argument ab how one
ought to define scope of duress def in Dixon.
b. Not Congr defining mens rea std in Staples, it‘s Thomas.
c. V diff than Brogan.
5. Running debate ab status of comm. law – applies to a part of the field, not entire field.
a. No conventionally accepted theory ab why this debate applies to this part, and not that
6. Wonder if Brogan‘s arg would‘ve done better if it was pitched not as exception of liab under 1001
but as general def to all misrepresentation offenses (which is not a ridic characterization of the
exculpatory no exception of lower ct case law – 1001 was not the only statute to which this
doctrine had been applied)
a. More Brogan‘s arg looks like arg ab law of defense, vs. particular meaning of a crim
statute and conduct under statute – maybe more it looks like arg ab defense, the better
the argument would‘ve done.
7. Law of defenses/mens rea – trans; law of crim conduct – statute-specific
a. Ex. presumption against extraterr application of fed crimes – presumption applies in Small
(shipped guns to JP in water heater), but you see same presumption cast aside in
Pasquentino (customs fraud to evade Canadian taxes).
ii. The ―rule‖ of lenity
1. Absence of a strong rule of lenity
2. ―Strong‖ rule might hold that, in cases like Brogan, whenever there is a strong policy argument for
some limit on crim liab, if that argumnt is sufficiently strong to give rise to statutory ambiguity, that
ambig must be resolved in D‘s favor.
a. Brogan wins just by virtue of case being a close call.
3. But we don‘t have strong rule of lenity, we have non-existent rule of lenity.
a. Simply never comes into play in cases like Brogan, if anywhere.
4. Lenity is the final paragraph of an opinion of case decided on other gbrounds – rare to have case
decided squarely on lenity.
iii. Debates ab status of comm. law play out diff for 2 sorts of crimes.
1. p. 225 – statute that clarifies the mail and wire fraud statute, which criminalzes ―any scheme or
artifice to defraud that involves use of mails or interst phone lines.‖
a. Whatever law of mail and wire fraud, it‘s going to look that way bc of judicial decisions –
that is unavoidable.
b. Congr is basically making comm. law.
2. p. 272 – ―extortion in Hobbs Act defined as...‖
a. Key word: wrongful – a word that is anything but self-defining.
b. Bound to be comm. law of wrongfulness when this word occupies key place in statutory
c. Extortion would be largely comm. law offense, bc at the heart of the def of the offense
are two ideas that appear in conflict:
i. Crime must be committed w/ v‘s consent
ii. V must be coerced
iii. How do you reconcile those two w/o judicial law-making?
3. How would you propose to define intangible right of Honest Services w/o judges engaging in what
looks like comm. law? Just not possible.
4. There are a small number of crimes (fraud, extortion, RICO), as to which there is really no choice
but to engage in comm. law/judicial lawmaking.
a. Wrt those crimes, doctrinal generalizations just don‘t apply.
b. But those statutes, though a sm fraction of the field, tend to play a disproportionately
large role in classes like this bc there‘s lots of case law and judge-made doctrine to sort
through – precisely bc these statutes are diff than most other fed crim statutes.
c. Most crim statutes are like Brogan/gun statutes.
5. Fed crim law is two diff rules: trans + crime-specific
6. Also two fields in another dimension:
a. One field demands (Congr has all but announced it wants) judicial law-making (fraud,
b. Other sphere is the rest of the field, and v heavily legislative (Brogan) – relevant text
doesn‘t leave large holes that need to be filled for text to have determinate meaning.
i. Ie. don‘t have to have exculp no exception for statute to mean something.
c. The doctrine: criminal conduct
i. Common law definitions. See Durland (109); Neder (110).
1. Specific definitions of statutory terms
2. Durland: meaning of fraud under fed fraud statutes, incl false promises, not just false statements
a. Shows that in the past, there was no presumption that comm. law defs apply
3. At comm. law, fraud only incl false statements of fact, not false promises.
4. Neder: meaning of fraud statutes incl req that relevant falsehood be material (ie. important, not
trivial) – bc materiality was part of def of comm. law fraud
a. Shows there IS a presumption that comm. law defs apply
5. Always arguments floating around in this field that are underused by lawyers in the field.
a. One argument not made enough on both sides: look at crim statute at issue and ask if
theres a word or phrase attached to older, estab comm. law doctrine – might get
argument that wouldn‘t occur to you from text alone.
b. Today, cts like comm. law def arguments
ii. Common law doctrines. See Small (118); Dixon; Brogan.
a. Exculp no
b. Comm law revenue rule (Pasquentino)
c. Presumption against extraterrioriality
d. Law of duress (Dixon)
2. Small – presumption against extraterr bars using JP convic to trigger felon-in possn statute.
3. Dixon – long-estab duress defense applies in fed case.
4. Pasquentino – comm. law revenue rule doesn‘t apply bc this is a fraud case, even though the fraud
was plainly designed to evade Canadian taxes.
5. Brogan – exculp no doctr is contrary to the text of 1001 (more broadly contrary to text of other
6. How does this add up?
a. Old, well-est comm. law doctrines may apply (Small) or may not (Pasquentino)
b. Less old, less well-estab doctrine (like exculp no) must yield to statutory texts.
c. When it comes to def of crim conduct (vs. crim intent – Staples), theres a strong
presumption that older comm. law doctrines beat newer comm. law doctrines.
iii. Common law reasoning. See Brogan; Dixon.
1. Arguments not that we already DO have exculp no exception to, but that we OUGHT to have
exculp no exception to.
a. Majorities in Dixon and Brogan say such arguments are presumptively out of bounds.
2. Comm-law making (not existing species of comm. law like first two categories i and ii)
iv. Hierarchy of legal arguments – what beats what?
1. History sometimes beats statuory text (See e.g. Dixon – whole crime code says nothing ab duress
defense, and nevertheless we have one)
2. Text almost always beats policy (See e.g. Brogan)
3. Arguments for applying estab comm. law arguments/def is an argument of history – this has long
been the law, so it should be now.
a. Don‘t req large msr of judicial creativity – don‘t need to make up law, bc we have law that
has been around for a very long time.
b. Almost always win
4. Arguments for new comm. law doctrie = policy arguments.
a. Ie. we ought to have this argument that dosen‘t now exist in fed crim law.
b. Almost always lose outside of vaguely defined law like fraud or extortion.
d. The doctrine: law of defenses
i. From where - and when - do defenses come? Q of legal method (See Dixon)
1. 3 diff answers given in Dixon – none of them commands majority, though one is taken by majority
a. Stevens (majority) – content, contours, and burden of proof wrt duress depends on the
comm. law as of 1968 – yr in which statute in q was enacted by Congr.
i. If taken seriously, Stevens‘ argument would mean you would potentially have diff
law of duress for diff fed crim statutes – ie. not just one law, but as many
potential laws as there are Congr sessions (Congr might‘ve meant something at
one time than another).
b. Alito/Scalia – law of duress comes fr comm. law as of 1789 (bc that‘s when Congr began
defining fed crimes)
c. Kennedy/Breyer/Souter – today‘s comm. law: the contours of the duress def are still subj
to judicial def today; meaning of duress not fixed at some point in the past.
2. Only clear pt fr Dixon – that maj of justices reject today‘s comm. law (kennedy, breyer, souter
position) which would‘ve been seen as obv answer as recent as 20 yrs ago.
3. Even when comm. law doctrines pack more punch than in other areas, Dix captures lev of concern
w/judges making up pieces of fed crim law.
a. 6 justices go to great lengths to adopt what seem like implausible baselines to combat
4. Answer: no one knows where the law comes from, but it is NOT today‘s comm. law (ie. doesn‘t just
come out of minds of contemporary fed judges and justices)
ii. Who gets the benefit of fed defenses? Dixon n. 2 (125); Perez (134)
1. Answer: almost no fed defendants get benefit of fed defenses – Why is that so?
2. In Perez, notice that only actors who win on either duress or self-defense defenses (definition of
these defense is pretty much the same), have the most extreme facts.
a. This isn‘t true of st crim law – so why true of fed crim law, when fed crim law is using
same definitions as st law?
i. Why do fed cases turn out so diff?
b. Relevant crim conduct in all cases was felon in possn cases.
3. Has to do with nature of the crimes: happen over extended period of time (big distinction b/t fed
and st crim law)
a. Commit crime at every moment you possess relevant illegal thing.
b. Whereas, st law – crimes committed in very brief time window.
i. Law of duress/self-def was made for these crimes (murder, assault)
ii.Threat in q must be imminent – must be facing death or serious bodily injury at
a particular moment in time, wjhich is same moment in which you commit
c. With possn offenses, prob is that D is likely to possess relevant item both before and after
the threat materializes – which nec means defense doesn‘t apply, bc you would need it at
every moment you commit the crime.
4. Crimes committed over time, so particularly difficult for Ds to raise defenses.
Federal Criminal Law – Class 7
I. Notes about prosecutors
a. Common lawmaking process - diff b/t judicial lawmaking (accepting common law arguments and refining law as they
go along) v. congr lawmaking.
i. Diff – Congr, when it makes law in this area, sets own agenda (often makes law in response to some judicial
1. But judges can‘t choose the cases that come to them – they can only make law in cases that
2. Justices exercise less control than members of Congr.
3. Proportion of cases that are actually fed crim law are potentially on the cts docket only bc some
prosec decided to bring this case against this D on this particular legal theory, which is now under
ii. The legal issues the cts decides are, in the first instance, decided by someone else.
1. Ct can review someone else‘s decisions (lower ct‘s), but by def, in all fed crim cases, they are
reviewing the decision of an AUSA.
iii. Judicial lawmaking is diff thank you think it is, and diff than the way judges themselves talk about it.
1. fundamentally reactive
2. whereas legislatures are fundamentally proactive
b. Bluffing and prosecutorial discretion
i. Dog that doesn‘t bark/thing that doesn‘t happen – prosec bluffing.
1. Might expect that one thing that routinely happens in crim justice system is that prosecs would
threaten to file charges in order to induce coop fr some potential witness – but that essentially
ii. Conseqs of this phenomenon never happening seen in Dixon.
1. Can assume some version of the following happened: Dixon charged w/gun violation while
basically serving as bf‘s agent.
a. Many fed Ds start out as lover of someone who has been targeted.
2. Often prosec isn‘t interested in lover (Dixon), but actually her bf.
3. Likely ended up with Dixon case bc wasn‘t willing to serve up bf on one of the offenses.
4. Why, if the prosec prob didn‘t want to go after Dixon, did they go thorugh with it?
a. They can‘t bluff. Once decision was made, they had to carry it out.
iii. Why can‘t you bluff?
1. If you do, negotiations are ineffective with next D from whom you are trying to extract info.
2. Dealing with same defense lawyers over and over, who will know if threats aren‘t followed through.
3. Is it a valid way to make threats of crim liab that you wouldn‘t ordinarily impose but which are
imposed bc you simply can‘t bluff?
iv. This arises not bc of Dixon‘s culpability, but bc of her utility in another investigation.
II. The hierarchy of arguments
a. History (sometimes) beats text (See Dixon, Cf. Staples
i. History maybe often beats text
ii. Dixon – long-estab comm. law of duress, nothing in statute under which Dixon is prosec, nothing in fed crim
code – but estab by comm. law long ago so you get duress def in some fasion.
iii. Brogan – exculp no doctr didn‘t have historical pedigree that duress has, so doesn‘t win.
b. Text (usually) beats policy (See Brogan, Cf. Staples)
i. 2 Kinds of comm. law arguments
1. Some piece of existing comm. law ought to be applied in this case (no one making up new doctr,
taking doctr that already exists and saying it ought to be applied)
2. (Wins in Staples – Thomas) It would be unfair to punish Staples if the gov couldn‘t prove that he
met the mens rea std that the ct defines (policy argument)
a. Rule X may not exist now, but it ought to bc it promotes some value we care about, such
as fair crim punishment.
ii. Ex. Brogan
c. Ex. Staples exemplifies both
i. Ct says it‘s following traditional law of mens rea (which turns out to be not true)
ii. Policy argument wins over the absence of textual reference to a duress defense.
d. Neither proposition is iron-clad, up for debate case-by-case, but both are generally tendencies.
e. Leads to 2 questions
i. Why a comm. law of defenses? (yet no comm. law of exculp no)
1. Note: almost all of these defense claims loses.
a. Not just Dixon‘s duress claim that loses – almost all duress defense claims lose.
b. Same with self-defense in fed cases – def rarely wins.
2. A: Law of defenses has 2 characteristsic that sep fr other doctrines
a. Very old, well established – history beats text
b. Transsubstantive – they cut across crimes.
3. Historically, the std div of labor in crim lawmaking was that legislators make crime-specific law;
judges make transsubstantive law (cuts across particular crime).
4. Duress didn‘t arise by statute, it arose through comm. law.
ii. Why a comm. law of mens rea?
1. Been around a long time, very established.
2. At least in part, it‘s transsubstantive.
a. Staples ct doesn‘t say that the holding only applies to this particular crim statute – he says
it applies presumptively across the board.
iii. Defenses and mens rea are 2 of the 3 big exceptions to Brogan‘s Text Wins norm.
1. 3rd big exception – statutes like fed fraud statutes that in effect force cts to make comm. law.
III. The law of Defenses
a. From where - and when - do defenses come? (See Dixon)
i. Mostly lower ct judges (comm. law), not fed justices
ii. 3 answers provided in Dixon
1. Stevens – comm. law as it existed at the time the statute under which the D is charged was
enacted (Dixon – 1968)
2. Alito/Scalia – comm. law of 1789 (when Congr started enacting fed crimes)
3. Kennedy/Breyer/Souter – today‘s comm. law
iii. Pg. 125 – Steven‘s listing of elements of defense
1. Doesn‘t sound like duress the way Blackstone would‘ve defined it.
2. In fact, not even def of duress – it‘s def of an all-purpose justification defense.
3. Conventional understanding that these 4 elements also define self-defense, necessity defenses.
4. Proves that this isn‘t from 1789, bc then, there were sep defenses for each defense. Now, there‘s
an analgous, all purpose defenses doctrine.
5. This is comm. law making from today! (Kennedy/Breyer/Souter position)
iv. Tendency to assume that judicial actors down the food chain just do what SCT tells them to do –
surprisingly doesn‘t often happen that way.
1. Often, lower fed cts, esp when SCT is sending muddy msgs (like in Dixon), they go their own way,
until the SCT steps in again.
2. Ex. Lopez – for 5 yrs after opinion, lower fed cts of appeal continued to apply same stds to
commerce clause jx that they were applying before Lopez, as if Lopez meant nothing.
a. Started to change once SCT had occasion to apply Lopez in other cases – ie. VAWA case,
b. Only then did lower cts start to follow the law.
b. Who gets the benefit of fed defenses? (See Dixon, Panter) Why is it that so few Ds raise successful defenses?
i. Panter – under the facts, D was attacked (as a v) and stabbed and used firearm in his possn to defend
1. Sounds like golden self-defense claim but Panter loses.
ii. Standard model of crim law: involves both crimes and defenses that are defined in such a way that the
relevant events happen in a v brief time window.
1. And usually, the same events happen at a particular place in the span of a few seconds.
2. This is a prob for defenses bc felon in possn crime is not just bang it happens – Panter had the
weapon before and after the threat.
a. Nothing was imminent, bc nothing was happening.
c. Comm law defenses made for crimes like homicide, assault – crime happened in brief time window.
i. But becomes big prob in fed cases – which are not committed at one time, one place – committed across
time and place.
1. Ex. drug possn, gun possn, fraud, extortion, conspiracy.
a. Comm law defense aren‘t fashioned with these types of cases in mind.
IV. The law of mens rea
a. 2 propositions
i. St law of crim intent is largely ab what D intended to do.
ii. Fed law of crim intent is ab what D knew when he did it – degrees of knowledge, not degrees of intent.
1. Factual knowledge v. Legal Knowledge heavily litigated in fed law of mens rea (and not in st law of
b. US v. Dotterwich
i. FACTS: D charged w/ shipping mislabeled, adulterated drugs.
1. D basic persuasive argument for why he shouldn‘t be sent to prison – didn‘t know that drugs were
mislabeled, adulterated – ―I had no idea about the facts that gave rise to this crime.‖
2. Gov reply – Sure you had no idea, but we can‘t convict corp execs like this if we don‘t have
functional SL in cases like this.
ii. Accostumed to thinking of crim punishment as diff kind of exercise of gov powr – not the case during
1. Though we see this change of crim punishment being seen as extraordinary use of gov pwr, don‘t
have complete change – See Hong.
2. Hong – waste disposal seen as public welfare offense.
a. Dotterwich-style SL approach seen as approp
iii. Idea that it‘s ok to use crim law as a means of changing norms of behavior.
1. Dotteriwch rests on idea tht its ok to use crim law for this purpose, even if conseq of using it is
that some Ds may go to prison who had no idea they were exposed to crim liab/punishment.
2. Ex. Law of rape – broader and borader crim liab for sex assault in a way that was bound to capture
Ds who, however wrongfully they behaved, did not realize and had no idea that their behavior
might make them eligible for crim punishment.
c. Morisette v. US
i. FACTS: D charged w/steal bomb casings off gov prop.
1. D basic persuasive argument for why he shouldn‘t be sent to prison: ―I had no idea that anyone
2. Whatever law of abandonment holds, if M had thought that some officer in charge of this mil base
felt strongly ab this spent bomb casings staying where they were, given that M didn‘t try to concel
his actions, he prob would‘ve just said ―ok fine I‘ll leave them alone.‖
3. BUT there‘s no def of not knowing anyone would actually care – ie. Raich prob didn‘t think anyone
cared about her marijuana use to help chemo pain.
a. M‘s argument seems stranger and weaker than at first blush.
4. Gov reply – there‘s no def of the type that M is asserting.
a. Second argument – Dotterwich – we‘ve already dealt with this issue before: want to make
an omelete, gotta break a few eggs.
b. If we grant comm. law mistake claims, we won‘t be able to convict anyone.
d. After Dotterwich and Morissette, fed crim has 2 main mens rea stds, neither of which fit comm. law of mens rea
i. Dotterwich – comm. law of mens rea seen as too lenient
ii. Morissette – comm. law of mens rea seen as too harsh
iii. Key legal Q that emerges from 2 cases:
1. Which category dominates? Morisette or Dotterwich?
2. Leads to Staples, which gives an answer to that Q.
e. Staples v. US
i. FACTS: Unlawful possn of machinegun.
1. D argument: didn‘t know it was an automatic machinegun (this is like being charged as felon in
possn when D thought he was possessing toy gun rather than a real one)
2. Gov: maybe Staples didn‘t know this fit stat def of machinegun, but he knew enough – which is
that conduct like his is likely to be heavily regulated, which is enough knowledge to prompt him to
check into the regulations that might apply and find out what his legal obligations might be.
ii. Ct: buys D‘s argument bc follows comm. law presumption that D must know all facts that give rise to crim
1. Prob: there is no such comm. law presumption
a. Ordinary rule that would apply – D wins only if mistake of fact ab character of
machinegun was both honest and reasonable.
i. Plausible to believe that Staples would lose under this std.
2. Fed crim law tends not to track the comm. law, but either more broad or stingy.
iii. Bottom line of Staples: as b/t dualing stds of Dotteriwch and Morisette, the latter decision prevails, except
for cases of corp crime (like Dotterwich itself).
f. Consider whether Staples standard is the right standard for that crime.
g. Why is fed crim law doctrine of mens rea so diff than the comm. law doctr.
i. Why doesn‘t fed crim law just follow general, specific intent or mistake of fact/mistake of law doctrines?
Federal Criminal Law – Class 8
I. Legal Knowledge
a. ―Ignorance of the law is no excuse‖ – fact that a D doesn‘t know conduct was criminal is not a defense to crim
b. Exception: Fed Crim Law – such a def is often avail.
c. Liparota v. US
i. FACTS: Prosec for food stamp fraud – restaurant owner indicted for acquiring and possessing food stamps
when Dept of Agr hadn‘t authorized D‘s restaurant to accept them.
1. D purchased food stamps for less than their face value.
2. D claims - didn‘t know conduct wasn‘t authorized.
3. Gov claim – public welfare offense
ii. Statute: ―Whoever knowingly uses, transfers, acquires...‖
iii. HELD: Absent indication of contrary purp in lang/leg hist of statute, Gov must show that D knew that his
acquisition or possn of food stamps was in a manner unauthorized by statute.
1. Universal notion that injury can amt to crime only when inflicted w/intention.
2. To interpret the law otherwise would be to criminalize a broad range of apparently innocent
a. Ex. of sweeping interpretation: would be criminal for nonrecipient of food stamps who
―possessed‖ stamps bc he was mistakenly sent them through the mail due to error,
―altered‖ them by tearing them up, and ―transferred‖ them by throwing them away.
3. Not a public welfare offense – food stamps can‘t be compared to hand grenade (Freed);
unauthorized possn of food stamps can‘t be compared to selling adulterated drugs (Dotterwich)
4. Holding doesn‘t put unduly heavy burden on Gov – can prove D knew his conduct was illegal by ref
to facts and circumstances surrounding the case.
d. Cheek v. US
i. FACTS: D is tax protester who regularly failed to file income tax returns.
1. D claims –he honestly believed (a) ordinary wages weren‘t taxable income, (b) tax laws were
ii. Congr made specific intent to violate the law an element of certain fed crim tax offenses.
1. In order to soften impact of the comm. law presumption that everyone knows the law.
iii. Construing ―willfully‖
1. Reqs Gov to prove that the law imposed a duty on the D, that the D knew of this duty, that he
voluntarily and intentionally violated that duty.
a. If Cheek says he truly believed that IRS doesn‘t treat wages as income, and jury believed
that, Gov wouldn‘t have proved willfulness.
iv. Claims that tax code is unconstl
1. Such claims don‘t arise fr innocent mistakes caused by complexity of IRS code.
2. D is in no position to claim that his good-faith belief ab validity of IRS code negates willfulness or
provides def to crim prosec.
v. Scalia concurrence
1. Agrees that negligent errors ab meaning of ―income‖ negate willfulness.
2. AND claim that tax code is unconstl negates mens rea.
e. Ratzlaf v. US
i. FACTS: D came to casino with $100k to pay debt, was informed that all transactions involving more than
$10k in cash must be reported to st/fed authorities.
1. D buys cashiers checks, ea for less than $10k and ea fr a diff bank = ―structuring transactions.‖
ii. Trial judge – Gov must prove D‘s knowledge of bank‘s reporting oblig and his attempt to evade it, but don‘t
have to prove that D knew structuring was illegal.
iii. D claim – can‘t be convic of ―willfully‖ violating law solely on basis that bank must report and his intent to
1. ―Willful‖ = Gov must prove D was aware of illegality of ―structuring‖
iv. HELD: Structuring is not inevitably nefarious.
1. Nor is a person who structures a currency transaction invariably trying to keep Gov in the dark.
2. Ex. under Gov‘s construction, would be a crime to make deposits in small does, fearing that bank‘s
reports would incr likelihood of burglary, or endeavor to keep former spouse unaware of his
3. Wilflfulness req satisfied with D‘s knowledge of the illegality of structuring.
f. Issue of superfluity
i. Should cts decide which terms in statutes are and aren‘t superfluous?
ii. Stevens dissent in Wells: 42 fed misrep laws incl ―material,‖ whereas 54 do not.
1. Stevens argues you should read materiality term into latter 54 statutes that don‘t explicitly incorp
iii. Argument – ct is frequently willing to read a statute in a way that renders some lang superfluous, if
superfluity is an apparent drafting oversight.
1. Congr was unaware that anti-structuring prov was the only one in the revised statutory scheme
that had a sep mens rea req.
iv. Outcome – Congr revises anti-structuring statute and eliminates the willfulness term.
1. Ratzlaf is no longer good law for that type of crime.
g. Bryan v. US
i. FACTS: D convic of ―willfully‖ dealing in firearms w/o fed license.
1. D purchased guns he couldn‘t have purchased himself fr ―straw purchasers,‖ then resold guns on
BK st corners known for drug dealing.
2. Unquestionable that D was dealing in firearms, that he knew conduct was illegal.
3. BUT, no ev that D was aware of fed law prohibiting dealing in firearms w/o fed license.
ii. ISSUE: Whether ―willfully‖ reqs proof that D knew his conduct was unlawful, or whether it also reqs proof
that he knew of fed licensing req.
1. Whether D‘s general knowledge of illegality is enough to sustain the convic, or whether ―willful‖
violation of the licensing prov reqs proof that D knew his conduct was unlawful specifically bc he
lacked the nec license?
1. When used in crim context, ―willful‖ act is one undertaken with a ―bad purpose.‖
a. Ie. to estab willful violation of a law, gov must prove that D acted w/knowledge that
conduct was unlawful. (Ratzlaf)
2. ―knowingly‖ vs. willfully
a. Knowingly – presumption that every cit knows the law makes it unnec to prove evil mind.
b. Willfully – more is req: jury must find D acted w/evil-meaning mind (ie. w/knowledge that
conduct was unlawful)
3. Distinguishing Cheek and Ratzlaf fr case at hand
a. Both involved highly technical statutes that presented danger of criminalizing indivs
engaging in apparently innocent conduct.
b. Represent exception to traditional rule that ignorance of law is no excuse.
c. Danger of convic D engaged in innocent conduct isn‘t present here as it was in Cheek and
Ratzlaf, bc jury found that D knew conduct was illegal.
iv. HOLD: Willfulness req of statute is not an exception to traditional rule that ignorance of the law is no
1. Knowledge that conduct is unlawful is all that is required.
v. DISSENT (Scalia)
1. Case calls for application of diff traditional rule than ignorance of the law is no excuse: that ―where
there is ambiguity in a crim staute, doubts are resolved I favor of the D.‖
2. ―Willfully‖ has a wide range of meanings.
a. When 3 preceding clauses specify mens req of ―knowingly‖ for other firearm offenses, a
―willful‖ violation under that same law must req some mental state more culpable than
mere intent to perform a forbidden act.
3. Violation isn‘t willful unless D knows in general way that his conduct is unlawful.
a. Statute reqs some knowledge of the law – real q is which law?
b. Ct‘s answer: knowledge of any law is enough.
4. Enough if D is generally aware that actus reus punished by law – dealing in firearms w/o license –
is illegal. But ct accepts mens rea so general that it‘s divorced fr actus reus the statute is supposed
5. Weird results
a. D would be guilty of willfully dealing firearms w/o license even if he had never heard of
license but knew he violated law by using straw purchasers or filing off serial numbers, for
6. When Congr makes ignorance of the law a def to a crim prohibition, it means ignorance of the
unlawfulness of the specific conduct punished by that crim prohib.
1. Bryan v. Morisette
a. Morisette – Jackson relies on need to ensure convic is fair; treats law of mens rea as
species of comm. law crafted by judges.
b. Bryan – tied to use of word ―willfully‖ – doesn‘t sound like exercise of comm. law
2. US v.
a. D convic of ‗willfully and knowingly‘ making false statement in a passport application.
b. HELD: Statute reqs that D provide info D knows to be false; doesn‘t req D to act
w/specific purpose to make false statements or to violate the law, either generally or
3. US v. Wilson
a. Protective order issued against D. While subj to the order, D was arrested. Search under
the arrest turned up shotgun. D convic under law which bars possn of gun by person subj
to protective orders.
b. Gov – must prove D knowingly violated law.
c. D claim – knew he possessed gun, but didn‘t know that doing so was a crime, so lacked
intent nec for convic.
d. HELD: Traditional rule that ignorance of the law is no def to crim prosec.
e. Posner DISSENT: There‘s a constl req of fair notice of potential crim liab.
i. Not type of law that lay person would know existed bc conduct it forbade was
contrary to the moral code of his society.
ii. Fed crim code contains thousands of ridiculously obscure prohibitions.
iii. Would never occur to D that he needs to give up the gun after restraining order
was imposed unless judge told him.
iv. Diff fr Bryan
1. The statute here is easy to understand, but hard to discover.
v. Lambert v. CA
1. Law reqd felon to register w/police and D failed to do that. She had no
knowledge of the req – convic dimissed.
f. Can look at Wilson as fed prosec for st-law crime: domestic violence.
i. Fed gun laws often used to subj violent felons guilty of crimes like armed
robbery to tougher fed sentencing rules.
1. See Project Exile – aimed to reduce crim violence in Richmond, VA.
4. Bryan, Liparota, Cheek, Ratzlaf – statutory interpretation decisions.
a. But reasoning depends on proposition that the intent std applied in those cases was nec
to ensure that law punishes only Ds who had fair notice that their conduct was unlawful.
i. Fair notice = constl value, not just stat.
b. Thus, these decisions also rep an emerging law of ―constl innocence‖ – conlaw not just
h. Arthur Andersen v. US
i. FACTS: Enron‘s auditor told employees to destroy docs while E was under investigation – charged
w/violating ―knowingly use intimidation or phys force, threaten, or corruptly persuade another person
w/intent to cause person to withhold docs fr, or alter docs for use in, an official proceeding.‖
1. ―If it‘s destroyed in the course of the normal policy and lit is filed the next day, that‘s great. We‘ve
followed our own policy, and whatever there was that might have been of interest to somebody is
gone and irretrievable.
2. 5th Circ held: jury instructions properly conveyed meaning of ―corruptly persuades‖ and ―official
proceeding,‖ that jury need not find any consciousness of wrongdoing, there was no reversible
ii. ISSUE: What it means to ―knowingly corruptly persuade‖ another ―w/intent to cause‖ that person to
―withhold‖ docs fr, or ―alter‖ docs for use in, an ―official proceeding.‖
iii. HOLD: jury instructions failed to convey properly the elements of a ―corrupt persuasion‖ convic under the
statute – failed to convey requisite consciousness of wrongdoing.
1. Act underlying convic – ―persuasion‖ is innocuous.
a. Persuading a person w/intent to cause that person to withhold testimony/docs fr Gov is
not inherently malign.
b. Ex. Mom tells son to invoke rt against compelled self-incrimination; wife tells huz not to
disclose marital confidences.
c. Ex. Atty telling client to withhold docs fr gov covered by atty-client priv (Upjohn)
2. Doc retention policies are created in part to keep certain info fr getting into the hands of others.
3. Key is ―knowingly‖ corruptly persuading – wrong to only focus on ―corruptly.‖
4. Statutory interpretation
a. Mens rea at least applies to acts immed following, if not other elements down the
statutory chain – ie. knowingly modifies surrounding verbs.
5. ―subvert, undermine‖ vs. ―impede‖
a. Impede has broader connotation that subvert and doesn‘t incorporate any ―corruptness‖
b. Bad result – by gov‘s def, anyone who innocently persuades another to withhold info
would impede gov.
6. Nexus b/t obstructive act and particular proceeding.
a. Instructions made jury think didn‘t need nexus b/t ―persuasion‖ to destroy docs and
b. Diff b/t proceeding that isn‘t pending or about to be instituted at time of offense vs.
proceeding that isn‘t foreseen at all.
c. Knowingly corrupt persuader can‘t be someone who persuades others to shred docs under
doc retention policy when he doesn‘t have in contemplation any particular proceeding in
which docs might be material.
d. Ex. Aguilar – if D lacks knowledge that his actioins are likely to affect a judicial
proceeding, he lacks the requisite intent to obstruct.
1. For stat interpretation, Arthur Andersen seems more persuasive than Bryan.
a. Combo of knowingly and corruptly suggests D must know that conduct was improper.
b. Destroying docs isn‘t always improper, often a routine biz prac.
2. Hard to know where legal line falls - unfair to punish D for guessing wrong ab scope of vague crim
statutes, BUT Ds knew they faced potentially serious legal liab and tried to lim scope of ev that
would be used against them.
3. Morisette v. Arthur Andersen
a. Jackson in Morisette – focus on general principles that underlie crim law.
b. Rehnquist in Arthur – sticks to lang of the particular crim statute.
i. 2 justices took quite diff approaches to writing opinions on meaning of crim
I. Wells case (pg. 121)
a. 42 misrep statutes all req gov to prove that false statement was not just false, but significant in some way
(―materiality‖); 54 statutes that don‘t incl word material
i. No apparent reason why some statutes req proof of materiality and some don‘t – word is randomly
ii. Overlapping liab all over the place – norm for a single course of conduct, ie. single false statement, to fall
within several diff misrep statutes.
b. Why would Congr enact essentially 100 misrep statutes, half of which take one position on materiality, half which
take another – with no clear indication which is which?
i. Inattention, carelessness
ii. When highly publicized cases arise, Congr comes up w/ another statute, not bc it‘s nec, but bc it‘s a way to
score some political points.
c. Wells ct – distrib of materiality terms doesn‘t matter, we just follow the text in front of us.
i. Ct‘s decision suggests that at least in this field, cts don‘t interpret one statute in light of the lang of another.
ii. No tradition of harmonizing conflicting crim statutes – crim statutes stand alone.
d. Other norm of overlapping liab: Wells indicates there‘s no such thing in fed crim law as an ―exclusivity principle.‖
i. Single course of conduct can violate half a dozen sep crim statutes, and there‘s no legal doctr/tradition of
saying in those cases that THIS statute best captures THIS conduct and gov must proceed along THESE
ii. Most common way to determine sentence – tie to charges – ie, more charges gov files, more severe the
iii. Tradition is not about ―picking best fit‖ for legal liab.
a. Useful to think ab Dotter and Hong (enviro crime case) cases not just in terms of their holdings or the doctr they
create, but also what they rep – what they say ab the justice system.
i. Both illustrate a v American desire to be tough on high-end, white collar crooks (not the norm of other legal
1. Send WC crims to prison in greater numbers than any w European country.
b. Why the difference? Why crim justice so much more severe in US?
i. For white collar – diff view of equality here than in w Eur, and they lead to diff places wrt white collar
a. Low status offenders are treated leniently in part bc high status offenders are treated
leniently – leveling toward lenity.
b. Value equality of prosec – concern if members of one grp more likely to be charged than
a. Level towards severity – high stat offenders treated harshly bc st crime offenders are
b. Value equality of punishment – biases the system towards severity.
III. Fed Mens Rea doctrine substantially more pro-D than analogous st law
a. State law – 2 doctrines that would cover:
i. Mistake of Fact doctr – for most crimes, in order for D to get off bc of mistake ab some fact, D must show
mistake was honest and reasonable.
1. Fed law – D doesn‘t have to show factual error was honest and reasonable. Gov must show beyond
a reasonable doubt that D knew the relevant fact.
ii. Mistake of Law – ignorance of the law is no excuse is a v strong doctr of st law and covers most legal
mistake claims (ie. most st cts give those cases back of the hand)
1. Where legal mistake claims are allowed, they‘re v circumscribed.
2. Ex. Morisette would likely not prevail in st ct on his claim that ―well I thought the casings were
i. How did this happen and why did it happen?
ii. Why are these trends such an important part of fed crim law and not its state counterparts?
IV. Dotterwich and Morisette
a. Dotterweich and the idea of near-universal strict liability
i. Orig Dotterwich seemed like template for the field.
ii. When it was decided, expectation was that SL would be common in fed crim law, not exceptional as it is in
st crim law.
b. Morissette and the idea of a broad mistake-of-law defense
i. Instead, Morisette became the template – turns out to be more proective than the comm. law, bc estab tacit
mistake of law def.
c. What is it about the crimes like those in Dotterwich that call for SL?
1. At the time, Gov thought it would be impossible to go after these crimes – idea of technicality.
2. Character of crimes – if substantial mens rea stds are attached to them, makes unusually hard to
3. Those new crimes also involve level of detail that would make convic difficult in the teeth of
substantial mens rea standards.
ii. Fed crimes are disproportionately new
1. Offenses haven‘t existed since Blackstone
2. New crimes that cover less culpable conduct than classic st law crimes that are regularly
d. Ct is wrestling w/what to do ab crimes that make for stronger mens rea arguments on both sides.
i. Gov has stronger argument for little or no mens rea stds than most st law crimes
ii. Ds have stronger argument for more substantial mens rea than most st law crimes.
1. So you get law that‘s mix of two extremes
e. Legal Bottom Line (Dotterwich, Morisette, Staples)
i. SL for ―regulatory‖/‖public welfare offenses‖
ii. Morisette suggested that category would be small, not large (exception, not rule).
iii. Staples and today‘s cases suggest that category is VERY small – incl basically corporate misconduct and
almost nothing else.
1. Dotterwich has become law that governs only little corner of the field.
2. Larger chunk of field = Staples
a. There is a presumption that gov must prove knowledge of all facts that make the D‘s
conduct a crime.
b. That presumption applies even if the relevant statute has no mens rea lang at all.
a. Charged w/unregistered machine gun – D says he didn‘t know it was a machine gun.
b. Ct: Gov must prove that Staples actually knew he was carrying a machinegun.
i. Is that the right std for Ds like Staples? Or should he be punished just based on conduct?
c. Widespread gun ownership
i. May have to worry more than otherwise about criminally punishing innocent.
ii. Ppl like Staples can often raise plausible notice arguments – ―I had no idea I was doing something that
could get me into trouble with the law.‖
d. Decide if you want to make convic for gun crime easier, even at the cost of punishing some Ds who don‘t know
they‘re doing something unlawful.
i. Same argument that many st cts made ab law of sex assault.
ii. Rape Reform: expressly designed to change norms of behavior and cultural tolerance for seriously coercive
1. Worked at the cost of sending some Ds to jail who could truthfully say they had no idea they were
doing something wrong.
e. Should crim liab be used to change norms of behavior?
i. Def sends a louder msg.
ii. This is not the norm in the system – rarely happens outside of the law of homicide.
f. Stevens in Staples – conduct, in the aggregate, causes harm. There are strong reasons why gov should be able to
limit and monitor possn of these types of weapons.
i. If we want to change the behavior of ppl like Staples, so that gov regulatory regime will work, gotta punish
some ppl who can truthfully claim they had no idea.
ii. Wanna make an omelette, gotta break some eggs.
VI. Flores-Figueroa (2009)
a. Aggravated ID theft. Statute reqs knowing use of someone else‘s identity (vs. random set of numbers on SS card
that belonged to no one)
b. Ct treats this as a matter of statutory interpretation.
i. Knowledge term in the statute – when there‘s a single mens rea term somewhere in the statute, it applies
to all conduct terms in the statute.
1. If MR applies to one element, it presumptively applies to all.
c. Identical legal std as Staples, but Staples has no statutory lang to tie std to.
d. Central issue in wake of Flores and Staples doctrine: how broadly does Staples apply when the statute doesn‘t
specify any MR std?
i. Has Staples doctrine become a text doctr or a comm. law doctr?
VII. Legal Ignorance cases
i. Unauthorized use of food stamps
ii. Gov must prove legal knowledge – that D knew use of food stamps was unauthorized.
iii. Pg. 168 – statutory lang
1. Ct could‘ve easily written opinion using text argument
2. BUT opinion is particularly important bc it does NOT rely on text argument.
iv. Rationale for proof of legal knowledge: if gov doesn‘t prove legal knowledge, we will end up prosec non-
1. Rationale less like Flores, more like Morisette
2. Same rationale Posner uses in Wilson
3. Contrary to norm that ignorance of the law is no excuse.
v. Why doesn‘t this rationale also dominate st crim law?
1. Tendency to think ignorance of the law is no excuse arises bc claims of ignorance are not
exculpatory (that D is rotten even if he didn‘t know relevant law).
a. That‘s wrong. As a matter of history, empirics.
2. More likely that w/any D in any ordinary st law crim case (involving prosec of an offense that is
regularly prosec), claim of ignorance is wildly implausible.
a. Case of false testimony that wouldn‘t fly anyway.
b. What thief is going to make a Morisette claim?
c. Homicide Ds couldn‘t plausibly say they didn‘t know.
vi. The system had no need to excuse legal ignorance before fed crim law developed in the way it did in the
1. Before fed crim law developed, there were v few crim cases in which D could say w/straight face ―I
had no idea‖ – simply no longer the case w/fed crim law.
i. Charged under anti-structuring statute. Sep statute that reqs banks to file reports w/the Gov in connxn
w/any cash transaction of $10k or more. Ratz told by casino ab this reporting req and that he could get
around it w/a bunch of cashier‘s checks of $9500 w/diff institutions.
ii. Crime to do this if done willfully; Ratz claims he has no idea.
iii. Ct: (same as Liparota) Gov must prove legal knowledge.
1. BUT unlike Liparota, ct tied rationale to piece of legal text – use of word willfully.
iv. Soon after Ratz, Congr removed willfully fr the statute.
1. Meaning, Ratz‘s claim would lose today – no longer good law under the statute.
2. But still valid precedent when it comes to cases brought under statutes that presumably have the
word willfully – see Bryan.
i. D charged w/selling guns w/o a license – statute reqs willfulness req.
ii. Strange majority opinion by Stevens – pg. 177
1. ―The willfulness req does not carve out an exception to the traditional rule that ignorance of the
law is no excuse; knowledge that the conduct is unlawful is all that is required.‖
iii. Only 2 poss outcomes in Bryan
1. (most straightwd, that follows fr Ratz) – Gov must prove that Bryan knew ab licensing req that he
violated (Scalia‘s position in dissent)
2. (majority) – Gov must provde D knew he was doing something illegal in the course of the gun
a. As long as there is some ev he is doing something that is breaking the law.
iv. (Stevens wanted 3rd outcome) – ignorance of the law is no excuse; knowledge not required.
1. Can‘t take that position bc he‘s writing majority opinion.
2. SO he does next best thing: argues that bc law usually gives no defense for legal mistakes, we
should make any defense it gives as narrow as poss when there is one.
3. HOLDING: knowledge that the conduct is unlawful is all that is required.
v. Stevens narrows knowledge of the law req in 2 distinct ways:
1. Knowledge of generalized illegality (not knowledge under this particular statute) is enough
2. This knowledge of the law req is tied to the word willfully.
vi. What ev do we have that D KNOWS something is illegal?
1. Dealing on street corners, filing off serial numbers.
2. Same w/Liporato – obv buying food stamps for much less than worth is not ok.
vii. Mens rea stds typically amt to saying Gov must show D behaved as he would have had he known conduct
would get him into trouble.
viii. What does that behavior look like?
1. Some form of concealment, covert behavior.
a. True in Bryan, Liparato
ix. How would Gov prove knowledge of the law if it had to?
1. Not sure it can – not really any evidentiary fix in Ratz as there is in Liparoat and Bryan.
2. Which is maybe why Congr overturned Ratz so quickly.
VIII. 3 doctrinal bottom lines
a. Strong presumption that Gov must prove knowledge of some illegality when the statute reqs proof of willfulness (see
b. Same is true if statute uses lang like ―knowingly corrupt‖ or some other version of the statute in Arthur.
c. Weaker presumption that Gov must prove knowledge of some illegality regardless of statutory lang if the alternative
is criminalizing a broad range of apparently innocent conduct.
Federal Criminal Law – Class 9
I. Mail and Wire Fraud
a. Mail/Wire statutes - most flexible weapons in the fed prosec arsenal.
b. Extension of ―mailing‖ element to include ―any private or commercial interstate carrier.‖
II. Scheme to Defraud
a. Durland v. US
i. FACTS: D used mails to advertise ―bonds‖ that would return profits of 50% in 6 mos – but they had no
intention of paying the principal or interest on bonds they sold.
1. D claim – Mail Fraud statute only reaches conduct that falls under false pretences (reqs proof of
false statements of material fact).
a. comm law doesn‘t criminalize D‘s conduct – false promises of future performance, like D‘s
promise to pay interest on the bonds, didn‘t suffice.
ii. HOLD: Mail fraud statute reaches D‘s conduct, bc it covers anything designed to defraud by representation
as to the past or present, or suggestions and promises as to the future.
1. Mail fraud statute – prohibits using or causing use of mails in attempted execution of ―any scheme
or artifice to defraud.‖
2. False Pretences (most analogous comm. law offense)
a. Reqs misrepresentation as to some existing fact and not a mere promise as to the future.
3. Mail fraud statute is broader than D claims.
a. Some schemes may be promoted through representations and promises as to the future,
but are nonetheless ―schemes and artifices to defraud.‖
b. Punishment for fraudulent purpose.
4. Look at evil to be remedied to determine meaning of statute.
a. Scheme which holds out prospect of receiving more than is given = most alluring.
b. Purpose of protecting public against intentional efforts to defraud, and to prevent post
office fr being used to carry them into effect.
c. Would strip statute of value to confine it to cases which incl actual misrepresentation.
1. 1909 – Congr expands mail fraud statute to incl schemes ―for obtaining money or prop by means
of false or fraudulent pretenses, representations, or promises.‖
2. Favoring broad statutory coverage
a. If markets fxn more efficiently when cheating is discouraged, then broad crim law of fraud
should pose a more effective deterrent.
3. Yet the comm. law in this area was very narrow – Why?
a. The line b/t cheats like Durland and simple breaches of K is often unclear.
b. Unfulfilled promises could be either fraud OR foolish biz practices (the latter handled by
civ justice system, not crim prosec).
c. Crim prohibs broad enough to cover to catch all instances of core dishonesty and fraud
could also cover wide range of marginal misconduct.
i. Ex. Staples v. US
d. Law of fraud: criminalize too much, or criminalize too little.
4. Law of white collar fraud expanded after rise of professional prosecutors, who have discretion to
not pursue cases they deem mere commercial disputes.
5. US v. Kreimer – broad declaration of mail fraud statute:
a. It reaches any plan, consummated by use of the mails, in which artifice or deceit is
employed to obtain something of value w/the intention of depriving the owner of his prop.
b. Measure of fraud is its departure fr moral uprightness, fundamental honesty, fair play, and
candid dealings – plans calculated to deceive.
i. Gov must prov D‘s ―consc knowing intent to defraud.‖
a. Statute covers omissions as well as affirmative misrepresentations.
b. W/o legal, professional, or contractual duty to disclose, failure to do so generally can‘t
support mail fraud claim.
c. BUT ―shadowy area,‖ where nondisclosures in the absence of such a duty, if deliberate,
could arguably be treated as artifices to defraud.
7. US v. Svete – Does MF statute req proof that scheme could deceive reasonably prudent person or
are schemes aimed at gullible/improvident also prohibited?
a. Held: It matters not how patent the falsity of a pretence may be, if it succeeds in
i. Statutes against false pretenses protect both the gullible and the savvy.
ii. Coverage of mail fraud statute not limited to schemes that would deceive only
prudent ppl – no reasonable victim req.
b. The objective reliability of a misrepresentation is sufficient to estab its materiality, but
proof of objective reliability isn‘t nec to estab materiality if D knows, should know V is
likely to see the misrepresented facts as important.
c. Focus of lang defining scheme to defraud is on the violator, not the V.
i. Purpose of the element of materiality is to ensure that D actually intended
scheme to defraud – criminal intent.
ii. Perpetrator of fraud is no less guilty bc V is also guilty of negligence.
III. ―Obtaining Money or Prop by Means of False or Fraudulent Pretenses‖
a. What counts as property?
b. Carpenter v. US
i. FACTS: WJ column discussed stocks, giving pos or neg info ab those stocks and opinion wrt investment in
them (bc of column‘s perceived quality and integrity, it had potential of affecting price of stocks it
examined). D reporter entered into a conspiracy w/ D brokers, giving brokers info ab certain stocks before
info was printed in the newspaper – allowed brokers to buy/sell based on likely impact of newspaper column
1. D claims – activities weren‘t scheme to defraud WSJ within meaning of MF statute; didn‘t obtain
―money or prop‖ fr WSJ, which is a nec element of the crime.
ii. HOLD: Confidential biz info constitutes ―property‖ for purposes of the MF statute, and misappropriation of
that prop for private gain constitutes a scheme to defraud.
1. Tangible vs. Intangible prop rts
a. MF statute – origin in a desire to protect indiv prop rts.
b. However, McNally v. US didn‘t lim the scope of MF to tangible vs. intangible prop rts.
2. The obj of the scheme was to take WSJ‘s confidential biz info – publication sched and contents of
the column. Its intangible nature doesn‘t make it any less ―property‖ protected by MF statute.
3. Confidential biz info = property
a. Prop to which co. has exlusive rt and benefit.
b. WSJ had prop rt in keeping confidential + making exclusive use of sched/contents of
c. Confidential info was generated fr the biz, and biz has a rt to decide how to use it prior to
disclosing it to the publc.
d. Scheme to defraud doesn‘t req monetary loss – deprivation of rt to exlusive use of info is
i. Exclusivity is important aspect of confidential biz info and most priv prop.
4. Employee‘s fiduciary oblig to protect confidential info obtained during course of employment
a. One who acquires special knowledge or info by virtue of confidential/fiduciary relationship
isn‘t free to exploit that info for personal benefit but must acct to his principal for any
5. Req that wires and mail be used to execute scheme
a. Circulation of column was essential to scheme – had column not been avail to WSJ
customers, there would be no effect on stock prices and no likelihood of profiting fr
1. Intangible prop right (protected in Carpenter) vs. intangible right to ―honest services‖ (left
unprotected in McNally).
a. Ct: ―honest services‖ are more ethereal and farther from traditional goal of MF statute,
which is to protect tangible prop.
i. ―contractual rt to employee‘s honest and faithful service‖
2. Issue after Carpenter – whether MF statute reaches efforts to obtain licenses fr gov licensing
a. Cleveland v. US: st/municipal licenses don‘t rank as prop for purposes of the statute.
c. US v. Al Hedaithy
i. What intangible interests can be protected through MF prosec?
ii. FACTS: Scheme by which imposters were paid to sit for the TOEFL test, to create false appearance that Ds
had achieved passing score so they could remain eligible to live in the US under a student visa.
iii. ISSUE: Does TOEFL exam satisfy def of prop, as confidential biz info? Did Ds engage in scheme to defraud
ETS of this prop?
iv. HOLD: Ds engaged in a scheme to defraud ETS of traditionally recognized prop interests in its confidential
biz info and TOEFL score reports.
1. MF Statute
a. D‘s knowing and willful particip in a scheme or artifice to defraud, w/the specific intent to
defraud, and the use of the mails or interst wire communications in further of the scheme.
b. Obj of alleged scheme must be traditionally recognized prop rt.
