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Federal Criminal Law

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Federal Criminal Law

Course Info

Professor: Richman (casebook author); Spring 2018 instructor unknown Semester: Spring 2018 (+ Richman casebook notes)

Topics Covered

  • Institutional design; growth of federal criminal jurisdiction
  • Commerce Clause: elemental vs. categorical jurisdiction; Lopez three-category framework; Raich comprehensive regulatory scheme
  • Separation of powers; ban on federal common law crimes (Hudson & Goodwin)
  • Statutory interpretation; rule of lenity; mens rea presumptions (Morissette)
  • Public welfare offenses and strict liability (Dotterweich, Staples)
  • Willfulness and ignorance of law (Cheek, Ratzlaf, Bryan)
  • Mail fraud (§ 1341) and wire fraud (§ 1343): scheme to defraud, materiality, mailing in furtherance, money-or-property
  • Honest services fraud (§ 1346): Skilling limitation to bribery/kickbacks
  • Right-to-control theory; intangible property (Carpenter, Cleveland, Binday)
  • Hobbs Act extortion (§ 1951): violence, economic threats, under color of official right
  • Federal bribery (§ 201): bribes vs. gratuities; “official act” doctrine (McDonnell, Sun-Diamond)
  • Program bribery (§ 666); Foreign Corrupt Practices Act (FCPA)
  • RICO (§§ 1961–1964): enterprise, pattern, predicates, operation-or-management
  • Federal conspiracy (§ 371); Pinkerton liability; buyer-seller exception; withdrawal
  • Accomplice liability (§ 2); accessory after the fact (§ 3); misprision (§ 4)
  • Money laundering (§§ 1956–1957); proceeds/profits vs. receipts; merger problem
  • False statements (§ 1001); exculpatory no; Yermian jurisdiction
  • Civil rights crimes (§§ 241, 242, 245, 249); under-color-of-law; willfulness
  • Material support for terrorism (§§ 2339A, 2339B)
  • Drug offenses; CSA scheduling; § 846 conspiracy; mandatory minimums

Detailed Outline

I. Institutional Design and Commerce Power

Themes of Federal Criminal Law:

  • Optional, jurisdictionally limited, creative, and indirect (mail fraud, RICO, felon-in-possession)
  • Shared authority: politically accountable U.S. Attorneys + insulated DOJ Main Justice
  • 87.9% plea guilty; venue and charging leverage are prosecutorial tools

Commerce Clause Framework (Lopez three categories):

  1. Channels of interstate commerce (lottery tickets, Mann Act women)
  2. Instrumentalities of interstate commerce (felon-in-possession)
  3. Activities having substantial effect on interstate commerce (must involve economic activity)
  • Morrison: VAWA civil action struck; non-economic activity + no jurisdictional element
  • Raich: CSA application to homegrown marijuana upheld; intrastate activity part of comprehensive regulatory scheme, Wickard aggregation
  • Hobbs Act: de minimis effect on commerce sufficient; case-by-case nexus (Taylor — drug robbery)
  • Elemental jurisdiction: nexus built into element as jury question; categorical jurisdiction: regulates entire class

Ban on Federal Common Law Crimes (Hudson & Goodwin):

  • No common law crimes in federal courts; no general federal attempt statute
  • Reading statutes beyond common law: Durland (mail fraud broader than false pretenses)
  • Reading common law elements into statutes: Neder (materiality implied in mail/wire fraud)

II. Statutory Interpretation and Mens Rea

Rule of Lenity:

  • Criminal statutes must give fair warning in language the common world understands (Bass)
  • Invoked only for “grievous ambiguity or uncertainty” (Muscarello)
  • Yates (2015): “tangible object” in § 1519 excludes fish — ejusdem generis, noscitur a sociis, lenity

Mens Rea Default Rules:

  • Presumption of scienter in criminal statutes (Morissette): concurrence of evil-meaning mind and evil-doing hand
  • Public welfare offenses: strict liability permissible (Dotterweich — FDCA; Balint — narcotics; Freed — hand grenades)
  • Staples: NFA machinegun registration requires knowledge weapon fires automatically (gun tradition; harsh penalty; not public welfare)
  • X-Citement Video: “knowingly” applied to all subsequent elements to protect innocent actors
  • Liparota: food stamp misuse requires knowledge of unauthorized nature
  • Elonis: threat statute (§ 875(c)) requires at least recklessness

Willfulness Continuum:

  • Cheek: tax willfulness = voluntary, intentional violation of known legal duty (knowledge of specific statute)
  • Ratzlaf: structuring willfulness required knowledge of illegality (Congress overruled)
  • Bryan: firearms willfulness = general knowledge that conduct is not innocent
  • Screws/§ 242: specific intent to do what statute forbids; “clearly established” constitutional right (Lanier)

Jurisdictional Elements:

  • No knowledge of jurisdictional fact required (Yermian — § 1001; Feola — assaulting federal officers)

False Statements (§ 1001):

  • Knowingly and willfully making false statement in matter within federal jurisdiction
  • Exculpatory no rejected: false denial to agent is covered (Brogan)
  • D need not know statement is within federal jurisdiction (Yermian)

III. Mail Fraud (§ 1341) and Wire Fraud (§ 1343)

Full Elements:

  1. Scheme or artifice to defraud (or to obtain money/property by false pretenses)
  2. Intent to defraud with conscious knowing intent; mere deceit insufficient (Kyle)
  3. Materiality of the misrepresentation — capable of influencing victim’s decision (Neder)
  4. Use of mails or wires in furtherance of scheme (Schmuck)
  5. Money or property of the victim (or honest services under § 1346)

Scheme to Defraud:

  • Broader than common law false pretenses: includes false promises as to the future (Durland)
  • Scheme must depend on misrepresentation of an essential element of the bargain (Shellef)
  • Takhalov (11th Cir.): misrepresentation must go to the value of the bargain, not merely induce the transaction (woman who leaves after getting drink bought = no fraud)
  • Omissions: duty from statutory scheme, fiduciary relationship, or ambiguous statements
  • Contemporaneous fraudulent intent: intent must exist at time of contract formation (Countrywide)
  • No reasonably prudent victim requirement (Durland’s breadth)

Materiality (Neder):

  • Required despite statutory silence — imported from common law fraud
  • Standard: capable of influencing the victim’s decision
  • Strict: Neder holds even though “material” does not appear in § 1341/§