2. 3 SCT cases that govern: McNally, Carpenter, Cleveland
a. McNally – statute must be read as limited in scope to the protection of prop rts
i. Honest services not w/in scope of MF.
b. Carpenter – violation of MF to defraud a co. of confidential biz info.
c. Cleveland – convic for making false statements in applying to LA st police for license to
operate video poker machines.
i. Q: Whether video poker license qualifies as ―property‖ within scope of the
ii. H: licenses are not property, but represent power to regulate.
1. Thing obtained must be prop in the hands of the V; that the obj of
fraud may become prop in the recipient‘s hands doesn‘t suffice.
2. State‘s issuing of licenses is a regulatory scheme, which is part of the
exercise of st police powers.
3. Confidential info compiled by a co. in the course of biz.
a. Any formula, pattern, device, compilation of info used in one‘s biz, giving opp to obtain
advantage over competitors who don‘t know or use it.
i. TOEFL exam satisfies this def of confidential biz info.
4. ETS has been deprived of its right to exclusive use of the confidential biz info.
a. Not nec to show ETS suffered monetary loss.
b. ETS protects exclusivity by allowing access only to those who agree to keep exam
confidential and who provide accurate ID.
c. D‘s scheme allowed access to test-takers on terms other than those prescribed by ETS.
5. ETS was defrauded of tangible property
a. Prop interest in materials bearing trademarks, such as TOEFL score reports.
b. Score reorts represent the end result of services provided by ETS, but are still tangible
items produced by ETS.
c. Schwartz and Granberry cases
i. Q: whether unissued licenses were prop in the hands of a gov entity for
purposes of the fed fraud statutes.
ii. H: Unissued licenses aren‘t prop.
6. De minimis exception?
a. Worth no more than paper or ink used in their printing, thus fail to meet threshold
significance implicit in MF statute (deprivation of something of value).
b. US v. DeFries
i. Tangible prop was sole phys embodiment of valuable info that was costly to
produce and would be as costly to recreate.
ii. D‘s conduct invalidated the entire enterprise and undid the investment.
iii. Prop doesn‘t lose status as such, nor is its value any less substantial, simply bc
it‘s held for ends that are abstract and that thereby seem non-property like.
c. ETS‘s score reports were valuable.
i. Sole phys embodiment of substantial and valuable services ETS provides.
ii. Fraud undermined ETS credibility and thus value of its entire investment in the
iii. ETS‘s goodwill due to integrity of TOEFL testing makes score reports valuable,
exceeding any potential de minimis threshold that may be req by MF statute.
7. Cf. Cleveland
a. Cleveland – bc issuance of licenses is component of st regulatory scheme + exercise of
police power, license isn‘t ―prop‖ in hands of regulator.
b. ETS is priv biz providing services for profit.
i. No sovereign pwr to regulate.
c. US v. Frost
i. Held: UT has prop interest in unissued diplomas under MF statute.
1. De minimis cases
a. When should cts bar such cases as a matter of law, vs. to trusting in prosec discretion?
d. US v. Ratcliff
i. FACTS: Election fraud; Can‘t receive loan for more than $2500, but D gets $50k bank loans to finance
reelection campaign, which are guaranteed by a businessman; then got new loans, secured by pledge of
$99k in cash by a wealthy supporter; also received money from a lobbyist to pay off campaign debt; elected
and then received over $300k in salary/employment benefits.
1. Gov claim – D used mails in a scheme to defraud the parish of salary and employment benefits of
elected office through misreps made to Bd of Ethics concerning his campaign financing.
a. D secured reelection by obtaining illegal funding.
b. Salary/employ benefits = ―money/prop‖ under MF.
c. Fraudulent job procurement can constitute MF in the election context just as it can in
2. D claim – misreps made to Bd of Ethics, a st entity, are unrelated to salary/benefits fr Parish, a
distinct, local entity.
ii. ISSUE: Whether indictment alleges a scheme to defraud the alleged victim – Parish – of money
1. Whether scheme is one to deprive parish of money or prop through misreps, thereby wronging the
parish‘s prop rts.
iii. HOLD: There is no scheme to defraud Livingston Parish of money or prop, thereby not an offense under MF
1. Salary and other financial employment benefits CAN constitute ―money or prop‖ under MF statute.
2. Although D ultimately received money fr the parish, parish wasn‘t deprived of this money bc of D‘s
misreps – financial benefits go to winning candidate regardless of who he is.
a. Parish not deceived into taking any action, rather this is a scheme to deceive Bd of Ethics
3. Though misreps of MF scheme need not be made directly to scheme‘s victim, scheme must defraud
4. Scheme simply didn‘t implicate parish‘s prop rts.
5. US v. Turner
a. Gov/citizens not deprived of money/prop bc relevant salary would be paid to someone
regardless of fraud. Citizens haven‘t lost tangiglbe rt to elect the official who will receive
b. State has on control over appropriation of salary beyond ensuring pmt to elected official –
no discretion wrt whether or to whom its paid.
i. Thus, no resulting prop deprivation.
6. Cf. to Salary Theory cases
a. Job applicant falsely reps qualifications to obtain a job, deceiving employer into hiring
someone it wouldn‘t have otherwise hired.
b. US v. Granberry
i. School-bus drive hides murder convic.
ii. Scheme deprived school distr of money bc dist didn‘t get what it paid for (ie
driver without a felony convic).
iii. Deprived school dist of prop rt to choose person to whom it transferred money.
c. Here, no harm to parish‘s prop rts
i. Parish doesn‘t bagain for elected officials w/particular qualities, such that D‘s
fraud could‘ve deined it value for which it paid.
ii. Parish doesn‘t have control over recipient of salary so that misreps deprived it of
7. Examples of gov‘s role as employer, where job qualifications can be economically quantified, aren‘t
same as election fraud, where gov‘s role is purely administrative and public‘s role is political.
a. Pwr to select paris pres doesn‘t originate fr parish gov, but fr electorate.
b. Although parish gov must pay candidate slected, it has no discretion in the matter –
purely admin role.
i. Gov role as sovereign, not as prop holder.
8. MF scheme doesn‘t have to cause financial loss to V. Rather, scheme to defraud a V of money/prop
must wrong the V‘s prop rts in some way.
9. Federalism concerns
a. See Cleveland – video poker machine licenses.
i. State‘s core concern in issuing licenses is regulatory rather than proprietary.
ii. Accepting MF theory would broadly expland fed crim jx over wide range of
conduct traditionally regulated by st/local govs.
b. Unless Congr conveys its purpose clearly, won‘t be deemed to have significantly changed
the fed-st balance in the prosec of crimes.
c. Here, there‘s a regulatory scheme governing campaign contributions/financial disclosures.
i. Gov would approve sweeping expansion of fed crim jx in absence of clear
statement fr Congr.
ii. Allowing this to fall under MF statute would subj to MF prosec a wide range of
conduct traditionally regulated by st/local authorities.
iii. Brings st election fraud under fed fraud statutes: would extend beyond campaign
finance to any misrep influencing voters to gain office.
I. Federal mens rea—tying up loose ends
a. Dotterweich, Morissette, and class
i. Can see them as about economic class – turn on Dotter‘s wealth and Morisette‘s lack thereof.
1. Large companies can afford to buy legal advice.
2. Morisette can‘t afford legal advice to tell her how to behave in adv of action.
ii. Similar to jx cases about fed robbery – wealth of victim was the key jx fact.
1. Fed robbery = robbery of businesses + rich ppl, whereas everything else is state robbery.
iii. Directly wealth-dependent – way in which fed crim law differs from most other fields.
b. Mens rea and jx elements (See Yermian pg. 167)
i. Yermian charged w/violating fed false statements statute (same law from Brogan) – clear that D lied and D
knew he was lying; claimed plausibly that he didn‘t know he was lying on a matter which was within jx of
ii. Hold: Makes no diff; look at issue case-by-case.
iii. Opinion primarily ab statutory grammar – placement of mens rea term and jx element.
iv. But that‘s not the law that comes out of Yermian – reflects proposition that most of the time, there is no
mens rea required wrt jx elements.
1. Scarborough – crossing of state line had nothing to do w/reasons why fed gov wanted to punish
Scarborough; no part of Scar‘s culpability.
a. So not req that Scarborough knew guns crossed st lines.
v. Why might you want to treat Yermian diff than Scarborough?
1. Dishonesty has historically been outside of crim law.
2. What made his conduct bad was that he lied on a matter within jx of a fed agency.
c. The doctrine on legal ignorance / legal knowledge
i. Doctrinal bottom line: presumption that Ds must know all facts that render their conduct criminal (See
ii. Legal knowledge bottom lines
1. Strong presumption that Gov must prove knowledge of at least some ilelgailty when statute reqs
proof of some willfulness – standard text rule.
2. Same story if the story uses lang like ―knowingly corrupt‖ (See Arthur Andersen) – ie. #1 isn‘t
limited to willfulness – if statute uses willfully or any other lang that appears to suggest legal
3. Weaker presumption that Gov must prove knowledge of illegality of the altenrative is criinalizing a
broad range of apparently innocent conduct (See Liporata)
iii. Both wrt factual knowledge and legal knowledge cases, doctrinal trend is to move away fr comm. law
arguments that say we req proof of legal knowledge, or else we will convict ppl unfairly.
1. Trend to move away fr those arguments to text arguments.
a. Ex in factual knowledge cases
b. Ex in legal knowledge
i. Bryant, Aruther Anderson
iv. Law is up for grabs – not clear to which extent Liporata is good law – issues are fought out crime by crime.
d. Wilson (pg. 180) and constitutionalized mens rea
i. Whether legal knowledge cases are constitutionally required.
ii. Wilson case
1. Charged w/knowingly possessing firearm while subj to a restraining order.
2. Wilson claims plausibly that he didn‘t know he was doing anything wrong; no one told him when
he got restraining order that he was not allowed to possess gun.
3. Posner dissent – the judge issuing restraining order prob didn‘t even know about the fed statute.
a. Unfair to convict and punish D for something he was not aware of.
4. Restraining order makes clear that D has beaten and threatened to kill the V.
a. Wilson shows – fed gun crimes used as proxy to punish ppl who are seen as violent
iii. Should these cases be a part of law of due process?
1. In cases were knowledge isn‘t intuitive, is some legal knowledge nec for fair convic? Is there a due
iv. Could argue that Ratzlaf and Ds like him are being punished in deeply surprising ways.
1. Gov punishing ppl for behavior they would have no reason to believe would get them in trouble
with the law.
v. Where the doctrine stands now
1. There is no category of constitutionally required mens rea.
2. Exception: Lambert v. CA
a. Convic felon living in LA in mid-late 1950s, when LA had city ordinance making it a crime
to have felony convic and not register w/police. Lambert had no idea ab registration req
and so didn‘t.
b. Lambert stands for proposition that you can‘t have a SL crime that is also an omission
offense (ie. crime is failure to act rather than taking action + no req of any knowledge wrt
duty to act).
3. Outside of small class of cases lke Lambert, there is no such thing as constitutionally required mens
II. Fraud (statutes and elements, some history, a key pattern)
a. Strangely designed crime, though def is intuitive: fraud is theft through deceit. But lots of complication under
b. Required Actus Reus of Fraud?
i. Technical answer: crim act of MF statute consists of mailing letter.
ii. Practical answer: carrying out scheme/plan to defraud.
1. Gov can‘t prove scheme to defraud unless it‘s put into action.
2. This is why terrorism cases are so hard for the Gov, and why the gov doesn‘t bring very many of
them and loses a surprisingly large portion of those that it does bring.
a. Gov trying to prosec ppl for essentially attempts/plans/making of plans before the plans
are actually carried out.
iii. Prosec is usually about planned conduct, though MF statute doesn‘t require conduct – essentially just an
1. Mailing of letter is only conduct
2. Scheme is mens rea element
c. Required Mens Rea of Fraud?
i. Usually stated as specific intent to defraud = intent to carry out the fraudulent scheme.
ii. If the scheme counts as fraudulent, then intent to carry out the scheme will count as fraudulent intent.
1. If scheme doesn‘t count as fraudulent, intent doesn‘t matter – D wins bc scheme isn‘t sufficient.
iii. Issues are always combo of:
1. Does the scheme suffice? Is this a fraudulent scheme?
2. Does the interest that the D stole suffice?
d. History: ―money or property‖ > ―honest services‖ (via comm law) > McNally > ―honest services‖ statute > Skilling
and poss legislation
i. Before early 1970s, money or prop fraud was all there was (ie theory in Carpenter, Al Hedaithy) – only
theory under which you could prosec MF.
ii. Beginning early 1970s, fed prosecs + judges jointly created a new theory: fraudulent deprivation of the
intangible right of honest services. So, 2 fraud theories:
b. Honest services
iii. Supreme Ct invalidates honest services theory on statutory grounds (McNally)
iv. Congr passes statute recreating honest services theory
1. Scheme or artifice to defrfaud in MF statutes incl scheme to defraud of honest services.
v. Skilling: narrowed honest services theory on vagueness, not statutory, grounds.
vi. Leahy Bill: Congr again considering restoring what Skilling undid, as it did when it corrected what McNally
e. We are left with one stable theory + one unstable theory
i. Money/prop cases have been around for a long time – changed over time but remained relatively stable.
ii. Intangible rts theory has been anything but stable for last 40 yrs.
iii. Interaction of the 2 theories
1. How much of this theory is already covered by that one?
2. The more broadly one defines money/prop, perhaps the less need you have for intangible rts
f. Pattern: expansive liab in priv-sector cases (see Durland, Al Hedaithy); narrow liability in pub-sector cases (see
i. Private sector fraud liab is expansive, substantial
1. Cleveland + Ratcliff – only 2 where you can say that D actually stole money fr potential V.
a. Yet these are two fraud theories that don‘t work under money/prop fraud
ii. Public sector is a lot more cabined.
1. Carpenter + Al Hedaithy seem like more of a stretch, but the theories do work.
iii. This is mirror image of intangible rights fraud
1. Private sector liab – cabined
2. Pub sector liab – expansive
iv. Division of labor in fed crim law – priv actor cheats some other priv actor vs. pub actor cheats voters/pub
III. Fraud—the ―scheme or artifice‖
a. False promises (See Durland)
i. False promises count, not just false statements of fact.
ii. Why is Durland a hard case? Why isn‘t this obvious and already covered by comm law?
1. Worried that broder def of fraud would sweep in simple breaches of contract – civil litigation.
iii. You can‘t hatch even core frauds w/o also covering a lot of fringe cases.
1. Distinguishing Durland fr fringe cases is pretty hard.
2. Particularly a prob bc fed prosec, wrt MF, haven‘t historically been in habit of prosec only core
a. Fed prosecs don‘t restrict themselves to prosec ppl like Durland (same with honest
b. A lot of border line cases are being brought.
b. Passive deception (See Sanchez) (p. 194)
i. Nondisclosure, failure to disclose, also counts.
Much easier to inadvertently violate the law when violations can incl inaction (Lambert) – ie failure to
disclose – as well as false disclosures.
1. Why liab for inaction is unsuaul in crim law, but common in crim law of fraud.
2. Doctr makes it easier to punish in borderline cases.
c. Negligent victims (See Svete) (p. 195)
i. Frauds that would fool only negligent victims also count.
ii. Negligent victims count as victims – no legal req that frauds that could fool only negligent victims don‘t
iii. No reasonableness ceiling for class of victims.
IV. Fraud—the meaning of ―money or property‖
a. Intangible prop interests (Carpenter, Al Hedaithy)
i. Carpenter – What is being stolen from WSJ?
1. WSJ owns the column, makes money off the rep of the column (biz model: put stuff in newspaper
+ make money). Over time, this crim conduct will hurt the value of the column and cost them
2. Defense argument: D didn‘t steal any money, he made it in another manner. No proof that WSJ
lost a cent.
3. WSJ response: Ds may not have stolen, but they appropriated value, and over time, that reduces
value of the column.
ii. Al Hedaithy
1. Core interest: sell test systems, incl scores.
2. D: we didn‘t steal teting systems or scores
3. Response: But D did appropriate some of the avue of that testing system, and over time, that
undermines the value of the system to ETS.
iii. Both seem like thoroughly conventional, easy prop rights story – but ct doesn‘t rely on prop rts theory. Why
1. There‘s no provable loss of money by either WSJ or ETS.
2. Harm to Vs in Carpenter, Al Hedaithy is aggregate harm, not individualized harm.
a. Cf. to interst commerce jx cases – don‘t focus on Raich herself, but when you look at
Raiches of the world, the effects appear substantial.
b. Aggregation is only way you make out a loss.
c. But aggregating here is one step more tenuous than Raich – there are already other
Raiches out there, but we don‘t know if there are other Al Hedaithys. There‘s a potential
loss assuming there are a lot of them.
i. Why cts might not want to rely on conventional prop theories.
3. D didn‘t make money fr the alleged V
a. Mismatch b/t who‘s cheated and where profit to D comes from.
b. Carpenter – made money fr friend‘s tradinig, not WSJ.
c. Al Hedaithy – would‘ve made money fr employers fr jobs they would‘ve gotten fr degrees
they would‘ve gotten fr fraudulent test results – don‘t make money fr ETS.
i. Gov must ID prop interest that was stolen from the Vs – hard to do, and gives
rise to intangible rts theory.
iv. Conventional prop rights theory isn‘t sufficient, so use intangible prop rights theory.
1. Gov must show potential for aggregate for, or there must be something like the de minimis
exception (even though cts, for the most part, say there isn‘t)
Federal Criminal Law – Class 10
I. The Intangible Right of Honest Services
a. 2 new jobs fed prosecs gave to MF statute in ear 1970s; tool to prosec:
i. pub sector corruption cases
ii. priv sector kickbacks and bribes
b. Before bribery statute, no fed law criminalized corruption by st/local officials + not obvi that MF covered pmt of
kickbacks to priv employees.
c. Early 1970s – use of MF alleging corrupt official deprived citizenry (or corrupt employee deprived employer) of
―intangible rt of honest services.‖
i. SCT ends body of law w/McNally.
ii. Congr then reinstates ―honest services‖ theory.
d. McNally vs. US
i. FACTS: D‘s participation in patronage scheme alleged to have defrauded citizens and gov of KY of certain
―intangible rts,‖ such as rt to have gov‘s affairs conducted honestly.
ii. ISSUE: Whether MF statute is restricted to schemes to deprive indivs of money/prop, or whether it also incls
fraudulent schemes to deprive indivs of other rts to which they are entitled.
1. Whether a st officer violates MF if he chooses WC insurance agent to provide insur for the St but
specifies agent must share commissions w/ other insur agencies, in one of which officer has
ownership and hence profits when his agency receives part of the commissions.
1. MF statute protects prop rts, but doesn‘t refer to the intangible rt of the citizenry to good gov.
a. Leg hist: shows MF was to protect the ppl fr schemes to deprive them of their $/prop.
2. Durland – ―any scheme‖ should be interpreted broadly as far as prop rts are concerned, but
doesn‘t indic that statute has a more extensive reach.
3. ―to defraud‖ commonly refers to deprivation of something of value by trick, deceit.
4. Statutory interpretation
a. When there are 2 rational rdgs of a crim law, one harsher than other, ct is to choose the
harsher only when Congr has spoken in clear and definite lang.
5. Rather than construe law in a way that leaves its outer boundaries ambiguous + involves fed gov
setting stds of disclosure / good gov for local officials, we read law as lim in scope to the protection
of prop rts.
6. Commonwealth itself wasn‘t defrauded of money.
a. Commissions were not commonwealth‘s money
b. Commonwealth wasn‘t deprived of control over how its money was spent.
iv. DISSENT (Stevens)
1. Statutory construction
a. Under another law, conspiracy to ―defraud‖ gov doesn‘t req ev that Gov suffered prop
b. The general def of ―defraud‖ doesn‘t support holding.
2. Legislative purpose
a. MF written in broad general lang so cts have wide latitude in construing them to achieve
remedial purposes Congr identified.
b. Wide open spaces in statutes = implicit delegations of authority to the cts to fill gaps, in
the comm-law tradition of case-by-case adjudication.
3. Legislative history
a. Nothing to suggest that Congr intended ―fraud‖ to have narrower meaning than its
4. Rule of lenity
a. Ct‘s application of the rule of lenity is misplaced.
b. Though crim laws should be construed strictly, doesn‘t mean every crim law must be
given narrowest meaning in disregard of leg purpose.
1. Role of the SCT in construing fed statutes
a. Majority (White) – resist interpreting MF in a way that involves fed gov setting stds of
disclosure and good gov for local + st officials.
i. Challenge Congr to speak more clearly.
b. Dissent (Stevens) – cts must be open to novel prosecs under broadly worded statutes.
2. Congr amendment to MF
a. ―scheme or artifice to defraud‖ incls scheme to deprive another of intangible rt of honest
e. Skilling v. US
i. FACTS: 2001 Enron bankruptcy; prosec of Jeff Skilling, Enron exec, for crimes committed before co‘s
1. Indictment: Skilling sought to deprive ―Enron and its shareholder of the intangible rt of his honest
2. D claim – honest serv statute is unconstly vague; alternatively, his conduct doesn‘t fall under the
ii. ISSUE: Did jury improperly convic Skilling of conspiracy to coming ―honest-services‖ wire fraud?
iii. HOLD: Honest services statute criminalizes only bribery and kickback schemes
1. Congr intended to at least reach schemes to defraud involving bribes and kickbacks.
2. Construing statute to proscribe wider range of offensive conduct raises DP concerns underlying
1.Honest services fraud usually involved bribery of pub officials, but cts also recognized priv-sector
a. Representation of the employee to the employer that he is honest and loyal to employer‘s
b. Can prosec under MF if employee breached allegiance to employer by accepting
2. Rejection of D‘s unconstitutionally vague claim
a. Honest serv statute should be construed rather than invalidated.
b. Pre-McNally cases involve schemes to deprive another of honest serv through bribes or
kickbacks supplied by 3rd party who hadn‘t been deceived.
c. By enacting 1346, Congr meant to reinstate the body of pre-McNally honest-services law.
d. Before striking a fed statute as impermissibly vague, we consider whether the prescription
is amenable to a limiting construction.
i. Save statute fr unconstitutionality
e. Fair notice: always been plain that bribes and kickbacks constitute honest services.
f. Arbitrary prosec: no significant risk.
3. Limiting construction of honest serv statute
a. Vast majority of honest serv cases involved offenders who, in violation of a fiduciary duty,
participated in bribery or kickback schemes.
b. Congr‘s reversal of McNally and reinstatement of honest serv doctrine should be salvaged
by confining its scope to the pre-McNally applications.
4. Rejection of Gov‘s nondisclosure theory
a. Theory of undisclosed self-dealing by a pub official or priv employee that furthers his
undisclosed financial interest while purporting to act in the interests of those whom he
owes a fiduciary duty.
b. McNally was classic kickback scheme.
c. Pre-McNally conflict-of-int cases don‘t constitute core applications of honest serv doctr.
d. Bc of infreq of conflict-of-int prosecs in comparison to bribery + kickback charges, and
inter-circuit inconsistencies they produces, a reasonable limiting construction of honest
serv statute must exclude conflict-of-int category of cases.
5. Majority‘s construction estab uniform natl std, defines honest serv w/clarity, reaches only srsly
culpable conduct, and accomplishes Congr‘s goal of overruling McNally.
6. Skilling didn‘t commit honest serv fraud
a. Never solicited or accepted side pmts fr 3rd party in exchange for making
v. CONCURRENCE (Scalia, Kennedy, Thomas)
1. Unconstitutionally vague
a. Honest serv statute specification of ―scheme to deprive another of intangible rt of honest
services‖ is vague and thus violates DP clause of the 5th Am.
2. In transforming prohibition of honest serv fraud into prohibition of bribery and kickbacks, the ct
has given itself power to define new fed crimes – not ok.
3. Statute fails to provide fair notice and encourages arbitrary enforcement bc it provides no clear
indiciation of what constitutes a denial of the rt of honest serv.
4. Doctr provides no ascertainable std of guilt + not limited to bribes or kickbacks.
a. In rejecting honest serv, McNally doesn‘t mention ―bribery and kickbacks.‖
b. Nor does McNally give consistent def of the pre-existing theory of fraud it rejected.
c. Pre-McNally cases not lim to fraud by pub officials.
5. Indefiniteness of fiduciary duty
a. Character of fiduciary duty? Criterion of guilt?
i. Cases don‘t define nature and content of the fiduciary duty central to ―fraud‖
ii. Pub officials only? Priv indivs who K w/pub?
b. No agreement on source of fiduciary oblig: whether it‘s st/fed law, or general principles
like ―obligs of loyalty and fidelity‖ of employment relationship.
6. Mere prohibition of bribery and kickbacks wasn‘t the intent of the statute; not the core of the
a. Congr meant to reinstate the body of pre-McNally honest serv law, and prohib much more
than bribery and kickbacks.
7. Paring down statute is beyond judicial pwr = fed lawmaking
a. Ct replaces vague crim std w/more narrow one that can pass constl muster – beyond
b. Narrowing construction must be ―fairly possible.‖
i. Not fairly poss, reasonable construction to say that this means ONLY acceptance
c. Ct doesn‘t have the pwr, in order to uphold a statute, to rewrite it.
8. Congr enacted entirety of pre-McNally honest serv law, the content of which is unclear.
a. Convic must be reversed bc statute provides no ascertainable std for the conduct it
1. Scalia v. Ginsburg on fidicuciary duty
a. Scalia – req that D breach a fiduciary duty.
b. Ginsburg – in bribe and kickback cases, the presense of fiduc duty is usually obvi.
2. Clarifying meaning of ―the intangible rt of honest services‖
a. Circuits are fractured on these basic issues:
i. Requisite mens rea to commit the crime.
ii. Whether D must cause actual tangible harm.
iii. Duty that must be breached.
iv. Source of that duty
v. Which body of law informs us of the statute‘s meaning.
b. Outcome: substantive force of the statute varies in ea judicial circuit.
3. Us v. Rybicki
a. Offers good pic of priv sector conduct that qualifies as honest serv fraud after Skilling.
4. US v. Frost
a. Frost helps students submit plagiarized doctoral dissertations; convic of honest services
b. 6th Circ: treated interest in the award of honestly earned degrees as prop interest of the
5. US v. Panarella
a. Before Skilling, pub sector honest serv fraud cases sometimes turned on conflict-of-int
claims: D had incentive to behave in ways contrary to interests of citizens for whom D
6. US v. Urciuoli
a. St legislator also employed by hospital in his distr; activities by D that advanced hospital
7. Remaining issue: whether breach of oblig to provide honest serv reqs violation of st law?
a. US v. Brumely – Yes. Resort to st law as limiting principle for honest services.
i. Would req violation of some civ or crim oblig under some st statue before fed
honest serv prosec could go fwd.
ii. ―honest serv‖ = serv that comply w/st law.
b. US v. Martin (Posner) – No.
c. What happens if legislators make sure st laws give them license to violate pub trust w/o
d. Assumption that st law is better msr of what ―honest services‖ citizenry expects and has rt
I. Side Points
a. Congr overruling of SCT decisions
i. Reason to believe that when Congr acts to overturn some SCT decision, the overturning has some deterrent
ii. Deterrent effect – ct is less likely to issue a similar decision – adjusts behavior to try and conform w/Congr.
1. Ex. Ratzlaf (anti-structuring case)
a. Must know ab partcular law he was violating.
b. Cong immed overturns this decision, and the doctr then begins to move in favor of Gov.
2. Ex. McNally (statutory decision – interpretation of MF statute)
a. Eliminates intangible rts theory
b. Congr immed overturns and amends to incld intangible rts.
c. For more than 20 yrs, until Skilling, SCT leaves MF alone, doesn‘t touch it.
iii. Elhauge – reason ct decides cases like McNally is to prompt Congr action, to clearly specify what conduct
falls under statute.
1. But do members of the ct actually see it that way?
a. Judges, in general, dislike being overruled.
iv. Congr clearly seems to want comm. law def of the relevant crime.
1. No other way to explain passage of intangible rts statute.
2. Why would Congr want bulk of legal developments to come fr cts and not fr itself?
a. Hard to anticipate all the fact patterns – more true w/fraud and extortion than with other
3. Leahy‘s propose legislation – seems to run counter to this claim, given level of detail. But how
much def is there actually? How much invitation for comm. law development?
b. Skilling as a ―money or prop‖ case (instead of honest services)
i. Skilling isn‘t disclosing, he‘s hiding – so hard to describe him as stealing info.
ii. Lying to buyers – making money via deceit fr the people he deceived = core money/prop case.
1. Skilling gets money from buyers buying the stock.
iii. Odd case to redefine intangible rts fraud bc they it shouldn‘t have been at issue in the first place – Gov
didn‘t need intangible rts theory to convic.
c. Vagueness doctr, fair notice, prosec discretion/case selection
i. When statute is deemed unconstitutionally vague, where does the vagueness come from?
1. Vagueness cases like Skilling seem to assume the answer is: statutory language (+ judicial glosses
on stat lang) = vagueness of relevant legal texts.
2. But where do you get notice?
a. Prob not legal text, but enforcement patterns.
b. Not fr marijuana laws, but prosecution.
ii. Why do prosecutors in this area seem attracted to enforcing the law of fraud to the margin, vs. just at the
core? (to Frost?)
1. Prosec, in general, have an incentive to pursue high profile cases and have resources to do so.
a. Feds can afford to do this bc there is little that they actually HAVE to do.
i. Broad enforcement discretion, not told they can and can‘t go after certain cases.
ii. Very little that is politically mandatory.
b. Whereas local law enforcement constrained by both budget + politics.
i. Can‘t NOT go after winnable homicide cases and keep your job as local DA.
2. Real story behind Frost
a. Feds thought he was cheating military through defense contract work – so they went after
his consulting biz, which was also helping to plagiarize.
b. Intangible rts fraud may sometimes play role like False Statements statute – proxy to get
him for other unlawful activity.
3. A lot of core cases may not be big money cases, and are actually handled by local DA.
a. Whereas, fed does high end white collar crime.
iii. Game being played in Skilling
1. Doesn‘t even need to addr intangible rights issue.
2. About conditions that provide fair notice to Ds, but actually pays very little attn to what are those
II. ―Money or property‖ fraud
a. Cleveland – $ stolen is money made off of video poker licenses
b. Ratclif – the salary that Ratclif gets after winning fraudulent victory.
c. Yet in neither case is there no liab for fraud
d. Cleveland and regulatory interests
i. Ct: there are prop interests and regulatory interests, which are distinct: regulatory doesn‘t fall under prop
within scope of MF.
1. Motive is regulatory, not financial.
2. Doctr says interests like Clevelands are never prop, and always regulatory.
ii. But in some jx, some regulations are meant to be revenue generating.
iii. Fiat ruling?
e. Ratcliff and federalism
i. Chief ruling – lots of st/local pub sector frauds would end up being covered by MF statute and would thus
change allocation of pwr b/t fed and local entities.
ii. But – lots of st/local pub sector fraud ARE covered by MF statute – intangible rts.
iii. Strange kind of federalism going on in Cleveland/Ratcliff
f. Both cases seem to come down to federalism.
III. The intangible right of honest services: the theory and 3 questions
a. The theory: undisclosed breach of fiduciary duty
i. Nature of the deceit – undisclosed
1. No need for lies
2. Just like money/prop fraud, passive deceit works.
3. Passive deceit/nondisclosure is usually what you see in intangible rts cases
4. Ex. McNally – non disclosure is failure to tell voters that he was taking kickbacks.
a. Violation is nondisclosure, not the kickbacks.
ii. Nature and source of the fiduciary duty
1. Duty of loyalty
2. Scalia – duty of loyalty is recipe for vagueness
3. In prac, virtually all cases (pub and priv), involve employment relationships.
a. Duty any employee owes to his employer.
4. Ex. tells you why Carpenter would be perf intangible rts case, bc he failed to disclose what he was
doing to the journal, and what he was doing was approp the journal‘s info for his own gain.
a. Mismatch b/t V of scheme and source of money for scheme.
b. Yet, it‘s not an intangible rts claim.
5. Fiduc duty sounds incredibly amporphous, but in prac, Ginsburg is right about this – it‘s almost
never at issue.
iii. Identities of the perpetrators
1. Temptation to think that crim liab for intangible rts fraud extends to emplpyoees who cheat
employers, but no one else. This is not so.
2. Most ppl convic in these case are ppl who didn‘t work for gov, who owe no duty of loyalty to gov or
agencies, but bc they conspired w/a public official.
a. Norm for intangible rts case.
b. Only need one conspirator who breached fiduc duty – everyone else convic of conspiring
3. Scope of intangible rts/money + prop liab:
a. Ds directly guilty under fraud statutes
b. Much larger pool of Ds who are indirecty guilty bc attached to gov officials/priv
b. Why was the theory needed?
i. Ex. Rybicki: insurance co is losing money by this scheme.
ii. Why do you need intangible rts to get Rybicki?
iii. Harm is hard to prove. Bc there are lots of what ought to be money + prop cases, where proving the loss as
a practicial matter is nearly impossible.
1. Intangible rts is a direct substitute.
2. If this were a money + prop case, would have to prove insurance co lost money + prop – nearly
impossible to do that.
iv. In a lot of intangible rts cases, there‘s a mismatch b/t who pays the money and who is victimized by the
1. Money + prop case – D is cheating V out of money or prop = precisely what you can‘t prove in
Rybicki, and exactly what is not happening in McNally.
c. Who made the theory and when?
i. What kicked off generation of intangible rts theory and largescale prosec under the theory: US v. States
1. Election fraud case
ii. Theory came fr some combo of prosecs + judges, and prosecs were prob the more important actors –
prosecs began looking for theory to punish corrupt local officials.
iii. Early 1970s – period when high white collar enforcement was just taking off.
1. Prosecs starting bringing these theories to ct in large numbers.
iv. This theory emerged fr what you might think of as heyday of comm. law judging, and not just in this field.
1. 1973 – Roe v. Wade
a. Non textualist constitutional judging (not tied to any piece of constl text)
2. You see similar rxn to common law judging at same time, in 1980s.
a. 1986 – Bowers v. Hardwick: decision not to do Roe v. Wade again wrt sexuality.
b. McNally: tosses out intangible rts saying it doesn‘t have sufficient hook in MF statute.
c. Both written by White, both Stevens dissent.
d. Bowers + McNally inaugurated the textualist term.
d. What limited the theory, pre-Skilling?
i. One agreed-on limit: presence of a fiduciary duty, and in almost all cases, an employment relationship.
ii. 3 other limits that had support in case law prior to Skilling:
1. Proof of econ gain by the D
a. Instituting something like bribes + kickbacks standard before it was enacted by Skilling.
2. Econ loss by the V
a. Proof of which makes intangible rts fraud cases shad into money + prop cases.
3. State law
a. Brumely: Fraud must also be punishable in st ct.
e. Doctrinal variation: Why was there so much disagreement about the doctrinal issues?
i. Who defines the intangible rts doctrine?
1. Courts of Appeal: independent entities who can make diff law.
2. Variation is all inter-circuit.
ii.Can‘t have centralized body of comm. law w/o a decisionmaker to clarify the variations – haven‘t had this
IV. Key Questions on bribes + kickbacks theory
a. What is meant by bribe? What is meant by kickback?
b. Where is the litigation post-Skilling likely to go?
c. How much does this bribe/kickback formula from Skilling actually limit intangible rts liability?
i. See Rybicki, Frost, Panarella, Urciuoli
1. Can they be described as bribes or kickbacks after Skilling?
2. If so, how successful was Skilling in limiting liability?
Federal Criminal Law – Class 11
a. MF statute – must still prove a mailing or wire element in the offense.
b. But, this is a limited constraint – move toward general ―fed fraud‖ statute.
i. Appellate cts aren‘t closely supervising nexus b/t fraud and mailing/telephone call.
II. Schmuck v. US
a. FACTS: Used-car dealer convic under MF. Purchased used cars, rolled back odometers, then sold cars to retail dealers
for artificially inflated prices bc of the low-mileage readings. Retailers resold cars to customers, who paid prices
reflecting D‘s fraud. To resale car, dealer who bought it from D submitted title-application to DOT on behalf of
customer – submission of this app form supplied mailing element for MF.
i. D claim – mailings (submission of title-apps) weren‘t in furtherance of the fraudulent scheme, thus don‘t
satisfy the mailing element.
1. Mailing must affirmatively assist D in carrying out scheme.
i. Mails need not be essential element of fraud scheme: sufficient for mailing to be incident to an essential
part of the scheme.
ii. Scope of the fraudulent scheme
1. Not just a one-shot operation where D sold single car to an isolated dealer – it was an ongoing
2. Rational jury could conclude that success of D‘s scheme depended on continued harmonious
relations, and good rep among, retail dealers, which in turn req smooth flow of cars fr dealers to
a. Title-apps were part of execution of the fraudulent scheme, which didn‘t reach fruition
until dearlers resold the cars and effected transfers of title.
iii. Success of scheme depends on mailings
1. Scheme would fail if dealers lost faith in D or hadn‘t been able to resell cars obtained from D.
iv. Title-app mailings may not contrib. directly to duping dealers or customers, but were nec to passage of title,
which was essential to perpetuating D‘s scheme.
v. Distinguishing from cases where ct limited reach of MF
1. Kann, Parr, Maze
a. Mailings were little more than post-fraud accounting among potential victims of the
b. Long-term success of the fraud didn‘t turn on which of the potential victims bore the loss.
2. Here, D wasn‘t NOT indifferent to who bore the loss.
a. Mailing of itle-registration forms was essential step in successful passage of title to retail
b. Failure of passage of title would jeopardized D‘s relationship of trust and goodwill with the
dealers, upon whose cooperation his scheme depended.
vi. Reject D claim that mailings that someday may contrib to uncovering a fraud scheme can‘t supply mailing
1. Relevant Q: whether mailing is part of the execution of the scheme as conceived by the
perpetrator at the time.
c. DISSENT (Scalia)
i. MF doesn‘t estab a general fed remedy against fraudulent conduct, with the use of the mails as the jx hook.
1. Reaches only those limited instances in which use of the mails is part of the execution of the fraud,
leaving all other cases to be dealt w/by st law.
ii. Liability is mail fraud, not mail and fraud.
1. Mailing must be in furtherance of the fraud.
2. MF not violated by a fraud scheme in which, at some pt, a mailing happens to occur – nor one in
which mailing predictably or necessarily occurs.
iii. Ct combines all the indiv transactions into a single scheme.
1. The indispensability of the mailings, not strictly in furtherance of fraud, is not enough to invoke MF.
i. Ct focuses on scope of the D‘s operation.
1. Was the allegation of the scope of fraud in Schmuck simply a formalist way around the holding in
a. Maze framed as series of discrete schemes, each ending when D checked out of ea motel.
ii. Subjective standard: whether mailing is in furtherance of fraud depends on D‘s expectation regarding events
in the future.
1. How does this std allow gov to pitch to jury what might otherwise seem to be a one-shot discrete
fraud that involved a post-fraud mailing as actually the beginning of long-term scheme?
iii. Sustained fraud might give prosec a selection of qualifying mailings fr which to choose, ea which can form
basis of MF count.
1. Ex. 1st Circ: ea letter in the criss-cross of mailings expected when false claims are submitted to
insurance companies, can satisfy the statutory mailing req.
2. Too much leeway for fed prosecs to determine whether MF prosec belongs in fed ct?
a. Often chosen by prosec bc more convenient for them and less convenient, and costly, for
iv. Schmuck has led fed cts to be more flexible ab nature of the nexus b/t fraud and a mailing.
1. Parr: nec relationship b/t fraud and mailings.
v. Scrutiny of mailings may be way to rein in honest services prosec.
1. If a fiduc breach (or other act of employee dishonesty) + a paycheck directly deposited (or mailed)
were enough for MF honest services liab, the MF statute would potentially reach a vast array of
fiduc/employee misconduct otherwise governed by only st law.
2. Stricter scrutiny of nexus b/t mailing and fraudulent scheme would provide a way to lim Gov‘s
strategic use of mailings to create venue, multiply # of counts in an indictment, and perhaps
vi. Inter vs. Intra-state Communications
1. MF statute covers not just all mailings through US postal service, but all uses of priv interst.
delivery services, regardless of whether items are delivered out of st.
2. 1994 – Congr broadened MF statute to also criminalize ―depositing or causing to be deposited any
matter or thing whatever to be sent or delivered by any priv or commercial interst. carrier‖ for
purpose of carrying out fraud scheme.
a. Pursuant to Commerce Clause power
b. To reach Ds who use commercial interst. carriers like UPS and FedEx in lieu of USPS.
3. US v. Photogrammetric – MF criminalizes all mailings in furtherance of a fraud scheme if mailings
are placed w/USPS or other priv mail delivery service which operate interst., regardless of whether
any particular mailing actually crosses st lines.
a. Congr didn‘t intend to limit the extension to priv interst. carriers for only interst. deliveries.
III. US v. Phillips
a. FACTS: Rejection of rial ct ruling that it‘s not nec to show that wire communications crossed st lines, as long as
comm. (whether interst or intrast) traveled via an ―instrument of an integrated system of interst commerce,‖ like an
interst phone system.
b. HOLD: Gov required to prove that wire transmissions crossed st lines.
i. Congr has chosen before to criminalize mere improper use of instrumentality of interst commerce, but here,
has acted more narrowly, making crim only transmissions that themselves occur in interst or foreign comm..
i. Plain words of the fraud statute
1. Extend only to when D transmits by means of wire, radio, or TV comm. in interst. or foreign
commerce, any writings, signals, etc for purpose of executing fraud.
2. No reference is made to mere ―use‖ – transmission itself must be in interst comm..
ii. No Congr amendments
1. Twice, Congr considered but declined to enact amendments extending MF to cover simple use of
an interst. instrumentality.
a. ―any facility of interst or foreign commerce‖ was rejected as an amendment to the text.
iii. US v. Darby (4th Cir.)
1. Held that a prosec for transmitting a threatening comm. reqs that comm. actually cross st lines.
a. Gov must prove that D‘s phone call crossed a st line to meet jx hook on which the fed
2. Text lacks reference to ―instrumentality.‖
i. Technical detail that derails wire fraud prosec.
ii. US v. Brumley
1. Wire element was satisfied by wire transfers fr Western Union office in TX to D in other locations in
TX, bc wire transfers were accomplished electronically through a W Union facility located outside of
IV. DELEGATED LAWMAKING
a. Reconsideration of standard separation-of-power principles
b. Dan M. Kahan, Is Chevron Relevant to Fed Crim Law?
i. Argument: Fed crim law is a system of delegated common lawmaking.
1. Congr uses incomplete specification to reduce the practical and political costs of legislating.
2. Conseq: dimunition of Congr‘s own role in defining operative rules of crim law.
ii. Who makes fed crim law? Congr.
iii. BUT, not the case that fed crimes are ―solely creatures of statute‖ – most fed crimes are come fr
exceedingly open-textured statutes.
1. Judge-made doctr specifies what the laws actually prohibit.
iv. Fed Crim Law as a Comm Law-Making System
1. Delegation – strategy to maximize Congr‘s policymaking influence in the face of political constraints
on its pwr.
a. Difficulty of generating consensus on politically charged issues, particularly crim leg, can
2. Congr drafts general statutes so legislators on both sides of an issue can tell constituents he
obtained lang to protect them, while leaving it to cts to interpret Congr intent.
3. Non-political constraint: limited time to satisfy constituent‘s demands before reelection.
a. Crim law-making = high opp costs.
i. Time spent on crim leg is at expense of enacting other leg sought by interest
grps who are more likely to benefit the legislator.
b. Solution: highly general (symbolic) crim leg, which takes little time to enact + sufficient to
satisfy public‘s demand for crim law.
4. When Congr resorts to general statutory lang to reduce institutional cost of resolving particular
issues itself, it transfers lawmaking pwr to cts (or prosecs).
a. Result: federal common law
b. Congr made void in the law that cts must fill.
v. Only Courts? Power of Fed Prosecutors
1. Fed prosecutors, along with cts, get significant share of delegated lawmaking authority.
2. Power of initiative
a. Fed cts can only ex delegated lawmaking authority to adjudicate actual cases (brought by
b. By paying attn to facts of cases they select as vehicles for novel statutory readings,
prosecs can highlight benefits + suppress costs of interpretations they favor.
vi. Assessment: Theoretical Benefits
1. Primary advantage of crim comm. lawmaking is efficiency.
a. Delegated crim law costs less than legislatively specified crim law.
b. Poses no threat to values that strict sep of powers is supposed to promote.
2. System of comm. law cimes is cheaper than system of legislatively specified crimes bc of
generative character of open-textured statutory norms.
a. RICO, crim fraud lead to distinct prohibitions under delegated lawmaking authority.
b. Without delegation, Congr would have to bear high practical and political cost of
specifying ea and every prohibition itself.
i. Higher cost = reduced output.
ii. Congr would forego other legistlation to devote resources to producing crim
3. Promotes efficient updating of crim code.
a. Keeping up w/new crimes would tax Congr‘s lawmaking resources.
b. Easier for cts to keep crim law up to date by adapting incompletely specified statutes to
4. Power to avoid loopholes
a. Improves quality of fed crim law.
b. Congr makes rules in anticipation of future cases – lacks full info ab how rules operate in
i. Ex. if Congr tried to define ―property‖, unlikely it would craft context-sensitive
distinctions like cts have developed.
c. Whereas, cts perform delegated lawmaking in the course of deciding actual cases.
i. See more completely how statutes interact w/real world circumstances and w/ea
ii. Can use this info to fashion rules of law that fully implement legislative goals and
avoid unforeseen conflicts w/other policies.
5. Delegated lawmaking authority‘s effect on sep-of-powers value of democratic accountability
a. Doesn‘t affect these values, so long as delegated lawmaking is carried out with good
b. Ex. Fair warning/notice
i. Notice is much less important when law is regulating clearly undesirable conduct.
ii. Potential offenders don‘t need law to tell them – ordinary morality suffices.
c. No tension b/t democracy and delegated lawmaking
i. Congr isn‘t perfectly able to satisfy the electorates demand for crim law.
1. Practical/political constraints on its lawmaking power.
ii. Law likely to be closer in quantity and quality to what pub demands when cts, at
behest of Congr, accept responsib for updating the law, closing loopholes, and
infusing it w/practical insights of experience.
d. Role of Fed Prosec
i. Bc fed prosecs are appointed by Pres and accountable to AG, their particip in
construing fed comm. law crimes assures its content will be responseive to public
vii. Assessment: Practical Costs
1. 3 Pathologies of Fed Crim Law that counteract advantages of delegated common law making:
a. Limited expertise of fed judges
i. Exper of indiv judges, esp at appellate lev, w/crim law is limited and sporadic.
ii. Costs are highest in elaboration of statutes that mark boundary b/t socially
desirable and undesirable behavior.
1. Ex. securities fraud provisions
iii. Cts are misled by sensational facts of cases selected for prosec and deliver
formless doctr that creates high risks of overdeterrence and unfair surprise when
b. Judicial dissensus
i. Diff of opinion on what open-textured crin statutes ought to mean.
ii. Conflicts must ultimately be resolved by SCT or by Congr.
iii. In the meantime, society endures costs assoc with unctertainty over scope of
c. Prosecutorial overreaching
i. Ambitious US Attys who freq enter politics.
1. Strong incentive to use pwr while in office to cater to local political
ii. Result: unhealthy distortion in the prosec‘s contrib. to delegated crim lawmaking.
1. Internalize political benefits and externalize practical/human costs of
adventurous rdg of fed crim law.
iii. DOJ lacks adeq political incentives to check indiv US Attys‘ overreaching, esp
once they have initiated sensational prosecutions.
iv. Cts have powr to check this through comm. lawmaking pwr, but are weakened
by lack of expertise and consensus and bc they cede too much of their
lawmaking pwr to prosecs.
v. Result: fed crin law is borader and looser than it would be if it were aligned
w/interests of the natl electorate.
viii. Alternative: A Federal Administrative Law of Crimes
1. Chevronizing fed crim law: retool the machinery of fed crim lawmaking to conserve positive effects
of delegation while reducing neg ones.
2. Transfer of Authority
a. Applying Chevron improves content of fed crim law by shifting to DOJ the delegated
lawmaking pwrs now exercised jointly by cts and indiv prosecs.
3. Why DOJ?
a. Has greater lawmaking expertise than cts bc comes into contact w/all manner of crimes at
all stages of the justice system.
b. Readings are more likely to be uniform than cts bc DOJ is a single, integrated agency.
c. Less likely to overreach than US Attys bc less incentive to pander to local interests and
more likely to internalize costs of unduly broad statutory readings.
4. Fed crim law will be better in content, more legit in its origins, more consistent w/rule of law if
treated as admin lawmaking system rather than comm. lawmaking one.
5. Chevron and the efficiency of delegation
a. Would conserve all benefits assoc w/implied delegation.
i. Congr still enjoys economies of incomplete specifications.
ii. DOJ can update law more quickly than Congr can, and can use its contact
w/actual cases to tailor the law to circumstances unforeseen by Congr.
6. Chevron and the pathologies of crim comm. lawmaking
a. Would counteract all 3 pathologies
i. DOJ handles many more cases than dist cts.
ii. DOJ has close contact w/cases at all stages of development; dis cts see only
unusual ones that don‘t end up in plea bargains; cir cts only even more unusual
ones on appeal.
iii. Policymaking insights: bc DOJ‘s involvement in crim law is more extensive, more
likely to appreciate policy implications of a disputed statutory issue.
i. DOJ is a single, integrated agency: speaks with a single voice in declaring what
incompletely specified statutes mean.
ii. Cts more likely to agree ab whether DOJ‘s rdg of an ambiguous statute is within
the range of permissible interpretations than they are ab which particular rdg
within that range is best.
d. Prosecutorial Overreaching
i. Transfer lawmaking authority fr judiciary to the executive and reallocative it
within the exec branch.
ii. Prosec rdgs would be entitled to deference only if endorsed and defended in adv
1. Officials at DOJ, and not US Attys, would have final word on how exec‘s
interpretive lawmaking pwrs should be exercised.
iii. Distant bureaucrats at DOJ lack incentives that indiv US Attys have to bend the
law to serve local interests.
iv. DOJ more likely to internalize costs of bad rdgs.
1. Bc DOJ, through Pres, is accountable to the natl electorate, it‘s more
likely to be responsive to interests hurt by adventurous rdgs.
2. DOJ cares more ab impact of such interpretations on the public fisc.
v. Chevron would make exec‘s interpretation of crim statutes both milder and more
consistent w/nationwide interests.
1. DOJ is less subj to interest grp pressures, bc it is sumb to many more
such pressures coming fr a greater variety of sources – so less likely to
be captured by any one of them.
7. Rule Against Post Hoc Rationalizations
a. Permitting cts to approve only those statutory rdgs defended by DOJ in adv of prosec
would prevent cts fr siphoning away exec‘s branch‘s delegated crim lawmaking pwrs.
i. Currently, cts must defer to litigating positions of indiv US Attys, who are more
likely than DOJ to advance unduly broad rdgs for short-term political gain.
b. Weak conception: DOJ has pwr to issue interpretations that would be immed effective,
even in pending cases (ie retroactive application of interpretations).
i. Advantage: Enhances deterrence.
ii. Authority to announce retroactively binding interpretations would discourage
offenders fr seeking out loopholes in ambiguous crim statutes.
c. Strong conception: Treat as post hoc rationalizations all rdgs issued after the conduct for
which the D is being prosecuted (makes DOJ‘s interpretive lawmaking purely prospective).
i. Advantage: promotes rule of law values.
ii. Increases notice bc it gives DOJ rdgs a purely prospective effect.
1. Cts give content to underspecified statutes in the course of applying
2. This risks denying citizens fair warning, at least when the law is being
used to regulate conduct that produces licit utility.
iii. Advantage: reinforces prosec even-handedness.
1. DOJ would still be likely to err on side of excess if it specified rules
w/retroactive effect – broad rdgs for sake of winning particular cases or
satisfying pub demands for retribution.
8. Implementation through precedent
a. Skidmore doctrine: uphold statutory constructions formally defended by DOJ in adv of
b. Rule of Lenity: compel narrow interpretations in all other cases.
i. Ct adopts narrowest rdg of crim law only when DOJ has failed to give a reasoned
justification for borad rdg in adv of prosec.
ii. Otherwise, ct defes to DOJ under Skidmore.
iii. Creates institutional incentives for DOJ to engage in reasoned elaboration of crim
1. Making DOJ‘s interpretations of incompletely specified statutes publicly accessible would promote
deterrence and fair notice.
2. Pub exposure of agency reasoning counteracts politics that lead to prosec overreaching.
1. Alternative Approach
a. Use DOJ sets limits on novel or questionable crim prosecs by req internal DOJ approval of
certain categories of prosec that may be esp susceptible to what Kahn calls ―adventurous‖
i. By internal regulation, DOJ already must approve crim civ rts + RICO prosecs.
ii. DOJ originates all antitrust and many tax prosecs.
c. Maybe DOJ should approve all ―honest services‖ fraud prosecs?
2. Kahan‘s appr is diff
a. Wants DOJ to spell out in adv what theories it would use in prosecs under broad fed laws.
3. Which approach results in greater restraint on fed prosecs?
a. Internal, private DOJ approval before particular prosec can go fwd, VS.
b. Public declaration of non-statutory limitations on future prosecs.
i. Does DOJ bind its hands w/ this appr?
I. Side Points
a. Law enforcement personnel and law enforcement budgets
i. Debate about size and scope of gov + amt of gov spending.
ii. As gov spending has risen over past couple of decades, a large portion of incr doesn‘t come from gov doing
new or more things, but for paying gov officials more money.
iii. Same phenomenon in crim justice system
1. From mid-1970s onward, number of local prosec rose by 60%, while docket increased far less.
a. Judges, defenders rose less than prosec.
b. Budgets for cts and lawyers rose 5x
c. Police officer population rose by half
d. Police budgets tripled
2. Huge consequences
a. Can bet that the next 20-25 yrs won‘t see tripling of any crim justice budgets.
b. We didn‘t put more cops on the street, we raised their payscales – that will not reduce
b. Kahan re prosecutors as lawmakers
i. Fed prosec influence on fed crim law
ii. When fed prosecs bring cases based on new legal theories, they get to pick their cases.
1. Meaning, can pick cases with strong facts.
2. That‘s not how lit works outside of the crim justice system.
a. Why you don‘t hear about plaintiffs lawyers shaping tort law – they litigate to the margin
and bring all winnable claims.
3. Prosecs decide when to litigate to the margins, when and under what fact patterns, to advance
new legal theories.
a. Legal theories are thus more likely to be embraced by cts than if they arose randomly.
b. Prosecs choose facts on which to advance the theories.
4. Strong cases brought to advance intangible rts theory.
II. Two problems with ―the intangible right of honest services‖
a. No strong limits
i. Basic def has stayed consistent over time: amounts to undisclosed breach of fiduciary duty.
1. In practice: undisclosed acts of loyalty to one‘s employer, or public official‘s disloyalty to general
ii. No requirement that defendant benefit financially.
1. Though that‘s almost always the case in prac.
iii. Even if you limited the scope of theory to employment cases, still have a large potential pool of cases.
1. There are lot of Frosts out there.
1. Held – intangible rts frauds have to involve violation of st law to violate the MF statute.
a. Not much of a limit to liab bc st law already prohibits much of this conduct.
v. Other popular limit pre-Skilling: econ harm to employers
1. Not much of a limit either.
2. Even Frost satisfies this limit – the univ has a prop interest in the degrees it awards, and the univ,
over time, will suffer econ harm if the value of those degrees is watered down.
vi. Needs limit and hasn‘t got one.
b. Doctrinal confusion
i. Conseq of SCT‘s decisions ab which cases to hear, and which cases not to.
ii. Law of MF is filled with circuit splits.
iii. Efforts to impose limits on liab generates confusion.
III. Skilling‘s solution, Leahy‘s bill
a. The meaning of ―bribes‖ and ―kickbacks‖
i. Bribes: Anything of value in exchange for some future act or set of acts.
1. For public officials – ―some official act‖
ii. Kickbacks: payments made after the relevant act.
iii. One thing that is easy to miss with these definitions
1. Skilling focuses on one side of the exchange – on what the D GETS.
2. But the bigger issue in the law of bribery, much more freq litigated issue, goes to what the D
GIVES, not what D gets.
iv. When scope of law of bribery is limited, the way it‘s limited is almost always by a narrowing of what counts
as quid pro quo.
1. What official acts count in terms of an exchange b/t bribe and official act.
v. Skilling – attempt to assimilate intangible rts fraud w/ the law of bribery, BUT the assimilation is going on
only wrt one side of the transaction.
1. You can bet this will change – a large majority of the litigation action post-Skilling will be about
quid pro quo, not about what does and doesn‘t count as a bribe.
vi. Private sector intangible rts cases
1. Skilling likely to work fairly easy bc of nature of cases Prosecs are likely to bring.
a. Ex. Rybicki – classic bribery case – what 99% if priv sector cases look lke.
b. Skilling wont matter at all in those cases, bc there, clearly satisfy new def of the offense.
vii. Action will happen in the public sector
1. Frost (242), Panarella (243), Urciuoli (244)
i. Partime legislator takes side job with hospital, and does bidding for hospital in dealings with insurance
ii. Is this a bribe?
1. Easy for gov to make this into a bribe if the legislator‘s work for hospital is much less than what
he‘s getting in return.
i. This is a plausible bribery case, post-Skilling.
ii. Hard to argue that the legislator did $300k worth of legit work.
i.Prof runs consulting firm and also helps with doctoral dissertations. Many doctoral students both worked for
consulting company, and got help from Frost putting together plagiarized dissertations.
ii. Argument for liability post-Skilling
1. Below-market value for work provided by students would look like a disguised payment/bribe.
2. The work is a thing of value to the employer – both sides gain in the transaction.
a. Treat jobs themselves as disguised bribes on either end.
e. Post-Skillng liab for intangible rts fraud could easily be almost as broad as pre-Skilling liability.
f. Limits on the bribe and kickbacks line are likely to not focus on the character of the bribe/kickbacks, but what D
i. Focus on what D gives, not gets.
ii. What counts as quid pro quo, not what counts as bribery.
IV. Leahy‘s Bill – Key Provisions
a. Basis of liab is undisclosed self-dealing, defined as furthering public official‘s financial interest.
i. Does that = what Skilling would consider a bribe or kickback?
ii. Answer may very well be yes, depending on how expansive you define them. And definiton is traditionally
iii. In fact, Leahy‘s def may even be narrower – ties self-dealing to financial interests, not just any interests.
b. Quid Pro Quo part of statute – offers expansive def of official acts
i. Covers not just indiv act or set of indiv acts, but also a course of conduct.
1. Usually this just covers specific act, not course of conduct.
ii. One large class of cases that traditionally does not fall within the other major bribery statutes: cases where
payment to gov official is a payment, not for gov official to make this or that decision/move, but a payment
1. Payment in exchange for gov official listening when person wants to talk – ―pay to play‖ (not to be
confused with pay to play in campaign contributions).
iii. Does course of conduct encompass payment for access? It might.
1. Includes within the scope of the relevant transaction an ongoing series of interactions that are best
understood as a whole, not as indiv transactions.
2. Nothing suspicious ab sitting down and listening to hospital‘s rep and what they want in
transactionin blue cross – but it IS suspicious to sit down and listen every time hospital wants to,
when you don‘t do that with anyone else.
iv. Under Skilling, you can end up with def of quid pro quo like Leahy‘s, or not.
c. Not clear that Skilling changes much ab intangible rts doctr, and also not clear Leahy‘s bill changes much ab Skilling.
i. All are saying the same thing, using diff terminology, wrt character of bribes/kickbacks.
d. What we don‘t know ab Skilling/Leahy is what they will ultimately mean if Leahy becomes law, for the other side of
i. Other side = what pub official gives (not what they get)
ii. Leahy‘s self-dealing is all about what they get.
V. Jurisdiction: three categories
a. Mail (See Schmuck; cf. Lake pg. 255)
i. Schmuck rule – relationshiop b/t mailing and the fraud can be tenuous.
1. Scalia dissent accurately captures the holding: it IS ―mail and fraud.‖
ii. Analogous to Scarborough and interst comm.
1. Not much relationship b/t what got punishment (gun ownership) and crossing of st line
b. Private mail carriers (See Photogrammetric Data Services)
i. Photogrammetric rule – you touch FedEx, you touched interst market (whole biz counts)
ii. Analogous to Raich – you touch marijuana, you touched interst market (whole biz counts)
c. Interstate phone lines / cell calls (See Phillips)
i. Phillips rule – in wire fraud cases (incl cell phone), call must cross st line.
ii. Analagous to Scarborough case where jx fails.
1. Gov couldn‘t show that gun crossed st lines.
VI. Lawyering point: Lake case
a. Ct says mailing of SEC forms didn‘t fulfill mailing element bc they were legally required forms.
i. Problem: forms in Schmuck were also legally required, and it didn‘t matter whether those forms included
1. Key to decision: forms simply mailed as conseq to fraudulent scheme.
b. Ct of Appeals seems to blatantly ignore SCT decision. What‘s going on?
i. Likely has to do with the way Schmuck is written.
ii. 3 pre-Schmuck cases ab post-fraud settlement mailings. Schmuck ct distinguishes ea of the cases and
adopts a position squarely contrary to what fed cts assumed was the law.
1. Functionally, the ct overruled these 3 cases and substituted a materially diff standard.
2. But they didn‘t actually overrule them.
3. This means good defense lawyers can still make arguments based on these older cases, which
seem at odd with most recent SCT decision.
iii. Not possible to faithfully follow the majority opinion of Schmuck, bc you‘re either going to say that those 3
cases are wrong, or ignore the standard from Schmuck.
1. Legal tactics – Appellate courts do this a lot.
2. Creates litigation opportunities that were exploited in Lake.
c. When is opportune to make this argument?
i. When Gov‘s theory of substance of the fraud is questionable.
d. Lake is an odd decision that stems from what must have been a nice piece of lawyering.
VII. Kahan‘s argument: who should make federal criminal law?
a. Starts with basic idea: fed crim law is basically a comm. law field.
i. But no – it‘s two fields, the larger part of it being textualist.
ii. 2 extremes – textualist
b. Argument: let DOJ make law in the same way that SEC or EPA makes law.
i. Thereby shift power from cts and US Attys offices to DC.
c. Is this a good thing? What‘s the argument against this scheme?
i. More power for the center, and less power to the periphery.
Federal Criminal Law – Class 12
a. Wrongful threats to extract money fr victims.
b. Unlike robbery, greater degree of consent involved.
i. Enough so that must be careful offense doesn‘t incl simple commercial transactions that the ―victim‖
whishes had been on more favorable terms.
c. Hobbs Act, Travel Act, 18 USC 875(d)
d. Defined under Hobbs Act
i. Extortion means the obtaining of property fr another, w/his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official right.
e. Range of threats Hobbs Act reaches is broad; limited more by judicial line-drawing than Congr fiat.
f. Req that D obtain money or prop ―with the consent‖ of the victim.
g. 3 Kinds of coercion that can wrongfully induce such ―consent‖:
i. threats of violence
ii. economic harm
iii. injury to victims‘ reputations
h. ―Obtaining of property‖ as applied to intangible prop interests
i. Scope of this lang can be important in racketeering cases
ii. Prosec for extortion has long been crucial part of fed law enforcers‘ efforts to attack Mafia-style organized
i. Challenges of distinguishing b/t shake-downs and hard bargaining.
i. Why def of extorition is vague and protean.
II. COERCION & CONSENT: VIOLENCE
III. US v. Zhou
a. FACTS: Ds involved in robberies. Prior thereto, an unknown caller telephoned V, stating that a certain person would
come by to pick up $10k. V responded that he had no money and hung up. Later that day, Ds demanded the money
from V, struck him, and took a necklace – convic for extortion.
b. HOLD: Robbery + cryptic, ambiguous phone call does NOT = extortion.
i. Extortion: obtaining of prop fr another, with his consent, induced by wrongful use of actual or threatened
force, violence, or fear.
1. Exemplified by revenue-producing measures used by organized crime to generate income, such as
shakedowns and loan-sharking.
ii. Theme of extortion cases: CHOICE on the part of the victim.
1. V given option of relinquishing prop immed or risking violence resulting in other losses, and
chooses what he perceives is the lesser harm.
2. Hobbs Act thus prevents extortionist fr forcing V to make a choice.
3. Obv involves fear, but V always retains some degree of choice in whether to comply w/extortionate
4. Element of consent distinguishes extortion fr robbery.
iii. Essential elements of fed crime of extortion:
1. D‘s use of actual or threatened force, violence, or fear.
2. V‘s consent.
iv. Gov claim – phone call to V informing him that D was coming to pick up $10k operated as a request.
v. Call itself was not threatening
1. Caller didn‘t indicate any conseq for failure to tender $10k.
2. Nothing suggesting V was placed in a state of fear, felt threatened, or saw neg conseq of refusing
to consent to the demand.
i. Fed jx under Hobbs Act rest on commerce clause.
1. Gov burden to show D‘s conduct affected interst commerce: show some actual, even if de minimis,
effect, or, where there‘s no actual effect, a realistic probability of an effect.
2. Ways Gov could satisfy jx element in Zhou:
a. Testimony that gambling parlor attracted out of st customers
b. That in order to gain access to $10k, D would‘ve had to liquidate stocks or mutual funds
c. Gambling parlor sold goods that had traveled in interst commerce
3. Hobbs Act turns nearly all extortionate acts into fed crimes.
1. Stuart Green: defining feat of extortion isn‘t presence of consent, but its absence.
a. Extortion as ―theft by coercion‖
iii. Temporal characteristics of robbery vs. extortion
1. Relationship b/t timing of threat and receipt of property.
2. Robbery – threat + pt when threatened act will occur + consent all happen around same time.
a. ―Your money or your life,‖ and V hands wallet.
b. Not really consent, in the face of blatant threat.
3. Extortion – threat happens at one time and place, threatened harm occurs at later point, and
money changes hands later (poss wks or mos later).
a. When elements happen at diff times, a transfer can look entirely legit.
b. Essence of extortion: functional equiv of robbery, but is designed to look like an ordinary
legal exchange of money for goods/services.
i. Ie. Robbery that uninformed observer won‘t recognize as such.
iv. 3 potential crimes committed in Zhou
1. Call demanding money (attempted extortion)
2. Pointing of gun while demanding money (attempted robbery)
3. Theft of the necklace (robbery)
a. Prosec lost on #1 bc V said ―wrong‖ things at stand – no testimony he felt threatened or
v. Common Law: extortion was close relative not of robbery, but of bribery.
1. Public-sector branch of extortion doctrine
2. Many contemporary extortion cases don‘t involve violence – threats of econ or reputational harm
may supply nec element of coercion.
3. Still, violence lies at heart of hist of fed law of extortion.
a. Labor violence was a critical concern
b. ―Labor racketeering‖ – sometimes means by which employer trade assoc enforced
vi. Hobbs Act
1. Passed in 1948 in response to labor-related gang activities
2. Not the only fed extortion statute, but lies at foundation of fed extortion law.
3. Contains most detailed def of ―extortion‖ in the fed code.
vii. US v. Enmons – Q of legal status of labor violence under Hobbs.
1. While Ds violent means were unlawful, their end (higher wages for striking workers) wasn‘t
2. Wrongful has meaning in Hobbs only if it limits statute‘s coverage to instances were obtaining of
prop would itself be wrongful bc extortionist has no lawful claim to that prop.
3. Diff b/t union officials threatening violence against employer to obtain personal payoffs vs. violence
used to obtain higher wages in return for genuine services the employer seeks (seek higher wage
for work actually performed)
4. Held: Hobbs has limited effect of preventing union members fr using protected status to exact
payments fr employers for imposed, unwanted, superfluous services.
5. Congr didn‘t intend to put Gov in biz of policing orderly conduct of strikes.
6. Left violence by striking unions outside scope of Hobbs.
viii. Some decisions demonstrate passive-aggressive style of statutory interpretation when cts want to limit pwr
of prosecs in a particularly sensitive policy space.
ix. Broader implications of Enmons reasoning
1. While scope of ―actual or threatened force, violence, or fear‖ in extortion context is broad, only the
―wrongful use‖ of these things is forbidden.
IV. COERCION & CONSENT: ECONOMIC THREATS
a. Efforts to obtain money through fear of economic loss get far more scrutiny in case law than threats of violence.
i. Give me money or I‘ll burn down your house (threat to do something illegal)
ii. Give me money or I will sell my life story, in which you‘re a co-star, to the tabloids (threat to do something
that‘s not inherently criminal)
iii. Give me money or I won‘t give you goods and services you so desperately need
c. Entrepreneurship v. Illegal extortion?
d. US v. Capo
i. Estab what has become standard test for threats of econ harm in extortion cases.
ii. Threats are exortionate when D purports to have the pwr to hurt the V in econ terms and fear is induced.
iii. FACTS: Ds sold jobs at Kodak plant; applicants give Ds few hundred dollars, get factory job in return.
iv. HELD: Scheme isn‘t extortion bc it wasn‘t sufficiently coercive.
1. Must estab that V reasonably believed:
a. D had power to harm V
b. D would exploit that pwr to V‘s detriment.
2. No suggestion here that it would‘ve been reasonable for Vs to believe that if they didn‘t pay, Ds
would exploit pwr to diminish V‘s employment opps.
a. No fear of economic loss on part of Vs.
3. Relevant case law reqs ev that nonpayment would result in preclusion fr or diminished opp for
some existing or potential economic benefit.
v. Ct seems to assume that job applicants who didn‘t pay D and relied on normal hiring process had same
employment prospects they would‘ve had if job-selling scheme didn‘t exist.
1. What if there were a limited number of jobs avail at Kodak and in Rochester?
a. Were payments made out of fear that Ds could or would impede V‘s being hired at Kodak?
e. Zhou: about line b/t exortion and robbery.
i. Robberies aren‘t extortionate bc robbers don‘t obtain V‘s consent.
f. Capo/Albertson: line b/t extortion and bribery.
i. Capo – commercial bribery isn‘t extortionate when bribe-takers don‘t threaten their Vs.
g. Characteristics of crimes
i. Essence of bribery: voluntariness.
ii. Essence of extortion: duress.
iii. Robbery: purely coercive
iv. Bribery: purely consensual
v. Extortion: coercion + consent
V. US v. Albertson
a. FACTS: D organized opposition effort to dev of manufactured home community. Both sides of the debate engaged in
a heated campaign to sway public opinion. D contacted developer and proposed that if the developer made a
donation to D‘s football team, he would drop his opposition to the dev project.
i. Gov – (broad reading) D has no lawful claim to the prop involved ($20k), so he is guilty of extortion under
ii. D – if payor receives something of value in exchange for his prop, there can be no Hobbs violation.
b. ISSUE: Whether one who organizes and leads legit legal opposition that impedes developer‘s efforts to use land
commits a Hobbs Act violation when he reqs $20k in return for dropping his opposition.
c. HOLD: D‘s conduct doesn‘t constitute a violation of the Hobbs Act.
i. D‘s proposition was disgraceful, offensive, and ethically repugnant. But Hobbs doesn‘t police all such
behavior, it only prohibits the ―wrongful‖ use of economic fear. Bc V stood to receive something of value in
return for his $2k sponsorship, D‘s econ threats weren‘t wrongful and not violative of Hobbs.
i. ―Fear‖ in Hobbs Act encompasses fear of econ loss and phys harm.
ii. Wrongful Use of Fear
1. Wrinkle in Hobbs Act jurisprudence: not all econ threats are outlawed by fed law and Hobbs Act
intercededs in priv dealings only when econ threats are used for a wrongful purpose.
2. Hobbs Act doesn‘t define ―wrongful‖
a. Fine line b/t legit econ threat and wrongful one.
3. Lawful Economic Threat
a. One party threatens litigation in effort to persuade another party to honor a K which first
party believes has been breached.
4. Wrongful Economic Threat
a. One party threatens to retain and use prop that belongs to another party unless first party
iii. Viacom v. Icahn – Hard-bargaining vs. Extortion
1. Hard bargaining: V has no preexisting rt to pursue his biz interests free of fear he is quelling by
receiving value in return for transferring prop to the D.
2. Extortion: V has pre-existing entitlement to pursue his biz interests free of the fear he is quelling by
receiving value in return for transferring prop to the D.
3. Something of value the V receives is imposed, unwanted, superfluous, and fictitious.
a. Ie. hiring of a second worker to do the job another worker is already doing.a
4. Albertson (D) claim: if V receives something of value – something to which he is not already legally
entitled and hence not imposed, unwated, superfluous, fictious – then a transaction can‘t be
iv. Gov argument: The ―hard bargaining‖/extortion distinction drawn in Viacom is incorrect.
1. This is not an ex of ―pay to play‖
a. The most D could do was remove his personal opposition.
b. Had V not given D money, V wouldn‘t lose opp to compete – he could still operate
through legal and political means to obtain clearance for dev proj.
2. US v. Collins
a. Payors acted out of fear that, w/o payments, they could lose opp to compete for gov
contracts on a level playing field, an opp to which they were legally entitled.
b. If payors didn‘t contrib. to the party, they wouldn‘t be considered for st contracts; in order
to compete for biz, they would have to pay the gatekeeper (D).
3. Payor must be deprived of a ―level playing field‖ to be V of a Hobbs Act violation.
a. If payor is paying D for opp to compete like everyone else, then payor is a V under
b. While payor gets something for his money, it was something to which he was otherwise
entitled – a lev playing field – so what was received was ―imposed, unwanted,
4. If a payor willingly transfers prop to D in order to gain an advantage and won‘t suffer more than
anyone else for not making the payment, there‘s no Hobbs Act violation.
a. Here, D offered V opp to make considerable headway on an already-level playing field, an
opp fr which V could walk away w/impunity.
b. V stood to lose nothing to which he was legally entitled if he rejected D‘s req for
v. Gov argument: Albertson committed extortion bc his behavior was covert and aimed at personal enrichment
1. No distinction b/t overt agreements (Viacom) and clandestine agreements (Albertson).
2. No distinction b/t econ threats designed for pub benefit and those designed for personal
3. Secrecy and pub benefit are nowhere to be found in the Hobbs Act.
i. US v. Addonizio
1. Held – while bribery is a voluntary pmt made in order to exert undue influence upon the
performance of an officially duty, extortion involves pmt in return for something to which the payor
is already legally entitled.
2. Developer in Albertson wasn‘t ―legally entitled‖ to build development w/o public opposition, so no
1. Diminished opportunity to obtain a job is sufficient threat under Hobbs.
a. Job-selling scheme deined all others a ―level playing field‖ – playing field for everyone else
dropped to below sea-level.
iii. US v. Castillo
1. FACTS: D works for rival newspaper and asks for money in exchange for stopping attacks agains V
2. Reciprocity is not enough to immunize fr Hobbs.
a. D, who took the initiative, was selling silence.
b. Diff outcome if V took initiative to exchange money for silence.
3. When the D threatens harm, unless he gets something to which he is not entitled, he has
4. Capo – V must be put into a worse position if she refuses to pay. Here, D is threatening to do harm
if V doesn‘t pay.
5. Had V initiated the same transaction, her ―consent‖ wouldn‘‘t be induced by any threat from D.
iv. Model Penal Code
1. Separates extortion fr hard bargaining based on whether the D shared any benefit she received fr
a. ―...received for the benefit of the grp in whose interest the actor purports to act.‖
2. No Ct of App has extended Hobbs to incl the MPC def.
v. Concern ab intrusion of crim law into activities that involve political expression lurking in background of
Albertson ct‘s analysis.
1. US v. Pendergraft
a. A threat to litigate, by itself, isn‘t nec ―wrongful‖ under Hobbs. Under our system, parties
are encouraged to resort to cts for redress of wrongs and enforcement of rts.
b. Not a typical threat to litigate: this is a threat to lit against a county gov. The rt of citizens
to petition their gov for redress of grievances is fundamental to our constl structure. A
threat to sue gov can‘t be ―wrongful‖ in itself.
c. The fabrication of ev doesn‘t make a threat to sue a gov ―wrongful‖ within the meaning of
the Hobbs Act.
2. Is the ct saying that policing of good and bad lawsuits isn‘t the proper function of fed prosecs in
vi. Distinguishing robbery and bribery
1. Legal Status of Victims
a. Zhou – V is guilty of nothing, regardless of whether D‘s conduct is labelted robbery or
b. BUT, V can be prosec for violating bribery laws if the offense is treated as bribery or
i. In commercial bribery cases, payors and payees can be charged under MF
w/conspiracy to deprive others of intangible rt to honest services.
2. Relationship b/t relevant crimes
a. Extortion and robbery are mutually exclusive.
i. Zhou – Ds could be guilty of one of those two crimes, but not both.
b. Extortion and intangible rts fraud are mutually exclusive.
i. Chief means to prosec commercial bribery cases.
3. Suppose in Capo, applicants who paid bribes for jobs were charged with aiding and abetting MF, bc
helped Ds deprive Kodak of honest services of its employees.
a. Outcome: Job applicants would argue they were coerced, but level of coercion req for
Hobbs convic falls far short of level req for a duress defense.
i. Extortion Vs could be convic of commercial bribery.
4. Bribery – involves quid pro quo, so 2-way culpability is easier to assign.
I. Internet Fraud Statutes
a. Statute most commonly used to prosec internet frauds is wire fraud statute.
i. Something in transaction crossed st lines
II. Intangible rights fraud: loose ends
a. Normative arguments
i. Intangible rts doctr, even as limited by Skilling, still allows for pretty expansive crim liab. And that liab may
be too expansive.
ii. If liab is too expansive, and treats Ds unfairly, how do you cabin that authority? 2 Possibilities:
a. Proof of some kind of active conduct on Ds part to hide D‘s tracks (not just failure to
disclose). Prove consciousness of guilt.
b. Think about reasons why ppl hide their conduct?
i. Evade crim liability
ii. Conduct is embarrassing in some way, harmful to rep, but falls short of liability –
may not be as helpful of a proxy for mens rea as one might think.
a. Defense: ―I just followed norms of behavior of ppl in my circumstance.‖
i. Ie. In the legislature, it‘s customary to have outside employment. If anyone who
has employment with some org that resides in the legislator‘s disctrict, they‘ll
likely have legislative biz that affects employer, and legislator will naturally take
an interest and try to advance interests of employers in their district.
b. But if you want changed norms, customs defenses won‘t serve that interest.
b. Mens rea arguments
i. Mens rea arguments don‘t seem to have much bite in these cases.
ii. Very few intangible rts fraud cases that turn on mens rea.
iii. Related to the fact that in intantiglbe rts cases, there‘s a surprising amt of variation across circuits on mens
rea standard gov must prove.
1. Suggests standards don‘t matter that much, bc outcomes are largely still the same.
iv. Why is this the case?
1. Mens rea proved in fraud through D‘s conduct.
2. Both sides argue about intent based on conduct.
3. Intent to defraud is proved by proving the fraudulent scheme.
a. In pracrtice, the two issues collapse into one, and mens rea tends to drop out of the
b. Mens rea subsumed in scheme to defraud.
i. Why so much lit over what is the def of ―scheme.‖
c. Deceit and corruption
i. Intangible rts cases are ostensibly ab fraud – deceit is at the core of the crime – but you find that‘s often
not the truth.
ii. Deception places a smaller and smaller role in intangible rts lit over time.
1. Skilling reps last step in this trend.
iii. Trend: convert fraud cases into corruption cases.
iv. Field started out as primarily ab deceit, and now primarily ab corruption.
1. Skilling‘s bribes and kickbacks line reinforces this.
III. Kahan‘s argument: 2 questions
a. Who should make fed crim law?
b. Should pwr over fed crim law be more centralized?
c. Basic argument: system should resolve ambiguities (see: intangible rts fraud, economic extortion – doctrine is all
over the place + conflicting ct decisions) via Main Justice of DOJ issuing ―interpretive‖ regs under crim statutes.
i. Would make radically decentralized system considerably more centralized than it is now.
e. QP: Is more centralized system better and fairer?
i. Basically shifting pwr from one set of prosecs to another.
1. Is that a good thing, when prosecs already exercise an extraordinary amt of pwr?
2. Prosecution in US is ―partisan‖
a. Prosecutors are in an adversarial system, and representing one side – see themselves as
―on a side.‖
b. Wonder if there would be negative synergy if you centralize these actors making decisions
f. 2 scenarios to consider
i. Second Bush admin – DOJ (AG Gonzales) and questionable relationship w/some US Attys offices – pushing
US Attys to pursue what seemed like to those US Attys, political corruption cases against Dem elected
officials. Some US Attys fired.
1. Incredibly expansive def of bribery used, ct berates US Atty.
2. Example of ctr pushing more severity on a reluctant periphery.
ii. Mid 1980s – Guilliani is US for SDNY and in process of remaking fed securities law. Guilliani got a lot of
resistance from DC, which didn‘t want him to rewrite fed securities law (which is particularly important in
NY). He ignored the pressure bc he could – US Attys usually win vs. Main Justice.
iii. Which scenario is more common and worth worrying about?
1. Very severe crim justice system, and fed system is worse than state. What it needs is not more
2. Q of whether you get more severity by centralizing or decentralizing pwr?
a. Similarities w/ intangible-rts fraud, elements of the crime
i. As with intrangible rts, Congr passed key extortion statute to overturn an unpopular SCT decision (intangible
ii. Liability for extortion has expanded in ways Congr prob didn‘t expect.
1. Ex. econ harm extortion cases
iii. More so than intangible rts fraud, most of the key judicial decisions have been made by prosecs and lower
cts, and not by the SCT.
iv. To the extent that you see disarray in the law of econ harm extortion, you are seeing something similar to
what you saw in the descriptions of intangible rts fraud doctr in Skilling.
1. Doctrinal disarray exists largely bc SCT hasn‘t resolved circ splits.
2. Outcome: circuit-based doctrine, almost to the pt where it‘s hard to teach the conventional law of
econ harm extortion, bc not clear it exists – variation.
v. Elements of the crime: def of extortion in Hobbs. Gov must prove:
1. Victim‘s consent
2. That the consent was induced by ―wrongful use of actual or threatened forced violence or fear.‖
3. D obtained money or prop as a conseq.
a. Zhou is about meaning of #1 element (consent)
b. Albertson is about meaning of #2 element (wrongful use)
c. Gotti case is about meaning of #3 element (def of prop)
b. US v. Zhou
i. The robbery-extortion line (See Zhou)
ii. 2 parts of transaction
1. Phone call - D says a guy is coming by, and demands that V give $10k to him.
2. Guys do come buy, V doesn‘t have $10k, guys rob D of his necklace.
iii. Outcome: Ds not guilty of extortion. Why?
1. No consent on part of V.
2. Too little coercion for phone call to be extortion.
iv. What is it about this crime that explains both consent and coercion being within the def of the crime? Seems
imposs to req and satisfy proof both in any case.
1. A: consent and coercion happen at diff times and diff places.
2. Extortion cases are like slow robberies – robbery that happens over time.
a. Force happens at one time, hand over of money/prop happens at another.
b. One of these pieces of the transaction has to be consensual, another has to be coercive.
c. The one thing that must be consensual is the handover.
i. Here, that one thing was not consensual – ripped off necklace.
3. Extortion = reality of coercion + appearance of consent.
v. D‘s conduct is omnipresent in these cases.
vi. What happened here?
1. Gov didn‘t estab significance of D‘s conduct in demanding money, and likely threat to V –
established through D‘s reputation and identity.
2. V didn‘t provide enough ev of fear.
c. Extortion and threats of economic harm
i. Every time buyer declines to buy from seller, seller suffers econ harm.
ii. Every time buyer threatens to not buy, buyer has threatened econ harm.
iii. Note: Ordinary market transactions can‘t be deemed extortion.
1. This drives the legal disarray we see: cts looking for formula that reliably distinguishes ordinary
mkt transactions fr extortionate transactions.
2. More convergence with outcomes and fact patterns: ―I know it when I see it.‖
3. But written doctrine is very uncertain.
iv. Capo (286)
1. Closest thing we have to conventional econ harm extortion doctrine.
2. Job-selling scheme at Kodak plant. NOT extortion.
a. No fear.
b. There‘s a level playing field: alleged Vs who declined to pay D for a job were in no worse
position in the job app process.
i. D is offering a benefit, not threatening a harm.
3. Held: extortion ―when fear is induced.‖
a. V‘s fear becomes not a piece of the crime def (as in Zhou), but the whole crime def.
b. Problem: fear isn‘t excluded fr ordinary market transactions – legit threatened harms that
elicit fear can arise fr perfectly legal transactions.
v. Collins (295)
1. Same bottom line as Capo – level playing field.
vi. Castillo, Albertson
1. Level playhing doesn‘t seem to work very well. So what does work? How do you draw the line?
Federal Criminal Law – Class 13
I. Informational Blackmail
a. Extortion – conditional threat to do something that it would be unlawful to do.
i. If you don‘t do X, I will commit a wrong against you.
b. Blackmail – wrongful conditional threat to do something (ie. disclose info) that would otherwise be permissible to do.
i. If you don‘t do X, I will reveal damaging info about you.
II. US v. Jackson
a. FACTS: D attempts to get $40M fr Cosby, by threatening to cause tabloids to publish D‘s claim to be Cosby‘s
daughter out-of-wedlock. Convic of extortion.
i. Gov claim – Extortion statute contains no ―wrongfulness‖ req, and even if such a req is inferred, threats to
injure another‘s rep are inherently wrongful.
b. HOLD: Ct failed to inform jury of proper scope of intent-to-extort element of the statute.
i. Erroneously allowed jury to find Ds guilty of violating that section on the premise that any and every threat
to reputation in order to obtain money is inherently wrongful.
i. Not all threats to engage in speech that will harm another‘s reputation, even if a forbearance fr speaking is
conditioned on the payment of money, are wrongful.
1. Ex. Buyer of defective product may threaten to sue if manufacturer doesn‘t make good on its
2. Ex. Private club may threaten to post list of club members who haven‘t yet paid dues.
3. Congr didn‘t intend to criminalize these acts.
ii. Travel Act refers to ―extortion‖ w/o defining it. Yet, Act is interpreted as using the term in its generic sense,
which inherently signifies wrongfulness.
iii. Suggestion that Congr intended extortion to refer to acts prohibited by st law which would be generically
classified as extortionate, ie. obtaining something of value fr another w/his consent induced by the wrongful
use of force, fear, or threats.
iv. ―Extort‖ is defined in other sections of Crim Code to have wrongfulness component or implicitly contain a
v. Ct adopts interpretation of statute similar to Clemente‘s interpretation of Hobbs Act.
1. Not all threats to reputation are within the scope of the extortion statute.
2. The objective of the party employing fear of econ loss/damage to reputation will have a bearing on
the lawfulness of its use.
3. It‘s material whether D had a claim of rt to the money demanded.
vi. The type of threat to rep that has no nexus to a claim of rt is inherently wrongful.
1. Distinguish between:
a. Threatened disclosures of consumer complaints nonpayment of dues
i. Here, disclosures themselves – not only threats – have potential for causing
payment of money demanded.
b. Threatened disclosures of sexual indiscretions that have no nexus w/any plausible claim of
i. Here, only the threat has potential to case payment of money, and actual
disclosure would frustrate the prospect of payment.
2. Ct erred in not narrowing definition of ―extort‖ to obtaining of prop to which D had no actual, or
reasonable belief of, entitlement.
1. Jackson had no right to demand money fr Cosby pursuant to a K or promise, no right to insist she
be included in his will.
i. In honest services context, saw circ cts relying on st law to limit scope of MF statutes.
1. Similarly, Travel Act relies on st law to limit potentially expansive reach of extortion under that
2. Jackson – poss provided a defense for indivs with a rt under st law to the money or prop they
allegedly obtained through extortion.
3. Wrongfulness element
a. Honest services: violation of st law provides needed wrongfulness.
b. Extortion: existence of a rt under st law vitiates wrongfulness.
ii. Victim‘s decision to go to FBI instead of DA‘s office
iii. Letterman Extortion case
iv. Nature of the threat
1. Castillo – newspaper was manufacturing opinion pieces directly targeting the V. Ds created the
very situation they then used to attempt to extort money fr V.
2. Tabloid hypo – no tabloid can prevent celebs fr making fools of themselves.
3. If fed crim law is about policing abuse of pwr, Castillo is better candidate for prosec.
v. Wrongfulness is not explicit elemtn of comm. law def of extortion. Its source is the Hobbs Act, not the
1. In general, fed cts don‘t read terms fr one crim statute into another (see Wells)
III. Obtaining Property
a. Under the statutory def of extortion (from Hobbs), D must obtain prop, and must do so by coercing V into consenting
to his victimization.
i. Application of ―obtaining of property‖ to intangible prop interests.
b. Gotti: classic use of Hobbs Act to prosec Mafia fam members for shakedowns.
i. But also incl controversial use of statute: where ―prop‖ Ds are charged with obtaining is intangible property.
IV. US v. Gotti
a. FACTS: Corrupt influence of Gambino fam over labor unions, businesses.
i. Exercised control over affairs of the union, ensuring that organized crime associated would be placed in Intl
Exec Officer positions, then directing their activities. The activities gave rise to extortion and fraud.
1. Used control over union‘s health plan to ensure that a co that was part owned by Gambino fam
assoc, and which paid substantial kickbacks, was awarded the health plan‘s lucrative pharma
2. Ordered an employee, who did so after feeling intimidated, to resign fr his position so it could be
filled by someone related to the Gambino fam.
3. Extorted prop interests from café owner: money, the rt to refuse to keep illegal gambling machines
at his biz, rt to sell biz free fr outside pressure.
4. Attempted to extort actor Seagal by trying to obtain $ fr him and attempting to get him to do biz
ii. Indictment alleged Ds wrongfully obtained the following prop of union members:
1. Labor union positions, money paid as wages/employee benefits, other econ benefits that union
members would‘ve obtained but for D‘s corrupt influence.
2. Rt of union members‘ free speech + democratic particip in affairs of the union.
3. Rt of union members to have officers, agents, delegates, employees of union manage the money,
prop, and financial affairs of the org.
iii. Ds claim that extortion counts became invalid w/ Scheidler II opion.
b. HOLD: For Hobbs Act liab to attach, there must be a showing that the D didn‘t merely seek to deprive the V of the
prop rt in Q, but also sought to obtain that rt for himself. This std can be satisfied regardless of whether the prop rt
at issue is tangible or intangible.
i. In evaluating extortion count‘s conformity w/ Scheidler II, key inquiry is whether D is:
1. Alleged to have carried out (or attempted) the deprivation of a prop rtf r another
2. With intent to exercise, sell, transfer, or take some other analogous action wrt to that right.
ii. A motive to profit by chashing out the value of the prop rt will generally serve as powerful ev that D‘s goal
was to obtain the rt for himself, rather than merely deprive V of that right.
i. Scheidler II Decision
1. Hobbs Act def of extortion: ―the obtaining of prop fr another, w/his consent, induced by wrongful
use of actual or threatened force, violence, or fear, or under color of official right.‖
2. Pre-Scheidler II - broad interpretation of ―obtaining of prop fr another‖:
a. ―prop‖ incl intangible as well as tangible
b. ―obtaining‖ incl cases where D caused a loss of or interference to V‘s prop rts, even
though the D hadn‘t actually sought to exercise those prop rts for himself.
3. US v. Tropiano
a. Held: concept of prop under Hobbs isn‘t limited to phys or tangible prop or things, but
broadly incl any valuable rt and doesn‘t depend on direct benefit being conferred on the
person who obtains the prop.
b. V had rt to solicit biz fr anyone in any area w/o territorial restrictions by D.
i. This right to solicit accounts constitutes prop: only by the exercise of this rt could
V obtain customers whose accounts were valuable.
4. Union precedent
a. Held: the rt of members of a union to democratic particip in a union election is prop. That
the rt is intangible doesn‘t divest it fr protection under Hobbs.
5. Satisfying the ―obtaining‖ prong of the Hobbs Act
a. Satisfied where extortionist used violence to force V to abandon the prop rts in Q, even
though extortionist wasn‘t seeking to exercise those prop rts for himself.
b. Whether prop in Q is V‘s rt to conduct a biz free fr threats of, a person who threatened
violence in order to induce abandonment of that rt has obtained, or attempted to obtain,
prop under Hobbs.
6. Extortion v. Coercion
a. Coercion – use of force or threat of force to restrict another‘s freedom of action.
b. Extortion – D obtains prop by obtaining control over use of those assets.
a. Scheidler II didn‘t overturn a broad interpretation of the Hobbs Act‘s reference to ―prop,‖
nor did it suggest that only tangible prop rts can be extorted under Hobbs.
b. Scheidler II left intact precedent that intangible prop rts can qualify as
extortable prop under Hobbs.
ii. Q: What it means to ―obtain‖ a property right
1. 2-part inquiry that reqs deprivation + acquisition of prop.
a. Ie. Acquire prop, and thus obtain it.
b. Seek to deprive someone of a rt and then do something affirmative with that right
c. Goal to ultimately enrich themselves, by appropriating the economic value of another‘s
d. Look at possibility of exercising, transferring, or selling the prop – indicates extortionist‘s
inent wrt prop at issue.
2. In Scheidler, D‘s only goal was to shut down clinic. Would count as deprivation if Ds went further
to deprive clinic of rt to conduct their biz as they wish – ie. forcing staff to provide diff services.
3. No ―legality‖ req
a. Intangible prop can qualify as extortable prop under Hobbs regardless of whether its
exercise, transfer, or sale would be legal.
i. Ie. it IS poss to extort illegal prop (such as drugs)
iii. Applying Deprive + Acquire Rule to the facts
1. Ds caused relinquishment of union members‘ rts + did so in order to ex those rts for themselves
for financial profit.
2. Ds obtained rts to health benefits contract to ensure that the Gambino fam co would get biz and
pay kickbacks – exercised rt in order to profit.
3. Ds sought to deprive employee of rt to work at union for as long as he sought the job, with the
goal of transferring those rts of employment and salary to their own preferred candidate – force V
to relinquish prop rt to transfer that rt to a 3rd p.
4. Obtained café owner‘s prop rts to make biz decisions free fr outside pressure.
5. Sought to exercise actor‘s rt to make his own biz decisions, by threatening him w/violence unless
he worked with their assoc.
iv. Correct jury instructions
1. ―Property‖ under Hobbs incl not only money + other tangible things of value but also any
intangible rt considered as a source of component of income or wealth.
2. Adequately emphasized the ―obtaining‖ req.
i. Basic issue in Scheidler: whether violence gives rise to liab under RICO and Hobbs Act when not motivated
by, and doesn‘t achieve, financial gain for Ds.
1. Q: whether RICO liab reqs an economic motive.
2. Hold: No such motive is required.
ii. After Scheidler, remains open Q what it means to ―obtain‖ prop of another.
1. Mere deprivation isn‘t enough.
2. D must be capable of exercising, transferring, selling, utilizing prop.
3. But boundary b/t Hobbs violation and mere illegal deprivation isn‘t clear.
iii. Limits to intangible forms of ―property‖?
1. Gotti – among prop rts obgtained were members‘ rts to speak and vote freely on union affairs.
a. Ds are guilty of extortion even if they made no money fr transaction: prop was obtained
moment they coerced members into voting certain way.
2. Seems similar to Scheidler – coerced Vs into behaving in ways the Ds wanted, without extracting
profit in the process.
3. De facto guiding doctrinal principle b/t the two?
a. Extortion is what Gotti and friends to, but not what anti-abortion org does.
4. Perhaps distinguishing factor is that Scheidler is civil lit, not crim.
a. Broad construction of Hobbs in civ dmgs cases would produce expansive civil liability.
i. Concerns over conseqs of an unbridled reading of the statute.
b. Broad reading that applies only to crim cases is less dangerous bc prosecs act as
gatekeepers to fed crim liab.
i. No gatekeepers for civ liab – just self-interested plaintiffs + attys.
5. In Scheidler II, Ginsburg supports narrow reading of Hobbs act solely bc of its effet on RICO liab.
a. Bc RICO, unlike Hobbs and other fed crim statutes, creates both crim AND civ liab.
iv. Reputational Threat to Seagal
1. Could gov still make out extortion if comment about Seagal getting killed wasn‘t made? Yes.
a. D didn‘t threaten Seagal bc he didn‘t have to – threat comes from his reputation – man
who gets what he wants.
2. Gov could still make out case even w/o gangster reputation.
a. Threats that Ds don‘t intend and lack pwr to carry out may suffice, as long as they have
desired effect on the extorted V.
3. Mafia-style crim organizations make money by leveraging reputation for violence. Hobbs Act
criminalizes precisely that type of leverage.
v. What must Gov prove to convict?
1. Not utterance of explicit threat.
2. Not existence of genuine threat.
3. Hints and implications – possible threats – are sufficient.
a. Up to the jury to decide what D‘s conduct and words imply.
vi. What counts as ―property‖ that can be obtained w/in meaning of Hobbs remains open issue in threat cases
AND ―under color of official rt‖ cases.
1. US v. McFall
a. Held: Decreasing a competitor‘s chance of winning a K, standing alone, doesn‘t amt to
obtaining a transferable asset.
i. Neither co had vested rt to bild at the contested site, and there was no
guarantee either co would secure such a rt.
ii. Not enough to gain some speculative benefit by hindering a competitor
(―improper attempt to secure a biz advantage‖).
iii. Gov must estab that D attempted to acquire that prop rt such that he alone
could sell, transfer, or exercise it.
I. Sides points
a. Zhou, Gotti, and reputations for threatening violence
i. Sonny Ciccone‘s threat all include the implicit threat that didn‘t suffice in Zhou.
ii. These implicit threats aren‘t always carried out.
1. Trades on reputation – doesn‘t have to carry out many threats to have the relevant reputation.
iii. Why did this suffice in Gotti and not Zhou?
1. Gov must have put on reputation evidence, but we don‘t see that.
2. Main reputation evidence is showing other extortion counts – proves implicit threat by showing he
makes a lot of other threats.
3. Tell big story with lots of ppl – why they also join lots of Ds.
II. Extortion and threats of economic harm (cont‘d)
a. Capo and Collins
i. Capo – D made offers, not threats. Ppl with whom they dealt retained same chance of getting Kodak job
that they had before, had they not partaken in the scheme.
1. Key idea: level playing field.
ii. Collins – Gov success on theory defeated in Capo. Campaign contribs in exchange for rt to bid on st Ks. This
IS held to be extortion.
1. Victims in Collins did NOT have a lev playing field – threatened with loss of something to which
they were entitled.
2. Operative idea – level playing field.
3. V lost some entitlement that others in the V‘s shoes still have, and that the V had before the
a. Transaction takes something away that V had.
b. Castillo and Albertson
i. Cases look similar – what are the arguments against liability?
ii. Castillo – two rival newspapers; one prints attacks on the other, trying to drive rival out of biz; D then offer
to stop attacks in exchange for $26k.
1. Arguments against liability
a. V isn‘t entitled to be free from this type of criticism.
2. Arguments for liability
iii. Albertson – D opposes development proj and then offers developer to stop opposition if developer gives
$20k to his sports team.
1. Arguments against liability
a. V isn‘t entitled to be free fr Albertson‘s conduct.
iv. Both look like intangible rts cases where you can‘t quite determine a fiduciary duty.
1. Selling out your readers – doesn‘t owe them a fiduc duty.
2. Albertson selling out his allies – no fiduc duty, but there is something sleezy about both cases.
c. Starting point for econ harm extortion: must distinguish extortion fr ordinary mkt transaction.
d. All cases involve variants on classic blackmail scenario
i. D has some piece of embarr info about V; D can share this info, thereby harming V‘s rep; if there‘s a mkt for
info, D can sell info to publisher; or D may keep quiet.
e. Common to see cts say: ―Well, D wasn‘t entitled to this money.‖
i. In both econ harm extortion + blackmail cases.
ii. What is wrong with that line?
1. Depends on what ct says is a crime.
2. No seller in any transaction with a buyer is entitled to any money fr the buyer until the sale actually
3. Seems to be some implication that in order for D to prevail, D must show he had some pre-existing
legal entitlement ot the money.
a. Ie Jackson has valid claim of support against Cosby under CA Fam Law in the relevant
amt. But if that‘s true, there are tons of ordinary mkt transactions that are extortionate.
iii. Really hard to make sense of cases based on lang in the cases themselves.
f. Deeper arguments
i. These Ds were trying to leverage their ability to do harm (seems to be a common pattern in these cases)
1. Harm isn‘t incidental to some otherwise legit profit-maximizing behavior of the D. The harm is the
POINT of the transaction.
a. True for econ harm extortion + blackmail cases, though easier to see in blackmail cases.
ii. These transactions look, seem pretty far remove from ordinary mkt transactions.
1. Don‘t see a lot of mkt transactions that are close to what happen in Albertson or Castillo.
g. Phenomenon where laywers have to speak in two langs
i. Must use lang/categories the law and cases use.
ii. But must have to translate them into these deeper arguments.
1. More D can say this looks like something that happens legit all the time in ordinary mkts, more
likely D wins.
2. More likely Gov can say causing harm was PART of this transaction and point of it, and not an
incidental factor, more likely Gov will win.
a. You don‘t want to legalize this behavior bc legalize harm.
h. Bottom Line
i. There is no clear test, just arguments and fact patterns.
1. Law of econ harm extortion = like law of negligence in torts.
2. It means whatever relevant fact patterns/case outcomes say it means.
ii. But there are fact patterns that converge cases like Castillo, Albertson, which ordinarily come out in the
III. Extortion as blackmail
a. Blackmail‘s puzzle
i. Basically same as econ harm extortion
ii. Harder puzzle to solve is limits on blackmail liability.
i. Demands $40M or she tells Cosby is bio father.
ii. Classic blackmail (species of extortion)
c. Jackson Hypo
i. D hires lawyer seeking $200k for support, saying we are going to file suit seeking money, and we are happy
to talk about settlement before filing suit, bc all this info will go public when we do.
ii. Perfectly legal – called a settlement negotiation.
1. But isn‘t this a low-dollar, lawyer‘s equiv of case #1?
2. Jackson was basically punished for being greedy and foolish – bc ppl do what she was trying to do
in a more modest way all the time.
IV. Extortion and ―the obtaining of property‖
a. Cases suggest what is really hard Q is meaning of obtaining – not true.
i. What is hard is meaning of property.
b. Scheidler II
i. Sued anti-abortion org for RICO violations.
1. RICO – unusual crim statute that also creates civ claims.
2. At least 2 acts of racketerring activity: any of a long list of specified offense.
ii. Case ultimately turned on plaintiffs ability to estab that anti-abortion org committed extortion.
1. Plaintiffs thought they could show pattern of violence in protests.
a. Had easy time showing that violence interfered w, and Ds tried to interfered with, clinics
2. Had hard time showing that Ds sought to USE those prop interests.
iii. Doctrinal formula
1. D obtains prop interest only if D can exercise, transfer, or sell that interest.
c. Gotti and the meaning of ―obtaining‖
i. Easy case that it was obtaining on Scheidler II grounds.
d. Gotti and the meaning of ―property‖
i. Prop is much harder case to make out.
ii. How do you argue that what Ciccone was obtaining amts to property?
1. Cf. to fraud cases and property: Carpenter (WSJ column on stock mkt was prop), Cleveland (Gov
licenses weren‘t prop), Ratcliff (election fraud – gov salary the D won by fraudulent election didn‘t
count as prop interest)
iii. Easy to say its property in the hands of Ciccone – he makes profit off of this. But is it prop in hands of union
members? Voting rights?
1. Voting rights here are exercised for someone to elect someone who will make union decisions.
2. Making an argument based on Carpenter
a. If behavior like Ds in Carpenter were repeated, if scheme was successful and there were
many more schemes, WSJ would lose money and Ds would cont to gain money.
i. Journal rep suffers, econ loss
ii. Econ gain on the other side.
iv. How migh Ds lawyer respond? That this wasn‘t prop?
Federal Criminal Law – Class 14
I. Official Corruption
a. Offical power and public trust
i. Extortion ―under color of official right‖
iii. Gratuity provisions
b. Notion that pub office is another sort of agency relationship.
c. Peculiar statutory interpretation dynamic of these offenses, which specifically target pub officers:
i. Even where Congr has acted w/specificity (unlike MF) and created detailed statutes, cts have responded w/
still more fine-tuning. Why?
1. Fed legislators and judges take special interest in integrity of fed governance, and are also
themselves potential statutory targets.
2. Enforcement pressure
a. Fed agencies have special duty to look out for ethical and integrity violations.
b. If press brings violations to light, public will often demand that corrupt official face
c. Matter can‘t simply be left to st to handle.
d. Extortion Under Color of Official Right
i. Where a fed, st, or local official threatens econ harm in order to extract a payoff, he can be charged under
Hobbs for obtaining money thru the ―wrongful use‖ of ―fear.‖
ii. Alternative charging theory that doesn‘t req fear from payor:
1. Simply look at whether official obtained $ ―under color of official rt.‖
iii. McCormick v. US
1. FACTS: McCormick supports legislation allowing experienced, foreign doctors to be permanently
licensed w/o passing st licensing exams, while receiving cash from these docs that were not listed
as campaign contributions by either party, nor was it reported as income on tax returns; charged
a. D claim – payments were campaign contributions, the receipt of which didn‘t violate
b. CofA – distinguished b/t legal and illegal campaign contribs
i. Held that payments to pub officials could violate Hobbs w/o proof of explicit quid
pro quo by proving that pmts were never intended to be legit campaign contribs.
ii. Asserts that campaign contribs were illegit, extortionate pmts.
2. ISSUE: Public official extorting prop under color of official right.
a. Disagreement regarding the meaning of ―under color of official rt.‖
3. HOLD: Quid pro quo req if pmts are campaign contributions.
a. To hold that legislators commit extortion when they support legislation furthering the
interests of constituents, shortly before or after campaign contribs are solicited/received fr
those beneficiaries, is an unrealistic assessment of what Congr meant by making it a
crime to obtain prop fr another, with his consent, "under color of official rt."
i. Would open to prosec not only conduct that is thought to be legal, but also
conduct that is unavoidable so long as election campaigns are financed by priv
b. Still poss for official to commit extortion thru election financing, IF:
i. Contribs are induced by use of force, violence, fear.
ii. Contribs are taken under color of official rt, but only if pmts are made in return
for an explicit prom or undertaking by the official to perform/not perform an
1. Official asserts that his conduct is controlled by terms of the promise.
c. Forbidden zone of conduct:
i. Pub official can‘t demand pmt as inducement for the promise to perform (or not
to perform) an official act.
ii. Qui pro quo is nec for convic when an official receives a campaign contrib.
a. Agreement that receipt of money ―under color of official rt‖ should not incl campaign
contribs made w/anticip of favorable future action, as opposed to campaign contribs made
in exchange for an explicit promise of favorable future action.
b. Statutory Text + History of statute
i. BUT unsettling to make this distinction w/o any justification in the statutory text.
ii. Statute contains no mention of campaign contribs or quid pro quo.
iii. Hobbs did not orig apply to this sort of conduct.
1. Hobbs not applied to bribery until 1972.
2. When prosecs began to apply it, cts didn‘t think that officials were guilty
when they accepted/requested voluntary pmts designed to influence
iv. Questionable assumption that "under color of official rt" means "on account of
one's office" that brings bribery cases under Hobbs, and that creates the
necessity for the reasonable but textually inexplicable distinction the majority
c. Alternative textual reading
i. Under color of official rt conveys false assertion of official entitlement to the
1. Ie. money or thing received must‘ve been claimed or accepted in rt of
office, and payor must‘ve yielded to official authority.
d. Conduct criminalized is called bribery.
i. Bribery convic punishes not only person receiving the pmt but person making it.
ii. D is subj to prosec for bribery under Travel Act, which criminalizes use of interst
commerce for purposes of bribery, and reaches both person giving and receiving
e. Majority makes reasonable but textually unapparent distinctions in a fed ―payment for
official action‖ statute which may not even exist.
a. This is subtle extortion, which is prob much more common than express understanding
majority seems to require.
i. ―unfriendly convo‖ w/lobbyist could be seen as implied threat to take no action
on legislation unless D received pmt.
1. Akin to known thug‘s offer to storekeeper against risk of prop dmg in
exchange for $.
ii. Fact that pmt wasn‘t reported supports conclusion that money was intended as
pmt to D to induce him to act favorably on legislation.
b. Subtle extortion / mutual understanding
i. If the understanding that the money was a personal pmt was made more explicit
b/t the parties, seems that the ct would find a Hobbs violation.
c. If the donor and candidate know the candidate‘s support of the proposed legislation is
contingent upon the pmt, the contrib. may be found by a jury to have been involuntary or
a. Not surprise that Ct req proof of quid pro quo.
i. DOJ manual required as did many circ cts of appeal.
ii. Is this an ex of soft version of centralized control over doctrinal development as
articulated in Dan Kahan‘s ―Chevronizing‖ fed crim law?
1. Can be seen as efforts by DC to manage doctrinal dvpt of crim law, and
thereby minimize the role of indiv prosecs in crim comm.-law making.
iv. Evans v. US
1. FACTS: Extortion convic in violation of Hobbs for bribes taken by public official fr an undercover
2. ISSUE: Whether an affirmative act of inducement by a pub official, such as a demand, is an
element of the offense of extortion ―under color of official rt‖ prohibited by Hobbs – ie. whether
pub official must take the initiative.
3. HOLD: Official need not have been the initiator. Affirmative act of inducement, such as a demand,
is not nec element of extortion ―under color of official rt.‖
a. Passive acceptance of a benefit by a pub official is sufficient to form the basis of a Hobbs
Act violation if the official knows he is being offered the pmt in exchange for a specific
requested exercise of his official pwr.
a. View that passive acceptance is sufficient for extortion is consistent w/the comm.-law def
of extortion, which ct thinks Congr intended to adopt.
b. A statutory term is generally presumed to have its comm.-law meaning.
c. At common law
i. Extortion was offense by pub official who took ―by color of his office‖ money he
wasn‘t owed for the performance of his duties.
1. Demand/req by official wasn‘t an element of the offense.
ii. Extortion was rough equiv of what we now call taking a bribe.
iii. Clear that D committed this defense.
iv. Q: whether statute, as applied to official extortion, has narrowed the comm.-law
def of extortion?
1. A: Congr has expanded the comm.-law def.
d. Portion of statute addressing official misconduct (vs expansion to force, fear, threats)
continues to mirror comm.-law def.
i. Scope of offense not narrowed by Congr.
e. Meaning of ―induced‖
i. Part of the def of the offense by the priv indiv, not the offense by the pub
1. For priv indiv – V‘s consent must be ―induced by wrongful use of actual
or threatened force, violence or fear.‖
2. For pub official – no such req.
a. Only req to obtain ―prop fr another w/his consent, under color
of official rt.‖
ii. Even if ―induced‖ was applied to official, doesn‘t indicate that transaction must
be initiated by recipient of bribe.
1. Wrongful acceptnce of bribe establishes inducement req.
2. Coercive element provided by pub office itself.
3. Inducement doesn‘t have to take form of threat/demand.
a. Affirmative step is not an element of the offense.
b. Passive acceptance suffices.
f. 2 elements of the offense:
i. Services for which fee is paid must be official
ii. Official must not be entitled to the fee that he collected.
a. Q: What does it mean for official to take money by color of his office?
i. Ct fails to answer, and assumes that comm.-law extortion means ANY taking by
a pub official of something of value he wasn‘t due.
b. Well-established comm law meaning of ―under color of office‖
i. Req that money/prop obtained be obtained under color of office – ie. under the
pretense that the pub official was entitled thereto by virtue of his office.
ii. Thing received must‘ve been claimed or accepted in rt of office, and payor
must‘ve yielded to official authority.
iii. Not just wrongful taking by pub official, but wrongful taking under false pretense
of official rt.
c. Ct misapplies ―color of office‖ req and in so doing, the crime described by majority isn‘t
the comm.-law crime Congr intended under Hobbs.
d. Bribery and extortion are diff crimes: accomplice (bribe) v. victim (extort)
i. Comm-law extortion is NOT ―rough equiv‖ of what is now taking a bribe.
ii. Bribe – official doesn‘t take or solicit bribe under color of office – ie. any pretense
of official entitlement.
1. Payor knows official isn‘t entitled to $ and can be punished
iii. Extortion – pub official is sole wrongdoer; bc he acts under color of office, payor
is seen as innocent V and not accomplice.
iv. By stretching extortion to incl bribery, Ct blurs traditional distinction b/t the
e. Quid pro quo req is simply made up
i. No basis in comm. law or lang of Hobbs Act.
ii. Not referred to in def of extortion.
iii. Only basis could be McCormick v. US
1. Held: unless there‘s quid pro quo, official can‘t be convicted of extortion
for accepting campaign contrib.
2. Req was to prevent Hobbs fr creating absurd results in US politics, and
it‘s apparent now that it was overly modest.
i. Hobbs has expanded fed crim jx into filed traditionally policed by st and local
laws – ie. acts of pub corruption by local officials.
ii. Concerns of federalism play role in evaluating scope of regulation.
g. Ct reads two significant limitations out of Hobbs
i. Textual req of ―inducement‖
ii. Comm. law req of ―under color of office‖
a. Effects of case-by-case adjudication on articulation of crim law
i. McCormick notes ―inducement‖ circ split, but focuses on whether quid pro quo is
needed in campaign context + how to ascertain when campaign context was
ii. ―Inducement‖ Q not drawn out until Evans.
b. Statutory interpretation
i. Evans says inducement req only applies to extortion ―by wrongful use of force,
violence, or fear‖ and NOT to extortion committed ―under color of official rt.‖
1. Thomas dissent – ―induced‖ applies to BOTH types of extortion
described in the statute.
c. Nature of polic investigation – Evans was gov ―sting‖ operation
i. Stings likely provide evidentiary certainty (ie taped convos) unavail when a party
to illegal transaction gives testimony.
d. History of ―color of right extortion‖
i. Described in Scalia McCormick concurrence + Thomas Evans dissent.
ii. Main issue: whether older extortion case covered conduct that we would call
e. Connex b/t ―color of rt‖ extortion and ―force, violence, fear‖ extortion
i. According to Stevens, seems to be little connection
ii. Coercive threats v. consensual transactions in which both payor and recipient of
bribe want to make exchange.
iii. Is public power inherently coercive?
f. Source of the argument
i. Expansion of ―under color of rt‖ extortion to forms of pub corruption traditionally
assoc w/bribery didn‘t come fr Congr or cts.
ii. Instead, was fed prosec‘s creative argument, which judges found persuasive.
1. Prosecs can be equally important in crim lawmaking: they choose which
cases and arguments to press.
2. If they choose wisely, those areguments become established doctrine.
iii. Why did judges think this new emphasis on public corruption was approp?
1. Congr was slow to criminalize political misconduct.
2. St and local officials were unlikely to uncover and prosec well-connected
local power brokers paying for influence.
g. Scope of ―color of rt‖ extortion still uncertain after McCormick and Evans
i. Unclear whether there was a higher quid pro quo std governing pub officials
receipt of campaign contribs than for non-campaign contribs.
v. US v. Giles
1. FACTS: Indicted for $10k cash bribes fr Gov mole + extorted $81k fr co operating illegal dump in
pub official‘s district.
a. D claim – Evans extends req for quid pro quo to cases which don‘t involve campaign
contribs: to prove extortion, Gov must show quid pro quo.
2. ISSUE: Whether extortion convic under Hobbs reqs that pmts made ―under color of official rt,‖ but
which are not campaign contribs, must also be shown to have been paid in exchange for a specific
prom to perform an official act.
a. Does quid pro quo apply to all Hobbs prosecs, even when $ isn‘t contrib?
3. HOLD: Quid pro quo req applies in ALL ―color of rt‖ extortion prosecs under Hobbs.
a. Gov need not show explicit agreement, but only that pmt was made in return for official
acts – ie. official understood that as a result of pmt, he was expected to exercise partic
kinds of influence on behalf of the payor.
a. McCormick – quid pro quo req applies only to cases where funds are campaign
b. Evans – pub official need not be the initiator and take affirmative act of inducing pmt.
i. All illegal pmts = prom tht official will take specific action.
c. To obtain a Hobbs Act convic based on acceptance of campaign contribs, Gov must show
pmts were made in return for ―explicit prom by the official to perform or not to perform
an official act.‖
d. Here, D was actually tried as a quid pro quo case (contrary to D‘s claim).
i. ―Wins the battle, but loses the war.‖
e. Simplified version of the concept: you get something, you give something.
a. Giles: there must be a quid pro quo showing in all Hobbs Act ―color of rt‖ cases but Gov
need not show explicit agreement, only that pub official understood that as a result of
pmt, he was expected to exercise influence.
i. Implicit agreement required? Can ev of such an agreement be inferred fr
circumstances of transaction?
ii. Giles – the object of the agreement, outside the campaign context, need not be
1. Enough the recipient believes he is expected to perform an action?
2. ―meeting of the minds?‖
b. Consider: judicial pronouncements made in non-campaign contexts ab informality of poss
quid pro quos (vs. formal exchanges req for prosec in campaign contexts) can raise
evidentiary barriers to prosecuting campaign cases.
c. Diff reaches of ―color of rt‖ extortion doctr and ―intangible rts‖ doctrine.
i. Intangible rts – rich donor or regulated biz who give money to politician in
exchange for access (not for particular acts) and politician who accepts money
are both guilty, assuming breach of duty req is met.
ii. Color of rt – Some quid pro quo is req; mere pmt for access isn‘t enough for crim
1. But quid pro quo may be fairly general.
2. Whereas with bribery of fed officials, the quid pro quo must be some
particular act (not some set of acts or mere access).
d. US v. Brock
i. Even though ―under color‖ extortion incl cases of bribery, and bribe payors can
be charged as accessories to MF, bribe payors can‘t be charged as accessories to
(rather than Vs of) extortion.
1. ―Prop from another‖ req – Conspiracy to commit extortion would req
payors to obtain prop fr someone outside the conspiracy – that didn‘t
e. Accessorial doctr might give prosec reason to frame official‘s conduct as honest services
rather than extortion. But consider audiences.
i. Prosec may want to charge greedy official of shaking down citizens w/an offense
that truly captures the nature of his conduct – ie extortion.
I. Side point re Bond v. U.S.
a. D discovered that V was having affair w/her spouse so she used chemicals to get even with V; easily prosecutable as
assault w/a deadly weapon (chems deemed deadly); charged under anti-terrorism statute for using chem. Weapons.
i. Underlying claim – 10th Am claim (all powers not granted to fed gov are reserved to states or ppl – core
state‘s rt prov in C); chem. Weapon statute conflicts with 10th Am.
ii. Q – whether D has standing to raise 10th Am issue.
b. Case poses interesting angle on federalism disputes in fed crim law
i. Captures nature of those disputes as they get litigated.
ii. Some piece of fed law that purportedly interferes w/st and local law enforcement – criminalizes conduct that
has traditionally been enforced at st and local lev.
iii. Though 10th Am as a hook is not unusual, the argument isn‘t – same argument made all the time in fed crim
c. Twist: local police were actually contacted and came to the site of the crime, investigated, and walked away.
i. Role of fed law enforcemet in Bond – use of fed resources to supplement local law enforcement resources.
1. How does this fed supplementing undermine local law enforcement?
2. Fed gov lacked authority to just give local law enforcement resources.
a. Never saw fed-st task forces.
3. Fed law is means by which feds investigate and prosec crimes even when they are working side-
by-side with locals, and goal is to not displace but HELP the locals.
d. What if feds come in not just with fed law but money and personnel.
II. The theory behind blackmail and economic-harm extortion (cont‘d)
a. Applied to Albertson (developer), Castillo (newspapers), and Jackson (Bill Cosby)
i. Rationale for blackmail/econ harm extortion: if we allow this, then lots of ppl/resources will be devoted to
looking for opps to cause others with deep pockets harm in order to sell the rt to cause those deep-
pocketed Vs harm.
1. Too much harm causing behavior.
2. Ie. there will be lots of Jacksons, Castillos, and Albertsons.
ii. Imprecise way to define harm:
1. causing harm as collateral conseq of transaction (D is seeking some benefit, but not seeking benfit
by leveraging harm) vs.
2. leveraging one‘s ability to do harm as the core of the transaction.
b. In which of those cases should the defendant be punished?
i. As a general matter, ppl like Castillo and Albertson usually lose.
ii. Should these defendants have been punished?
1. Jackson – greedy and stupid?
iii. Essence of blackmail – leveraging a legal threat of harm.
1. Ie. perfectly legal for Cosby‘s daughter to leverage her info.
2. But if you try and leverage that threat for $ = extortion
III. Sonny Ciccone and ―the obtaining of property‖
a. Meaning of ―Obtaining.‖ (See Gotti, cf. McFall (pg. 336))
i. Obtaining AND use/exercise
ii. Sonny does actually use the property he acquires.
1. Easily distinguishable from Operation Rescue – wasn‘t trying to obtain and use prop interests of
abortion clinics itself.
1. D was trying to steer a K for gov powerplant towards one contractor, rather than another.
2. Held - the rt to bid on a K is not obtained when it‘s a competitor, not the D, who is exercising that
b. ―Property.‖ See Cleveland (fraud chapter)
i. Cleveland – it‘s prop only if it‘s prop in hands of extortion V AND extortion D
1. Property in everyone‘s hands, or not property at all.
ii. Did union members have prop that was transferred to Ciccone? Yes.
iii. Test for obtaining and test for property collapse.
IV. Extortion ―under color of official right‖
a. History: fr pub sector to private sector and back again
i. Extortion at one time meant color of rt extortion – only committed by pub officials.
1. Doctrinal innovation is applying the idea to the private sector (ie Ciccone, not McCormick)
2. Basic charge in McCormick has been around for a long time
ii. Extortion begins w/ pub sector, then migrates to priv (anti-racketeering act, Hobbs).
1. First migration is public to private sector
iii. Second migration: 1970s (Kenny case, 1972)
1. Doctrinal innovation: took extortion and brought it back to pub sector.
2. In doing so, expanded its scope considerably.
3. Source of expansion
a. Kenny: color of rt extortion means bribery
iv. Distinction b/t two migrations
1. Older definition = bribery + coercion
a. Coercion – payee makes a demand on the payor.
b. Demands for money just for doing their job.
2. Now, ―inducement‖ not required.
v. Bribery itself changed as legal system matured.
1. Kenny, and cases following it, redefined the crime w/o the coercion piece – bc that‘s the only way
it could be a crime in the pub sector.
2. After Kenny, extortion becomes pub + priv, rather than exclusively one or other.
vi. Backed into expansive scope of extortion liability
1. SCT tried to limit the dramatic liab, and it didn‘t work.
2. In both cases, the bulk of the law comes from cts and prosecutors, not Congr.
b. Defining the crime
1. Gov has to prove that D obtained prop of another
2. Must be quid pro quo
a. Not enough to take illegal campaign contribs (McCormick)
b. D must get AND give something in exchange for bribe.
3. Must be Mens Rea
ii. Mens rea. See Evans at page 354
1. Page 354: ―We hold today that the Gov need only show that a pub official has obtained a pmt to
which he wasn‘t entitled, knowing that the pmt was made in return for official acts.‖
a. Unusual in fed crim law to define crimes this way.
b. Rephrase as: knowing that payor made pmt in return for official acts.
i. Gov has to prove that D knew PAYOR‘S state of mind.
iii. The character of the quid pro quo—cts fighiting over 3 adjectives
1. Coercive? See Evans
a. D initiates and demands pmt for official acts (not official accepts some proposal for pmt) –
D‘s use of leverage
b. NO coercion required.
i. Evans: Transaction must not be coerced or induced.
c. Why was coercion req dropped?
i. Not easy to prove coercion – would do away with the crime.
1. Risky behavior for pub official to run around trying to coerce ppl, esp
considering some may say no.
2. Dance going on in early stages of transaction – ea side trying to fig out
if other side is interesred before any implicit or explicit deal is struck.
ii. Prob w/demand req – gov would have to prove there‘s no dance.
1. There‘s always a dance. Both sides are at risk until it figures out that
other side is on board.
2. Explicit? See McCormick, Giles
a. Some convo/exchange like ―I‘ll do this, if you pay that.‖
b. Explicitiness required for campaign contribs. (McCormick)
c. Why was explicitness req adopted for campaign contribs in McCormick?
i. McCormick defines a standard that is almost imposs to meet.
1. Do everything but overrule color of rt cases from Kenny onward.
1. Pub officials directly ask for money all the time.
a. The fact that they do this all the time means that it‘s very hard
to draw a line b/t what is bribery and what is not.
2. Almost imposs to tell diff b/t cases of bribery and not bribery.
iii. If you don‘t adopt something like McCormick‘s explicitness req, what you end up
w/in campaign contrib. cases is that all violations of campaign contribs are de
facto cases of extortion.
1. Elevate st law reporting reqs (which McCormick violated) into fed
iv. Will either criminalize too much or too little.
1. Ct chose to criminalize a little.
d. NOTE: Explicitness req doesn‘t hold outside of campaign contribs
3. Specific? See Giles
a. ―I‘ll do this if you pay me that‖ – the ―this‖ is well-defined with care, ie. I‘ll do this
particular act, these series of acts.
b. How well-defined the quid pro quo must be to justify liab is not the central issue in the
law of bribery.
c. SOME specifity implied in Evans.
i. Unclear – source of debate.
ii. Giles – suggests specifity is a weak req.
d. Why would anyone care ab the specificity of the quid pro quo?
i. Why worry about how specifically quid pro quos are defined?
ii. Why isn‘t enough to just say ―Pay me money and I‘ll help you‖?
iv. Conspiracy liability. See Brock (368)
Federal Criminal Law – Class 15
I. Bribes and Gratuities
a. 18 USC 201 – criminalizes the bribery of, and giving of gratuities to, fed officials.
b. Defs of bribery contrast with the lesser gratuity offense.
i. US v. Alfisi
1. Bribery – unlawful to ―directly or indirectly, corruptly give, offer, or prom anything of value to any
public official w/intent to influence any official act.‖
a. Payor must intend to influence an official act corruptly.
b. ―Corrupt‖ intent necessary for bribe convic = quid pro quo.
i. Specific intent to give thing of value in exchange for official act.
ii. Giving of value to procure specific official action fr pub official.
2. Payment of unlawful gratuity – person ―directly or indirectly gives, offers, or promises, anything of
value to any pub official for or bc of any official act performed or to be performed.‖
a. Payment must be for or bc of an official act.
b. Element of quid pro quo/direct exchange is absent.
i. Enough that pmt be a reward for a past official act or made in hope of obtaining
general good will in payee‘s performance of official acts in future.
ii. Distinguishing b/t shake-down V and bribe payor
c. Q: Whether official commits bribery if he seeks $, but no intention of doing anything in return?
i. Congr intended statute to be violated when official took bribe, knowing it was given for purpose of inducing
him to violate his official duty, whether or not he actually intended to follow through w/the violation.
d. Temporal distinction b/t bribery and gratuities
i. Bribery – offenses are often future-oriented
1. Give bribe in return for future action by pub official
ii. Gratuity – may also be past or present-oriented
1. Gives gratuity to reward past action, reward present action, or reward future action that is
II. US v. Sun-Diamond Growers of CA
a. FACTS: Trade assoc charged w/making illegal gifts to Sec of Agriculture Michael Espy.
i. Tennis tix, luggage, meals given bc D had interest in favorable treatment fr Sec.
ii. MPP Grant Program
1. D‘s member cooperatives participated in Dept of Ag‘s MPP grant program, which provides funds to
trade orgs, to which member cooperatives belong, in order to defray foreign mkt expenses.
2. D‘s member cooperatives received a lot of MPP funding and were also biggest member in ea trade
3. Bc Congr instructed Sec to promulgate regulations giving small-sized member cooperatives
preference in obtaining funding, D had interest in persuading Sec to adopt regulatory def of ―small-
sized entity‖ that would include its member coops, and thus allow them to cont to receive MPP
iii. Regulation of Methyl Bromide
1. D had interest in fed gov‘s regulation of methyl bromide, used by indiv growers in D‘s member
2. However, EPA planned to promulgate rule to phase out use of the chem.
3. D charged w/seeking Sec‘s help to persuade EPA to abandon rule or mitigate its impact.
iv. Gov claim
1. Statute reaches any effort to buy favor or generalized goodwill fr official who either has been, is, or
may at some later time, be in a position to act favorably.
2. Statute reqs only showing that gift was motivated by recipient‘s capacity to exercise gov pwr or
influence in the donor‘s favor w/o showing that it was connected to a particular official act.
b. ISSUE: Whether convic under the illegal gratuity statute reqs any showing beyond the fact that a gratuity was given
bc of the recipient‘s official position.
i. Whether statute reqs connection b/t D‘s intent and a specific official act.
c. HOLD: In order to violate gratuity statute, Gov must prove link b/t thing of value conferred upon pub official and a
specific act for or bc of which it was given.
i. Distinguishing feature b/t crimes of bribery and gratuity is intent element.
1. Bribery – intent to influence an offical act or to be influenced by an official act.
a. Must have quid pro quo.
i. Specific intent to give or receive something of value in exchange for an official
b. Much more severe punishment.
2. Illegal Gratuity – gratuity must be given or accepted for or bc of an official act.
a. May constitute merely a reward for some future act that official will take or for a past act
he has already taken.
i. No quid pro quo req.
b. Lesser punishment.
ii. Only bribe reqs proof of quid pro quo.
iii. Statutory Interpretation – this is a narrow, not sweeping prohib
1. ―for or bc of any official act performed or to be performed‖ seems to = ―for or bc of some
particular official act of whatever identity.‖
2. The insistence upon an ―official act‖ seems to req some particular official act.
iv. Absurd outcomes of Gov‘s alternative reading
1. Would criminalize token gifts made to Pres based on his official position and not linked to any
identifiable act / would criminalize token gift to Sec of Educ.
2. Would criminalize providing complimentary lunch for Sec of Ag in conjunction w/his speech to
farmers concerning USDA policy, so long as Sec always has before him, or had, matters affecting
farmers, which of course he always does.
v. When violation is linked to a particular official act, it‘s poss to elimin absurdities through the def of that
1. Ie. that visiting a HS or receiving a sports team to the WH isn‘t the type of ―official act‖ within the
meaning of the statute.
vi. Congressional Intent
1. When Congr has wanted to adopt a broad crim prohib upon gift giving, it has done so in a more
a. Ex. unlawful to give or receive any ―supplementation‖ of an Exec‘s official salary w/o
regard to purpose of the pmt.
vii. Statute is only one piece of intricate web of regulations governing gift-giving.
1. There are ethical rules for ea branch of the Fed Gov, where ea branch regulates its employees
acceptance of gratuities.
2. Numerous regs show this is an area where precisely targeted prohibs are commonplace + general
prohibs are qualified by exceptions.
3. Absent text requiring expansion of the statute, shouldn‘t expand this one piece of the regulatory
puzzle so dramatically as to make many other pieces misfits.
i. Sun-Diamond: must be nexus b/t particular official act and offer/receipt of something of value.
1. Outcome of case
a. Routine (small) gifting by groups visiting Secs and Pres isn‘t criminalized.
b. Yet, fed official is guilty of neither accepting bribe nor receiving gratuity if she trades $ for
access or takes $ as reward for being a generally great pub servant.
i. ―Pay to play‖
ii. Drawing a line b/t serious corruption and trivial gifts
1. Focus on relationshiop b/t gifts and relevant official‘s conduct.
a. See McCormick – quid pro quo req
b. See Sun-Diamond - ―For or bc of‖ lang
2. Statutory lang doesn‘t distinguish b/t large and sm gifts.
3. Significance of gift depends on context.
a. Gift that might seem trivial if recipient is Sec of Agr might seem more substantial if given
to low-lev bureaucrat in Dept of Agr.
iii. Applying ―any official act‖ to quid pro quo required by Hobbs
1. Ds charged under Hobbs ―under color‖ extortion have used Sun-Diamond‘s restrictive def of any
official act, to argue that quid pro quo required by Hobbs must also be for a specific, identified act.
2. Argument rejected by 2nd Circ (US v. Ganim):
a. No reason to extend Sun-Diamond beyond illegal gratuity context.
b. Limiting principle of ―specific official act‖ is not needed in extortion bribery contexts, bc it
is a req of an intent to perform an act in exchange for a benefit – ie. the quid pro quo
agreement – that distinguishes those crimes fr both legal and illegal gratuitie.s
c. Scheme involving pmts at regular intervals in exchange for specific official acts as the
opps to commit those acts arise doesn‘t dilute the crim intent or make the scheme less
iv. Extortion ―economic coercion‖ defense to a bribery charge against a payor?
v. Limits of bribes and gratuities
1. Another way to place limits on liab for bribes and gratuities is to focus on the character of the gov
a. Not the size of the gift, but size of the quid pro quo.
III. Valdes v. US
a. FACTS: FBI informant gives cash to D police detective, as a reward for D‘s searching police databases to supply
otherwise publicly avail info to the informant; convic for illegal gratuity for or bc of an official act.
i. D claim – statute is less sweeping than gov claims; gov‘s ev didn‘t show that database queries or release of
info constituted an ―official act.‖
ii. Gov claim – bribery and gratuity statute should be construed broadly, to encompass any action which
implicates duties and pwrs of a pub official.
1. Ie. every action that is within range of official duty comes under statute (Birdsall).
b. ISSUE: Whether payments received by D were for an official act, ie. any decision or action on any question, matter,
cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before
any public official.
c. HOLD: This 6-term series refers to a class of Qs or matters whose answer or disposition was determined by the Gov,
not merely moonlighting or abuse of gov resources for other non-offiical purposes.
i. ―Official Act‖
1. (1) any decision or action (2) on any question, matter, cause, suit, proceeding or controversy, (3)
which may at any time be pending, or which may by law be brought (4) before any public official,
in such official's official capacity
2. No req that pmt actually influence the performance of an official act.
3. Whereas, for bribery – reaches ―predicate acts,‖ incl official‘s ―act in violation of lawful duty, not
covered by gratuity ban.
ii. Gov misinterprets SCT and ignores plain text of statute.
1. US vs. Birdsall rejected theory that for conduct to qualify as official act, it must be one prescribed
2. Birdsall did NOT say that every action w/in range of official duties automatically satisfies. Instead,
it made clear the coverage of activities performed as a matter of custom.
1. Def of the term ―official act‖
2. ―On any question, matter, cause, suit, proceeding, controversy.‖
a. Gov‘s interpretation is overly expansive and extends statute to any action.
b. Instead, these terms refer to matters whose disposition is determined by the gov.
i. Ie. Q of what firm supplies submarines for navy, not Q of what is your name?
iv. Lang of the statute
1. Qs not subj to resolution by the gov aren‘t ordinarily the kind that ppl would describe as ―pending‖
or capable of being brought before any pub official by law.
2. Statute is not about officials‘ moonlighting, misuse of gov resources, etc.
a. Aside fr anti-bribery statute, numerous other regs/laws prohib this.
b. Ought not to expand this one piece of the reg puzzle to make other pieces misfits.
v. Questions, matters, causes, suits, proceedings that are decided by the Gov
1. Concern inapprop influence on decisions that the Gov actually makes.
a. Clerk‘s manufactuer of gov approval of supplemental security income benefit
b. Congressman use of his office to secure navy contracts
c. Veteran‘s bureau official securing favorable outcome on disability claim.
3. Whether or not a police investigation is in the same class as these six terms
a. If asking, ―Should police investigate this person‖ – Yes.
i. Giving/receiving gifts for or bc of a decision to initiate, accelerate, retard,
conclude, or skew police investigations is prohib.
b. BUT, ANY interrogative action by an officer using gov resources doesn‘t constitute action
on an ―investigation‖ that would be covered by statute.
i. Would allow broad range of moonlighting activities that in any way parallel
official‘s regular work.
1. Ie. DOJ lawyer using gov Westlaw acct to look up legal Q for friend
would fall under statute under this theory.
vi. Rejects dissenters claim about 2 adverse outcomes
1. Negatively affect law enforcement‘s ability to condut ―sting‖ operations
2. Hinders bribery prosec, which depends on same def of ―official act.‖
a. Bribery provisions cover 2 additional predicate classes – one of which is acts in violation of
the lawful duty of such official person.
vii. Statute is a sort of balance b/t bribery and gratuity violations
1. Bribery – defines the predicate acts broadly, but required compensatory link narrowly
a. Culpability attaches for ―any official act,‖ ―any fraud,‖ ―any action in violation of a lawful
duty,‖ but pmt must actually influence act.
2. Gratuities – predicate acts defined narrowly (excluding mere violation of official duty), but req
compensatory link is defined more broadly.
a. ―for or bc of‖ even when compensation has had no influence.
i. Divided verdict
1. D indicted only for bribery, but jury was instructed on bribery and gratuities.
a. Jury split the diff by acquitting on bribery and convic on gratuities, which carries a lighter
ii. In the future – jury should be instruction ONLy on bribery for such money-for-info disclosure cases so jury
doesn‘t split the diff.
iii. Caution for public officials
1. Both bribery and gratuity prosec req showing of nexus b/t gift and official action.
a. Officials would be foolish to assume statutes really allow much room to accecpt gifts.
b. Easty for prosecs to prove links b/t gifts and official actions w/just circumtancial ev.
2. Officials should be advised to not accept certain gifts in the first place.
i. No dispute that D was a pub official and that he personally accepted something of value for or bc of the
acts he took at FBI informant‘s req.
1. Q is whether those acts constitute official acts w/in meaning of the statute.
ii. If D‘s acts would constitute an official act if a superior officer asked him to make an inquiry, the fact that he
did so in response to an outsider‘s req doesn‘t matter.
iii. Steps taken by D are types of investigative steps that police officers legally take, and are also the kinds of
investigations that criminals have paid officers to take for their own illegal purposes.
iv. Dissent concerned with harmful outcomes of this type of conduct not falling within the scope of the statute.
i. Valdes majority says that acc to dissent, DOJ lawyer who uses Gov westlaw acct to do a friend a favor is
guilty of violating the statute – is that actually true?
ii. Connection of gift and conduct vs. Character of conduct
1. Concern of McCormick, Evans, Giles, Sun-Diamond is relationship b/t payor‘s pmt and gov officials
2. Valdes deals w/diff issue: not casual connex b/t gift and conduct, but character of that conduct.
a. D wins bc conduct deemed too insubstantial to qualify as ―official act.‖
3. Irony: same conduct that is too trivial to justify punishment for accepting a gratuity suffices for
brivery convic, which is more serious.
a. Which is Valdes jury ―split the diff,‖ bc bribery perceived as too harsh.
b. Outcome – D‘s conduct not serious enough for gratuity convic, but bribery convic would
iii. US v. Birdsall
1. D convic of illegally selling liquor to residents of Indian reservation and bribed two officials to offer
a recommendation of leniency to a trial judge.
2. Held – to constitute official action, not nec that it should be prescribed by statute; sufficient that it
was governed by lawful req of dept under whose authority officer was acting.
a. Established usage which constitutes comm. law of dept and fixed duties of officials counts
– settled practice.
b. Doesn‘t have to be prescribed by written rule or regulation.
iv. Significance of Valdes being gov ―sting‖ operation?
v. Criminal liab for NOT acting
1. Garland dissent: ―No disputing that an officer would be liable if he accepted money as a reward for
not running a search on a driver‘s license during a traffic stop.‖
vi. Public Corruption Proesction Improvements Act 2009 (pending Senate)
1. Designed to overturn Sun-Diamond and Valdes
2. Would change ―for or bc of any official act‖ lang to ―for or bc of the official‘s position, or for or bc
of any official act...‖
vii. Enforcement issues that substantive legislation won‘t address
1. Should special attn be given to investigations into the conduct of fed officials over those involving
other white collar crime?
2. Which investigations should be handled by Public Integrity Unit of Main Justice
a. Accused of being both prudent and overzealous (under Bush II).
3. Consideration of timing of indictments/arrests?
a. Ted Stevens was indicted on the eve of an election.
b. Should prosec deprive voters of bad info by waiting until election‘s over?
i. Standard reply: bring cases ―when they‘re ready‖
*Link to Intangible Rights Fraud Cases:
- Urcholi and Panarella – both involved part-time legislature
o Public officials expected to have jobs in the private sector as well
- Serious danger of over-broad liability; punishing public officials of nothing more than having two jobs, which is unavoidable
- McCormick = parallel phenomenon, but this time the Court has a response
- Just as in a system with part-time legislators, there are many relationships between legislators and private individuals that
seem improper but aren‘t, when there is a need for political fundraising, there are many relationships between legislators and
private individuals that seem corrupt but aren‘t may be impossible to distinguish between corrupt and non-corrupt fact
- Urcholi and Panarella punt on this problem, but McCormick does not explicit quid pro quo requirement
- Government can almost never prove an explicit quid pro quo
- Requirement of an explicit exchange comes close to a holding that there is simply no liability for campaign contributions; small
step away from ruling such cases as beyond the scope of Hobbs Act color of right extortion (hasn‘t happened with intangible
rights fraud cases)
Law of Bribery
- Arguments bleed over from one crime to another
- Especially likely to see that in coming years as courts are forced to develop in more detail the meaning of bribes and kickbacks
in intangible rights fraud cases
- Crimes at issue:
o Color of right extortion (extortion as bribery)
o Section 201 (main federal bribery statute)
o Intangible rights fraud
- Share common core definition (all are bribery offenses): an exchange (this for that) – Generally public official gets some gift,
and the payor gets some kind of favor(s)
- Must be BOTH some causal relationship between the getting and the giving (what the public official gets from the payor
and what he does for the payor), and some degree of intent with respect to that causal relationship
o Some understanding is required that this favor is being done in return for/in exchange for that sum of money
- Half dozen key variations in liability
o Private sector (commercial) bribery is covered only by intangible rights fraud (Ribicki)
o Payors aren‘t liable in color of right extortion (Hobbs Act) cases, and they can‘t be made liable of conspiracy to
commit color of right extortion
o Campaign contributions treated differently
o Bribes and gratuities are treated differently in 201 cases
o *Specificity with which the quid pro quo is defined varies across crimes
o *Intangible rights fraud doctrine is almost completely up for grabs because Skilling redefines the offense as bribery,
but has not explained what that means
Courts looking for ways to limit scope of bribery‘s definition
- Attempt to reign in the crime
- Skilling rests on the proposition that intangible rights fraud, the way it used to be defined, was dangerously expansive
1. Coercive exchange – See Evans (Thomas, J. , dissenting)
- Why did it not take hold?
- Why do we not have a body of law saying what kind of coercion the government has to prove in color of right extortion cases?
- If it did, it would gut color of right extortion
2. Limits on conspiracy liability – See Brock (pg. 368)
- Payors are not criminally liable in color of right extortion cases directly or indirectly through conspiracy
- Don‘t owe duty of loyalty to the public or to voters
- Couldn‘t be charged for conspiracy to commit color of right extortion if you can‘t be convicted of the underlying offense
- Brock – bribe‘s payor can‘t be convicted of extorting property of another (his own property is at issue), but can‘t be convicted
of conspiring to extort property of another
o Hobbs Act text treats payors as crime victims – not really true
o Case law in intangible rights cases treats payors as criminals, not victims
o Evans quite clearly treats payors as perpetrators (color of right extortion = bribery; in bribery there are two
perpetrators, not a perpetrator and a victim) creates problems with this argument
o *Do you look to the text or the governing Supreme Court opinion? (they‘re at odds) Brock looks to the text
3. Explicit exchange
- Explicit quid pro quo (see McCormick) – limited to campaign contribution cases
- Liability would be hard for government to prove if explicit quid pro quo requirement were extended to all bribery cases
4. De minimis quid pro quo – See Valdez
- Most obvious limit on liability
- Infraction is too small to permit bribery liability
- Not the amount of money given the D
- De minimis part is the quid pro quo – what the D did in exchange for the money
- What you ought to care about is the fact of the exchange, because it calls into question the honesty of the government official
- If you start making de minimis rules, you not only rule out some cases from 201 liability, you rule out many officials from 201
liability (because they don‘t have the power to do something big)
- One of the most natural ways to limit overbroad criminal liability (class of behavior varies in its importance) is through a de
minimis (―small potatoes‖) idea
5. Specified quid pro quo – See Sun-Diamond; cf. Canim (pg. 381)
- Three crimes, three cases:
o Here are tickets, give us this favorable regulatory action
Covered by section 201, Hobbs Act color of right extortion, intangible rights fraud
o Here are tickets, be good to us on this set of issues
Covered by Hobbs Act color of right extortion, intangible rights fraud
o Here are tickets, listen when we want to talk to you
Covered only by intangible rights fraud
Conduct is ambiguous – may not be the product of corruption
- Think of these crimes as concentric circles:
o 201 covered the least, Hobbs Act color of right extortion more, and intangible rights fraud (pre-Skilling) covered the
- Broadest liability is in a judicially-defined doctrine; most narrow liability in the crime Congress had the greatest role in defining
- In the law of bribery, there is a clear pattern (when courts do it, liability gets broader; when Congress does it, liability gets
What‘s the point of worrying about specificity?
- Specifying the quid pro quo (Sun-Diamond under Section 201)
- Way to cabin liability
- Mechanism does not rest on the idea that specificity itself is very important
- If you want to be sure you‘re punishing only the right people, you want to distinguish between the detail involved
- The clearer the quid pro quo, the more specified the deal is, the more likely there is a causal corrupt connection between
what the official gets and what he gives
- No reason to assume the listening is the product of some gift broadly defined
- Roundabout way of ensuring there‘s a causal connection between what the government official did and what was paid
- More specificity, more likely case 3 will drop out of intangible rights fraud
o Importance of Skilling – squarely embraces the proposition that liability must be made clearer, less vague, but it also
must be narrower
Specificity in the Hobbs Act
- A scheme involving payments at regular intervals in exchange for specific official acts as the opportunities to commit those
acts arise does not dilute the requisite criminal intent or make the scheme any less ―extortionate‖ (pg. 381)
- The act needs to be specific or somehow specified, but there need be no agreement in advance on those acts
- Ganim – D is the mayor of a city, and he agrees to steer city contracts to two firms
o Firms are supposed to pay a middleman, and that middleman will use a portion of those fees to pay Ganim‘s personal
o May stand for proposition not that the quid pro quo need be specified, but only that something need be specified
o Here, the deal itself was specified, but not the acts that would be required in exchange
- In the future, these crimes may converge on one another
Enforcing Bribery Laws – Compare Thomas in Evans with Giles
- Criminal arrangement in Evans came after 2.5 years of meetings, including dozens of meetings with an undercover agent
- Bribery cases are difficult to prove
o Evans – undercover stings (inevitably impose risk of entrapment; imposing criminal liability on someone who wouldn‘t
have committed crime otherwise)
o Giles – built on the testimony of the scummiest person in the conspiracy
Doctrinal Loose Ends:
Mens Rea Standards
- In color of right extortion cases under Evans: Payee must know the payor intends it to be a bribe
- Section 201 (pg. 370): In return for being influenced in the performance of any official act (payees‘ intent to be influenced) –
parallel to the standard for payors
o Public official must intend to change his or her behavior in response to the pay off – no part of color of right
Federal Criminal Law – Class 16
I. Civil Rights Crimes
a. 2 basic crim civil rights statutes (18 USC 241 and 242)
i. Reach any conspiracy b/t two or more ppl or effort under color of law to deprive another of rts secured by
the fed Const or laws of the US.
ii. 18 USC 241
1. Conspiracy Against Rights
iii. 18 USC 242
1. Deprivation of Rights Under Color of Law
b. Americans live under a comm.-law constitution.
i. Most of constl comm. lawmaking that sets conduct rules for indivs occurs not in crim prosecs, but in civ
1. Creates civ cause of action for constl violations by fed officials
iii. 42 USC 1983
1. Creates civ cause of action for constl violations by st/local officials.
iv. Bc these are civ causes of action, the norm barring comm.-law crime creation isn‘t relevant to most constl
c. Concerns ab comm. law making surface in fed crim litigation under 241 and 242
II. History of Criminal Enforcement of Civil Rights
a. Slaughter House Cases (1873)
i. Articulated very limited notion of rts that fed constl law protected.
ii. Held – Privileges and Immunities Clause of 14th Am simply protected interests that other fed provisions
already protected; didn‘t give fed gov plenary pwr to enforce unenumerated fundamental rts.
1. Affirms primacy of state authority over indiv fundamental rights
b. US v. Cruikshank
i. First SCT case to review convic for a civ rts crime.
ii. Colfax Massacre
iii. Restrictive view of the 14th Am
1. 14th Am doesn‘t confer any rts by itself, and authorized fed enforcement action only where a st had
violated an existing fed rgt.
2. 15th Am merely conferred a rt not to be excluded fr voting by reason of race, not a rt to vote.
c. After Cruikshank, 241 and 242 were largely ignored.
i. Concern for preservation of st police pwers fr what was perceived as a potential usurpation by the natl gov.
ii. Result: no fed crim civ rts enforcement occurred fr mid-1870s until mid-1930s.
d. Franklin Roosevelt: new era of crim civ rts enforcement
i. Prosecs for violations of 13th Am – anti-slavery provision that targeted priv and st action.
ii. Peonage Act
iii. Commitment to incremental doctrinal expansion
iv. US v. Classic
1. Held – rt of qualified voters to have their votes counted in a primary election was a rt secured by
the C and conspiracies to infringe that rt could be prosec under general fed crim civ rts provisions
codified in 241/242.
2. Douglas dissent – concern w/breadth and vagueness of constitutionally based crim offenses.
III. ―Willful‖ (Deprivation of Rights Under Color of Law)
a. Screws v. US
i. FACTS: Sheriff beats young black man to death. Indictment: acting under color of the laws of GA, D
―willfully‖ caused man to be deprived of ―rts, privs, or immunities secured or protected‖ to him by the 14 th
1. D claim – statute is unconstl, bc it makes crim acts in violation of DP clause of the 14th Am; Act
must be read as if it contained broad, fluid defs of DP and if it is so read, it provides no
ascertainable std of guilt.
a. Body of legal principles that lack basic specificity nec for crim statutes under our system
1. Broad use of the statute would mean that law enforcement would be subj to crim prosec for
carrying out their normal duties.
a. However, it‘s possible to put forth a narrow construction to keep it intact.
a. Act done with a bad purpose – evil motive.
b. Constl req that crim statute be definite
i. Req is met here, bc statute prohibs only ―willful‖ acts.
1. Acts with specific intent.
c. Constitutionally Specific Intent Standard
i. Specific intent is an intent to deprive a person of a rt which has been made
specific by the express terms of the C, by laws of the US, by decisions
interpreting the law.
d. Open defiance or reckless disregard of constl req which has been made specific and
e. Jury instructions on ―willfully‖
i. Should be instructed that it wasn‘t sufficient that Ds had generally bad purpose;
nec to find that Ds had purpose to deprive prisoner of a constl rt, ie. rt to be
tried by a ct rather than by ordeal.
1. To determine req bad purpose, jury must consider attendant
circumsances – malice, weapons used, character and duration,
3. US v. Classic
a. Willful failure and refusal of D election officials to count votes, by alteration of the ballots,
by false certification of # of votes cast.
i. Fact that Ds may not have been thinking in constl terms isn‘t material where
their aim was not to enforce local law but to deprive a citizen of a rt, and that rt
was protected by the C.
4. Those who decide to take law into their own hands act to deprive an indiv of the trial which DP of
law guarantees him.
1. Screws produced an odd vote
a. Murphy dissent – knowledge of comprehensive law libe is unnec for officers to know that
rt to murder indivs in the course of duty is not ok.
b. Roberts/Frankfurter/Jackson – only GA had legal authority to punish here, otherwise 14th
Am would give rise to fed law of assault and homicide by st/local officials.
c. Roberts – D‘s misconduct didn‘t happen ―under color of‖ st law
a. Screws fails to solve vagueness prob – not a model of clarity.
b. US v. Johnstone – ―willful‖ means D exhibited reckless disregard for a constl or fed rt.
3. Infrequency of litigation under 241 and 242
a. Nationwide, no more than 100 cases brought per yr under these statutes.
i. Strict centralized control of Main Justice.
ii. US Atty must advise the Civ Rts Div in writing – prior notice of pending
iii. Unlikely any case will go fwd w/o approval by Main Justice, bc AAG retains finals
authority to determine staffing of any crim civ rts matter.
b. US v. Bradley
i. FACTS: Former police officer convic of willfully depriving person of constol rts under color of law in violation
of 242; shot at driver in moving car; indictment: deprived driver of 4th Am rt to be free fr use of
unreasonable force during an arrest.
1. D claim – didn‘t act willfully bc he acted out of fear for his own safety rather than specific intent to
deprive driver of constl rts.
ii. HOLD: Jury instructions adequately conveyed willfulness req of 242.
a. D need not have been thinking in constl terms to willfully violate a constl rt; willfulness
may be shown by circumstantial ev so long as the purpose may be reasonably inferred fr
b. Reqs that D intend to commit the unconstl act w/o necessarily intending to do that act for
the specific purp of depriving another of a constl rt.
c. D must intend to commit an act that results in the deprivation of an estab constl rt as a
reasonably person would‘ve understood that rt.
2. D acted willfully
a. No acts by driver suggesting life-threatening behavior to D
b. D acted unreasonably and excessively in firing shot at the moving car, which would‘ve
killed driver but for the steel plate in the seat.
1. Finding of specific intent under 242 reqs only that D used deadly force w/ purpose of depriving an
indiv of fed protected interests.
a. D need not have had any awareness of the unconstitutionality of his use of force.
b. This decision is not an outlier.
IV. Deprivation of Rights
a. In addition to willfulness, must also prove violation of a rt ―protected by the C or laws of the US‖
b. US v. Lanier
i. FACTS: 242 convic violating constl rts of women by sexually assaulting them while serving as a st judge.
1. Indictment – acting willfully and under color of TN law, D deprived victim of rts and privileges
secured and protected by the C – rt not to be deprived of liberty w/o due process of law.
2. CofA – lack of notice to the public that this ambiguous crim statute incl sexual assault crimes; crim
liab allowed only if the constl rt said to have been violated is first identified in a decision of the
CofA, and only when the rt has been applied in a factual situation fundmentally similar.
ii. ISSUE: Whether the standard of notice used in CofA is higher than the C requires.
1. Fair Warning Requirement – whether statute, standing alone or as construed, made it reasonably
clear at the relevant time that D‘s conduct was criminal.
a. Vagueness Doctrine
b. Strict Construction of crim statutes / Rule of Lenity
c. Made-Specific Standard
i. DP bars applying novel construction of a crim statute to conduct that neither
statute nor any prior judicial decision has fairly disclosed to be within its scope.
ii. Broad constl reqs can be ―made specific‖ by the text/settled interpretations
2. Rejection of Court of Appeals gloss on made-specific standard
a. CofA – generally phrased constl rt has been made specific only if:
i. Prior decision of Ct has declared the rt
ii. Ct has applied the ruling in a case w/facts fundamentally similar to the case
3. Civil Context: ―clearly established‖ qualified immunity standard
a. This civ standard is no diff fr the ―fair warning‖ std as it relates to ―made specific‖ validity.
b. Civ and crim standards serve same objective
i. Qualified immunity test (civ) is the adaptation of the fair warning std (crim) to
give officials the same protection in the face of vague statutes.
4. General statements of the law aren‘t inherently incapable of giving fair and clear warning.
a. A general constl rule already identified in the law may apply w/ clarity to specific conduct,
even if action in Q hasn‘t prev been held unlawful.
b. Crim liab may be imposed for deprivation of a constl rt IF in the light of pre-existing law,
the unlawfulness under the C is apparent.
1. Screws and Lanier – about the meaning of fair notice in constl crimes.
a. Screws – addr notice probs by refining def of willfulness
b. Lanier – addr notice prob by req clarify concerning underlying constl rt
c. Ordinarily, notice is a mens rea issue, yet Lanier is ab def of crim act.
2. Std for determining adequacy of fair notice warning is the same as the std for determining whether
a constl rt was clearly established in civ litigation.
a. Fair notice, like qualified immunity, is req to protect law enforcement fr hazy border b/t
excessive and acceptable force.
b. Civil Litigation
i. Determine whether there has been a constl violation, then
ii. Consider whether D had fair notice that conduct was unlawful
3. Rule for fed jurisdictional elements
a. Gov need not prove any mens rea wrt such elements; jx facts go not to q whether D
deserves punishment, but only to Q of whether fed officials will do the punishing.
b. Ds who not only engage in conduct prohib under st law, but also willfully violate the C
may, in the view of Congr, be esp culpable.
a. State univ admissions office uses affirmation action program very similar to programs
invalidated across the nation. Head of admissions knows ab the ct rulings and applies the
school‘s aff am criteria out of principle, bc she believes that the ct decisions are wrong.
i. She cold be held civilly liable for violating the Eq Protection Clause of the 14th
5. Criminal Section of Civ Rights Div
a. What effect does centralized, isolated nature of Crim Sec have on type of cases brought
and how they are prosecuted?
V. Under Color of Law
a. Is it enough that a D‘s official status provide him w/opp to perpetrate the infringement?
b. Screws v. US
i. FACTS: D claim – didn‘t act ―under color of law.‖
1. Ds were officers of the law who made the arrest; assaulted D to protect themselves and keep him
2. Q is not whether this is a fed offense or whether st law was violated, but whether indiv of a st has
been deprived of a fed rt by one who who acts under ―color of any law.‖
a. He who acts under color of law may be fed or state officer acting under color of fed or st
b. Statute activated when and only when someone is deprived of a fed rt by st action.
3. Federalism concerns noted
4. Under ―color‖ of law
a. Means under ―pretense‖ of law
i. Acts of officers in the ambit of their personal pursuits are excluded.
ii. Statute embraces only action which the state in fact authorized.
1. Officers here were authorized to make an effective arrest.
c. US v. Giordano
i. FACTS: Mayor convic for civ rts violations under color of law – sex abuse of child daughter/niece of a
1. Indictment – D, while acting under color of law, deprived V of 14th Am rt to be free fr sex abuse.
2. D claim – ev was insufficient as to ―under color of law‖ element; acts were unrelated to and
predated time as mayor, based on personal relationship.
ii. HOLD: D‘s crime was committed under color of st law bc D used V‘s fear of pwr he held as mayor to keep
them fr reporting abuse, and Vs had rt under 14th Am to be free fr sex abuse by a st actor.
1. Under Color of Law
a. Misuse of power, possessed by virtue of st law and made poss only bc D is clothed w/
authority of st law.
b. The fact that someone holds office under st law doesn‘t mean that any wrong that person
commits uis under color of law.
c. ―Color‖ of law means under ―pretense‖ of law.
d. May be satisfied if official gains access to V in the course of official duty.
e. D may act under color of law even when he encounters V outside conduct of official biz
and acts for reasons unconnected to office, so long as he employes the authority of the st
in the commission of the crime.
i. Even if D came into contact w/Vs in the course of D‘s priv affairs.
ii. Doesn‘t matter that acts have nothing to do w/mayoral duties.
iii. Acts, by their nature alone, can‘t defeat assertion that they were performed
under ―color of law.‖
f. D acts under color when misuse of official pwr made the commission of a constl wrong
poss, even though D committed acts for personal reasons removed fr scope of official
2. Applying def to the facts
a. D threatened the Vs by invoking special authority and used authority to cause Vs to
submit to repeated abuse.
i. Caused fear in Vs that D would use pwr to harm them if they reported the abuse.
ii. Invoked the ―real or apparent power‖ of his office to make the continuing sex
iii. Actively and deliberately used apparent authority as mayor to ensure that Vs
didn‘t resist or report abuse.
1. The argument that the gov official wasn‘t acting ―under color of law‖ is stronger the more
outrageous the official‘s conduct is.
a. Bc the more outrageous the D‘s conduct, the more tangential that conduct is likely to be
to the D‘s office and pub duties.
2. Nexus b/t D‘s conduct and D‘s job
a. US v. Causey – officer may be acting under color of law even though he‘s off-duty at time
of the deprivation of rts.
i. Deciding if officer acted under color of st law turns on nature of specific acts
performed, rather than whether officer was on duty at the moment of
ii. Can be under color if wearing uniform, displaying badge.
I. Side point: prosecutorial discretion and the rule of law
a. Black Panther voter intimidation case – arose 08 election in Philly
i. DOJ lawyers on both sides of the issue, whether to bring the case, agreed that it would be a winnable
1. Those that didn‘t want to prosec felt that way not bc they didn‘t think they could prevail, but for
ii. Arguments not to prosec
1. DOJ isn‘t enforcing the law
2. Under the law/facts, Ds are guilty
iii. But this complaint can be made across the field – prosecs never enforce statute across the field as they are
written – enforement is much too selective.
1. Law as written vs. Law as enforced
a. This means there is always going to be a gap b/t what the law says, as written, and how
the law is enforced, ie. what the law says on the street.
i. Esp true for bribery cases and civ rts crimes.
iv. Big prob with law of bribery
1. Doesn‘t draw culpability lines very well
a. B/t more or less culpable or culpability vs. not culpable.
b. Is this phenomenon problematic?
i. Law is defined as much by FBI agents and prosecs as it is by Congr and fed judges.
ii. Where the law is so defined, is defined anything but transparently.
1. Sort of the case that Kahan‘s system is operating, but behind the scenes.
iii. Law allows to convic for not that culpable of conduct, but prosecs don‘t prosec not culpable conduct.
iv. Where there are stong culpability arguments that don‘t make their way into the doctrine, you can assume
those arguments will be absent fr litigated cases and absent from plea bargaining.
v. Jury instructions
c. How you think about law and lawmaking
i. Ex. Michael Vick
ii. Scope of crim liab hasn‘t remained static – scope has changed dramaticially.
1. Scope/status is this way one day and that way the next day
2. Guilty now, but wouldn‘t have been guilty before
II. Defining bribery (cont‘d)
a. 4 crimes on the table, 3 main legal issues at stake under 4 crimes
i. Criminal Intent – 4 Crimes
1. Color of Right Extortion
a. Mens Rea: ―knowing that the payment was made in return for official acts.‖
i. Recipient must know the payor‘s state of mind.
ii. Recipient‘s mens rea is defined in terms of the payor‘s.
iii. No req under Evans that recipient must intend to change his own behavior – no
intent to be influenced req.
1. Enough to know that payor was trying to buy influence.
2. 201b Bribery
a. Mens Rea: ―in return for being influenced in the performance of any official act . . .‖ Cf.
i. Recipient has to intend to undertake the relevant act and change behavior.
1. Very thing not required by Evans standard is required here.
1. Conversely, says that standard is same as Evans color of rt – that
recipient need not intend to be influenced, but just that recipient knows
payor intends to influence.
2. Assume this is an outlier case.
iii. Outcome: 2 distinct mens rea standards for bribery
1. Evans – know of payor‘s intent
2. 201b – intent to be influenced
3. 201c Gratuities
a. Mens Rea: ―for or because of any official act‖
i. Can‘t mean intent to be influenced, otherwise gratuities and bribery would be the
ii. MR is not quite the same, but close relative of the MR for color of rt extortion.
1. Looks to state of mind of the payor.
iii. Diff b/t grauity and bribe
1. Gratuity - award for something that has already happened; can‘t have
intended to be influenced
a. One-off payment
b. Recipient doesn‘t change his acts, but happy to get the pmt
2. Gratuities cases are essentially bribery cases that Gov can‘t quite prove.
iv. Bottom Line
1. Gratuities may at least largely consist of bribes where terms of the
exchange can‘t really be nailed down/proven.
2. This means that the gratuities offense starts out as an effort to define a
less culpable kind of corruption crime than bribery, but may end up
actually getting the gov the exact opposite – ie. catching more strategic
corrupt officials who can‘t otherwise be gotten under bribery.
4. Intangible Rights Fraud (now a bribery statute under Skilling)
ii. 3 contested legal issues
1. Specificity with which the quid pro quo is defined
2. Presence or absence of some de minimis exception ot bribery
a. Pmt or what was given in exchange for pmt seems too small to justify bribery convic.
3. Governing mens rea standard
iii. Overriding Question
1. Which arguments concerning these issues will become part of intangiglbe rts fraud doctr, and
which ones wont?
iv. Goal is the same for all 3 issues
1. Define the crime so that core corruption can be punished, but also so that Ds have notice and are
a. So that non culpable or trivially culpable Ds aren‘t punished, but culpable ones are.
b. Not clear that anyone knows how to draw this line.
i. Core problem
1. More specific the quid pro quo must be, the harder it will be for gov to prove the crime.
a. Throw baby out with bathwater
2. More generalized qui pro quo was, greater likelihood there was no exchange/meeting of the minds.
c. De Minimis Idea not much better
i. Garland‘s dissent in Valdes – even small quid pro quos (in terms of dollar value - $50, $100) could have
large consequences if taken on by someone who oversaw large drug distribution ring.
ii. Thus, de minimis quid pro quo doesn‘t do the distinguishing you need to do.
d. Litigation has yet to come up with some set of workable lines to distinguish.
III. Section 242: criminal violations of constitutional rights
a. 2 puzzles
i. There are very few 242 cases brought each year – most years, number is under 100. Never far over 100.
ii. Legal doctr seems surprisingly protective of D‘s interests
b. 4 elements of the crime
i. Deprivation of a federally protected right (fed constl rt). See Screws, Lanier, Giordano
1. What arguments would you make for these Ds wrt this element?
a. It‘s precisely the scumbaggy character of Ds and grossness of D‘s misconduct that ought
to make you wary of classifying this as a constl crime.
i. ―I‘m an ordinary criminal, not a constituional violator.‖
1. You don‘t need fed constl law to get me.
2. Reserved fed constl law for things that other bodies of law don‘t
ii. Are you really going to say that all serious crimes are constitutional violations?
1. Nationalizing law of homicide and rape? That would be surprising thing
b. The more outrageous the conduct, the stronger argument that this is not a proper subj
for constl law.
i. DP of 14th Am would be odd if goal is to capture fed homicide and sex assault.
2. Best response to D‘s argument?
a. Obvious relationship: the clearer the misconduct, the more clearly this is a deprivation of
life, liberty, or property.
i. If homicide doesn‘t count as deprivation of life w/o DP, then what does count??
ii. This argument wins.
b. Outcome: pretty much all violent felonies, or felony thefts, are 242 offenses if done under
color of law and if done willfully.
i. Not nationalizing law of homicide/rape but are applying it to gov officials acting
as gov officials.
ii. D acted under color of law. See Screws, Giordano, Pitchell (444), Tarpley (446)
1. Resemblance to forced violence/fear extortion and econ harm extortion
a. These Vs fear the power of the D‘s office and the D used that fear to get what he wanted.
iii. D acted willfully. See Screws, Bradley
1. Intent standard: willfully
2. Bradley acted willfully; Screws defines willfully as meaning 2 things
a. Req of an evil motive
b. D acted w/at least a reckless disregard of illegality
3. Why was D‘s jury instruction rejected?
4. Why was jury instruction given also incorrect?
iv. Scope of the right was sufficiently definite. See Screws, Lanier, Giordano
c. See elements in a pair
i. Deprivation + Under color = heart of the crime
ii. Willfulness + Defined right = designed to limit the first pair
1. What‘s the limit, and why the limit on elements #3 and 4?
Federal Criminal Law – Class 17
I. Civil Rights Prosecutions of Private Actors
a. Few prosecs under 242 or 241, but even fewer under 241 in recent yrs.
b. 242 – Ds acted ―under color of law‖ and can thus be held to some higher std of conduct and knowledge.
c. 241 – lacks ―under color‖ element; can be used whenever 2 or more ppl conspire to interfere w/anyone‘s ―free
exercise or enjoyment of any rt or priv secured by C or laws of the US.‖
d. 2009 – 7 new prosecs under 241, while there were 56 under 242.
e. Most prosecs under either statute involve deprivation of rts on acct of race.
II. US v. Magleby
a. FACTS: D burned cross on prop of interracial fam.
i. D claim – erroneous instructions to the jury; insufficient ev to prove that D intended to oppress, threaten, or
intimidate Vs in their enjoyment of federally protected rt to occupy their home.
i. Jury Instruction No. 22
1. Jury may consider the rxn of the Vs and other witnesses to the cross burning in determining D‘s
intent under 241.
a. To determine threats, use obj test: whether a reasonable person would find that a threat
b. Look to the rxn of the recipient of the alleged threat.
ii. Convic under 241
1. Substantial ev of intent
a. Ev that D understood meaning of a burning cross to the general public.
b. Clear ntent to oppress, threaten, intimidate Vs in the free ex of their fed rt to occupy
2. Jury insructions
a. Properly instructed that they could consider V‘s rxns when deciding whether Ds actions
were intended to be a threat.
i. D also charged under 42 USC 3631
1. More targeted crim civ rts statute.
2. Statute that criminalizes actions taken w/intent to injure, intimidate, or interfere w/any person bc
of his race, color, religion, sex.
3. Unlike 241, has explicit mens rea req.
4. Can convic if jury finds D‘s actions were taken for purposes of intimidating or interfering w/V bc
she was assoc w/black.
ii. D‘s convic under 241 doesn‘t rest on deprivation of V‘s constl rts, but was based on statute‘s ―privilege
secured by the laws of the US‖ lang.
1. Jury had to find that D conspired w/at least one other to injury, oppress, threaten, or intimidate Vs
in enjoyment of particular rt.
2. Poss of resting prosec on deprivation of a priv secured by any fed law makes scope of conspiracies
reached by 241 quite broad.
3. No overt act requirement written into the statute.
iii. However broad and vague is 242, its targest will have acted ―under color of law‖ and thus, can fairly be held
to higher std of conduct/knowledge.
1. No such justification for priv actors under 241, which lacks ―under color‖ element.
2. Bc of breadth and vagueness of 241, Congr passed 3631 + civ rts interference statute of greater
scope, 18 USC 245.
a. 245 employs far more specificity than 241.
b. But 245 supplemented rather than replaced 241.
iv. 245 Federally Protected Activities
1. Congr‘s decision to supplement extraordinarily broad statute (241) with far more particularized
one, which statutorily mandates high degree of centralized control over the particularized statute
that is not so mandated in 241, the broad statute.
a. DOJ has kept firm and centralized control over 241 prosecs – why not rely on those
guidelines for 245 prosecs as well?
i. Why worry ab over-aggressive AUSAs for 245, but not 241?
2. 245 susceptible to another constl challenge to 241: obn what basis can Congr target noneconomic
private activity, however harmful/hateful?
a. See: Lopez, Morrison
i. Challenge proved fatal to Gun Free School Zone Act (Lopez) + VAWA (Morrison)
b. Yet cts have found support for 241 and 245 in some combo of the Commerce Clause and
the 13th Am.
III. US v. Allen
a. FACTS: Group of white supremacists ―patrolling‖ park for minorities; used weapons, racial epithets, forced minorities
out of park simply bc of their race; convic under 241 and 245.
i. D claims
1. Not place of pub accommodation bc didn‘t provide sources of entertainment that affected interst
comm. + actions in carrying out ―park patrol‖ didn‘t didn‘t affect interst comm.
2. Invalid ex of Comm Cl pwr bc 245 regulates nonecon, intrast crim activites that don‘t affect interst
comm. and that should be regulated by st law.
a. Ds compare 245 to Gun Free School Zones Act (Lopez) + VAWA (Morrison) as invalid ex
of Comm Cl pwr.
b. Activites/events in park are purely local and don‘t affect interst comm.
3. Vs weren‘t particip in or enjoying any benefit, service, priv provided by the state bc park was
closed at the time of the ―park patrol.‖
b. ISSUE: Whether the park is a place of ―public accommodation‖ such that Ds were properly convic under 241 and
whether 245 was validly enacted pursuant to Comm Cl and 13th Am.
c. HOLD: Park is a place of pub accommodation; 245 is a constl ex of Comm Cl pwr.
i. Place of ―public accommodation‖
1. Q isn‘t whether ―park patrol‖ affected interst comm, but whether the park‘s operations affected
a. An establishment is a place of pub acc if its operations affect comm.
ii. ―Place of exhibition or entertainment‖
1. Moves in comm. if it customarily presents films, performances, athletic teams, exhibitions, other
sources of entertainment.
a. The park in question was a place of ―public accommodation.‖
b. Broad coverage of statute – ―place of entertainment‖ should be applied to recreational
areas as well.
iii. Constitutionality of 245
1. Commerce Clause: whether the activities that 245 regulates ―substantially affect‖ interst comm.
2. Morrison concern –Congr might use Comm Cl to completely obliterate the C‘s distinction b/t natl
and local authority.
3. 245 regulates only specific type of violence – that which interferes w/ fed civ rts on basis of race,
color, relig, natl origin.
a. Not just intrast violence, but violence that affects civ rts, which are traditionally of fed
b. Fed nature of the violence 245 prohibits.
i. Racial violence used to deny affirmative fed rts.
ii. Disruptive effect racial discrim has had on commercial intercourse.
c. Puts teeth into the enforcement of fed rts guaranteed by the Civ Rts Act.
4. Though park patrol occurred at local park, patrol was racially-motivated hate crime that interefered
w/V‘s exercise of federally-recognized, protected civ rts.
iv. 13th Amendment
1. Sec 2: Cong has pwr to pass all laws nec and proper for abolishing all badges and incidents of
slavery in the US.
2. Reaches purely priv conduct.
3. Q: whether acts of violence covered by 245 impose a badge or incident of servitude on their Vs.
a. V must be harmed BC OF race and BC OF use of pub facility.
i. Wonder how this case ended up in fed ct.
1. Doesn‘t appear to be situation where st laws couldn‘t hold Ds accountable.
a. Montana st law does have a similar civ rts statute, but not a single st ct opinion applies
that law – maybe fed prosecs believed st would be unwilling to sufficiently punish here.
ii. Additional culpability of acting out of racial animus
1. To what extent should we worry ab punishing thought as opposed to conduct?
iii. 249 Hate Crimes Act (2009)
1. Coverage of 249 is narrower in some ways than 241 and 245, but broader in others.
a. 249 limited to violent acts; incl attempts but doesn‘t incl mere threats.
b. 249 covers acts committed bc of V‘s gener, disability, sex orientation, gender ID.
2. Source of Congr power to enact this new leg
a. Where violence is based on gender/sex orient, gov must prove effect on interst com.
b. Where violence is based on race, ethnicity, no effect must be shown bc Congr passed it
pursuant to 13th‘s authority to eradicat badges of slavery.
i. Gov doesn‘t need to prove other jx element to obtain convic.
3. ―Certification‖ req of 249
a. Instruction to use the statute rarely
i. Consistent w/fact that statute streteches to edges of Congr‘s police pwrs.
b. Prov can be understood as proclamation by Congr that violent hate crimes must be prosec
vigorously by st authorities, w/certification req as an inducement for local officials to act.
i. ―If you don‘t act, the feds will, and you won‘t look good at a press conf
announcing cert by DOJ bc you failed to vindicate justice.‖
I. What happens when recipient mistakenly thinks it‘s a bribe, when payor doesn‘t intend for it to be a bribe?
II. Fourteenth Amendment history, the prospect of a national law of homicide
a. Cases (Screw, Lanier, Giordano) suggest:
i. 14th wasn‘t meant to create natl homicide law.
ii. Sec 242, which was enforcing 14th Am wasn‘t intending to do that either.
b. But, opponents of 14th Am raised these vary points when it was being ratitifed
i. ―if this is enacted, it will nationalize crim law as applied to black Vs in the S.‖
c. Proponents didn‘t deny the claim v convincingly
i. Prob bc the claim was prob rt – 14th Am was designed to catch klan cases and authorize statutes that would
cover klan cases.
ii. Response based on eq protection clause, but not part of the clause that contemporary law emphasizes.
1. Protection clause designed to permit fed intervention in cases of mass failure to prosec violent
felonies that victimized southern blacks.
2. Response: prosec them under 241, and similar statutes that deal w/priv conduct.
d. Klan was trying to exercise powers that legit govs were exercising
i. Hold monopolies on violence – decide who gets to vote or not, etc.
e. Bc of the way the law developed, a large portion of the cases covered by what was the conventional theory of eq
protection in late 1860s/ear 1870s, fell outside of fed jx.
i. Why 241, 242, 249 yielded such little prosecs.
ii. Bc we do have a strong STATE action req.
iii. Organized violence and priv violence have a stronger relationship than contemporary law imagines
1. Orig drafters in 1860s/70s understood that.
III. Section 242: criminal violations of constitutional rights (cont‘d)
a. Core idea: get at diff kind of discrim than the kind you‘re accustomed to seeing in Amer anti-discrim law.
i. Statute covers not so much diff treatment on acct of some demographic factor, but instead it covers the
taking away of V‘s rts.
ii. Statute written to apply to everyone, not limited to ex-slaves in S. But in prac, drafters assumed that lrg
majority of Vs under the statute would be ex-slaves.
iii. Not just a standard anti-discrim law.
b. The elements of the crime
i. Deprivation of a federally protected right. See Screws, Lanier, Giordano
1. Whether it extends to ordinary violent felonies + committed under color of law.
a. This Q resolved in Gov‘s favor in Screws, Lanier.
ii. D acted under color of law. See Screws, Giordano, Pitchell (444), Tarpley (446)
1. Central line drawn in under color of law is similar to extortion cases.
a. Sep cases in which D leveraged the pwr of his office from Ds who didn‘t.
b. Under color of law cases where Gov prevails – you‘ll see cases in which Ds use their office
to coerce in some fashion.
i. As Giordano did explicitly in threatening Vs.
2. Most frequently litigated standard of leveraging one‘s public office to coerce.
a. Police officers as Ds – See Pitchell, Tarpley
iii. D acted willfully. See Screws, Bradley
a. Gov must prove presence of ―evil motive‖
b. Gov must prove D was acting w/reckless disregard of illegality of his conduct.
i. Watered down version of knowledge of the law.
a. D‘s proposed instructions pg. 426
i. Reqs too much from Gov – ―deliberately and intentionally‖ is more than reckless
b. Trial judge‘s instructions pg. 426
i. ―requisite specific intent‖
ii. ―specifically intended to do that which the law forbids.‖
1. Not saying intended to violate the law
2. Instead: intended to do the THING that is a violation of the law.
a. Whats the pt of this convoluted lang other than to rule out
knowledge of the law?
c. Badly litigated case where both sides got the standard wrong.
i. When both side‘s arguments get the relevant law wrong, pretty good chance
judicial decision will also get the law wrong.
ii. Whatever Screws means, it was not what we see in Bradley.
3. What would a good intent instruction look like (to capture reckless disregard)?
a. With intent to deprive of constl rts OR reckless disregard for illegality of conduct.
4. Evil Motive
a. Did Bradley behave with an evil motive?
i. Seemed to be more negligent than evil
b. Evil motive element dropped off from analysis over time
i. Part that actually matters is reckless disregard
ii. Evil motive assumed in intent – inheres in intending to do something in violation
iii. Evil motive has morphed into gross negligence, which is subsumed with the rest
of the the intent std.
5. Screw plurality was odd
a. Bc it‘s clearly worried about something – whether the D is or will be treated fairly.
i. Yet this worry arises in case of police murder on the job – pretty odd case in
which to worry ab D‘s interests. Not a good guy.
b. Concerned about someone, but it wasn‘t Screws – who then?
i. Constl violations of this type are constl violations that may well be something
less than culpable.
ii. Important pt: Sec 242 is classic example of a statute that, if enforced to its
limits, might actually risk criminalizing a lot of non-culpable conduct bc most of
constl law is ab non-culpable or low culpability conduct.
1. Most police violations of the constn don‘t incl shooting at someone –
they basically arise from borderline searches.
iii. Douglas was worried about this
1. 242 was dead letter until these cases and worried about what meaning
statue could ultimately have.
2. Turns out gov ended up never prosec those types of cases Douglas was
worried about under 242.
iv. Scope of the right was sufficiently definite. See Screws, Lanier, Giordano
1. What‘s the pt of req that relevant constl rt be made definite and specific? Why should it matter
whether relevant piece of constl law is highly specified or not specified?
a. Pt of definitness req: to guarantee that D has fair notice.
i. If you have a clearly defined constl rt in one case, and fuzzily defined in another
case where boundaries are uncertain, more likely that D acted w/o knowledge
that he might be violating the C is the fuzzy one.
b. Prob – willfulness is also about fair notice.
i. Not clear why you need both of them (willful + definite)
2. In practice, in cases that are actually prosecuted, all of these Ds have notice up to their eyeballs bc
they are murderers and rapists!
a. They KNOW they are doing something wrong.
3. While Lanier defines definiteness req, also cuts heart out of it.
a. Doesn‘t matter how fuzzy crime of violating DP is, Lanier can‘t complain about it bc his
conduct was so outrageous.
i. This is how Giordano is treated as well –easy case for the Gov.
b. Notice can‘t be a serious prob in this case.
c. Why are there so few § 242 cases?
i. Why limited to a few outrageous cases?
1. Main justice is involved in all these prosecs, and in a way that seems to keep number of prosecs
down, rather than increasing them.
ii. Federalism Argument
1. Bc these are close to classic st law crimes, traditionally enforced by local prosec – so why do we
need the fed gov?
2. These 242 cases all involve the prosec of st/local officials
a. Prosec of other sovereign‘s officials is a particularly intrusive thing for fed Gov to do –
more intrusive than just prosec of nontraditional fed crime.
iii. Sort of a quid pro quo for constl law‘s dramatic expansion
1. J. Brennan‘s idea – wanted limits on remedies bc it would be easier to create new rts if remedies
were sufficiently narrow.
a. Use dmgs, injunctions to enforce constl rts rather than crim prosec.
b. Pattern of enforcing 242 only in most outrageous cases fits this idea.
iv. Civil Rights Movement
1. Lack of desire to inflict punishment for prior violations of the law
IV. Civil rights crimes by private citizen
a. 2 core ideas of what these statutes are about
i. Going after intimidation or coercion by priv citizens that is aimed at taking away V‘s rts.
ii. Criminalizing / going after discrim that is somehow attached to force or violence.
1. Significant part of what these 3 statutes criminalize is, to go back to extortion cases, a little like an
extortion crime w/o the req that prop be obtained.
a. Forced violence/fear is somewhere in the pic
b. Section 241: conspiracies to injure / intimidate re enjoyment of rights
i. Conspiracy to intimidate someone in free enjoyment of priv protected by fed law.
1. Intimdate/injure = extortion-like part
2. Taking away V‘s rights
ii. Not a traditional anti-discrim statute, but used as an anti-discrim statute.
1. When discrim is attached to what extortion would call forced violence or fear.
a. Classic example: Magleby (cross-burning)
iii. Why does 241 cover conspiracies but not indiv violations?
1. Historical – statute designed as anti-klan statute, all of which were conspiracy cases.
iv. Odd mens rea discussion in Magleby
1. Intent standard is negligence, not specific or general intent
2. Vs felt intimated or threatened is enough to show that a reasonable person in D‘s shoes would
have meant his actions to threaten/intimidate.
3. Seems like remarkabley pro-Gov mens rea standard, helping Gov to get convictions.
4. Why such a pro-Gov std?
a. Proof of intent problems – difficulty of proving intentional intimidation.
i. When you req gov to prove D has subj intent based on someone else‘s feeling of
ii. Hard to prove that D was trying to produce fear in this particular setting, with
this particular V.
Federal Criminal Law – Class 18
I. Law of Criminal Organizations – Organized Crime
a. Instead of acting solo, offenders work together as part of a team.
b. Well-organized, w/ a clear and rational div of labor.
c. Plan crimes in adv, take precautions against obvi risks of detection.
d. Fed agents/USAO handle increasingly large fraction of these cases
i. Fed crim law not sole means of punishing org crime in US, but fed gov plays disproportionately large role.
e. Nature of grp crimes changed over time.
i. Mafia cases are what you think of
ii. But today, more loosely organized st gangs are chief crim orgs
iii. Also biz crimes and political corruption
1. Invovle significant organization and planning + coop of multiple crim actors
f. Legal Tools
i. Accomplice liability
1. ―aiding and abetting‖
ii. Law of Conspiracy
iii. Federal Money-Laundering statutes
1. Indirect enforcement strategy against crim grps
1. Racketeer Influenced and Corrupt Organizations Act
2. Direct approach: criminalizes particip in the affairs of a ―crim enterprise‖
v. Laws to punish terrorist networks
II. Accomplice Liability - 18 USC 2
a. When Congr passes a new crim statute, 2 usually kicks in to expand scope of liab
i. Makes ―aiders and abettors‖ punishable as principals
1. V of crime can‘t be indicted as aider or abettor even if his conduct significantly assisted in the
commission of the crime.
a. Ex. ppl who pay extortion, blackmail, ransom money
2. Statutes enacted to protect certain grp of ppl thought to be in need of special protection
a. Acc liab won‘t be imposed on this grp absent affirmative legis policy
b. Ex. woman transported willingly across st lines to engage in illicit sex isn‘t accomplice to D
transporter‘s Mann Act violation.
3. When crime is so defined that particip by another is nec to its commission
a. Rationale: Legis, by specifying the kind of indiv who is to be found guilty when particip in
a transaction nec involving one or more ppl, must not have intended to incl the particip by
others in the offense as a crime.
i. Ex. someone hiring prostitute isn‘t liable for aiding abetting prostitution.
ii. Ex. purchaser not accomplice to illegal sale
b. Most difficult modern cases turn on legislative intent
i. Esp disagreement when it appears Congr has decided to impose severe punishment on partic and limited cls
c. Think of complicity not as a crime in and of itself but as another way of committing a crime.
i. a&a doesn‘t constitute discrete crim offense but only serves as more particularized way of identifying
ii. 2 conclusions
1. Acc liab is contingent upon actual occurrence of an offense
2. Indictment doesn‘t have to specify that the D was ―only‖ an aider abettor of particular offense
a. If facts support theory of acc liab, jury can convic D of the actual offense.
iii. Though 2(a) reqs gov to prove that someone committed a substantive offense, failure to convict or prosec
that D doesn‘t preclude convic of aider abettor.
d. Necessary Conduct & Culpability – Actus Reus & Mens Rea
i. What kind of assistance must indiv provide and w/what st of mind to be held liable?
ii. Actus Reus – Culpability is the biggest factual issue in most a&a cases
1. Once knowledge of aa is estab, doesn‘t take much to satisfy the facilitation element.
2. Cts differ wrt how much facilitation is sufficient to obtain a convic
a. Learned Hand: Gov must only prove that d associated himself w/the venture, particip in it
as something he wished to brig ab, and sought by his actions to make it succeed.
3. Judicial discomfort w/‘one-size-fits-all‘ standard
iii. Mens Rea
1. A MR req of knowledge is the norm in fed aiding and abetting cases
a. Gov must prove that D knowingly assisted in or induced the commission of the crime, not
that he did so w/desire or hope that crime be successfully committed.
2. Find line-drawing where acc liab is sought for particular aspect of crim enterprise that carries
a. D who was knowingly involved in a robbery can‘t be convic as an acc for use of a weapon
by another particip in the course of that robbery merey bc D knew that a firearm would
b. Gov must show that D performed some act that directly facilitated or encouraged use or
carrying of a firearm.
e. Willful Blindness
i. Fed law waters down MR req of knowledge by means of jury instruction that equates ―willful blindess‖
(―conscrious disregard‖) with knowledge.
ii. Can satisfy MR of knowledge by proving that D consc chose ―to avoid learning the truth.‖
1. Particular explanation of why a D remains ignorant may justify treating him as though he had
f. Section 2(b)
i. In contrast to 2(a), has explicit ―willfulness‖ req
1. Higher mental st of purpose: those who cause another person‘s crim conduct
a. D must have MR req by underlying crim statute that he caused intermediary to violate,
and he has to have intended to have caused that prohibited AR.
2. Ex. causing an innocent intermediary to commit a crime
a. Ex. tax protester can be convic of filing false returns for selling his own special kit (―how
to avoid fed taxes‖) to customers even though the actual filers may not have known their
returns were false.
b. Ex. lawyer can be convic of making false statements to gov in lease agreement even if ppl
submitting the doc didn‘t know they were false.
g. Prob that law of acc liab is designed to solve
i. Division of labor – diff actors perform diff tasks and together accomplish more than ea could working alone.
1. Boss may order the hit, but he doesn‘t pull the trigger.
ii. If accomplices are underlings, liab for them is ancillary to liab for pimary offenders
1. a&a becomes a kind of add-on offense.
2. But if accomplices are bosses, aa is the primary crime, and the principal offense is an add-on
a. Ex. boss orders employee to dispose of hazardous waste in an improper manner.
i. Boss as acc, employee as pincipla.
h. a&a is a crim offense but can produce civ liab
i. Accessorial liab is sometimes more limited in civ than crim cases.
ii. Central Bank of Denver v. First Interstate Bank of Denver
1. There is no ―aiding and abetting‖ liab in priv securities actions
2. When Congr enacts a statute under which person may sue and recover dmgs fr a priv D for the D‘s
violation of some statutory norm, there‘s no general presumption that P may also sue aiders and
III. Conspiracy – 18 USC 371
a. Fundamental diffs b/t acc liab and liab for the crime of conspiracy
i. Aa is one way that a person can be liable for a crime committed by another person, whereas conspiracy is a
sep crime in its own rt.
1. Ds often find themselves charged w/both offenses in same indictment.
b. In order to be guilty of conspiracy, parties to the conspiracy must have as their obj the commission of some other
c. Conspiracy is also a means by which a person can be liable for crimes committed by co-conspirators.
d. Pinkerton v. US
i. FACTS: Pinkerton brothers indicted for violations of Internal Revenue Code. Single conspiracy was charged
and proved; some overt acts charged in the conspiracy count were the same acts charged in the substantive
counts; ea substantive offense was committed pursuant to the conspiracy.
1. D claims – substantive counts became merged in the conspiracy count, and only a single sentence
provided by the conspiracy statute should be imposed.
a. Ie. ea of the substantive counts became a sep conspiracy count but, since only a single
conspiracy was charged and proved, only a single sentence for conspiracy can be
ii. ISSUE: Whether substantive offenses are merged in the conspiracy?
1. Instances where a conspiracy charge may not be added to a substantive charge
a. Where the agreement of two ppl is nec for the completion of the substantive crime and
there is no ingredient in the conspiracy which is not present in the completed crime.
b. Where the def of the substantive offense excludes fr punishment for conspiracy one who
voluntarily particps in another‘s crime.
2. Commission of a substantive offense and a conspiracy to commit it are sep and distinct offenses
a. Pwr of Congr to sep the two and affix a diff penalty to ea is well-estab
b. Conspiracy is a partnership in crime.
i. Distinct from the completion of the unlawful project.
ii. Involves delib plotting to subert the laws, educating and preparing conspirators
for further crim prac.
iii. Characterized by secrecy, rendering it diff to detect, req more time for discovery
– adds to the importance of punishing it when discovered.
3. Not material that overt acts charged in the conspiracy couns were also charged and proved as
a. Agreement to do an unlawful act is distinct fr the doing of the act.
4. Continuous conspiracy
a. No ev of affirmative action by Daniel to withdraw from it.
b. So long as the partnership in crime continues, the partners act for ea other in carrying it
c. ―an overt act of one partner may be the act of all w/o any new agreement specifically
directed to that act.‖
d. Motive or intent proved by acts/declarations of some of the conspirartors in furtherance of
the common objective.
i. Crim intent to do the act is established by the formation of the conspiracy.
e. Ex. scheme to use the maisl to defraud by one or more ppl is conspiracy.
i. All are responsible even though one did the actual mailing.
iv. DISSENT (Rutledge)
1. Proof showed that Walter alone committed the substantive crimes.
a. Nothing to show Daniel participated in them, aided and abetted Walter in committing
them, or knew he had sone so.
b. Daniel was in jail when some of Walter‘s crimes were committed.
c. Only ev to show that Daniel agreed w/Walter at some past time to engage in such
i. Ie ev of conspiracy only, not of substantive crime.
2. Congr separately defined 3 classes of crimes
a. Completed substantive offenses
i. Going beyond mere a&a to completion of offense
b. Adiding, abetting, counseling another to commit them
i. Consc advising or assisting another to commit offense, thus becoming a party to
c. Conspiracy to commit them
3. Majority convicts one man for another‘s crime or punishes the man convicted twice for the same
a. Double jeopardy + multiple punishment
b. One can be convic of an offense nOt charged or proved against him, on ev showing he
4. Old doctrine of merger of conspiracy was to avoid abuse – ct must exercise supervisory pwr over
modes of conducting fed crim prosecs
a. Looseness with with charge may be proved
b. Unlimited scope of viacarious responsib for others‘ acts
c. Psych advantages of securing convics by attrib to one proof against another
5. Concern about borad crim liab
a. Result is vicarious crim responsib braoder than civ liab of a partner for acts done by a
copartner in the course of firm‘s biz.
b. Analogies fr commercial law/torts are dangerous for transfer to crim law.
c. Guilt should be personal, not vicarious, for serious offenses.
1. 2 conduct elements of conspiracy
a. Criminal agreement
i. As to an indiv D, the only conduct gov must prove is agreement.
b. Overt act in furtherance of the agreement
i. May be committed by any of the conspirators.
2. Agreement – intent + conduct
a. Meeting of the minds
b. Mental State required for gov to prove
i. D must knowingly enter into agreement
ii. D must have joined in the illegal agreement w/the intent of helping it succeed in
its crim purpose.
1. This is why there can‘t be conspiracy to commit manslaugter, bc
manslaughter is reckless killing.
2. Conspiracy reqs purpose.
a. Conspiracy to commit murder is thus poss.
c. Cf. to MR req for acc liab
i. Knowledge that one is aiding the crime.
3. Req that gov prove overt act in furtherance of the conspiracy
a. Applies to 18 USC 371, main fed conspiracy statute, but not to all fed conspiracy statutes.
i. 21 USC 846 – fed drug conspiracy – doesn‘t req proof of overt act.
ii. Sherman Act – no overt act needed to prove antitrust conspiracy
b. Whether or not overt act is req, prosec can meet the burden by proving any action in
furtherance of the conspiracy, by any of the conspirators.
i. Act can be insignificant or preliminary.
c. Actions that suffice for overt acts for conspiracy would not suffice for AR req for crim
d. Attempt and conspiracy crimes may both be inchoate (not completed)
i. Liab exists before underlying crime is completed + substantive crime need never
ii. Conspiracy is committed the moment the crim agreement is reached.
e. Conspiracy law plays diff role than attempt law
i. Prosec usually prove agreement by tying particular conspirators to completed
crimes, which isn‘t poss if underlying crimes haven‘t been committed.
ii. Sometimes, conspiracy charges used to stop scheme before substantive crime
has been committed.
iii. Conspiracy used less to move crim liab back in time (like attempt) but to
accomplish 2 other goals
1. Increase punishment for crimes committed by grps
2. Means by which gov can threaten fringe actors in crim orgs w/several
a. Induce little fish to get big fish
iv. Conspiracy law fxns more like acc liab than attempt
1. Expand net of crim law to incl many actors beyond the principal who
directly committed the underlying crim offense.
4. Pinkerton is classic example of #1 role of conspiracy
a. Aggregate punishment imposed on 2 Ds is much greater than if either committed same
crimes on his own.
b. Increased punishment in 2 forms
i. Ea D may be convic for conspiracy in addition to underlying crimes of
1. Characteristic of conspiracy law in nearly every jx in US.
ii. Ea D may be convic of the underlying crimes committed by the other.
1. ―Pinkerton‖ liab – more controversial, assoc w/fed system.
c. Real goal of law of conspiracy?
i. Not nec to impose proper lev of punishment on deserving Ds
ii. Threat of incr punishment to induce conspirators to finger others
1. Ie. #2 role of conspiracy might explain #1
iii. Thus Pinkerton liab may be designed to impose too much punishment, not the
retributively rt amt.
1. Law may be unfair by choice, not by accident
iv. Judge doctr by how much it aids in dismantling crim networks.
5. Ds in conspiracy cases don‘t usually get all the punishment the law entitles the gov to impose.
a. Pinkerton creates incentives to bargain
i. Less culpable Ds get advtg by telling prosec what they know and receiving
favorable charging/sentencing in return.
b. Shift pwr over punishment fr sentencing judges to prosecs who must bargain for info and
i. Prosec‘s charging decisions go a long way to determine what sentences diff Ds
c. Conspiracy law sesems designed w/plea bargaining in mind.
6. How do prosecs prove Ds knowingly joined agreements?
a. Circumstantial ev is often avail, providing sufficient proof of both existence of a conspiracy
+ D‘s knowledge of it.
i. Even a ―single act‖ may be sufficient if act is ―of a nature justifying an inference
of knowledge of the broader conspiracy.‖
b. Gov might argue ―willful blindness‖ to meet ―knowledge‖ of entering agreement req.
i. Must still prove intent/purpose to commit underlying crime.
7. Willful blindness has 2 components (US v. Svoboda)
a. D was aware of a high probability of the disputed fact
b. D deliberately avoided confirming that fact.
8. Buyer-seller ―exception‖ to conspiracy law
a. Similar to long-established exceptions in the comm. law for acc liab for Vs of crimes such
as extortion or blackmail.
e. US v. Parker
i. FACTS: Ds convic of conspiracy to possess crack cocaine w/intent to distrib
1. Ds claim – ev was insufficient to support convics relying on ―buyer-seller‖ exception
a. As buyers of drugs fr a selling conspiracy, they can‘t be convic of conspiring w/sellers for
illegal transfer of drugs.
b. D‘s transactions were nothing more than purchases – don‘t suffice to prove conspiracy for
transfer of illegal drugs.
ii. HOLD: Even if buyer-seller exception protects buyers fr cim liab for conspiracy w/their sellers to make the
transfer b/t them, it doesn‘t protect fr crim liab for conspiracy w/sellers wrt other transfers either by the
seller or the buyers, if the facts support such a charge.
1. D‘s argument overstates the scope of the buyer-seller exception.
2. Judge Hand: to be a member of a conspiracy, one must ―in some sense promote the illegal venture
himself, make it his own, have a stake in its outcome.‖
3. Unless at least 2ppl have a shared purpose or stake in the promotion of an illegal objective, there‘s
4. Buyer-Seller Exception Rule
a. Though seller and buyer agree together that they will coop to accomplish an illegal
transfer of drugs, the objective to transfer the drugs fr the seller to the buyer can‘t serve
as the basis for a charge of conspiracy to transfer drugs.
b. Fed scheme distinguishes b/t distribution (heavily punished) vs. possession/acquisition
i. Idea that addicts who acquire for personal use are less reprehensible.
ii. Distrib of drugs has substantial and detrimental effect on health and general
welfare of American ppl.
c. Exception protects buyer fr severe liabilities intended only for transferors.
5. B-S Rule doesn‘t protect seller/buyer fr charge that they conspired together to transfer the drugs if
ev supports finding that they shared a conspiratorial purp to adv other transfers, whether by seller
a. If ev supports a finding that purchaser not only purchased drugs, but in doing so also
promoted seller's drug distrib venture and intended to further it, seller and buyer may be
found to be in a conspiratorial agreement to further seller's other sales.
b. If ev supports a finding that the seller shared w/ the buyer an interest in furthering resale
by the buyer, the seller and buyer may be found to be in a conspiratorial agreement to
further the buyer's resales.
6. Seller‘s conspiratorial liab for resales by buyer
a. Mere awareness by seller that buyer intends to resell drugs isn‘t sufficient to show that
seller and buyer share conspiratorial intent to further buyer‘s resale.
b. Seller must somehow encourage the venture or have a stake in it – interest in bringing ab
7. BUT seller who runs profit-motivated biz of selling drugs in wholesale amt may realize buyers'
ability to buy and pay for substantial amts of drugs, and hence, his profit, will depend on the
buyers' ability to resell.
a. Here, liab of buyer and seller for having conspired together to transfer drugs would
depend not on the seller's mere knowledge of the buyer's intent to retransfer, but on a
further showing of the seller's interest, shared with the buyer, in the success of the
8. Applying law to facts
a. Ample ev that Ds joined in the selling group's conspiracy, having interest and stake in its
success in maintaining itself as a reliable source of drugs for them by continuing to sell
profitably to others.
b. Bc Ds were shown to purchase crack in wholesale, ample ev to find that selling grp joined
conspiracy w/ea D, having stake and interest in success of their resales so they could cont
to be profitable customers.
1. US v. Colon (Posner)
a. Q of how ―regular‖ purchases on ―standard‖ terms can transform a customer into co-
i. If you buy from Walmart, your transactions will be regular and standardized, but
there‘s no mutual trust suggestive of a relationship other than buyer and seller.
b. Agreement – the crime of conspiracy – can‘t be equated w/repeated transactions.
c. ―Mutual trust‖ is already a factor in conventional analysis of conspiracy.
i. Act that is merely ev of mutual trust can‘t be a sep factor.
ii. Repeat transactions need not imply greater mutual trust than is req by buyer-
I. Private sector civil rights crimes (cont‘d)
a. Most important about civ rts crimes.
i. That law is enforced very rarely.
1. Degree of cherry picking
ii. Enforced p much only in obvious cases.
iii. Lanier and Giardano are paradigmatic
iv. Not rarely enforced bc law is defined narrowly, but bc both Main Justice and USAOs want it that way. Why?
1. Mystery why this is.
b. The original understanding of the law of priv sector civ rts crime
i. (―priv sector‖ – D is not a gov official)
ii. orig understanding of 14th Am eq protection cl, understanding of civ rts statutes
iii. Original Understanding: if local authorities don‘t protrect members of some grp of victims by arresting and
prosec their victimizers, fed officials can do that job.
1. Step in and do the arresting and prosecuting themselves.
2. Systematic underenforcement of some cls of crimes against some cls of victims, amts not only to a
policy prob, but a constl violation.
d. The statutes: 18 U.S.C. § 241, 245, 249
i. 241 – conspiracies to injure or intimdate Vs in free ex of enjoyment of any fed rt.
ii. 245 – covers indivs, not just conspiracies, who willfully seek to injure, intimidate, or interfere w/ the Vs
enjoyment of a fed rt; bars willful intimidate or intereference w/ rts on acct of race, religion, natl origin.
1. Unlike 241, 245 is in part explicitly an anti-discrim statute.
iii. 249 – hate crime statute
1. religion and natl origin in both parts of statute
2. must affect commerce
iv. 2 main sources of jx for priv civ rts statutes
1. Commerce clause
2. 13th Am (bars slavery)
a. Am was clearly aimed at priv parties – sometimes priv parties discrim in ways that amt to
imposition of the badges/incidences of slavery on the relevant grp.
b. Case law on 13th am jx is ambig ab which grps are covered.
i. Def more than blacks, but not clear who else beyond them.
1. 241/245 – about rts deprivation
2. 245 – adds discriminatory rts depriv
3. 249 – about discriminatory violence
vi. Why is anti-discrim law so overwhelmingly civil and not criminal?
1. Burdens of proof
a. Discrim is often, not just occasionally, hard to prove.
b. Esp true when discrim claims are made against entities other than large employers.
i. Not that hard to prove if GM is discrim in hiring of clerical employees – it‘s big,
going to be lot of hires, can do work with statistics.
ii. W/ smaller biz, harder to get statistics that show discrim – and that might be
discrim that has largest soc effects.
2. Why criminalize discrim that is chiefly paired with violence?
a. Makes the crime more serious
b. What crimes cause the most soc harm?
i. Crimes against which potential V can protect themselves.
1. Ie. don‘t hang at subway stations after 11p.
ii. Here, crime isn‘t circumstance-specific
1. Instead, they are crimes that announce ―im coming for you‖ and you
can‘t go fr here to there to escape.
2. Most violent crimes ARE circumstance-specific and can be avoided.
e. Criminalizing discrimination
i. Breadth of the docrtrine
ii. ―Interfere with‖ – what does that mean?
1. Could easily cover non-violent discrim bc of Vs membership in relevant grp.
2. Doesn‘t req proof of hate
a. ―hate crime‖ is a misnomer
3. 249 – no one knows how broad fed hate crimes statute is, but it might be quite broad.
II. Organized crime
a. The nature of criminal firms, the central problem for law enforcement
i. What the doctrine targets – look at diff b/t legal firms (businesses, associations) and criminal firms
ii. Basic Q: Why do legal businesses/integrated firms form?
1. Division of Labor
a. Easier to assign diff tasks to diff ppl depending on expertise – efficiency
b. Crim grps
i. Little div of labor in most crim grps
ii. Most gangs do labor in the inefficient way – individually, not organized
2. Economies of scale
a. Hard to have a small auto company – unless you make a lot of cars, prob not gonna make
b. Crim grps
i. In biz of HIDING info, not sharing it.
3. Reduce cost of sharing info (indep side contracts)
a. No need to price the info that employees exchange with one another
i. Info is hard to price accurately for side contracts
b. Crim grps
i. Don‘t see many side contracts for gangs – don‘t make ‗salary‘
1. Since not much div of labor in crim orgs, the key divide is b/t ordinary members and bosses.
2. No need in most crim orgs for an elaborate org
iv. Application of fed crim law
1. Get your hands on the top guy
2. Prob: boss tends not to be involved in the gang‘s indiv crim activities despite being more culpable
a. Harder to prove guilt, but greater culpability
b. How do you solve this prob?
3. Degree to which fed crim law treats Ds fairly
a. Though may make it easier to get top guy, may punish more severely ppl who are less
culpable than the top guy.
b. Aiding and abetting
i. Also called complicity; law of acc liab
ii. Def of the crime
1. Actus reus: inducing or assisting the underlying crime
2. Mens rea: knowing that D is aiding and abetting + mens rea to commit underlying crime.
iii. Basic idea behind the crime – what does this allow the gov to get that it couldn‘t otherwise get?
1. Inducing part – seems like a means of getting at bosses
2. Assisting part – get the underlings – about div of labor
3. Paradigmatic scenario
a. Break in – one guy drives, one guy looks out, one guy commits bfreak in
i. Without acc liab, can‘t get the first two guys bc they didn‘t actually commit the
iv. What do you need to prove inducement?
1. Boss involved in some way selecting target and/or involved in the division of the proceeds.
2. Must prove the involvement – not likely to be a very easy task.
3. Not that a&a doesn‘t catch the top boxes in the org box, but it doesn‘t catch a lot of them.
4. Wrt to standard crim orgs, not so much needed to even catch them – not in a world where all gang
members do everything.
5. A&a prosecs are still very common, along with drug distrib cases
v. Wassersan case
1. Boss directs employee to improperly dispose of dry cleaning chemicals
2. A&a fed statute used – was very helpful for these types of losses
a. Enviro crimes often committed by legit businesses.
c. Conspiracy Law
i. Def of crime
1. Knowing agreement + purpose to carry out the agreement
a. Purpose that someone will carry out agreement
2. Overt act in furtherance of the conspiracy by ONE of the conspirators.
a. No req that ALL conspirators commit overt act – just one.
b. Basically don‘t have to do anything to be liable for conspiracy.
ii. Pinkteron Doctrine
1. Ea conspirator is liable for all other conspirators‘ crimes in furtherance of the conspiracy.
iii. Basic idea behind the crime
1. Works to get bosses by being unfair by design.
2. Gives gov ability to threaten all the fish in the pond with very serious crim liab – liab that is almost
certainly more severe than Gov wishes to impose on little fish.
a. Purpose is to move up food chain – little fish to get big fish.
b. Aiding and abetting doesn‘t work very well for this
3. Pinkerton is not supposed to be ―fair‖ bc it‘s designed for specific scenarios outside of Pinkerton
4. Instead of proving inducing:
a. Can say D benefited by underlying crime.
b. Can prove D was closely associated with other conspirators.
i. Law of conspiracy, in prac, shifts the focus of any crim trial fr the boss‘s
relationship to the underlying crime to the boss‘s relationshiop to the offenders
who committed the underlying crime.
ii. To prove agreement and membership in the agreement, can‘t prove terms of
agreement (no one says the terms explicitly or writes down the agreement).
Instead, must prove membership in the agreement by relationships to the
1. Easier ev to get than relationshiop to crime.
a. Gov can prove guilt without proving close connex t underlying crime
b. Gov can use Pinkteron to pile up liability on small fry in order to get them to finger the
c. Gov can bring together more Ds than in an aiding and abetting case
i. Helpful bc allows for more guilt by assoc.
6. Is this fair?
a. Depends on which cases prosec chooses to prosec.
b. Doctrine is strategic and, by design, too broad.
i. Whether it treats D faily is up to prosec, not the cts.
iv. For all of its advantages, conspiracy law still has a prob from the POV of law enforcers who want to get the
person in the top box of the org chart
1. Prob: conspiracy liab covers a single agreement, not a network of agreements
2. Cf. to legal firms, which are networks of contracts
a. If you thin kof crim firms as networks of contracts – conspiracy is reaching into network
and plucking out a single contract
b. This may get you some important things, but it doesn‘t get you the enterprise.
i. Key reason for RICO
ii. Pt of racketerering law – go beyond single agreement.
3. Conspiracy law is really good for getting ppl like Pinkertons (bootleggers who commit one crime
over and over again)
Federal Criminal Law – Class 19
I. Money Laundering
a. ―Follow the money‖ – investigative strategy to trace and uncover crim behavior.
i. Promising leads into nature/scope of illegal activity by following paper trail.
b. Mid-1980s: Congr creates new offenses indep of targeting ―money laundering‖ efforts, reaching even Ds who haven‘t
actually conspired to commit underlying crimes.
i. Extra sanction for Ds who work to hide illegally obtained funds.
c. One goal: freeze illegal funds out of the legit econ.
d. Financial intermediaries can also be subj to prosec when D whose $ they ―laundered‖ is apprehended and Ds coop
against them in exchange for leniency.
i. Likewise, threat of prosec can turn launderers into cooperating witnesses against Ds who obtained illegal
e. Money laund statutes fxn as extension/supplement to conspiracy provisions.
a. Congr‘s vast regime for tracking currency transactions
i. Bank Secrecy Act of 1970
1. Banks/financial institutions must file Currency Transaction Reports (CTRs)
2. Must file Suspicious Activity Report (SAR)
ii. Target ―smurfs‖ – low-lev accs used to make deposits at multiple banks.
iii. Over time, regulatory incl entities besides financial institutions.
1. Anyone engaged in ‗trade or biz‘ must report cash transactions of over $10k to IRS.
b. Money Laundering offenses – 18 USC 1956
i. 1986 – Congr passed laws criminalizing forms of money laundery to supplement regulatory regime created
c. Distinguishing Money Laundering from the Underlying Crim Activity
i. Distinguishing ―money laundering‖ under 1956 fr underlying ―specified unlawful activities‖ (SUA) – arises
whenever D is charged w/either concealing the proceeds of his illegal activity or using proceeds to promote
illegal activities specified in the statute.
a. Disting b/t transactions that ―promote‖ an SUA and the SUA itself.
ii. Level of concealment gov must prove (US v. Esterman)
1. What amt of concealment must occur before mere use of ill-gotten gains becomes money
2. 2 broad principles
a. Sep b/t initial transaction fr which illegal proceeds were derived and further transactions
designed to conceal the source of those proceeds.
b. Mere transfer and spending of funds isn‘t enough to sweep conduct w/in the money
laundering statute. Instead, subseq transactions must be specifically designed to ―hide the
provenance of the funds involved.‖
3. ―Something more‖ than mere transfer and spending is needed for money laundering.
a. More than one transaction coupled w/either direct ev of intent to conceal OR sufficiently
complex transactions that such an intent can be inferred.
b. Typically NOT ML: simple transactions that can be followed w/relative ease, or
transactions that involve nothing but the initial crime.
4. Must ensure ML statute doesn‘t turn into ―money spending statute.‖
III. US v. Santos
a. FACTS: D operated lottery that was illegal under st law; hired a number of helpers to run the lottery – pmts made to
runners, collectors, and winners; convic for conspiracy to run an illegal gambling biz + ML.
i. D claims – 7th Circ – ML‘s prohib of transactions involving crim ―proceeds‖ applies only to transactions
involving crim profits, not crim receipts.
b. ISSUE: Whether the term ―proceeds‖ in the fed ML statute means ―receipts‖ or ―profits.‖
c. HOLD: ―Proceeds‖ means ―profits,‖ not ―receipts.‖
i. ML doesn‘t define ―proceeds.‖
1. Statute: Gov must prove that transaction in fact involved the proceeds of SUA + must prove that D
knew that the prop involved in the transaction rep‘d proceeds of some form of unlawful activity.
ii. Statutory Interpretation
1. Dictionary – proceeds can mean either ―receipts‖ or ―profits.‖
2. ―Proceeds‖ hasn‘t acquired comm. meaning w/in Fed Crim Code.
a. Congr sometimes has defined it to mean ―receipts,‖ sometimes ―profits.‖
3. Under either of the word‘s ordinary defs (receipts or profits), all provisions of the ML statute are
a. From face of the statute, no reason to think that proceeds means receipts than there is to
think that proceeds means profits.
iii. Rule of Lenity
1. The tie must go to the D.
2. Bc the ―profits‖ def of ―proceeds‖ is always more D-friendly than the ―receipts‖ def, the rule of
lenity dictates that ―profits‖ def should be adopted.
iv. Gov claims
1. Profits interpretation fails to give ML statute its proper scope and hinders effective enforcement of
2. If ct doesn‘t read proceeds to mean receipts, it disserves the purp of the ML statute which is to
penalize crims who conceal or promote their illegal activities.
a. Gross receipts of a crime reflect scale of crim activity.
v. Strange conseq of ―receipts‖ interpretation – ―Merger Problem‖
1. ―Merger Prob‖: if proceeds means receipts, nearly every violation of the illegal-lottery statute would
also be a violation of the ML statute, bc paying a winning bettor involves receipts that D intends to
promote the carrying on of the lottery.
a. Ie. statute criminalizing illegal lotteries, 1955, would merge w/ML statute.
b. With merger, Ds would face additional 20 yrs on top of 5 yrs under 1955.
c. Prosec would have discretion to charge one or the other or both (likely to use both for
2. Gov doesn‘t explain why Congr would want a transaction that is a normal part of a crime that it
had already considered/approp punished elsewhere in the Crim Code to radically incr the sentence
for that crime.
3. Interpreting proceeds to mean profits eliminates merger prob.
a. Defraying an activity‘s cost w/its receipts will not be covered by statute.
vi. Easier Prosecution
1. Gov argues for receipts interpreation bc it‘s easier to prosec.
a. Harder to prove proceeds and knowledge elements of the statute under the profits
2. To interpret statute based on Congr‘s presumptive intent to facilitate ML prosecs turns the rule of
lenity upside down.
vii. Actus Reus - Proof needed under profits reading
1. Prosec needs to show only that a single instance of SUA was profitable and gave rise to the $
involved in the transaction.
2. What counts is whether the receipts fr the charged unlawful act exceeded the costs attributable to
a. Ex. charge of ―enterprise‖ crime – prove profitability of only the conduct sufficient to
violate the enterprise statute.
viii. Mens Rea – knowledge element
1. Knowledge that the transaction involves profits of unlawful activity will be provable by
a. Ex. someone accepting receipts fr what he knows is a long-continuing drug operation can
be found to know that they incl some profits.
2. Gov would likely be entitled to willful blindness jury instruction.
ix. Justice Stevens
1. Interprets ―proceeds‖ to mean ―profits‖ for some predicate terms, ―receipts‖ for others.
a. One undefined word, repeated in diff statutory provisions, can have diff meanings in ea
2. Clark v. Martinez: the meaning of words in a statute cannot change with the statute‘s application.
a. Can‘t give same word in the same statutory prov, diff meanings in diff factual contexts.
3. Oblig to maintain consistent meaning of words doesn‘t disappear w/rule of lenity.
e. CONCURRENCE (Stevens)
i. The same word can have diff meanings in the same statute.
1. Need not pick a single def of ―proceeds‖ applicable to every SUA, no matter how incongruous some
applications may be.
ii. Legislative history
1. Congr intended procees to incl gross revenues fr the sale of contraband and the operation of
organized crime syndicates involving such sales.
2. But this hist doesn‘t tell how to ID proceeds of other types of SUAs.
iii. Rule of Lenity
1. Lack of leg hist
2. Perverse result of Alito‘s interpretation applying gross receipts definition.
f. DISSENT (Breyer)
i. Like plurality, doubt that Congr intended ML statute to cover financial transactions that constitute an
essential part of a diff underlying crime.
1. Gov could seek heavier ML penalty even though the only conduct at issue is conduct that
warranted a lighter penalty.
ii. Agrees with Merger Prob
1. But doesn‘t think ct should look to the word ―proceed‖ for a solution.
g. DISSENT (Alito)
i. Conclusion: ―Proceeds‖ means gross receipts, not net income.
1. Means ―the total amt brought in‖; gross revenues
ii. Plurality frustrates Congr‘s intent and maims a statute that was enacted as an important defense against
organized crim enterprises.
1. Abandons any effort at interpretation and simply summons the rule of lenity.
iii. Statutory Interpretation
1. Dictionary - Term can also mean ―net profit.‖
1. ML statute is not the only ML prov that uses ―proceeds‖ – every single provision where it‘s used
specifies ―total amt brought in.‖
a. See UN Treaty – Convention Against Transnational Organized Crime
i. Proceeds = ―any prop derived fr or obtained, directly or indirectly, through the
commission of an offense.‖
ii. Thus, covers ―gross receipts.‖
b. See Model Money Laundering Act
i. Proceeds given similarly broad scope
c. See 14 States with ML statutes defining proceeds in the same way, as encompassing
2. Lawmakers, knowledgeable ab nature/prob of ML, used the term proceeds to reach all receipts,
and not just profits.
v. Purpose of ML provisions – serve 2 main goals
1. Provide deterrence by preventing drug traffickers + other crims who amass large amts of cash fr
using these funds enjoy the fruits of their crimes – lux lifestyle.
2. Inhibit growth of crim enterprises by preventing the use of dirty money to promote the enterprise‘s
a. These objectives are frustrated under profits interpretation.
b. Can use receipts to finance future unlawful activity.
vi. Perverse results of profits interpretation
1. Immunizes successful crim enterprises during those periods when they are operating temporarily in
2. Intros pointless and difficult probs of proof.
a. Danges of ML are present whenever crims have large amts of illegally derived $ on their
hands – little reason to req proof that funds rep profits.
i. Such proof would be difficult to obtain.
vii. Implausibility of net income interprtation
1. Importance of prosec hired money launderers
a. Proof of knowledge: Congr didn‘t intend to req proof that hired money launderer knew
that funds provided for laundering included profits.
i. Hired ML unlikely to know if a biz is operating in the black.
2. Cases targeted by statute would be harder to reach
a. Purpose is to get large-scale crim operations that cont over substantial time – drug
cartels, organized crime syndicates.
b. Commission on Organized Crime
i. IDs drug traffickers + organized crim grps as most serious probs
3. Unlikely that Congr enacted statute that would present obstacles in the very sort of cases that had
been identified as presenting the most serious probs.
a. Ex. Pizza Connection case – interception of cash/wire transfers of funds fr drug sales that
occurred over period of time.
b. Tracing funds back to particular drug sales and proving that the sale were profitable will
often prove imposs.
i. Hurdle to prove that drug ring had net income when funds were acquired.
ii. Must prove net income by reasonable doubt – can‘t simply ask jury to take notice
of the fact that these grps are profitable.
viii. Profits interpretation presents pointless obstacles
1. Even if a drug or gambling ring was temporarily operating in the red, the laundering of money
acquired during that time would present the same dangers as the laundering of money acquired
during times of profit.
ix. Plurality‘s ―Single Instance‖ Theory – Problems of accounting and proof
1. ―to establish the proceeds element under the ‗profits‘ interp, prosec needs to show only that a
single instance of specified unlawful activity was profitable and gave rise to the money involved.‖
2. Here, ―unlawful activity‖ is a gambling biz – what constitutes a ―single instance‖ of running a
a. Single instance = all instances that are charged – Gov must show that receipts exceed
costs during time D allegedly conducted, financed the gambling operation.
b. To req Gov to show that gambling operation was profitable for this entire period leads to
i. What is the holding of Santos, since there‘s no majority?
1. Fraud Enforcement and Recovery Act of 2009
a. Overturns Santos
b. Defines ―proceeds‖ as ―any prop derive fr or obtained or retained, directly or indirectly,
through some form of unlawful activity, incl the gross receipts of such activity.‖
c. Argument – even crims with high overheads – and no profits – should face ML prosec.
d. Sec 2(g) Sense of Congr
i. ―No prosec of an offender under 1956 or 1957 should be undertaken in combo
w/the prosec of any other offense, w/o prior approval...‖
ii. Eliminates merger problem
ii. Merger Problem
1. No longer a prob bc judges are no longer bound by sentencing guidelines.
a. Though ML has higher max sentence than gambling, judge not req to incr D‘s sentence
simply bc the D was convic of both ML and gambling.
iii. What it takes to intend to ―conceal‖ under 1956
1. This is also an issue when someone who might not be criminally involved in the underlying SUA
can be charged with ML.
IV. US v. Corchado-Peralta (1st Circ)
a. FACTS: Drug smuggling into Puerto Rico – wife + 2 accs ocnvic for conspiring to launder money; convic based on
knowledge of ―design‖ and not based on an ―intent to promote.‖
i. D wife‘s transactions are expenditures and deposits.
1. Bought expensive cars, boats, real estate – thought $ was derived fr legit biz.
2. D disputes knowing that the prop represented proceeds of drug dealing or that transction was
designed to conceal or disguise.
ii. D‘s husband testifies that he held himself out as a legit bizman through their entire relationship and D knew
nothing of drug smuggling or $ laundering.
b. ISSUE: Whether there was knowledge of drug dealing, or so much awareness that ignorance was willful blindness.
i. Sate of mind elements
i. Knowledge req 1
1. D was aware, at the time of the transactions she conducted, that the money she was handling was
derived fr drug dealings.
2. D argues no direct ev of her knowledge.
ii. Evidence of knowledge
1. D knew fam expenditures were huge and that reported income was a fraction of what was being
2. Legit sources weren‘t so obv to banish the poss of illegal origin.
3. Judgments about relationships within families and inferences that might be drawn in the
community fr certain patterns of working and spending.
4. Enough to know that the proceeds came from ―some form, though not nec which form,‖ of felony
under st or fed law.
iii. Knowledge req 2
1. D knew that the transaction was designed to conceal or disguise the nature, location, source,
ownership or control of the proceeds.
a. Instigator or spender must have intent to disguise or conceal and the spender must share
or know of that intent.
2. D knew that some of the money she was spending was criminally derived; knew that spending
exceeded what was reported on taxes.
3. Is this enough for jury to infer specific intent to conceal or disguise?
iv. Ev of knowledge
1. Nothing about the purchases pts to concealment beyond fact that all expenditures transformed
cash into something else.
2. Purchased assets weren‘t readily concealable or concealed or acquired in someone else‘s name nor
put in a foreign repository.
V. US v. Rivera-Rodriguez
a. FACTS: D convic along with Corchado (above); convic of particip in transaction to launder proceeds of PR drug
i. D claim – knew transactions he took part in were designed to conceal source of the funds involved (size of
cash + use of $9k deposits to avoid bank reporting), but disputes whether reasonable jury could find that
he knew transactions involved illegal proceeds – he didn‘t know that Colon was drug dealer.
b. ISSUE: Whether jury could find that Ds knew transactions involved illegal proceeds and were meant to cover up
i. Burden of proof
1. D not req to know what type of felony spawned the proceeds, but only that some felony did so.
2. Knowledge can be established by showing D was willfully blind.
ii. Willful Blindness
1. Law equates willful blindness with knowledge
a. It would be enough if a jury could conclude that some felony was so obvi the source that
Trinidad had to know.
iii. D Rivera – operaed BVF co.
1. Effectively served as clearing house for Colon‘s drug funds.
2. Pattern was classic example of ML.
a. Huge cash pmt into biz, for no demonstrated legit reason, followed by use of funds to
purchase prop for orig depositor.
b. Outsider‘s $ run into the biz and then backed out to the depositor, w/no reason except to
provide a seemingly legit source.
i. ML charges often used to target major drug dealers.
1. Linking high-levl dealers to the money they make and spend can be easier.
2. Prof Cuellar: argues that ML should be used against financial institutions and intermediaries rather
than drug dealers.
a. Financial institutions that ―wash‖ drug money are more profitable than their competitors.
i. Ie. corrupt financial institutions have competitive advtg over honest ones.
ii. Makes efforts to stamp out corrupt financial institutions v important.
ii. Harder to convic officials in banks thank it is to convic drug dealers.
1. Esterman – Gov proves concealment by showing that relevant financial transactions were more
complex than the norm.
a. But financ transactions involving large sums of money are often complex even when
money is clean.
2. ML prosecs that seem most soc valuable (against finan institutions) may be the kinds that are most
expensive for the Gov.
3. Instead – there‘s much regulatory activity, sanctions for failing to have adeq compliance programs.
iii. Conspiracies to commit ML offenses generally charged under sep conspiracy prov in the primary ML statute
(1956), not under the general conspiracy statute (371).
1. 371 – 5 yr max penalty
2. 1956 – 20 yrs for 1956, 10 yrs for 1957 (conspiracy penalty is that of the underlying ML offense)
a. 1956 also doesn‘t req proof of overt act.
iv. Another ML statute – 1957
1. Might yield a diff outcome wrt whether Corchado could be convic based on ev that she spent her
husband‘s $ knowing that it was tainted.
2. 1957 makes it a crime for 3rd p to knowingly conduct a ―monetary transaction‖ w/prop representing
proceeds of illegal activity.
v. Diff b/t 1956 and 1957
1. Intent req differs between the two
a. 1957 – doesn‘t req that D have acted w/either intent to promote carrying on of SUA or
with knowledge that the trans is designed to conceal....etc.
b. But 1957 has $10k threshold req for criminally derived prop.
c. 1957 defines ―criminally derived prop‖ as ―any prop constituting, or derived from,
proceeds obtained fr a crim offense.‖
2. 1956 – sets diff parameters and refers only to prop that represents the proceeds of some form of
vi. Lawyer exemption
1. 1957, but not 1956, exempts lawyers fr prosec.
a. 1957 – exempts any trans nec to preserve a person‘s rt to rep as guaranteed by the 6th
b. But this exemption doesn‘t carry over into 1956
i. If D has req knowledge and intent to support convic under 1956, whether $
involved was for atty‘s fee wouldn‘t be relevant.
I. 3 sidepoints
a. One consequence of Pinkerton doctrine
i. Used to extract info
1. Gov may be wrong in trying to extract that info – reqs some guess work.
2. Gov can‘t afford to be too easily convinced by the statement ―I don‘t have any info.‖
a. Gov basically has to be skeptical of such claims, even if those claims may sometimes be
ii. Bc of Pinkerton and the way crim org works, there are ppl sitting in jail bc they didn‘t have the info the Gov
b. The breadth of conspiracy liability – don‘t have to prove a lot.
i. One can infer conspiracy when even basic terms of the bargain are unknown.
1. Can just be ―unknown‖
2. Can mean assoc or cooperation and sometimes nothing more than that.
3. Standard is much lower than that used in contract cases.
ii. Whereas, with bribery – quid pro quo must be known, and often with some detail.
1. Bribery transactions must be spelled out in ways that conspiracy transactioins don‘t.
iii. Why are there no line cases declaring conspiracy unconstitutionally vague?
a. Breadth of liab
b. Fuzziness of liab
c. Vagueness of terms
2. Maybe bc conspiracy has been around for a lot longer than intangible rts fraud and has been
―grandfathered‖ as far as vagueness doctrine
a. Tradition as all purpose answer
c. A comment on joint trials and guilt by association
i. Big advtg of conspiracy law – allows gov to bring lots of ppl together in a single trial.
1. Tendency for culpability and certainty to rub off frm Ds who have it on those who don‘t.
ii. Helps gov tell richer story of relevant crimes than would be poss in a single trial.
1. Good jury trial litigation: address the elements of the crime and embed those elements within a
a. Jury must decide whether gov‘s story is ―clearly true.‖
II. Two doctrines that cut across conspiracy and complicity
a. Buyer-Seller Exception Doctrine (See Parker)
i. Drugs, prostitution – vice mkts – buyers aren‘t liable for aiding and abetting sale or for conspiracy to sell.
ii. Need exception bc otherwise, all possession would get punished the same as distribution. But there‘s a
distinction b/t the two, so you need doctr that doesn‘t apply usual standards in specific circumstances.
iii. Why were buyers in Parker liable when buyers usually are not?
1. Bc it‘s wholesalers and retailers, not retailers and users.
2. Parker ct insists it doesn‘t amt to wholesalers + resailers point.
a. Not quite the stake in the venture you see in other cases, but ab sellers having a stake in
the buyer‘s success.
i. Justification for treating this case diff from typical sale to a user.
iv. Most important pt ab exception: instance of general proposition everyone takes for granted, but maybe it
shouldn‘t be taken for granted.
1. Proposition: American crim law always punishes sellers more than consumers in all vice markets
(drugs, prostitution, gambling).
2. In the aggregate, sellers make buyers or buyers make sellers?
a. Sellers don‘t make the market – if there‘s no market demand, sellers are out of biz.
Buyers make the market.
3. In prac, you see periodic small law enforcement initiatives to arrest customers.
a. Oldest idea in drug enforcement
i. Key to getting inner city drug markets is to deter buyers from outside the
neighborhood who bring money into the neighborhood that funds the drug mkt.
1. Kids from the suburbs drive into the ghetto for their drugs.
4. Maybe we should go after buyers instead, maybe the law has gotten it wrong.
b. Willful Blindness Doctrine (See Svoboda)
i. If D consc chose to avoid learning some fact, the law will treat that as the equivalent of knowledge of the
ii. Block quote pg. 481
1. Willful blindness is not a substitute of knowledge but way to say ―knowledge proved by
a. How else do you ever prove knowledge?
b. You prove it the way you prove willful blindness.
2. In prac, they amt to the same thing.
iii. Liab based on knowledge vs. liab based on culpable failure to investigate
1. Gov must prove D clearly should have known.
iv. Real fight about willful blindness that is played out in the cases
1. Not clear cts are applying same std when they use this phrase
2. WIllfull blindess can mean anything from same thing as knowledge (conventional def) to cases
where it seems to mean a lot more than that, and is more like negligence or gross negligence.
a. Spectrum of meanings: knowledge >> gross negligence.
III. Money laundering
a. Two main crimes: §§ 1956(a)(1)(A), 1956(a)(1)(B) (pp. 488-89)
i. 1957 not used that often – why?
1. Enacted to target finance ppl, not the Ds you read about in main cases from course.
2. Those banks have pretty effective lobbying capability and have successfully forestalled widespread
3. Lots of regulation of banks to prevent them fr dealig with dirty money.
a. But most forms of regulation that are enforced are civ, not crim.
ii. 1956(a)(1)(A) (Santos) Defintion (intent to promote)
1. Conduct – conducting financial trans w/proceeds fr SUA
2. Intent – knowing that proceeds derive from unlawful activity + intent to promote the carrying on of
a. NOT specified unlawful activity – just knowledge that there‘s some kind of illegal activity.
iii. 1956(a)(1)(B) Defintion (conceal or disguise)
1. Conduct – conducting financial trans w/proceeds fr SUA
2. Intent – knowing that proceeds derive fr unlawful activity + knowledge that trans is designed to
conceal or disguise the origin or control of the proceeds.
b. Two practical questions
i. Why does the Gov need these crimes? How does the Gov use these crimes?
1. Gov using ML as substitute for going directly after underlying crimes.
2. Used in prac to get at the bosses (the Colons of the world).
a. Often much easier to get Colon for this crime, than drug crimes.
b. Perhaps fairer as well – ML is sort of the anti-Pinkerton doctr in this way.
i. Easier to get Colon than the fringe figures handling Colon‘s money.
1. Gov can‘t get Corchado on ML charges.
ii. If you use ML to attack drug distrib org, it‘s easier to get most culplable actors
than least culpable ones.
c. Amts of money flowing through ones hands is much better proxy than amt of drugs
flowing through hands.
i. Drug sentencing law is based entirely in drug amounts.
c. Three doctrinal questions
i. What is the meaning of ―proceeds‖?
1. Statute now specifies it‘s receipts – gross revenues – not profits.
2. Why was Congr so eager to overturn Santos and reinstate the comm. def?
3. Alito‘s 2 empirical arguments
a. What about cases when no money is being made? Do we really want to exclude those?
b. Proof Problem
i. To prove profit, must prove expense – going to be v difficult for Gov to prove
ii. What is the ―merger problem‖ and when / why does it matter?
1. Prosec for same conduct.
2. Prob when underlying crime is punished less severly than ML is punished.
3. Prosec don‘t tend to use a1a to use prosecs bc they can get him under a1b the way they got
4. Merger Prob is a good deal less serious than it was even a few yrs ago bc fed sentencing guidelines
are no longer mandatory as they were a few yrs ago.\
a. Meaning sentencing judge like Santos could say I wont inc sentence for what is really the
b. Gov can‘t get two sentencing bites at the apple.
iii. What does ―conceal or disguise‖ mean?
1. Corchado buying jewelry – must have something more than consumption – just spending drug
money can‘t be ML.
2. Colon moving money through the corp – deceipt and unusual complexity involved.
3. Colon buying speed boats – hiding title.
a. Running money and title through someone else‘s hands – involves degree of deception
and complexity that is unusual for such transactions.
4. Prob with complexity
a. Often legal transactions are complex
Federal Criminal Law – Class 20
I. Enterprise Crime
a. In 1970 – Racketeer Influenced and Corrupt Organizations Act (RICO) – 18 USC 1961-1964
i. 1961 - Definitions
ii. 1962 – Prohibited Activities
iii. 1963 – Criminal Penalties
iv. 1964 – Civil Remedies
b. Purpose: eradicate organized crime
i. Attack crim activities and influence of orgs like Mafia
ii. Has since been applied to v diff orgs and very diff contexts
II. NOTES on RICO statute
a. Statute creates 3 new offenses (1962(a) – 1962(c)) + conspiracy offense
i. 1962(a): Bad guys as passive investors
1. Having gained income fr racketeering or fr collection of an unlawful debt, Ds acquire an interest in
a legit biz.
2. Today, this might be a standard money-laundering case.
a. RICO pre-dates ML statute by 16 yrs,
ii. 1962(b): Infiltration
1. Bad guys gain control of an enterprise through either racketerring or collection of an unlawful debt.
iii. 1962(c): Unclear
1. Enterprise could be an otherwise legit entity that conducts some of its affairs ―through a pattern of
racketeering activity or collection of unlawful debt.‖
2. Or could be the ―mob,‖ an illegit entity whose principal activities involve racketeering and extortion.
iv. First two sections – designed to capture criminals‘ use of the legitimate econ, by investing in it or by
acquiring control over parts of it.
v. Third section – could incl ppl using crim means to manage otherwise legit enterprises OR incl criminal
b. RICO NOT used primarily to combat crim control of legit enterprises.
i. The substantive RICO offense regularly charged is 1962c.
1. ―Pattern of racketerring activity‖ is most common basis for crim RICO charges.
2. ―Collection of unlawful debt‖ is rarely charged.
ii. 1962a and 1962b arise only in civ cases, with rare exceptions.
c. DOJ exercises exceptional degree of centralized control wrt crim charges under RICO.
i. Reason for large msr of convergence in prosec‘s use of RICO charges.
1. See USAO Manual
a. No RICO indictment shall be filed without prior approval of Crim Div.
ii. Why does DOJ exercise such control over RICO indictments vs. MF, for example?
1. Allegations that one is a ―racketeer‖ can be damaging.
2. RICO convics bring stiff sentences – up to 20 yrs or life.
3. Federalism concerns
a. RICO charges can be based on racketeering activity covered by st law, so the statute
creates possib of fed intrusion into areas of traditional st/local enforcement.
b. But so does Travel Act, which is one of the ―racketeering activities‖ incl in the list of RICO
4. ** (most important) ** RICO indictments allow gov to cast wide net that drags large and diverse
cast of Ds + broad variety of acts into the same ct rm, or at least into the same indictment.
a. ―synergistic benefits‖ that inevitably result fr liberal joinder.
b. Conspiracy indictment can potentially do same thing, often does.
i. But scope of one conspiracy is limited by single agreement.
c. Tying crim liab to ―enterprise‖ instead of single agreement, RICO extends farther.
d. Allowing prosecs to draw many diverse crimes together in a single case, RICO creates
framework that makes convic + substantial punishment more likely.
d. Civil Side
i. Private Ps can seek treble dmgs and atty‘s fees for RICO violations under 1964c
1. 1964c – statute‘s priv rt of action prov
ii. No gov gatekeeping for priv RICO claims
iii. Selection bias away fr organized crime grps that statute was designed to target
1. Few priv Ps sue Mafia fams, st gangs, or corrupt politicians.
iv. How does the fact that priv Ps regularly, sometimes abusively, file RICO complaints affect the ―power of
initiation‖ that fed prosecs generally exercise over the development of fed crim law? (Dan Kahan)
1. Same dual-track lawmaking prob that cts confront in civ rts area, where scope of crim liab under
civ rts statutes is subj to expansion in civ suits brought under 42 USC 1983 and Bivens.
2. Cts can sep 2 tracks by focusing on RICO ―standing‖
a. Standing – the one aspect of a priv RICO action that doesn‘t mirror the elements of a
RICO crim indictment.
b. Certain stat interpretation issues are more likely to arise in civ RICO cases than in crim
i. Ie. degree of overlap b/t RICO ―person‖ (civ D) and the alleged ―enterprise.‖
3. Challenge of integrating – or segregating – these two bodies of law.
a. Civ RICO law may be broader than crim, bc civ claims are often brought under 1962a and
b, which encompass ―racketeering‖ by legit businesses.
i. 1962c elements of standard RICO prosec against a ―person‖
1. Existence of an enterprise
2. Person‘s ―assoc with‖ or ―employment‖ by the enterprise.
3. Req connection b/t the enterprise and interst and foreign comm.
4. ―Conduct‖ or ―particip in the conduct‖ of the enterprise‘s affairs.
5. Through ―a pattern of racketeering activity.‖
ii. Difficult factual and legal issues generally arise with ―enterprise‖ element, ―conduct‖ element, and ―pattern‖
iii. Interst comm. nexus is rarely a barier to RICO prosec.
iv. Req of assoc w/relevant enterprise tends to be subsumed in the req that D particip in the conduct of the
v. Defining RICO ―enterprise‖
1. Q of whether ―enterprise‖ under RICO could incl purely crim orgs
a. Whether law can be applied only if Ds of organized crime infiltrated a legit biz, not an
2. US v. Turkette
a. ―There is no restriction upon the assoc embraced by the def: an enterprise incl any union
or grp of indivs assoc in fact. On its face, the def appears to incl both legit and illegit
enterprises w/in its scope; it no more excludes crim enterprises than it does legit ones.‖
b. Federalism concerns
i. Congr was well aware it was entering a new domain of fed involvement through
enactment of this msr.
ii. Very purpose of the Organized Crime Control Act of 1970 was to enable Feds to
addr large and seemingly neglected prob, which was of natl dimensions.
iii. That Congr incld within the def of racketeering activities a number of st crimes
indicates RICO criminalized conduct that was also crim under st law, at least
when the req elements of a RICO offense are present.
c. Hold: RICO enterprise can be crim gang or organized crime fam.
III. Boyle v. US
a. FACTS: D particp in series of bank thefts; participants incl a core grp; usually targeted cash-laden night-deposit
boxes; grp met beforehand to plan the crime, gather tools, assign roles; split proceeds fr thefts; grp was loosely and
informally organized; no leader/hierarchy; particips didn‘t formulate long-term master plan or agreement.
i. Core grp was responsible for thefts over course of nearly 10 yrs.
ii. D convic for particip in conduct of the affairs of an enterprise through a pattern of racketeering activity +
iii. Jury instruct – Gov must prove that: "(1) There was an ongoing org w/ some sort of framework, formal or
informal, for carrying out its objectives; and (2) the various members and associates of the assoc functioned
as a continuing unit to achieve a common purpose."
1. Jury could "find an enterprise where an assoc of indivs, w/o structural hierarchy, formed solely for
the purpose of carrying out a pattern of racketeering acts" + "common sense suggests that the
existence of an association-in-fact is oftentimes more readily proven by what it does, rather than
by abstract analysis of its structure."
iv. D requested jury instruct – Gov must prove that enterprise "had an ongoing org, a core membership that
functioned as a continuing unit, and an ascertainable structural hierarchy distinct fr the charged predicate
b. ISSUE: What is the meaning of a RICO enterprise?
i. Whether an assoc-in-fact enterprise under RICO must have ―an ascertainable structure beyond that inherent
in the patter of racketeering activity in which it engages.‖
c. HOLD: Such an enterprise must have a ―structure.‖ But an instruction frame in this precise lang isn‘t nec.
i. Jury instructions were correct and adeq: jury can‘t convic unless Gov proved existence of an enterp.
ii. Proof of pattern of racketerring activity may be sufficient in certain cases to permit jury to infer existence of
an assoc-in-fact enterp.
i. Statute – statutory features
1. ―enterprise‖ incl ―any indiv, partnership, corporation, assoc, or other legal entity, and any union or
grp of indivs assoc in fact although not a legal entity.‖
2. Broad, encompassing ANY ―grp of indivs associated in fact.‖
3. ―any‖ – ensures def has wide reach.
4. Concept of an assoc is expansive.
5. Provides that RICO terms are to be liberally construed to effectuate its remedial purposes.
ii. Def from Turkette
1. ―enterprise‖ incl ―any union or grp of indivs assoc in fact."
2. RICO reaches "a grp of persons assoc together for a common purpose of engaging in a course of
3. Proof of enterprise
a. Proved by ev of an ongoing org, formal or informal, and by ev that various associates
function as a continuing unit.
iii. 3 questions
1. Must an assoc-in-fact enterprise have a structure?
2. Must the structure be ascertainable?
3. Must the structure go beyond that inherent in the pattern of racketeering activity in which
its members engage?
1. Assoc-in-fact enterprise must have a structure w/at least 3 structural features:
i. venture, undertaking, project
b. Relationships among those assoc w/the enterprise
i. interpersonal relationships + common interest
c. Longevity sufficient to permit these associates to pursue the enterprise‘s purpose.
i. Proof that enterprise had ―affairs‖ of sufficient duration to permit an assoc to
―participate‖ in those affairs thru pattern of racketeering activity.
2. Assoc-in-fact enterprise = grp of ppl assoc together for a comm. purpose of engaging in a course
of conduct (Turkette).
3. Though assoc-in-fact enterprise must have struc features, ct doesn‘t have to use term ―structure‖
in jury instructions.
1. When jury must find existence of an element beyond reasonable doubt, that element must be
―ascertainable‖ or else jury couldn‘t find that it was proved.
a. Telling jury they have to ascertain existence of ―ascertainable structure‖ is redundant and
vi. Beyond that inherent in the pattern of racketeering activity
1. Correct phrase if: interepreted to mean that existence of an enterprise is a sep element that must
a. Existence of an enterp is an element distinct fr the pattern of racketeering activity and
proof of one doesn‘t nec estab the other.
2. Incorrect phrase if: used to mean that the existence of an enterprise may never be inferred fr the
ev showing that ppl assoc w/the enterp engaged in a pattern of racketeering activity.
a. The ev used to prove the pattern of racketeering activity and ev estab an enterprise may
coalesce in partic cases.
vii. D argument
1. RICO enterp must have struc feats in addition to those that we think can be fairly inferred fr lang
2. Concedes that assoc-in-fact enterp may be ―informal‖ grp + ―not much‖ struc is needed.
3. But enterp must have some additional struc attribs, like ―hierarchy,‖ ―role differentiation,‖ ―unique
MO,‖ ―chain of command,‖ etc.
viii. Structural Requirements – breadth of the ―enterprise‖ concept in RICO
1. Assoc-in-fact enterp is simply a continuing unit that fxns w/ a comm purpose.
2. Grp need not have a hierarchical structure or a "chain of command"
3. Decisions may be made on an ad hoc basis and by number of methods – majority vote, consensus,
show of strength, etc.
4. Members need not have fixed roles.
a. Diff members may perform different roles at diff times.
5. Need not have a name, reg mtgs, dues, estab rules and regulations, disciplinary procedures, or
induction or initiation ceremonies.
6. While grp must fxn as continuing unit and remain in existence long enough to pursue a course of
conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity
punctuated by periods of quiescence.
7. RICO not limited to grps whose crimes are sophisticated, diverse, complex, or unique.
ix. D‘s Merger Claim
1. Rejection of D‘s arg wrt struc characteristics doesn‘t lead to a merger of 1962c and: operating a
gambling biz (1955); conspiring to commit one or more crime listed as RICO predicate (371); or
conspiring to violate RICO (1962d).
a. Proof that D violated 1955 doesn‘t nec estab that D conspired to particip in affairs of a
gambling enterp through a pattern of racketeering activity.
i. To prove RICO, must prove D committed a pattern of violations.
ii. No such pattern is needed to estab simple violation of 1955.
b. Proof that D conspired to commit RICO predic offense, like arson, doesn‘t nec estab that
D particip in the affairs of an arson enterp through a pattern of arson crimes.
i. 1962c demands much more than conspiracy
1. Conspiracy – crime can be committed just by formation of agreement +
overt act in furtherance.
2. 1962c req creation of an enterp – grp w/comm. purp and course of
conduct + actual commission of a pattern of predic offenses.
x. Statutory lang is clear
1. Clear but expansive text of the statute
2. Refuse to adopt narrowing construction of RICO to make it conform to preconceived notion of what
Congr intended to proscribe.
e. DISSENT (Stevens)
i. Congr intended ―enterprise‖ to refer only to biz-like entities that have an existence apart fr the predicate
acts committed by their employees or assoc.
ii. Though instructions need not contain word ―structure,‖ instructions must convey req that enterp have an
existence apart fr the alleged pattern of predicate acts.
1. Ct allows juries to infer existence of an enterp in every case involving a pattern of racketeering
activity undertaken by two or more ppl.
iii. Ct allows gov to prove both elements with the same ev.
1. So ct renders enterp req meaningless in assoc-in-fact cases.
2. Threatens to make 1962c offenses indistinguishable fr conspiracies to commit predicate acts.
a. Only remaining diff is 1962c‘s pattern req.
iv. Bc its unlawful to conspire to violate 1962c, ct gives no assurance that RICO and 371 offenses remain
1. Only if proof of enterp element reqs ev of activity or org beyond that inherent in the pattern of
predic acts will RICO offenses retain an ID distinct fr 371 offenses.
i. Boyle – ex of SCT‘s reluctance to define outer lims of what constitutes a RICO enterp.
1. Has rejected restrictive circ ct decisions + approved more malleable and capacious formulations.
ii. Scheidler II – speaks to what ―enterprise‖ does NOT mean.
1. Practical meaning of the term often seems strategic and varies fr case to case.
2. Which ―enterp‖ to allege may turn more on relationship of charged D to the enterp than on the
character/cohesion of the enterp itself.
3. Yet results may turn on which ―enterp‖ prosecs choose to allege.
a. The smaller and more tightly defined the enterp is, the easier it is for prosecs to prove
that a given D particip in the conduct of the enterprise‘s affairs.
b. The braoder and more far-reaching the enterp, easier it is for prosec to join a wide range
of crimes and Ds in a single prosec.
iii. Clearly defined organizational structures can be carved up into a variety of RICO enterprises.
1. Ex. Gov defined as RICO enterprise the ―Commission‖ comprising leadership of all Cosa Nostra
fams in NYC, and in other cases, treated Colombo Fam as its own RICO enterp.
iv. Turkette def of an enterprise
1. Refers to 2 factors
2. Both factors seem to add up to ―unit cohesion‖
3. Requisite degree of cohesion (US v. Nascimento)
a. Exhibiting grp cohesion over time
b. Membership pooled and shared resources
c. Indivs involved had a sense of belonging + self-identified as ―Stonehurst‖ members
d. Group had well-honed set of goals
4. Though enterprises – legal and illegal – are artificial, abstract entities, cts seem drawn to lang
referring to phys shape and size.
v. Diff pictures satisfying ―enterprise‖ structure element
1. Gang in Nascimento had no obvi vertical structure.
a. Absence of talk ab gang‘s hierarchy
b. No organization chart for the gang
c. Not much ev of horiz structure
d. Lack of discussion of div of labor b/t diff gang members, w/diff personnel specializing in
e. Gov‘s ev painted pic of commune-like org in which all share equally.
i. Equality, sameness
2. But usually, org and struc imply inequality and diff.
a. Indiv members have distinct jobs, some members take orders fr others.
IV. US v. Cianci
a. FACTS: Mayor + City Dir of Admin + City Towing Assoc member charged with violating fed statutes prohib pub
corruption; conspiracy to violate RICO.
i. Conspiracy to operate the affairs of an enterp consisting of Ds, the City of Providence, officers, agencies,
entities of Providence.
ii. Purpose of enterp – enriching D + friends of D through extortion, MF, bribery, ML, and witness tampering.
iii. Used municipal entities that Ds controlled as part of the conspiracy to further their purpose and goals.
i. Municipal entities + unlawful purpose
1. [D claim – legal imposs for municipal entities to be part of the unlawful purpose associated-in-fact
enterp bc municipalities can‘t act w/unlawful intent.]
2. Municipal entities CAN be part of an unlawful purp assoc-in-fact enterp so long as those who
control the entities share the purposes of the enterprise.
a. City + agencies aren‘t Ds, they are deemed members of the enterp bc w/o them, Ds
couldn‘t perpetrate the racketeering schemes.
b. Groupings of indivs + corp/municipal entities can be sufficiently organized and devoted to
illicit purposes so resulting whole functions as continuing unit.
c. Req gov to prove that all named members of enterp share comm. purpose of illegality
doesn‘t mean gov must show that City itself had mens rea to seek bribes/extort.
ii. Enterprise – control + common purpose
1. [D claim – Insufficient ev to show schemes were conducted through entity alleged in the
indictment to have consistuted a RICO enterp; no ev to infer shared purp b/t Ds and municipal
entities through which schemes were conducted]
2. Ds + others named comprised ongoing org that functioned as a continuing unit and was animated
by comm. purposes or goals.
a. Ds exercised substantial control over municipal entities
i. Used positions + influence to sell municipal favors on a cont basis.
ii. Close relationship ―in fact‖ b/t Ds, City, and D‘s political org.
iii. Influence over City employees and depts.
iv. Schemes could only fxn w/cooperation of City agencies + officials.
3. Bc of this control + close connex, jury could impute enterp‘s comm. purpose to the City.
4. Ev of contol was sufficient to deem enterp a ―continuing unit‖ and ―ongoing org.‖
a. Cianci at top + Corrente as mid man + others who fed deals into the org.
b. Used agencies to commit series of related bribes + extortions.
iii. Glitches in the schemes
1. Fact that some racketeering schemes didn‘t go as planned, and that certain elements within City
may not have completely complied w/Ds wishes, doesn‘t defeat integrity of the charged enterp.
2. Glitches only mean that certain substantive crimes went uncompleted.
i. No proof that Ds controlled activities of all municipal entities alleged to be associates of the enterp that Ds
shared crim purposes are reasonably imputed to ea entity.
1. Lack hiring authority
2. Can‘t contractually bind City depts.
3. Can‘t sell City prop
4. Can‘t grant or deny construction variances
ii. Neither D dominated affairs of the depts, offices, agencies such that ea municipal entity might fairly be
found to have been an alter ego of either D.
iii. Instead, Ds periodically used the pwr inherent in their positions to influence decisions of other municipal
actors, who weren‘t privy to or supportive of the enterprise‘s purposes.
iv. Broad case theory
1. Maybe a case of pub corruption or smaller, assoc-in-fact RICO enters, but gov persuaded jury to
cast a wider net and alleged a de facto organized crime syndicate.
2. Framing the cas this way allowed Gov to allege Ds were responsible under RICO conspiracy for all
illegal conduct even that in which they were not shown to have personally participated.
v. RICO as powerful weapon
1. Can be abused by overzealous prosec
2. Fear conseqs of making the statute too easy to invoke, too easy to apply broadly
a. Esp in political context – ppl who make contribs get favorable treatment.
i. Opportunity (and oblig) to prove a broad crim enterprise
1. Cts consistently say that RICO enterp must be more than sum of its members predicate crimes.
2. But consider manner in which enterp element is proved.
a. Mere gathering for drinks before or after crime can be proof of the enterprise‘s existence.
b. Gangs – colors + signs can constitute ―enterprise‖ work
3. Allows prosecs leeway to intro ev of uncharged crimes, incl ones that happened long ago.
4. Enterprise element in RICO allows prosecs to range widely in D‘s life to paint most advantageous
ii. Cts are still uncomf when political units like state/cities figure into ―enterprise‖ def
1. US v. Warner – RICO prosec of former IL Gov George Ryan
2. Q whether st can be an ―enterprise‖ for RICO prosec purposes.
a. Even if one or more civ remedies might be inapplicable to a particular illegit enterp, this
fact doesn‘t serve to lim the enterp concept.
i. (D claims that statute provides for ―dissolution or reorg of any enterp,‖ but no ct
could disband a sovereign state).
b. RICO provides menu of remedies; doesn‘t matter if one or more of the items on the menu
might be unavail in a particular case.
c. Call for caution, but some cases are exceptional and prosec may have no real alternative
to naming the st as a RICO enterp.
i. No legal rule prohib prosec fr concluding that there was no single entity or office
that it could have identified, short of the st as a whole, that would encompass
the enterp that was used by the Ds.
d. Comity interests don‘t override the broad lang of RICO.
iii. Should ―enterprise‖ be defined diff in corruption cases like Warner and Cianci than in Mob cases like
Turkette or gang cases like Nascimento?
1. Gov agencies have larg msr of org and continuity, the 2 factors Turkette says determine the
existence of a RICO enterp.
2. RICO statute seems to have been written priarmily as means of attacking crim infiltration and
control of legal enterprises – presumably incl gov agencies controlled by corrupt politicians.
3. Yet, Warner and Cianci were obvi seen by cts as hard cases, not easy.
I. 2 Side Points
a. Santos and the risk of Congr overruling
i. Utterly clear that if Santos came out Scalia‘s way, which it basically did, Congr would overturn it.
ii. Reason why: proving expenses (which you must do if proceeds = revenues – expenses) is nearly imposs.
1. Would disable gov from pursuing majority of ML cases – Congr just wouldn‘t let that happen.
iii. Used to be some sense among SCT that if Congr overruled decisions, that means they did something wrong
1. Some ev that Congr overruling used to operate as a kind of deterrent (―we wont make a decision
like that again‖)
2. No flavor of this sensibility in Santos at all – was completely obvi it would be overturned.
iv. What‘s up with that?
1. Conseq of the rise of textualism.
2. Conventional understanding was that in stat interpr, you figure out what Congr intended – not
looking at text as only ev of what Congr intended, but whole thing.
a. Also - cts should look at not just intent at time statute was passed, but also current Congr
3. When stat interp cases turn on Congr intent, you can see why cts might feel slapped down if their
decision was overturned by the very body whose intent they were trying to msr.
4. But if stat interp rests only on text Congr passed, no sense of being slapped down – in fact, Scalia
would likely have sensibility that he helped to clarify the law.
b. Tom DeLay‘s state ML prosec
i. Took large corp contribs fr his PAC and directed a large portion of the contrib to the RNC or other republic
ii. Party bodies then gave $ (distinct fr DeLay‘s corp money) to st leg campaigns in TX.
1. Corp campaign contribs to state office are illegal in TX.
2. Conventional ML theory: hidden illegal campaign contribs.
iii. How would this work in Fed law?
1. 2 diff kinds of ML
a. Intent to promote ML (1956a1A)? Yes.
i. Without merger prob that was concern in Santos – bc routing money through
party agencies differentiates what DeLay did fr simple illegal campaign contrib.
ii. He did something more than just give corp money to st campaigns – there was
an extra transaction, to the two offenses aren‘t exactly the same (gets rid of
b. Promote illegal biz? Yes.
c. Disguise or conceal? Yes.
i. Funneling money through the party is an extra financial transaction (See: Colon)
– deceptive step designed to hide the origins of the money (cleanse illegal
2. DeLay could prob be charged successfully with either kind of ML.
3. Caveat: not clear what rt answer is, as a matter of fed law, to DeLay‘s argument that the money
he gave is distinct fr the money given to the st campaigns.
a. How do you prove that this is corp money?
i. There aren‘t two sep boxes of money – money is money and this is all fungible
even if $ is in diff accts.
1. Money goes into party coffers, and then party turns it out right away to
state leg candidates in a way it had never done before = suspicious.
1. The closer these amts are to the same – DeLay gives $1000, and Repub
party turns out $1000 to candidates = suspicious.
2. Gov has a pretty good causation argument w/ amounts
b. How do you make an argument for DeLay?
i. Separate accts does mean something.
ii. Intent argument – he didn‘t know the money would be used for this purpose.
c. If you buy DeLay‘s argument, he seems a little naïve. And he‘s not – this is a long-time
d. Seems like case boils down to formal and functional lines.
i. Functional argument - $ is fungible.
ii. Formal argument – sep is sep.
4. Think about law of campaign contribs with extortion
a. Basically a law of extortion for campaign contribs and then one for everything else.
b. For campaign contribs – basically imposs for Gov to make out a case. Why?
i. If you go beyond enforcing the forms of campaign contrib. doctr, an awful lot of
campaign contrib. transactions will look suspect.
ii. LOTS of potential bribery cases bc members do favors for constituents based on
5. Q of whether if DeLay‘s case were brought in fed ct, it would boil down to concern about using ML
statute as adjunct to law of campaign finance.
a. In same way SCT is worried about using law of extortion as adjunct to law of campaign
II. The law of ML (cont‘d)
a. Summary – ―intent to promote‖ ML + ―conceal or disguise‖ ML
i. 2 ML offenses
1. ―Intent to promote‖
2. ―Conceal or disguise‖
ii. Essence of ML is either using $ for a crim biz to promote that biz (to invest in the biz) OR hiding the
money‘s source or its ownership.
iii. Intent to Promote ML is likely to be done by the underlying offender.
1. Likely to look like Santos – he‘s the guy operating the illegal lottery – and also D charged with
intent to promote ML.
a. Prosec for both gambling + ML charge.
iv. Conceal or Disguise ML can be done by either the offender or by financiers and bankers (ppl who just
handle money for a living).
v. Orig, Conceal or Disguise ML was the big deal, precisely bc it could be used to get bankers who handle dirty
1. But in prac, the ML statute has almost never been used to get bankers – instead it has been used
against indiv offenders (Santos, Colon).
a. Either as add-on crime, or substitite for charging underlying crime.
2. Conceal or disguise offense has remained bigger deal of 2, but for another reason.
a. Hard to prove spending by crim enterprises on the enterprise.
i. Very reason why proceeds must revenues rather than profits, bc that kind of
spending is otherwise hard to prove.
ii. Easier for gov to trace purchase transactions (purchased speedboats in someone
else‘s name w/Colon vs. investments he made for drug operation)
1. Why Santos was immed overturned.
vi. End up with two firms of ML
1. First used occasionally, second used more freq – but second used in a way that is v diff fr what
congr authors expected.
b. 3 Misc. Loose Ends
i. Congr and the ―merger problem‖ in the wake of Santos
1. Congr could‘ve resolved the relevenat prob by spelling out a merger doctrine.
a. Merger prob: intent to promote ML charges + underlying charge are proved with same ev
and conduct – looks like your‘e being prosec 2x for same thing with diff statutes.
2. Instead, Congr incl in the statute a ―Sense of Congr‖ provision (pg. 507). WHY?
a. Congr prefers restricting crim liab through enforcement discretion, to restricting crim liab
through legal doctr – at least in this area.
i. May want to send msg to prosec, but not actually want to tie prosec‘s hands.
ii. Don‘t know what fact patterns might arise in the future where we might actually
b. That means - this area is precisely the same as the law of civ rts crimes.
i. Same thing happens – through congr hearings, rather than sense of congr
ii. Congr wants to write v broad hate crimes statute, but only prosec under it a
handful of times per yr.
c. This is fed crim law in a nutshell
i. Pattern – congr enacts broad liab, but prosec enforce narrowed liab.
ii. Make it easier to prosec the small subset of cases that they want prosecuted.
iii. Way of restricting prosec to small number of cases without making prosec of
other class of cases more difficult.
ii. Santos and the rule of lenity
1. Hard to think of opinion that incl this lengthy, detailed discussion of rule of lenity.
2. Rule of lenity almost aways tossed-off argument – give it a paragraph at the end.
a. Pops up more commonly in dissents than in maj or plurality opinions.
3. What‘s going on?
a. Scalia: Here are textual aguments on my side + textual arguments on the other side.
i. It‘s a tie, and ties go to the D.
b. Then, balance of the opinion is about why the merger prob would be so bad if the
dissenter‘s rdg were to hold.
i. Ie: it‘s not a tie after all.
c. Which side the opinion actually means is to be determined.
iii. Corchado and Rivera and law of willful blindness
1. 2 kinds of knowledge req in Conceal or Disguise cases
a. Knowledge that the money amts to proceeds of unlawful activity.
i. Wrt to both Corchado + Trinidad, Boudene says it doesn‘t matter whether std is
knowledge or WB – under either, gov‘s argument is pretty much same.
1. Given what we can prove D did know, D must have figured that money
ii. If that‘s what WB actually means – then it means nothing.
1. It‘s just another way of describing knowledge – inferring knowledge fr
circumstantial ev (which is way knowledge is always proved).
iii. This is most often how WB is charged – dominant approach to WB.
b. Knowledge that the transaction is designed to conceal or disguise the source or ownership
of the money.
III. Intro to RICO
a. Comparison to conspiracy
i. RICO is vastly more demanding than gov than the law of conspiracy.
1. Conspiracy – gov must prove agreement, and that‘s p much it.
2. RICO – gov must prove existence of enterp + particip in conduct of enterp‘s affairs + distinct
crimes by ea D (predicate acts of racketeering activity) + relationship among those crimes (pattern
of racketeering activity).
3. WHY is RICO so demanding?
a. Often statutes enacted not to give gov more liab, but in part to insulate some Ds from
i. Whereas, RICO enacted to expand conspiracy liab – remedy to fact that
conspiracy liab was too constricted in some cases bc it‘s limited to a single
1. Congr wanted to get at crimes that go beyond a single agreement –
that approx a network of agreements.
b. If you are dramatically expanding crim liab, why do it in a way that reqs Gov to prove
long list of things they don‘t have to prove w/ conspiracy?
i. RICO doesn‘t req quite as much as first appears bc cases are brought not just
under 1962c, but also under 1962d (conspiracy to commit RICO violation).
1. When facing conspiracy to commit RICO – gov doesn‘t have to prove all
the same things needed under 1962c.
ii. By req gov to prove all of these elements under 1962c, statute allows gov to
bring into a single trial ev of lots of diff crimes by lots of diff Ds.
4. Global point about RICO
a. Fundamentally a joinder statute as mucha s it is a crim prohib
b. Designed to expand the scope of crimes and the number of Ds who can be brought
together in a single proceeding.
i. That‘s it‘s biggest effect and wehat is at stake in every legal issue that arises in
ii. Bring charges together that would otherwise have to be brought separately.
b.Statute‘s structure, Turkette
i. Most natural reading of 1962 a b and c
1. 1962a – investing proceeds of mob-type racketeering activity in an enterp (legit biz)
a. Sounds like ML charge – where money goes into some legal biz, not a crim enterprise.
2. 1962b – acquiring legit biz through acts of racketeering activity.
3. 1962c – operating legit biz through acts of racketeering activity.
ii. RICO enacted as anti-Mafia statute of a particular sort
1. Thought that worst thing about mafia-style org crime was that it corrupted legit biz – so RICO was
designed to get at that.
iii. Until Turkette...
1. Changed this – says that 1962c applies to crim enterprises in addition to legal ones.
2. You see both Boyle and Nascimento (mafia, gang) + Cianci and Warner (legal gov agencies).
3. Ever since Turkette, 1962a and b have dropped out of statute as far as crim liab – now they just
exist for civ proceedings.
a. Now all crim RICO cases charge 1962c + d (conspiracy part)
c. Elements of a 1962c charge (see pg. 527)
2. Particip in the conduct of the enterprise‘s affairs
3. Through a pattern
4. Of racketeering activity
ii. Elements 2 and 4 are about what the D did
iii. Elements 1 and 3 are about relationships
1. Among Ds, among crimes
iv. Historically, the enterprise element has been the hardest to prove and the element that has attracted the
1. Boyle may well change that – a few yrs fr now, may well be the case that the particip element will
turn out to be the central element in a RICO charge bc the enterp element has been sufficiently
broadened by Boyle.
2. May be the case that the cheap way RICO charges are bounded is not by placing bounds on the
enterprise, but bounds on the Ds who can be charged as members of the enterp.
IV. The meaning of ―enterprise‖
a. Statutory Language (pg. 522) 1961(4)
i. ―‘ enterprise‘ incl any indiv, partnership, corporation, assoc, or other legal entity, and any union or grp of
indivs associated in fact although not a legal entity.‖
ii. Doesn‘t give any type of def or tell you what enterprise MEANS – places no boundaries on enterprise; incl
everything under the sun.
1. At least honest services excludes some things and provides for breach of K.
iii. This is why meaning of enterp has been a matter for comm law dvpt fr the get go.
1. Cts recognized that if enterp really mans everything, then you have to worry about the
constitutionality of the statute.
2. Development of law of enterp = law, drawn-out version of what you see in Skilling with intangible
a. Take away poss claim that law has no boundaries and is constl vague.
iv. Business of defining comm. law of enterprise.
b. Common law begins w/ 2 definitions fr Turkette
1. A grp of persons associated together in comm. purpose of engaging in a course of conduct.
2. Ongoing organization that functions as a continuing unit.
ii. Historically, ongoing org + continuing unit quote was buzz phrase cited and quoted in every RICO enterp
case in lower fed cts before Boyle.
iii. What is going on in Boyle is not so much a clarification as a re-definition of enterprise.
1. Org + cont unit has 2 ideas
a. Time – ongoing, continuing
i. Longevity – sustained course of conduct.
b. Structure – organization, unit
2. Historically, those were the 2 ideas – esp the second one (structure) – that dominated RICO
a. Gov had to prove the organization chart of the enterprise.
iv. 2 ideas added in Boyle
1. Relationship – associated together
2. Common goal – common purpose
v. After Boyle, the def of enterprise is built around 3 ideas, and not 2:
2. Common goal/purpose
vi. What does this new defintion mean in prac?
1. Boyle gets rid of idea that proof of an enterprise must mean proof of an org chart – or that any
enterp must have some partic kind of org chart.
a. Significance of this is substantial: before Boyle, was unclear whether ―one-level‖ horiz
enterprises, in which members are all on equal footing (with no boss + underlings), could
ever be enterprises.
i. Nascimento was v controversial – and ct says ―this is an enterprise, barely.‖
2. What replaces org chart – what ev required to prove enterp now?
i. Proven by repeated interactions
ii. Doesn‘t matter that they are repeated criminal actions
1. Gov puts on ev that ppl played golf together, engaged in soc
b. Common purpose
i. Making money, committing acts of bank theft
ii. Proven by proving acts of bank theft
i. Over extended period (2 yrs is more than enough).
c. Boyle and Nasicmento
i. Were prev hard RICO cases, now easy RICO cases.
ii. Proof of org chart no longer req.
d. Cianci and Warner
i. Cianci – enterp incl city agencies in Providence, RI
ii. Warner – enterp IS the IL st gov
iii. Before Boyle, the key to the def of enterp was ―structure‖ or ―organization‖
1. Gov agencies like ones at issue in Cianci/Warner have clear and elaborate structures or orgs
2. Gov can always prove the org chart, bc it‘s all public
a. Never one-level lines of authority
iv. Yet even before Boyle, these cases were both seen as borderline cases.
1. Prob still seen as borderline cases. WHY?
2. If you took seriously the enterp lang, these would be the easiest enterp cases – yet cts saw these
as the hardest enterprise cases ever seen.
Federal Criminal Law – Class 21
I. Conducting, or participating in the conduct of, the enterprise’s affairs
a. One who ―conducts‖ something generally thought to play directional role.
b. SCT: even the term ―particip in the conduct‖ reqs that a person have ―some degree or direction.‖
II. US v. Oreto
a. FACTS: Loansharking ring; extortionate lending or collection transactions; made loans to over 300 borrowers at
weekly interest rates of 3-7% (= annual interest of 156-364%, whereas legal rate in MA is 20%); threats and
intimdation used to ensure pmt of loans.
i. Convic for conspiring to violate RICO + one substantive RICO count.
i. Meaning of ―conduct or particip in the conduct of‖ an enterprise
1. Q of how far RICO liab may extend w/in the enterp but down the org ladder.
2. Reves v. Ernst & Young – outside accounting firm employed by an enterp wasn‘t subj to RICO liab
unless it ―particip in the operation or mgt of the enterp itself.‖
a. Some part in directing the enterprise‘s affairs is req.
b. Case about liab of outsiders who may assist the enterp‘s affairs.
i. Accountants were outside the chain of command through which the enterp‘s
affairs were conducted.
c. ―participate‖ = ―take part in‖ the conduct of an enterp by knowingly implementing
decisions, as well as by making them.
d. An enterp is operated not just by upper mgt but also by lower-rung participants who are
under direction of upper mgt.
ii. Statutory purpose
1. To eradicate organized crime, and Congr listed ―loan sharking‖ as a means by which organized
crime derives much of its power.
2. RICO provides that ―collection of unlawful debt‖ is a predicate for RICO liab.
a. Congr intended to reach all who particip in the conduct of that enterp, whether they are
generals or foot soldiers.
i. Foot soldiers may be liable, but perhaps not janitors.
1. US v. Viola – D, who performed odd jobs of light clean-up and maintenance work, had convic
a. Particip was limited to acts undertaken w/o the exercise of appreciable discretionary
b. Not consulted in decision-making process and exercised no discretion in carrying out
c. No ev D was even aware of broader enterprise.
d. D‘s acts may have contrib to success of RICO enterp, but D didn‘t come within circle of
ppl who operated/managed enterprise‘s affairs.
e. ―Not on the ladder at all, but rather, as Viola‘s janitor and handyman, was sweeping up
the floor underneath it.‖
III. Through a pattern of racketeering activity
a. SCT has left considerable rm for dvpt of the law on what constitutes pattern of rack activity.
IV. HJ Inc v. Northwestern Bell Telephone Co.
a. ISSUE: What conduct meets RICO‘s pattern req
i. Congr had more natural, commonsense appr to RICO‘s pattern element – intending a more stringent req
than proof simply of 2 predicates, but also concept of sufficient breadth that it might encompass multiple
predicates within a single scheme that were related and that amounted to, or threatened the likelihood of
continued crim activity.
1. Congr followed pattern of utilizing terms and concepts of breadth.
2. ―Definitions‖ sec of statute
a. Doesn‘t define patter of rack activity, but states minimum nec condition for existence of
such a pattern.
b. Places outer lim on concept of a pattern of rack activity that is broad.
a. No more than 2 predicates are nec to estab a pattern of racketeering.
b. But while 2 acts are nec, they may not be sufficient.
c. Concerns min number of predics nec to estab a pattern + assumes there‘s something to a
RICO pattern beyond simply the number of predic acts involved.
a. Not the # of predicates but the relationship they bear to ea other or to some external
organizing principle that renders them ―ordered‖ or ―arranged.‖
iii. Legislative History
1. Congr had a fairly flexible concept of a pattern in mind.
2. Pattern not formed by ―sporadic activity‖; not a pattern if D committed 2 widely separated and
isolated crim offenses.
3. Continuity + Relationship
a. Reqs showing of relationship b/t predicates + threat of continuing activity.
b. These two reqs for RICO pattern must be stated separately, but in prac their proof will
a. Relationship of D‘s crim acts to one another
i. Acts that have the same or similar purposes, results, participants, Vs, or methods
of commission, or otherwise are interrelated by distinguishing characteristics and
aren‘t isolated events.
5. Continuing rack activity
a. Less inflexible approach than ―multiple scheme‖ test.
b. Gov must prove continuity of rack activity, or its threat, simpliciter.
c. Both a closed- and open-ended concept, referring to either:
i. Closed period of repeated conduct
ii. Past conduct that by its nature projects into the future w/a threat of repetition.
d. Temporal concept
i. What is continuous (predic acts) and relationship those predics must bear to ea
other are distinct reqs.
ii. Congr concerned w/long-term crim conduct
iii. Demonstrate continuity over a closed period by proving series of related
predicates extending over a substantial period of time.
iv. Predic acts extending over a few wks or mos and threatening no future crim
conduct don‘t satisfy the req.
6. Threat of cont rack activity
a. Depends on specifics of facts of ea case
b. Pattern may be estab if related predics themselves involve a distinct threat of long-term
i. Ex. hoodlum selling insurance to a neighborhood‘s storekeepers, telling Vs he
would reappear ea month to collect premium.
ii. Though number of related predics may be small and occur close in time, the rack
acts themselves incl specific threat of repetition extending indef into the future.
c. Can prove by showing that predic acts are part of an ongoing entity‘s regular way of
i. D operating as part of long-term assoc that exists for crim purposes.
V. US v. Daidone
a. FACTS: D is member of Luchese Organized Crime Family, and organized murders + involved I loansharking
i. D claim – Gov failed to prove that predic acts formed a unitary ―pattern of rack activity.‖
1. 3 acts were committed yrs apart, by diff ppl, for diff reasons.
2. Instead of proving horiz and vertical relatedness, gov improperly used what was essentially the
same ev to prove both avenues of relatedness.
b. ISSUE: ―Relatedness‖ req for establishing a pattern of rack activity for obtaining RICO convic.
i. Pattern of rack activity
1. Crim acts that have same or similar purposes, results, participants, Vs, or methods of commission,
or otherwise interrelated by distinguishing characteristics and are not isolated events.
a. This list is merely a starting point guidepost for the inquiry as a whole.
b. Not a list of elements, ea of which must be proven in order to estab pattern of rack
ii. Relatedness inquiries (to form pattern of rack activity)
1. Predic acts must be related to ea other (horizontal relatedness)
2. Predic acts must be related to the enterprise (vertical relatedness)
3. Vertical – gov must estab:
a. That D was enabled to commit predic acts solely by virtue of his position in the enterp or
involvement in or control over affairs of the enterp.
b. That the predic acts are related to the activities of that enterp.
a. Show that ea predic act is related to the RICO enterp.
i. A predic act is related to a diff predic act if ea predic act is related to the enterp.
b. Can prove horiz by linking ea predic act to the enterp, although the same or similar proof
may also estab vertical relatedness.
iii. Sprawling, complex enterprises are the prototypical targets of RICO
1. Intertwined relationship
a. Predic crimes will share common goals (incr and protecting the financial position of the
enterp) and common Vs (those who threaten its goals), and will draw their participants fr
the same pool of associates (those who are members and associates of the enterp).
2. Pattern req is a bulwark against application of RICO to perpetrators of isolated or sporadic crim
iv. Req inquiries into horiz + vertical relatedness places limits on outer reach of RICO liab.
1. But overlapping of ev that occurs when estab that the predic acts are related to ea other and to
the enterprise is a familiar phenomenon in RICO cases.
i. US v. Cianci – found ―pattern adeq proved in the corrupt prosec of a mayor.‖
1. Ds were beneficiaries of most if not all nine schemes.
2. Schemes often shared same players.
3. Indiv rack acts weren‘t isolated events but rather parts of a pattern of rack act contemplated and
committed by overarching RICO conspiracy.
a. Shown by either series of related predics extending over substantial period of time, OR
b. Pattern of more limited duration where the rack acts themselves incl a specific threat of
repetition extending indef into the future or the predic acts are part of an ongoing entity‘s
reg way of doing biz.
VI. RICO Conspiracies
a. Substantive RICO liab: person charged must have committed at least 2 racketeering acts fr a list of fed and st crimes.
i. 1962c doesn‘t criminalize any conduct that isn‘t already subj to prosec.
b. The ―littlest racketeer‖ who never conspired to commit any predic crimes but has degree of connex to the enterp
might be charged under RICO statute for conspiracy -- as someone who might otherwise be unprosecutable for lack
of proof of his commission of partic crimes.
i. No req of some overt act or specific act.
1. Even more comprehensive than the general conspiracy offense.
2. Broadened conspiracy coverage by omitting req of an overt act.
ii. Conspirator must intend to further an endeavor which, if completed, would satisfy all the elements of a
substantive crim offense.
1. But it suffices that he adopt the goal of furthering or facilitating the crim endeavor.
iii. Can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense.
iv. Makes no diff that substantive offense reqs 2 or more predic acts.
1. Interplay between subsec (c) and (d) doesn‘t excuse fr the reach of the conspiracy prov an actor
who doesn‘t himself commit or agree to commit the 2 or more pred acts.
2. Though no partic D need have committed a substantive RICO violation, someone in the charged
conspiracy must‘ve done so.
VII. US v. Cummings
a. FACTS: Convic for conspiracy to violate RICO; D IL Dept of Employment Security (IDES) employees hired to pull
confidential wage and employer data for debtors, which Morris then gave to collection agencies through his skip
i. D claim – Gov failed to estab that anyone in the RICO conspiracy exercised the required level of direction
over the enterp; failed to estab that predic acats had req nexus w/affairs of the enterprise.
b. HOLD: No Ds conspired knowingly to facilitate the activities of an operator or manager of the IDES, the charged
i. Gov failed to show that Ds satisfied the Reves operation or mgt test.
i. Basic elements of 1962c violation:
2. Of an enterprise
3. Through a pattern
4. Of racketeering activity
ii. 1962c - ―To conduct or participate‖
1. Indicates degree of direction, so Ds charged to have conducted or participated in the enterp‘s
affaris must‘ve had some part in directing those affairs.
a. Mere particip in activities is insufficient – D must particip in the operation or mgt of the
2. Persons outside the enterp
a. Enterp might be operated or managed by ppl assoc w/the enterp who exert control over it
as, for ex, by bribery.
iii. 1962d – the operation or mgt test is applicable in the conspiracy context
1. D must knowingly agree to perform services of a kind which facilitate the activites of those who are
operating or managing the enterp in an illegal manner.
1. IDES = charged RICO enterp
2. Charged rac act = bribery
v. Reves Operation or Management Test
1. No Ds were an operator or manager of IDES
2. Morris, an outsider, was not the enterp‘s operator/mgr.
a. Exercised no control over IDES.
b. Didn‘t conspire to operate/manage the affairs of IDES through bribery of IDES associates.
c. ―An outsider who bribes a public official rarely, if ever, obtains full control of the gov
agency. Rather, the purpose of the bribe is to affect the exercise of a partic fxn of the
agency in a partic situation.‖
3. Not a prototypical RICO conspiracy where low-lev gov employees are bribed to facilitate an
outsider‘s illegal control over the enterp.
a. Ex. bribing accs to make pmts of unemployment benefits to unqualified recipients.
4. At most, ev shows Morris controlled the accomplices, not the enterp.
a. Morries didn‘t control IDES wrt the agency‘s fxn of collectiong premiums and paying
vi. Poss outcome of Gov‘s theory
1. Would transform all garden-variety bribery into RICO violations, irrespective of whether anyone in
the scheme satisfies Reves.
2. Main Q: whether Morris operated or managed IDES‘s affairs through bribery.
3. There was no harm, cost, conseq to the agency employing those bribed.
vii. Ct might conclude diff if Gov had charged Morris‘s skip tracing biz as the RICO enterp.
1. Then operation or mgt test would be satisfied and there might be ev to support RICO conspiracy
a. Gov decides what they have to prove in order to convict.
i. Backwards – usually law defines what gov must prove.
b. RICO isn‘t one crime – incl universe of potential crimes that can be charged.
i. Exception and not the rule that there‘s only one way to charge a RICO case, and only one enterprise.
ii. Think about what the poss enterprises are – usually will come up with more than 2.
c. Boyle is a rare case, where there‘s really only way to charge it.
II. Legit and illegit ―enterprises‖
a. Cianci and Warner pre-Boyle
i. Before Boyle, key to enterprise was structure/organization
ii. Pre-Boyle, these should have been the easiest enterprise cases bc the organizational structure is public –
but they were not. WHY?
1. Federalism concerns? Maybe
a. Problematic that fed gov is prosec not only someone who can be prosec in st ct, but also
a st public official.
i. But, when high officials like this get prosec, they are usually prosec federally.
ii. Can argue the pt both ways.
b. Fed cts are sometimes wary of cases brough against st and local officials.
2. Opens up the state to liability
a. Cianci and Warner are examples of common phenomenon.
i. A lot of RICO is distinctively civil or distinctively criminal.
ii. Not going to sue Mafia family – need to get crim or wont get at all.
iii. But Cianci/Warner, law can apply on both sides – cts are more attentive to
implications of their decision.
3. Judicial holding that these entities are crim enterprises, is itself, stigmatizing to some ppl who are
innocent of any wrongdoing.
b. Cianci and Warner post-Boyle
i. Relationship factor
1. How would Cianci Ds argue that city agency is not an enterp?
a. What are the interactions b/t Cianci and ppl carrying out the schemes?
i. Really wasn‘t much interaction at all – that‘s going to more often than not be
true of hierarchical organizations.
2. Gov reply
a. The prob that motivates all of these statutes – how do we get the bosses?
ii. Common purpose
1. Will never not be satisfied if this common purpose suffices.
2. Gov reply: Any kind of diversified crim enterp now falls.
a. You could get Boyle/Nascimento under conspiracy (don‘t even need RICO).
b. What you can‘t get w/conspiracy is multiple lines.
i. You wouldn‘t be able to get mob fams, would have to focus on single lines of
c. Large majority of urban gangs commit wide variety of crimes.
i. If you can‘t have general common purpose (like purpose to enrich members of
enterprise), you can‘t get enterprises like this.
3. If you build your def of enterp around cases like Boyle and Nascimento, you will only get cases like
Boyle and Nascimento.
a. But that simply can‘t be – no ct will say you can get Boyle/Nascimento under RICO but
can‘t get Sunny Ciconne under RICO – just not a poss.
iii. Boyle‘s def of enterp will turn out to be supplemental
1. Add to, without replacing, the preexisting def of enterp.
2. Relationship element is going to be satisfied not just by repeated interactions but by a detailed
3. Common purp element will be satisfied by common purpose to make money.
iv. After Boyle, these cases will come out pretty much the same as before Boyle.
1. Sometimes gov wins, sometimes gov loses = borderline cases.
2. Borderline bc of specter of RICO litigation.
v. This means that RICO has been completely turned on its head.
1. Began as statute to punish partic kidsn of corruption of LEGAL enterprises.
2. Now, cases involving illegal enterprises are much easier for gov to make out than cases charged
against legal enterprises.
vi. There are at least 3 working definitions of enterprise now.
1. Must pay attn to what kind of case your‘e talking about to figure out which definition applikes
c. The muliptle meanings of ―enterprise‖
i. Boyle/Nascimento-type cases
1. Relationshiop – repeated interaction
2. Common purpo – something more specific than making money
ii. Hierarchical org cases
1. Relationshiop – structure
2. Commno purpose – something general as making money
iii. Cases involving legit orgs
1. What gov is doing in Cianci and Warner is presumptively not enough – must make more of a case.
2. General judicial suspicion of this charging pattern – translates into Cianci/Warner being deemed
not easy cases.
III. Participation in the conduct of the enterprises‘s affairs
a. Key issue in this piece of RICO doctr: the particip element clearly covers bosses (ppl who run the relevant enterp),
but how many and what kinds of underlings are liable?
i. How far below bosses does RICO liab extend?
i. Particip element – accounting firm alleged to be one of the members of the enterp, and was one of the
parties being sued.
ii. Ct held – accountants didn‘t satisfy the particip elem bc they weren‘t part of ―the operation or management
of the enterprise.‖
iii. In Oreta/Viola, don‘t see much about operation or mgt.
iv. Reves has come to mean something diff than authors intended.
1. Key fact – that accounting firm was an ―outsider‖ to the coop and not part of the coop.
2. Significance – outside accounts and outside lawyers, 2 grps who would often deal with issues like
the one in Reves, are hard to get under RICO.
v. Reves turns out to be sidepoint in particip doctrine.
i. Oreto Sr. runs loansharking biz, Oreto Jr. + accomplice serve as debt collectors.
1. Clearly Oreto Sr. satisfies particip element bc he runs the enterp.
2. Whereas, Jr + acc are just following orders – doing what mgt says; no discretionary authority.
ii. Gov reply
1. Enterp depends on collecting on the loans – ie enforcing the debts – ie Jr + acc are crucial to the
success of the enterp.
a. Can‘t fxn effectively without them.
2. Maybe not conducting affairs, but they are particip in the conduct of the affairs bc they are doing
something so important to the success of the enterp.
i. Viola clearly satisfies particip element – bc bosess always do.
ii. Again, D had no discretion.
iii. Gov reply
1. Enterp depends on this behavior
2. 2 lines of biz: drug smuggling + theft and sale of stolen goods
3. Success of this line of biz of this enterp depends on getting stolen goods into buyer‘s hands and
getting money in return – not something that Viola does.
a. Like debt collection part of the biz in Oreto.
iv. Oreto and Viola differ in kind and in degree
1. Both are underlings taking orders
a. Oreto – did the activity a lot.
b. Viola – only did it a few times.
2. Organizational chart
a. Oreto – 2 levels, 3 ppl
i. One level down from the boss
b. Viola – wing of a mob fam, bunch of levels, lots of ppl, distinct lines of biz
i. Many levels down – maybe 5 or 6 down
e. One way to think about the cases – they‘re about relative, rather than absolute culpability
i. What the particip element does is to limit the size and scope of the charged enterprise to two or three
levels, not five or sex levels
ii. If that‘s whats going on, it might follow that a differently defined enterp could‘ve included Viola‘s underling,
but you just can‘t incl both in the same indictment.
1. Sometimes gov goes after the top, and sometimes it goes after the bottom.
2. Proposition Viola stands for: can‘t do both at once.
iii. The more broadly the enterp is defined, the closer to the top the Ds have to be.
iv. The more narrowly defined the enterp is, the less restrictive the gov must be in choosing which Ds to
v. The line drawn b/t Oreto and Viola is not primarily about what the Ds did.
1. Key fact: the Ds relationship to the charged enterp.
2. Relationship depends on particip.
vi. Prosec always trading off b/t enterp element and particip element
1. To go after Viola‘s of the world – must stay at top of the food chain
2. To get foot soldiers – stay toward bottom of food chain
a. Basic issue: what sets of crimes are covered?
b. H.J. Inc.
i. Defines basic pattern.
ii. Test: continuity + relationship
1. Notice how much this sounds like test for meaning of enterprise (longevity + relationship +
2. Pattern – relationship among relevant set of crimes
3. Enterprise – relationship among actors
iii. Closed-end schemes – crim schemes with clear termination pt
1. Series of crimes that either explicitly or implicitly clearly come to an end.
2. Time period to satisfy continuity must be substantial – go on for awhile.
iv. Open-ended schemes – sets of crimes that, by their nature, are likely to be repeated indefinitely or as long
as Ds have the opp.
1. Time period can be shorter bc the threat of ongoing crim activity is the important factor.
i. Defines relationship factor
ii. Gov has to prove relationshiop that‘s both horiz + vertical
1. Horiz – relationship among the crimes
2. Vert – relationshiop b/t the crimes and the enterprise
iii. Gov can prove the horiz relationship by proving the vertical one
iv. What the labels mean in prac
1. Relevant crimes: 2 murders + loansharking
a. Vertical relationship – murders done to protect biz
b. Horiz relationship – not isolated crimes; 2 of the 3 were about protecting ability to do the
3rd; the two relationships converge.
i. Applying Diadone‘s test to Cianci
ii. Vertical and horiz relationships turn out to be one thing rather than two
iii. Diadone‘s test, which is not universal, don‘t tend to matter all that much bc the argument always boils down
to the same kinds of fact patterns.
e. Common purpose argument
i. There has to be some limit on this
ii. Common purpose to make money is going to be underlying goal of any enterp.
iii. Unclear where to draw the line.
1. Could be case where prosecs don‘t charge cases where cts wouldn‘t buy the argument.
2. Arguments that just cover the earth and apply to all cases stop at some point.
iv. Everythign you see in RICO is about limits and placing boundaries.
1. Arguments that have no boundaries acquire them over time.
Federal Criminal Law – Class 22
I. Material Support Statutes
a. Terrorism statutes – raise interesting Qs ab outer limits of culpability.
b. Crim law enforcement tools against terrorism
i. Spectrum of crim law provisions used against suspected terrorists.
1. One end – statutes that explicitly focus on terrorist acts.
a. Target those who commit/conspire to commit specific acts that, while amounting to
terrorism, are crim offenses – murder, extortion – no matter who did them or motive.
2. Other end – statutes that are silent as to any terrorist connection.
a. Don‘t seem to have anything to do w/terrorists but are avail for use against those whom
the gov suspects of terrorist connections.
b. Bush Admin‘s ―Al Capone Strategy‖ (post 9/11)
i. Ie. charge potential terrorist suspect w/lesser offenses to remove them fr
ii. Pleas to less serious charges often result in Ds who coop and provide invaluable
info to gov that can lead to detection and prevention of other terrorism-related
c. Despite tactical advantages, risk diminished accountability:
i. Hard pressed to demonstrate that Admin effectively used massive resources
dedicated to counterrorism efforts.
ii. Assurances that rt ppl are being prosec for rt reasons and that terrorist plans
have been disrupted have limits when matters aren‘t subj to any external check.
iii. Ethnic profiling – patterns of minor charges brought against Arab Amers absent
proven terrorist links.
d. Moving in early ensures suspects don‘t do harm or escape – but at cost of ev that might
prove that Ds are actually dangerous.
3. Statutes unrelated to terrorism also used to supplement, not just substitute, terrorism-related
c. Material Support Offenses
i. 18 § 2339A - Providing material support to terrorists.
ii. 18 § 2339B - Providing material support or resources to designated foreign terrorist orgs.
d. Liability Under 2339(A)
i. May impose a form of inchoate crim liab that otherwise might exceed reach of fed law.
ii. Important tool for prosecs trying to intervene at earliest poss pt in cases potentially involving terrorism.
iii. Concerns with expansive reach
1. Approp balance b/t benefits of prevention vs. offsetting considerations like lost opps to gather
intelligence and potential incr in false-positive prosecs.
iv. Features of the statute – broad scope
1. Statute applies w/o respect to whether predic offense actually occurs.
a. So long as D provided support + intent (or knowledge) that supp would be used for
predic offense, liab attaches.
2. Akin to conspiracy
a. Attaches indep of whether predic offense is even attempted, let alone completed.
3. But broader than conspiracy liab
a. Need not prove agreement w/anyone.
i. AR = engaging in the provision of support, not forming agreement.
b. ―Object‖ of support given may be actual commission of predic offense OR conduct merely
constituting ―prep for‖ commission of such an offense.
i. Whereas conspiracy – object must be actual commission of an unlawful act.
4. Preventative capacity of 2339A
a. Practical effect: expanding range of conduct that would count as predic offense, reaching
beyond the offenses themselves to incl anticipatory activity intended to culminate in
i. Statute prohibs provision of supp w/intent to facilitate either a violation of a
predic statute or activity preliminary to such a viol.
b. List of predic offenses under statute incl conspiracy-capable provisions.
i. Can be characterized in terms of aiding-and-abetting a conspiracy.
ii. Crime not only to provide supp w/knowledge or intent that it will facilitate
commission of violent acts, but also to do so knowing or intending that support
will facilitate formation of unlawful agreements.
c. Def of ―material support‖
i. Def is very broad: defined to incl the provision of one‘s own self as ―personnel.‖
1. Ie. Can viol statute by providing one‘s self as personnel to others
w/goal of assisting in commission of, or simply prep for commission of,
a predic offense (incl offense in the nature of a conspiracy).
2. Capacity for gov to intervene in cases involving potential terrorists.
i. Cts don‘t seem troubled by argument that 2339A allows prosecs for multi-level inchoate offenses – ie.
conspiracy to provide material support to conspiracy.
1. But 11th Circ notes: bc statute covers material support given ―in prep for‖ the object offense, one
can imagine Ds charged w/providing material supp for a conspiracy to commit violent acts abroad
even where crime the conspirators planned hadn‘t yet, or never, occurred.
II. US v. Stewart (2009)
a. FACTS: Ds convic for various crimes arising fr contacts w/ and behavior relating to gov restrictions on comms and
other contacts w/Rahman (who is serving life sentence for terrorism-related crimes + subj to ―special administrative
measures‖ – SAMS – restricting ability to comm. w/ppl outside prision to prevent fr cont to lead terrorist orgs/comm
i. In mtgs w/ Rahman, Ds use ―covering noises‖ to obscure msgs passed to him.
ii. Conveyed msg that Rahman didn‘t support ceasefire, so preparations were thereafter made to engage anew
in acts of violence.
iii. D claim – 2339B is unconstitutionally vague, inconstl as a multi-lev inchoate offense.
iv. Gov claim – by coordinating surreptitious passage of al-Gama‘s msgs to and fr Rahman, D provided
―material supp or resources‖ in the form of ―personnel‖ – Rahman – to the conspiracy, knowing or intending
that Rahman, as active co-conspirator, would help commit crimes.
i. Elements of 2339A
1. Underlying Conspiracy to Kill Persons Abroad
a. Concrete legal objective to murder ppl abroad.
i. Fatwa calling for ―the killing of the Jews wherever they are and whether they are
2. Material Support to Conspiracy
a. Helped Rahman particip covertly in conspiracy to engage in violence abroad by
communicating to members of al-Gama his withdrawal of support for cease-fire.
b. Rahman‘s instrumental particip + leadershiop wouldn‘t have been avail w/o active particip
c. Statements weren‘t protected speech
i. Freedom of speech and religion don‘t extend so far as to bar prosec of one who
uses a pub speech to commit crimes.
ii. Speeches crossed line into crim solicitation, procurement of crim activity,
conspiracy to violate the laws.
iii. Words that instruct, solicit, persuade others to commit crimes of violence violate
the law whether they are uttered in priv or in pub, or in administering the duties
of a religious ministry.
d. Role as a ―spiritual leader‖ – intended to sway al-Gama members to end cease-fire and
commit crim acts.
i. Statements were a call to arms, not just expression of opinion on political
situation in Egypt.
e. Not a one-way broadcast of views
i. Comments were made in direct response to solicitations of his views fr other al-
Gama members seeking to end cease-fire.
ii. Statements tailored to and nec for al-Gama‘s operations and incr use of violence.
iii. Ie. crime boss making decisions ab crim enterprise fr prison and ordering a ―hit.‖
3. Knowing or Intentional Provision of Material Support – mental state
a. D actively and intentionally facilitated comm b/t Rahman and al-Gama.
i. Ruses during visits w/Rahman + confirming statement to press.
a. Statute reqs ―knowing or intending‖ that material supp or resources are to be used to
assist in crimes of terror.
i. D claim – insofar as statute doesn‘t req ―consc knowing intent‖ or ―knowledge
and intent,‖ statute is unconstitutionally vague as applied to them.
b. 2339A v. 2339B
i. 2339B – penalizes the knowing provision of material supp alone.
1. Doesn‘t req proof that D has provided supp or resources w/knowledge
or intent that such resources be used to commit specific violent crimes.
c. Factual diffs b/t two indictments
i. First one – provision of communications equip to conspiracy + prov of
themselves as personnel.
ii.Superseding one – charged that Ds acted w/ knowledge or intent to provide
material support + Rahman as ―personnel.‖
d. A statute is unconstitutionally vague as applied if it:
i. ―fails to provide ppl of ordinary intelligence a reasonable opp to understand what
conduct it prohibits‖ or if it ―authorizes or even encourages arbitrary and
ii. Scienter reqs may ameliorate concerns of improper notice.
e. 2339A‘s knowledge-or-intent formulation saves it fr being unconstl vague as applied here.
i. Elim concerns ab inadeq notice bc req Ds knew or intended crim uses.
ii. Heightened scienter req constrains prosec discretion + alleviates concerns of
arbitrary and discrim enforcement.
f. Prob w/using Ds as ―personnel‖ resolved by using Rahman
i. If Ds were personnel, Gov creates situation where Ds could be punished for
providing themselves to speak out in supp of program or principles of foreign
terrorist org (activity protected by 1st Am).
5. Nature of the Offense
a. Claim of unconstl multi-levl inchoate offense.
i. Claim – criminalizes a conspiracy to conspire.
6. Liability under 2339B
a. Elements of sep crimes charged under 2339A and B don‘t overlap.
i. 2339B – reqs proof that D provided material supp to an org designated as a
foreign terrorist org.
ii. 2339A – reqs proof that D provided material supp or resources that he knew
would be used in prep for, or in carrying out, a violation of 18 USC 956, which
prohibs conspiracies to injure persons or dmg prop outside the US.
1. Great level of specific intent – avoids constl challenges.
2. Provides greater precision ab content and scope of the activity prohib
by 2339B so that anyone of ordinary intell would understand prohib
c. Holder v. Humanitarian Law Project
i. FACTS: Ps seek to provide supp to 2 orgs that engage in terrorist activity, but seek to facilitate only lawful,
nonviolent purposes of those grps.
1. Claim – applying material-supp law to prevent them fr doing so violates 5th Am – too vague.
a. Violates freedom of speech and freedom of assoc under 1st Am.
b. Unconstl vague.
c. Challenge 4 types of material support – training, expert advice or assistance, service, and
d. Contend that ct should interpret material-supp statute, when applied to speech, to req
proof that D intended to further FTO‘s illegal activities.
1. Congr plainly spoke to nec mental state for violation of 2339B – knowledge ab org‘s connex to
terrorism, not specific intent to further org‘s terrorist activities.
2. Impermissibly vague claim – whether statute provides a person of ordinary intell fair notice of what
a. Clarity of statute‘s terms
i. Scope of material-supp statute may not be clear in every application, but
statutory terms are clear in their application to P‘s proposed conduct.
ii. Most activities Ps seek fall under ―training‖ and ―expert advice or assistance.‖
b. Knowledge req of statute further reduces any potential for vagueness.
3. Definition of ―personnel‖
a. Knowingly providing a person to ―work under FTO‘s direction or control or to org, manage,
supervise, or otherwise direct the operation of that org.‖
b. Personnel doesn‘t cover independent advocacy.
a. Concerted activity, not indep advocacy.
b. Diff b/t indep advocating vs. providing service to grp advocating a cause.
5. First Amendment
a. Q of whether Gov may prohib what Ps want to do – provide material supp to FTOs in the
form of speech.
b. Congr findings reject P‘s contention that their support wouldn‘t further terrorist activities
of the FTOs.
c. ―any contribution‖ is not just monetary support.
d. Congr considered + rejected view that ostensibly peaceful aid would have no harmful
i. Material supp to promote peaceable, lawful conduct can further terrorism by
FTOs in multiple ways.
1. Frees up other resources in org that may be put to violent ends.
2. Lends legitimacy to FTOs, making easier for them to persist, recruit,
raise $ – all facilitate more terrorist attacks.
ii. Money is fungible
1. Funds raised for ostensibly charitable purposes can be redirected by
FTOs to fund purchase of arms and explosives.
iii. Providing supp to FTOs in any form also furthers terrorims by straining US
relationship w/allies and undermining coop efforts b/t nations to prevent terrorist
1. Intl cooperation req for effective response to terrorism.
6. Q - Whether it‘s poss in prac to distinguish material supp for a FTO‘s violent activities and its
a. State Dept: all contribs to FTOs further their terrorism.
b. Litigation implicates sensitive and weighty interests of natl security and foreign affairs.
c. Providing material supp to a designated FTO, even seemingly benign support, bolsters
terrorist activites of that org.
d. Gov‘s interest in preventing terrorism – nec to prohib providing material supp in form of
training, expert advice, personnel, and services to foreign terrorist grps, even if
supporters meant to promote only nonviolent ends of the FTO.
7. Real dangers at stake
a. Ps only consider poss benefits of their proposed activities in the abstract.
8. Freedom of Assoc
a. Statute doesn‘t penalize mere assoc w/an FTO – doesn‘t prohib being a member or
promoting and supporting the political goals of the grp.
a. Word Limit – 2500-2700
b. Use statutes/cases provided IN reading – not elsewhere
c. 3 short questions + 2 longer essays
i. 750 words for 3 questions
ii. 750 for each essay
d. Short qs – 3 pairs of cases or case + statute
i. Explain relationship bt case x and case y or statute x and doctrine y
ii. Ex. given first case, second case is inevitable.
1. Facts of two cases are functionally identifical, yet outcomes are diff
2. Reasoning of one case dictates outcome of second case, though that‘s not obvious.
3. Link two, contrast two – make them similar in some way, diff in some way.
e. 2 longer questions
i. Fact situation – may be drawn from reading
ii. NOT issue spotters
iii. Number of issues raised will be limited and may actually be obvious/stated in the q
iv. Interested not in ability to spot buzz wards, but to make arguments.
v. Q ab some body of doctrine/line of cases
vi. Pay attn to form of the Q – if he says on these facts, what is the D‘s strongest argument? It could mean the
strongest argument is still a probable loser, but might be that one argument is more plausible than any
vii. If Q calls for you to analyze some set of facts or explain what result ct is likely to reach on some set of
facts, remember to think ab arguments for both sides.
1. Must know strongest case on the other side.
2. Though answers will differ, any time you are called on to make strongest argument on one side –
must still do brief version of strongest argument on the other side.
viii. Check Fall 2007 exam
II. Ghailani verdict and multi-count indictments
a. Charged with 285 counts
b. Acquitted of 284 counts and convic of one count charging conspiracy to blow up the bldgs.
c. Range of poss sentences will begin with 20 yrs and extend to poss life.
d. What are prosecs doing when they charge large numbers of counts?
i. Maybe delib sending msg to jurors that no one count matters very much.
III. The logic of the law of group crime
a. Political/policy logic
b. 2 key points
i. We know whom we want to punish when it comes to punishment of members of crim orgs, but gathering ev
against grps is hard, so legislators need to criminalize strategically.
1. Crim grps exist to hide info to suppress ev, and they‘re good at it.
2. Thus, criminalze more than they want to punish so prosecs can punish what they actually want to.
ii. Crim grps are more dangerous than solo offenders, so convic their members of something, however
defined, is more important than in cases of solo offenders, legislators must criminalize strategically.
1. Pt of the enterprise isn‘t to change soc norms (as pt of expansive crim liab sometimes is) – pt is to
incapcitate dangerous ppl.
c. 2 core problems with this logic
i. Gov doesn‘t always know whom to punish – esp wrt ppl at the bottom of the food chain.
1. The law of grp crimes basically trusts police officers, fed agents, and fed prosecs to do the relevant
sorting and do it well.
2. And in order to do that sorting + do it well + in a way consistent with convic ppl they wanna
convic, they have to do the sorting early on.
3. Bc another feat of grp crimes: rolling up org from bottom. To get bosses, central goal is get little
4. Initial targeting must happen early, at begin stages of investigation.
5. Makes conseqs very large for ppl who are targeted initially.
6. Not clear police can do this sorting as well as they think they can.
ii. Growing amt of ev in soc sci lit – punishment only deters crime when punishment seems fair and legit to
those who are targeted, and to ppl in the community of those who are targeted.
1. Punishment for grp crime is designed to be unfair (see: Pinkerton).
2. Pt is to inflict punishment that ought not to be inflicted.
3. Tactic of rolling up org fr bottom is threatening severe liab to ppl at bottom to get them to talk –
must threaten excessive punishment.
a. Punishment is unfair by design.
4. Esp a prob when ppl who are targeted are not classic rational actors (ie don‘t behave like
employees of, owners of, crim businesses) but rather behave more like members of churches
a. Strong ideological, religious, personal bonds that motivate the grps members much more
than they are motivated by prospect of personal gain.
5. Even if punishment is fair and legit, may have real serious deterrence prob in law of grp crime
a. Might be aiming to do something it just can‘t do.
d. Have to wonder whether or not this is just an impossible enterprise.
a. The key relationship: ―enterprise‖ and participation
i. The more of one, the less of the other:
1. More broadly defined enterprise – harder to prove particip
2. More narrowly defined enterprise – easier to prove particip
b. Cummings and RICO conspiracies
i. Cummings – D were debt collector (skip-tracing) + employees of IL unemployment insurance agencies;
used agency computers/data to gather info that was helpful to debt collector in locating debtors; debt
collector in turn paid off employees (classic bribery)
1. Ct overturns RICO conspiracy – bc charged enterprise raised prob.
2. Charged enterprise was the agency (unemployment insurance agency).
3. If that‘s the enterprise, not sufficient particip.
ii. Result – 2 key points
1. Though any indiv conspirator need not satisfy all elements of 1962c, someone in the conspiracy
must satisfy those elements or at least must plan to if they relevant agreement hasn‘t been carried
a. Ie. Every RICO conspiracy must have an anchor – someone who did the predic crime,
satisfied pattern + particip element – and liab of conspirators hinges on relationshiop with
2. Size and scope of charged enterprise can make or break the case.
a. Cummings ct – we would‘ve given a diff answer if just ppl in conspiracy were charged as
b. So why did the Gov charge the agency when in fact they could‘ve easily charged just
these conspirators instead?
i. 2 possibilities
1. Some piece of ev that would come in if agency is charged enterprise vs
an assoc-in-fact conspiracy (just members of bribery conspiracy)
2. The law defining the meaning of enterprise has changed in recent yrs.
a. Before Boyle (―bunch of guys‖ conspiracy), enterprises like the
one Cummings ct said should‘ve been charged had uncertain
b. Poss prosec thought they would get hammered either way – if
they charge just conspirators, Ds would come back and say
not engouh struc; if charge agency – would say not enough
relationshiop to grp to satisfy particip.
c. Post Boyle – charging members of just bribery conspiracy is
fine (though that wasn‘t clear in 2005 when Cummings was
c. How well does RICO work?
i. If key goal is to get bosses, then Q: does RICO do that reasonably effectively?
1. A: absolutely.
ii. Q: is there a prob with the way RICO does that?
1. A: RICO, in addition to getting bosses, gets a lot of underlings.
2. Cases like Viola put some limits on charging the ppl at the bottom of the food chain, but 1962d
conspiracy prov undoes much of the limit.
a. Why? Only one member of the conspiracy needs to satisfy the particip element.
3. 1962d takes back a lot of what 1962c gives to D.
iii. RICO may functionally amount to conspiracy law on steroids, not conspiracy law that expands liab in some
respects and contracts in some respects, which it looks like at first glance.
1. May just expand, and not do any contracting.
V. The criminal law of terrorism
a. 2 initial points
i. Most of the law of terrorism is not about terrorism, is about immigration.
1. Of the universe of cases where DOJ claims the Ds were terrorists/assoc w/FTO, maj of cases had no
terrorism charges, but immigration charges.
2. More than any other area of fed crim law, in prac, terrorism is dominated by pretextual prosecs (ie
Al Capone style prosecs).
a. Reasons you go after D aren‘t same as charges used to go after D.
ii. Most of law of org crime seems to be ab getting bosses, whereas law of terrorism seems to be chiefly ab
1. Concept behind ―material support‖
2. Bosses in terrorism cases are either unreachable (out of contry) or fairly easy to get.
a. 2339A and B seem to be whether you can get Ds like Stewart, not Rahman.
b. Section 2339B: material support to an FTO
i. 2339B v. A
1. 2339B - most controversial, attracted most criticism, struck down as unconstl vague by lower cts
before SCT said otherwise.
2. Not the case for 2339A
ii. The structure of the crime
1. ―knowingly providing material supp to foreign terrorist orgs‖
a. FTOs defined by Gov as on relevant list.
2. If 2339B were translated into RICO terms, what would be the enterprise + participation?
a. Enterprise – FTO
b. Participation element – material support
3. Diff fr RICO
a. FTO element is a lot narrower than enterprise element
i. A lot of probs in RICO lit is bc enterprise is so amorphous, etc.
ii. Not case for terrorism cases – FTO defined narrower.
b. Particip is broader than RICO‘s
i. Material supp basically translates into aiding and abetting.
ii. Particip in RICO reqs more than aiding and abetting
1. Ie. under terrorism, Viola would be guilty – clearly assisted.
2. No comparable idea of how high up in the org chart you have to be
c. Key issue
i. Same as Humanitarian Law Proj
ii. What do you do with supp of non terrorist work done by non terrorist entities?
iii. Humanitarian Law Project
1. FTO‘s are so tainted by their terrorist activities, that any help amounts to promotion of terrorist
2. 2 orgs at issue in HLP + 1 org at issue in Stewart (Al-Gama) – all variants same domestic
insurgencies at quarrel with natl gov.
3. Is helping these orgs really like helping orgs like Al Qaeda?
a. When the sheik in Stewart put out word that cease-fire was to end, was that really
the same as a mob boss putting out an order for a ―hit‖ as the 2nd Circ said?
b. Couldn‘t you argue mob boss is worse, who is doing this for selfish, personal motives,
and not something that could be characterized as political insurgency?
c. Is giving money to Hamas the same as giving to Al Qaeda?
d. Could also say terrorist orgs are worse – diff kinds of violence, larger death toll.
i. Acts carried out are unquestionably large scale murders, that no mob boss
ii. On the other hand, the violence is motivated by diff things – argument that diff
motivations matter and affect culpability.
1. Cf. Irish IRA
iv. Stewart tried to make due process argument that ct gave back of the hand. Why?
1. DP prob of charge for ―conspiracy to aid and abet a conspiracy‖?
Federal Criminal Law – Class 23
I. Drugs and Punishment
a. ―war on drugs‖
i. Declared by Nixon 1969
ii. Vigorous prosec of drug crimes + long prison sentences
1. Mandatory minimums
2. Congr considers distributing the more severely penalized substance to be a more serious crime
than distrib a substance for which there are lesser penalties.
b. Fed prosecs aren‘t in biz of prosecuting personal drug use.
i. 2009 – 24k+ convictions for distrib; less than 120 for simple possn.
i. Severity of sentence increases as quantity of drugs goes up.
ii. High sentences
1. Median sentence for all fed offenders in 2009 - slightly less than 2.5 yrs.
2. Drug trafficking - 5 yrs (same as robbery).
iii. Mandatory minimums lead to high sentences
1. Begin at 5 yrs for relatively sm-scale distrib.
2. Quantities at which statutory mins kick in are not uniform across drug types.
a. Result: median sentence for drug distrib in 2009 varied fr 2yrs for marijuana to 8 yrs for
II. US v. Hunte - conduct
a. FACTS: D appeals convic for attempt to transport drugs from AZ to NY; charged w/possn of marijuana w/intent to
b. ISSUE: Whether D knowingly or intentionally possessed marijuana – whether D exercised dominion and control over
i. Sufficiency of the Evidence
1. Possn w/intent to distrib marijuana reqs Gov to prove that D:
a. Knowingly or intentionally possessed the marijuana
i.Can be satisfied w/ direct or circumstantial ev of constructive or joint possession.
ii.Constructive possn – applies when a person doesn‘t have actual possn by
knowingliy has power and intention at given time to exercise dominion and
control over an obj, either directly or through others.
b. Possessed marijuana w/intent to distrib it
c. Knew marijuana was a controlled substance
2. D claim
a. She didn‘t exercise dominion and control over drugs bc at all times, grp leader, not her,
had exclusive control over drugs.
ii. US v. DiNovo
1. Mere proximity to the drug, mere presence on the prop where it‘s located, or mere assoc, w/o
more, w/ person who does control the drug or the prop on which it‘s found, is insufficient to
support finding of possn.
2. Protects ―ordinary bystander‖ who happens to be unlucky enough to be near someone who
3. In non-exclusive possn cases, ev must show nexus b/t D and drugs.
iii. US v. Galiffa
1. Residence in a house used as a drug distrib ctr, and ev of direct access to and particip in marijuana
distrib on the day of D‘s arrest is enough to estab nexus, and therefore marijuana possn.
iv. Proof against D to substantiate nexus b/t her and drugs
1. D was present when drugs delivered, unloaded, sampled, and loaded.
2. Although ev of direct access to drugs and particip in transpo was minimal, she was not ordinary
3. Lack of ev showing ―she ever touched‖ drugs only refutes actual possn and isn‘t dispositive of
a. Control need not be exclusive.
4. Ev shows all 4 Ds were engaged in plan to transport drugs w/leader of the grp. Just bc one person
leads + others follow doesn‘t mean only leader has possn.
a. 4 Ds ea exercised joint possn of drugs by virtue of their indiv acts consistent w/non-
exclusive dominion and control over the drugs.
i. For the most part, drug crimes are proxy crimes
1. Statutes that define the crimes don‘t accurately define conduct the crimes aim to suppress.
2. Law‘s target: manufacture, purchase, sale of drugs.
a. Purchase – punished for possn.
b. Manufacture/sale – often punished for possn w/intent to distrib.
i. Ie. possn of quantities larger than ordinary users possess.
3. Meaning of possession is at heart of both crimes.
ii. Hunte – defines conduct that leads to fed punishment for drug possn.
1. Why does Hunte lose?
a. Bc of nature of relationship w/BF?
b. Bc of spatial proximity to drugs?
2. Hunte had closer relationship to BF than drugs – was that why she was convic?
iii. Large fract of money laundering cases are drug prosec in disguise.
1. Money fr selling drugs plays role that drugs themselves play in cases like Hunte.
2. Better to follow the money or the drugs?
III. US v. Hussein – mens rea
a. FACTS: Knowingly possessing and intending to distrib khat, a plant containing chemical stimulant cathinone
(constrolled substance under CSA Controlled Substances Act).
b. ISSUE: Whether gov sufficiently proved D‘s knowing possn of controlled substance.
c. HOLD: Knowing, in a general sense, that D was dealing w/ controlled substance is enough.
i. Ok that there was no proof that D knew what cathinone was or that he was dealing w/it.
ii. Gov can satisfy scienter req of CSA notwithstanding fact that D was unaware of drug‘s precise ID, so long as
gov is able to prove that D knew he was dealing w/ a substance regulated by fed drug abuse laws.
i. Statutory Framework
1. CSA - Makes it illegal for any person knowingly to possess a controlled substance with intent to
2. Cathinone and cathine are controlled substances under the Act, but khat is not listed by name as a
3. But, DEA regulations say ―any material, compound, mixture, or preparation‖ which contains
cathinone is itself a controlled substance and subj to same prohibitions.
a. Thus, kath is a controlled substance when it contains cathinone or cathine.
ii. Due Process Claim - fair warning concern
1. D claim that CSA doesn‘t provide fair warning that his actions were illegal.
2. Scienter req
a. Gov must prove that D ―knowingly‖ possessed – that fact lessens fair warning concerns.
3. No statutory ambiguity
a. Unambiguous regulation: ―any material containing cathinone‖ – lang makes it clear that
possn of material containing cathinone is forbidden.
4. DP doesn‘t req the statute specifically to prohib ―khat‖ or ―khat containing cathinone‖ as a
precondition to conviction.
a. Ex. ―sugar cubes containing LSD‖
iii. Sufficiency Claim – insufficient ev of knowledge
1. In most drug cases, proving scienter is straightfwd.
a. Ignorance of the law is no defense so gov doesn‘t need to show D knew anything about
b. Ex. enough for prosec to prove that D possessed cocaine w/o proving also that D know
cocaine to be controlled substance.
2. However, khat isn‘t controlled substance per se – gov concedes not enough to show that D
knowingly possessed khat.
a. General rule – MR must be proven as to all elements of the offense.
b. Gov must show that D knew both that he posses khat and that his khat contained
3. When D lacks particularized knowledge of the ID of the drug possessed.
a. No ev that D heard of cathinone or that he was aware khat contained it.
b. But D can be found guilty if he didn‘t know the exact nature of the drug he possessed so
long as he knew that he possessed an illegal drug.
c. Can convic if D knowns—in a general sense—that he has possn of a controlled substance,
even if he has no idea of precise ID of that drug.
4. Legislative history
a. Congr intended scienter req of CSA to apply to blanket category of ―controlled
substances‖ and not to the ID of the specific drug involved.
5. Policy justification
a. Purpose of CSA is to deal in a comprehensive fashion with growing menace of drug abuse
in the US.
b. Congr wanted to make penalty structure more flexible for greater deterrent effect – elim
obstacles to prosec.
c. Give judges max flexibility in sentencing.
6. Circumstantial evidence
a. D‘s sophistication, knowledge of substance possessed, awareness of its intended use,
familiarity w/its effects, efforts to avoid detection, not first trip/delivery, method and amt
of compensation he will receive for role.
b. These factors sufficient to show D knowingly possessed even if ev shows D couldn‘t ID
substance by name incorported into CSA.
e. HOLD: scienter req of CSA necessitates proof that D knowingly possessed a controlled substance. In most cases, this
will be accomplished by proving that D knew specific ID of controlled substance he possessed. But in some
circumstances, knowledge may be shown in other ways, incl proof that D knew he possessed a controlled substance
(even though he was either mistaken ab or did not know its exact ID).
i. Hussein outcome is par for the course in drug prosec.
1. Cf. to Bryan v. US
2. Cts proceed on assumption that D need not know which partic substance he is distrib or helping to
3. Ev of knowledge is often indirect + ―willful blindness‖ counts as knowledge in fed law.
ii. Constitutional ―notice‖ issue.
1. Substance not even listed by name in CSA.
2. Cf. Lambert v. CA
iii. Do both MR and DP inquiries depend on partic procedures and substantive reqs that are req before a
substance is added to Schedule 1 of CSA?
1. To extent that fed authorities might unexpectedly add a substance that few think is harmful, may
be both a greater need for heightened MR (See Staples) + greater need for clarity as to exactly
what is prohib (See Liparota).
IV. US v. Hurwitz
a. FACTS: Drug trafficking convic for prescribing narcotic pain meds; indictment alleged D was prescribing large
quantities of drugs to patients that he knew were selling/abusing them.
b. ISSUE: Whether dis ct properly instructed jury on controlling law.
c. HOLD: Dis ct didn‘t properly instruct jury.
i. Dis ct erred regarding good-faith instruction – good fatih is relevant to 841 charges against registered dr.
and ct erred by incorrectly instruc jury that D‘s good faith was relevant only to healthcare fraud charges.
i. To convic a dr. for violating 841, gov must prove:
1. That D distrib or dispensed a controlled substance
2. That D acted knowingly and intentionally
3. That D‘s actions were not for legit med purposes in the usual course of his professional med prac
or were beyond the bounds of med prac
ii. D claim – jury instruction improperly limited statute‘s MR req and permitted jury to convic of a serious crime
w/ little more than finding of negligence
1. Claim - Instruc req jury to apply knowledge req only to D‘s act of writing prescrip, thus permitting
jury to convic even if it concluded that D didn‘t know that prescript wasn‘t for a legit med purpose
or was beyond bounds of med prac.
2. Claim – ct erred by not incl good-faith instruction and by specifically instructing that jury couldn‘t
consider D‘s good faith as to any drug-trafficking charges.
iii. Jury instruction
1. US v. Moore
a. Ct notes good-faith instructions.
b. Must act in good faith belief that Dr.‘s distrib of the controlled substance is for a legit med
purpose and in accordance w/usual course of generally accepted med prac.
2. Inquiry: objective, not subjective, standard
a. ―usual course of professional prac‖; ―accepted limits‖; ―approved practice.‖
3. Dis ct‘s incorrect instruc on good faith isn‘t insulated fr review on appeal simply bc D‘s proposed
good-faith instruc was also incorrect.
iv. Good faith was at the heart of D‘s defense.
1. By concluding that good faith wasn‘t applicable to 841 charges and instruc jury that good faith
wasn‘t relevant to those charges, ct deprive jury opp to consider D‘s defense.
I. The big picture: the law of terrorism and drugs
a. Useful pair bc law of terrorism and drug law are both pieces of law of organized crime.
b. In theory, could easily convic solo offender under fed drug laws, but they are usually prosec individually as part of an
effort to get a bunch of ppl – not just the indiv D.
i. Think of fed drug ban as a ban on the organized distrib of drugs without req the gov to prove either the
organization or the distrib.
ii. Hunte, Hussein are typical of drug cases – organizations, networks.
c. Key conduct element: material support (terrorism) + possession (drugs)
i. Both elements defined in ways that make getting fringe players in those orgs easy.
ii. Terrorism – reason for making it easy to get fringe players (ie. Stewart) is bc big players are usually either
unavail (in Egypt) or handled through other means (military).
1. Surprisingly overlooked feature of terrorism litigation – division of labor in counterterrorism:
military goes after Ds who commit violence, DOJ goes after ppl who give services to ppl who
iii. Drugs – made easy bc that facilitates rolling up orgs fr the bottom (ie. usual legal strategy for taking down
1. Another way to think of drug law – like a larger, more complicated version of Pinkerton doctrine.
2. Think of it through lense of facilitating easy convics of ppl like Hunte (paradigmatic case) – get
Hunte to roll on her BF and his associates.
3. Pinkteron not designed to impose fair levels of liab; made to impose unfair levels of liab on fringe
players to turn them on superiors and use at witnesses.
iv. Notwithstanding this model for going after crim orgs, the folks on the bottom end up getting hammered
II. The criminal law of terrorism (cont‘d)
a. Sections 2339B (page 576) and 2339A (page 575)
i. Structure of the crimes
1. 2339B – giving material support to a FTO
2. 2339A – giving material support to a terrorist crime
3. In both instances, core conduct element is ―material support‖ – rough synonym for aiding and
a. Law of terrorism is an instance of the law of accomplice liability.
4. Ea offense gives rise to a key problem case – some kind of scenario where liab seems potentially
contestable and problematic.
ii. Problem cases
1. Seen in Stewart + Humanitarian Law Proj
2. 2339B prob scenario – (See Humanitarian) support for non-terrorism related activities of orgs that
do a bunch of things, incl carrying out terrorism attacks.
3. 2339A prob scenario – (See Stewart) potential for mulitiple inchoate crimes stacked on ea other.
a. Ie. Count 4 of Stewart indictment (charged w/conspiring to aid an abet a conspiracy to
commit murder in a foreign country)
b. Only place in fed crim code to make such a charge – 3 levels of inchoate crimes (attempt,
i. ―Inchoate‖ bc all three piggy back on some other.
ii. Alternative ways of extending reach of underlying crime.
c. Terrorism allows severl of these to be put on top of ea other.
iii. Humanitarian Law Project and Stewart
1. Both stand for proposition that those prob scenarios are not problems.
a. Humanitarian – FTOs are sufficiently tainted that support for any part of the org amounts
to support for terrorism.
b. Stewart – denies the problem altogether; 2339A doesn‘t allow criminalization of stacked
i. That is simply not true.
ii. Stewart is an instance of the prob, yet denies that it exists.
2. Of two cases, Humanitarian turns out to not be such a big deal (in upholding 2339B against
vagueness challenge) bc few cases brought under 2339B.
a. Gov more eager to use 2339A, which gives broader liab.
b. Stewart and inchoate crime-stacking
i. Stewart charged w/ giving material support (aiding and abetting) to conspiracy + conspiring to give material
support to conspiracy.
ii. How does one aid and abet a conspiracy?
1. Helping commission of overt act, agreeing overt act should be committed.
2. Aiding and abetting the planning of the underlying crime, creating conditions for underlying crime.
3. Conspiracy law is being used for substitute for law of attempt.
a. But it‘s a substitute for a law of attempt that doesn‘t carry w/it the restrictions on law of
b. Chief restriction – attempts have to be somewhere near successful completion in order for
gov to charge the attempt (proximity tests).
c. Conspiracy has no concept of proximity to completion.
4. How does one conspire to aid and abet a conspiracy?
a. Liability can be pretty broad.
i. Start with liability that is fairly well-defined – murder in a foreign country.
ii. Add conspiracy to that (as 956 does) and you expand liability and you fuzz the
borders of liability.
iii. Add aiding and abetting to that, and you do the same thing.
iv. Add conspiracy to that, and you do the same thing.
5. What kind of knowledge must the gov‘t prove in cases like Stewart?
a. Not clear how you describe what gov must prove to get to outer most layer.
b. What do you have to know? ―In between something and everything.‖
c. Mens rea for conspiracy – purpose.
d. Aiding and abetting – knowledge.
6. Seems like they got the wrong case in Humanitarian – 2339A creates liab that is both broader and
more vague than the boundaries of 2339B liab.
a. Ev for this – notice what gov uses when it wants to go after ppl like Stewart – 2339A, not
b. Worry about why gov thinks it‘s easier?
III. The criminal law of drugs
a. The key conduct term: possession. See Hunte.
i. Why key conduct element? Once you got the idea in the law of relationship that possn of more than x
quantity amounts to intent to distrib, no longer need distrib liab.
ii. Charges distrib not bc it has to, but bc it wants to – gets ev in before the jury that it might not be able to
get in otherwise.
1. Same reason want to try a bunch of ppl together in RICO.
iii. Liab is almost always treated as possn with intent to distrib.
1. Very rare to go after someone believed to only be guilty of possn.
2. But also true that in lots of distrib cases, gov need not prove distrib – optional, not essential
a. Only has to prove possn, which is easier.
iv. 2 concepts of possn
1. Actual possn – See facts of Hunte + Richards relationship w/drugs.
2. Constructive – Some nexus b/t the D and the drugs.
v. How is ―some nexus‖ proved?
1. No ev that Hunte ever laid hands on the bundles of drugs.
2. Could say that gov proves conduct by proving mens rea.
3. Seems like Hunte is being held liable for possn based on 2 categories of conduct in conjunction
a. Proximity to the drugs
b. Relationship with Richards (her BF)
i. ―Follow the leader‖ language in opinion.
ii. Ct says the one thing you can‘t do is prove possn through prox to drugs +
relationship to the one who controls them – yet the ct seems to say that you can
actually do that after all.
4. Has to be ―something more‖ than proximity and relationship, but ―something more‖ is not that
b. The key intent term: knowledge. See Hussein
i. Knowledge of either:
1. Particular drug possessed (of which Hunte is an example)
2. Or knowledge that one possesses a controlled substance (Hussein)
ii. Proving that one posseses a controlled substance
1. There‘s lot of concealment, deceptive conduct – knowledge proved by proving concealment and
a. Think about the fact that packages are labeled ―document‖
2. See Bryan – filed off serial numbers – concealment + dishonesty subsitute MR.
a. Not proof of mental state, but proof of particular type of conduct.
3. Problematic feature of this
a. Captured by Hussein‘s claim that ―yea there was concealment, but it wasn‘t bc we
assumed we were violating CSA, but for other reasons.‖
i. Running afoul on restrictions on importation of plants, etc.
b. Concealment and deception are a very good proxy for kind of knowledge that law was
looking for in Bryan, but maybe not as good of proxy in Hussein.
c. Intent and medical practice. See Hurwitz.
i. Intent standard less protective for doctors – objective good faith.
ii. Must prove: objective bad faith.
iii. What‘s line b/t good and bad faith?
1. Some variant of negligence.
2. Hurwitz institutes negligence-based liab for doctors, whereas for ppl like Hunte, it‘s knowledge-
iv. D‘s proposed standard loses.
v. Doctrine is akin to conspiracy or to 2339A cases like Stewart – designed to facilitate convic of fringe players.
vi. Makes drug law perf for going after crim orgs in traditional way – rolling up fr the bottom.
1. Doesn‘t always work in prac: level of illegal drug use is the same as it was in the mid-1970s.
a. Imprisonment rate for drug offenses is 10x what it was in mid-1970s
b. US drug law hasn‘t been a deterrent success.
2. Total fail of criminal law enforcement in history of US law.
Federal Criminal Law – Class 24
I. Drug Penalties
a. 4 institutions play substantial role in determining sentences:
i. Congress – sets statutory range of permissible sentences.
ii. US Sentencing Commission – setting Sentencing Guideline ranges within these statutory ranges.
iii. Fed prosec – selecting statutory charges and in plea-bargaining w/the D.
iv. Sentencing judge – calculating Guidelines rang and exercising discretion to sentence the D somewhere
within or outside that range.
b. Congr has been by far the most important actor – mandatory minimums
i. Since enactment of CSA in 1970, Congr increased punishment for fed drug offenses by instituting
mandatory minimums + raising max sentences.
1. Product of amendments to CSA though 1986/88 Anti-Drug Abuse Act + 1994 Violent Crime Control
and Law Enforcement Act.
ii. Stand-alone provisions provide enhanced sentences when drug crimes are committed in certain
1. Ex. max and min penalties doubled for distrib within 1000ft of schools.
iii. Mandating high minimus crowds out sentencing authority that would otherwise be exercised by Sentencing
Comm or judge.
c. Evolution of fed drug sentencing has paralleled the trajectory of the substance of fed drug law.
i. Escalating toward increased punitiveness.
ii. Volume of drug crimes + severity of punishment = pronounced impact on society.
d. Significance of exercise of prosec discretion
i. Prosecs have signific leverage under present system of sentencing.
ii. Impact of prosec decisions on sentencing is esp pronounced for drug crimes.
1. Decide under which penalty prov D will be charged – affects sentencing.
e. Statutory Structure of Drug Sentencing Law (pg. 637)
i. Mandatory mins are doubled if the D is a repeat felony drug offender.
ii. Simple possn also proscribed by fed law.
iii. Where D has pled to or found guilty of offense carrying mandatory min, judge has discretion to impose
LESS than that min in only 2 situations:
1. Where gov certifies that the D has rendered ―substantial assistance‖ in the prosec of others –
―cooperated‖ with gov.
2. Sentencing ct finds that D meets reqs of ―safety-valve‖ prov – D is a first-time offender, didn‘t use
violence, posses weapon, supervise others in the offense...
f. NOTES – Mandatory Minimums
i. How is it decided where within the applicable range the D should be sentenced?
1. Ranges – b/t 0 and 20 yrs, b/t five and 40 yrs, b/t 10 yrs and life.
2. Around time Congr adopted mandatory sentences, also enacted legislation to constrain judicial
discretion w/in statutory sentencing ranges.
a. Sentencing and Reform act of 1984 – ensure that judges across country give like
sentences to like offenders.
ii. Congr endeavored to facilitate and enhance prosec bargaining power.
1. Result: no assurance that Ds who have committed the same crime receive the same sentence.
2. 3 ways sentencing scheme enchances prosec power:
a. Statutory sentencing range depends on quantity of drugs charged.
i. Big diff b/t charge for conspiring to distrib 400 vs. 550 grams.
b. 3553(e) prov
i. Allows sentencing judge not to impose the mandatory min if prosec, by written
motion, certifies that D has cooperated w/ Gov.
c. 841(b) – dbl penalties for repeat drug offenders
i. Provides for double the otherwise applicable statutory sentencing range for those
prev convic of a felony drug offense in st or fed ct.
ii. But - this penalty applicable only if prosec files certification in ct concerning D‘s
iii. ―Safety valve‖ provision of 3353
1. Most common beneficiary is ―clueless courier‖ caught w/substantial quantity of drugs who
nonetheless lacks ability to cooperate against anyone else.
2. Fact that D has no relevant or useful info to provide doesn‘t bar ct fr finding that D has complied
w/reqs of the provision.
iv. Why did Congr seek to estab regime of higher sentences, incl mandatory minimums in drug cases?
1. Deterrence + physical restraint (incapacitation).
2. Congr assued offenders:
a. Understood utilitarian ―cost-benefit‖ analysis
b. Would conclude the penological ―costs‖ of their illegal activities outweighed the ―benefits‖
c. Would cease such activities
v. Congr provides for mand mins for other crimes in addition to drugs.
1. Firearms, trafficking child porn, sex trafficking, kidnapping, air piracy.
2. But majority of indivs facing mand mins are drug offenders.
vi. Mandating high min penalties deprives sentencing judge of pwr to take into acct relevant factors regarding
particular offender + aspects of his offense other than those to which mand mins are directed.
II. Real-Offense Sentencing
a. Sentencing Comm decided to base severity of punishment not simply on crime of convic, but on the ―real offense.‖
b. Breyer – The Fed Sentencing Guidelines and the Key Compromises Upon Which They Rest
i. Competing rationales behind ―real offense‖ sentencing system and ―charge offense‖ system.
ii. Compromise – forced by conflict b/t procedural and substantive fairness.
iii. Charge offense system – tie punishment directly to offense for which D was convic.
1. Difficulty w/presumptive sentencing – overlooks fact that paric crimes may be committed in diff
ways, which makes diff in punishment imposed.
a. Bank robber may use a gun, may take a little or a lot of $, injure teller.
iv. Real offense system – bases punishment on elements of specific circumstances of the case.
1. But must consider importance of procedures that cts must use to determine existence of additional
v. Compromise in Commission‘s system
1. Looks to offense charged to secure ―base offense level,‖ then modifies that level in light of ―real‖
aggravating or mitigating factors, related to past record.
c. NOTES on Real Offense Sentencing
i. Discretionary era – judge looked to D‘s ―real offense‖ in determining punishment.
1. Whether D had prior crim rec, whether D cooperated w/gov.
2. Guidelines era – elaborate and codify this general practice of most fed judges + attempt to ensure
that ea judge looked to same factors to decide what constitutes ―real offense‖ and weigh these
ii. ―real offense‖ factors
1. One set consists of trans-substantive (universal) adjustments that are to be applied no matter what
the offense of convic.
2. Ex. obstruction of justice, crime motivated by hate, D played major role, etc.
iii. ―Relevant Conduct‖ Rule - Most important trans-substantive sentencing factor
1. All crim behavior committed by D related to his crime of convic is attributed to him for purposes of
calc his Guidelines range – incl crimes w/which he wasn‘t charged and crimes of which he was
2. Relevant conduct also incl crimes committed by co-conspirators that were ―foreseeable.‖
a. Resembles Pinkerton liab – ―attribute‖ crimes of co-conspirators to D.
iv. Crime-specific aggravating factors
1. Ex. higher offense level for official who takes a bribe than for the bribe-giver.
a. Receiving bribe is a more serious crime than giving bribe.
v. Since Guidelines, proportion of cases that go to trial decreased significantly.
1. Many attrib this to prosec‘s increased leverage in codified real-offense sentencing regime.
a. Prosec decided charges + what aggravating factors to allege.
b. Prosec has gatekeeping role in determining whether judge can give below-
Guidelines/-statutory min sentence on basis of D‘s cooperation.
vi. Some suggest that comprehensive and detailed quality of Sentencing Comm rules allow them to function
as a criminal code supplementing statutory prohibitions.
1. Guidelines bear all attribs of penal code.
2. Split offenses into what are in effect multiple degrees.
3. Fxn as simplified codification of the behavior criminalized by fed law.
4. Displaces congressionally-enacted crim statutes.
d. Sentencing Guidelines and the Constitution
i. View that Guidelines codified already prevalent real-offense sentencing practices of fed judges but making
them mandatory was of constl significance.
ii. View that Comm was essentially defining new fed crimes which should be subj to C‘s protections of jury
trial and proof beyond reasonable doubt.
III. US v. Watts
a. FACTS: Convic of possessing cocaine w/intent to distrib; despite acquittal on firearms count, dis ct found that D
possessed gun in connex w/drug offense and in calc D‘s sentence, ct thus added 2 pts to his base offense level under
b. ISSUE: Whether sentencing judge may rely on facts of which D was acquitted.
c. HOLD: Sentencing ct may consider conduct of which a D has been acquitted.
i. 18 USC 3661- codifies principle that sentencing cts have broad discretion to consider various kinds of info.
1. ―relevant conduct‖ – corresponds to actions and circumstances that cts typically took into acct when
sentencing prior to SGC‘s enactment.
2. Consider ―all acts that were part of the same course of conduct or common scheme or plan as the
offense of conviction.‖
3. Ie. Judge may take into acct facts intro‘d at trial relationg to other charges, even ones of which D
had been acquitted.
iii. Sentencing enhancements don‘t punish D for crimes of which he wasn‘t convic, but rather incr sentence bc
of manner in which he committed the crime of convic.
1. Witte v. US
a. Held – ct could consider uncharged cocaine importation in imposing sentence on
marijuana charges, w/o precluding D‘s subseq prosec for cocaine offense.
e. DISSENT (Stevens)
i. Sentencing Reform Act of 1984 should be construed in light of traditional req that crim charges ust be
sustained by proof beyond a reasonable doubt.
ii. The notion that a charge that can‘t be sustained by proof beyond a reasonable doubt may give rise to the
same punishment as if it has been so proved is repugnant to our constl jurisdprudence.
i. Stevens dissent – factors enhancing SGC sentence were virtually indistinguishable fr statutory elements of
crimes, and should be subj to C‘s protection for proof of crimes.
1. 2005 – a majority adopted Stevens‘ view in US v. Booker.
ii. Challenges to SGC
1. Fed cts from all over country found them unconstl, usually on basis of constl sep-of-powers.
a. ―a new branch of the fed gov altogether, a sort of jr-varsity Congr.‖
2. SCT cont to reject challenges to SGC, which were premised on idea that SGC were close enough to
statutory crim prohibitions to be treated as such for constl purposes.
3. Apprendi v. NJ
a. Held – statutory ―hate crimes‖ enhancement was equiv of an element of a greater
offense than the one covered by the jury‘s guilty verdict bc finding that crime was
motivated by hate had effect of incr the statutory max sentence.
b. Unconsl that sentencing factor was functionally equiv to an element of the crime.
4. Blakely v. WA
a. Held – constl infirmity in any system that incr the max sentence a djuge may impose
on basis of facts not found by a jury beyond a reasonable doubt.
5. ** US v. Booker ** - SGC unconstl
a. SGC uncstonl ―as written‖ bc they incr the lawful sentence on the basis of judge‘s
fact-finding, beyond facts found by jury or admitted by a D who enters a plea of guilty.
iii. But SGC survived – just not as mandatory
1. Had Congr not made SGC mandatory, there would be no constl infirmity w/judicial fact-finding of
2. Sentencing judge can consider any info (incl advisory SGC) in exercising sentencing discretion – but
SGC wasn‘t advisory.
3. Booker remedy – if SGC are only advisory, relaxed procedures that have always characterized
sentencing proceedings aren‘t constitutionally infirm.
iv. Status of SGC post-Booker
1. SGC are no longer mandatory or binding on judges.
2. But judges must begin determination of D‘s sentence by calculating the SGC sentencing range +
must explain any reason for deviating fr that range.
3. Judge‘s explanation of non-SGC sentence must make reference to broad sentencing factors stated in
Sentencing Reform Act‘s instruc to sentencing judges.
a. Incl ―history and characteristics of the D‖ as a factor to be considered in imposing a
IV. Gall v. US – sentence below the range recommended in SGC.
a. FACTS: During college, D joined enterprise distrib ecstasy, but withdrew fr conspiracy 7 mos later and ceased all
drug activity. 3.5 yrs after withdrawing, Dpled guilty to his participation. SGC recommended sentence was 30-37mos
in prison, but ct sentenced D to 36 months' probation, finding probation reflected seriousness of crime and
imprisonment was unnec bc of D‘s voluntary withdrawal fr conspiracy and postoffense conduct showed he wouldn‘t
return to crim behavior, not danger to society.
i. CofA found diff b/t probation sentence and lowest of SGC range (30mos) as "extraordinary." Held - the
variance wasn‘t supported by extraordinary circumstances and a sentence outside SGC range must be
supported by extraordinary circumstances.
b. ISSUE: Whether a sentence that constitutes a substantial variance fr the SGC must be justified by extraordinary
c. HOLD: While extent of the diff b/t partic sentence and recommended SGC range is relevant, CofA must review all
sentences—whether inside, outside, or significantly outside SGC range—under a deferential abuse-of-discretion
i. No ―extraordinary circumstance‖ req to justify a sentence outside SGC range
1. Judge must give serious consideration to the extent of any departure fr SGC and must explain
conclusion why unusually lenient or harsh sentence is approp.
a. Cof A may thus take degree of variance into acct and consider extent of deviation fr
ii. But, no ―extraordinary circumstance‖ req to justify a sentence outside SGC range.
1. Creates impermiss presumption of unreasonableness for sentences outside the SGC range.
2. Custodial sentences are more severe than probationary ones but Ds on probation are still subj to
conditions that substantially restrict their liberty.
iii. Abuse-of-discretion std of review applies to appellate review of all sentencing decisions – whether inside or
1. No exceptional circumstances req or rigid mathematical formula.
iv. Proper sentencing process judge should follow
1. Judge should begin sentencing proceedings by calculating SGC range.
a. SGC is starting pt and intial benchmark.
2. After both parties have opp to argue for the sentence they deem approp, judge then considers all
3553a factors to determine whether they support sentence requested by a party.
a. In doing so, judge can‘t presume that SGC range is reasonable – must make
individualized assessment based on facts.
3. If judge decides that outside-SGC sentence is warranted,must consider extent of deviation and
ensure justific is compelling to support degree of variance.
a. Major departure should be supported by a more significant justific than a minor one.
4. After choosing approp sentence, judge must adeq explain chosen sentence to allow for meaningful
appellate review and to promote perception of fair sentencing.
v. Proper appellate court review process to be followed
1. Regardless of whether sentence is inside or outside SGC, CofA must review sentence under abuse-
2. Ensure no procedural errors by dis ct, such as:
a. Failing to calc SGC range
b. Treating SGC as mandatory
c. Failing to consider 3553 factors
d. Selecting sentence based on clearly erroneous facts
e. Failing to adeq explain chosen sentence (or deviation fr SGC range).
3. Consider substantive reasonableness of sentence imposed
a. Take into acct totality of circumstances, incl extend of variance fr SGC range.
b. If sentence is within SGC range, app ct may, but not req to, apply presumption of
c. If sentence is outside of SGC range, app ct may NOT apply presumption of
i. May consider extent of deviation, but must give due deference to dis ct‘s
decision that 3553 factors, on the whole, justify extent of variance.
ii. Fact that appt ct might reasonably conclude that a diff sentence was approp is
insufficient to justify reversal of dis ct.
vi. Applying standard to the facts
1. Dis ct clearly did consider the seriousness of the offense.
2. Dis ct considered need to avoid unwarranted disparities, but also considered need to avoid
unwarranted similiarities among other co-conspirators not similarly situated to D.
a. D‘s voluntary withdrawal as reasonable basis for less severe sentence than three co-
3. No procedural issues, so remaining Q is whether sentence was reasonable?
a. Although std of review was abuse of discretion, appt ct engaged in analysis that more
closely resembled de novo review.
b. Cof A clearly disagreed with dis ct‘s coclusion that consideration of 3553 factors
justified probation – believed circumstances were insufficient to sustain such a marked
deviation fr guidelines.
i. But not for CofA to decide de novo whether justific for variance is sufficient or
the sentence reasonable.
c. Should‘ve given due def to dis ct‘s reasoned and reasonable decision that 3553
factors, on the whole, justified the sentence.
e. DISSENT (Alito)
i. Post-Booker sentencing regime was still meant to promote Sentencing Reform Act‘s goal of reducing
ii. Unrealistic this goal can be achieved over long term if sentencing judges need only give ―lip service‖ to
iii. Sentencing factors of 3553 are so broad that they impost little constraint on judges.
iv. If judges must do no more than consult SGC before deciding sentence is sufficient to serve the other 3553
factors, sentencing disparities will gradually incr.
v. App decisions that diverge fr SGC will be influential and pre-Booker sentencing habits will fade.
i. Voluntary abandonment is defense to conspiracy only if abandonment happens before conspiracy achieves
obj. Gall‘s decision to abandon conspiracy that was functioning for long time is no def.
1. Why does Gall‘s abandonment justify his sentence?
ii. Fed judges criticize SGC on grounds that they are too harsh.
1. However, fed sentences didn‘t drop post-Booker once judges exercised discretion. Why?
2. Incentives Gall‘s standard of review creates.
a. Sentences that conform to no-longer-binding SGC are deemed presumptively
reasonable – ie carry essentially no risk of reversal on appeal.
b. Sentencing that don‘t conform are not presumed reasonable.
i. Gall‘s sentence only upheld bc SCT intervened.
c. Message to trial judges: risk-minimizing move is to stick with SGC ranges.
I. The criminal law of drugs (cont‘d)
a. Drug law part of law of org crime and paradigmatic example of law or org crime
i. Crim liab is:
a. Designed to get Hunte not bc want Hunte but to use Hunte to get after Richards.
ii. Severe punishment
1. Prohib didn‘t even have possn liab – only liab for distrib and manufacturing.
a. Drinking wasn‘t a crime, but selling drinks and making alcohol was.
b. As broad as liab is, as severe as punishment is, drug law seems to be spectacularly unsuccessful.
i. Maybe prob is not that we have possn liab, but that we don‘t use possn offenses to get at possn – we use
it as a proxy for sale, not a proxy for purchase.
1. Ie. deterring wrong side of the transaction, to the extent we are deterring anything.
ii. Failure in deterrence.
iii. Punishment seems illegit just bc it‘s too harsh.
1. Yet Prohib worked bc they didn‘t seem too severe.
II. Drug punishment
a. Three bottom lines
i. Fed drug punishment is incredibly severe
ii. The role of prosecutorial choice
1. Severity is factor of prosec choice – decide who gets placed in what sentencing category thorugh
charges, plea bargaining.
iii. Sentencing by rule, not by judicial discretion
1. Severity was in part conseq of making fed sentencing rule-based rather than discretion-based,
though it remains today severe even though it‘s now mostly discretion-based, not rule-based.
iv. Rule-based sentencing shifts discretion fr judges to prosecs
1. Doesn‘t limit, but shifts.
2. Rules limit the power of judges, but expand pwr of prosecs.
v. Why does drug punishment remain as severe as it does notwithstanding the fact that it‘s mostly no longer
b. A three-part story
i. The rise of rules: mandatory minimums, sentencing guidelines
1. Mandatory minimums started 1970s
2. Congr created Fed Sentencing Commission, which wrote binding and detailed Fed Sentencing
a. Much more detailed and rule-bound than any state‘s sentencing guidelines.
3. Guidelines created sentencing rules along with sentencing PROCEDURE that didn‘t exist before.
a. Must be sentencing ―mini-trial‖ after trial that led to convic.
b. Judge finds sentencing facts
i. Like quantity of drugs possesed, amt of money lost by victims
ii. Finds by preponderence of ev, not beyond reasonable doubt.
ii. The return of discretion: Booker and its consequences
1. Series of legal attacks on sentencing guidelines – started mid-1990s
2. One attack was successful, culmination in Booker.
a. Held that all facts legally nec to authorize a sentence must be found beyond a
reasonable doubt by a jury or must be admitted in a legally valid guilty plea.
b. What does that mean? If the pre-Booker guidelines say ―anyone who possesses x amt
of y drug must receive sentence of b/t 8 and 10 yrs,‖ Booker says amt possessed must be
proved beyond a reasonable doubt by a jury andnot found by preopondernece of ev by
i. Ie. mini-trials with sentencing jduge are constlly invalid.
c. But Booker also held that if sentencing was discretionary with the judge, then notihing
related to sentencing can be found by a jury or proved beyond a reasonable doubt.
i. Mini-sentencing trials go on just as they had before.
d. Last holding – SG are advisory not mandatory
i. Fed sentencing is now nominally discretionary so that crim procedure rules that
pply to trials don‘t apply to sentencing proceedings in fed cases.
3. Since Jan 2005, judges are free to sentence outside SG.
a. Ev that fed judges hate SG, criticize them regularly.
i. Dominant criticism is that they‘re too harsh.
b. Then SG were made advisory - you would think non-binding SG would make a huge
diff in length of sentences.
i. Not clear where you‘re supposed to end up – easiest to start with base number
and deviate from that only modestly.
iii. Rules‘ triumph: Gall, appellate review of sentencing
1. Risk of reversal greater for outside of SG sentences than inside SG.
2. Affirmance for within SG sentences will be near automatic.
3. Greatly deviating outside SG sentences req greater scrutiny or justification than smaller variations
a. Prob is that there are never going to be smaller variations from SG – always going to
b. Req greater justification.
4. Outside SG, notwithstanding Gall,
5. Coucher‘s story is exception, not the rule.
a. Gall gets probation, instead of 2.5-3 yr SG range.
b. Held up on appeal.
6. Judges value NOT being reversed.
a. Care about not being reversed and will act accordingly.
b. As far as judges care about reversal or work load, Gall skews system to rules rather
i. Safe move – always to sentence within SG, follow rules, and not exercise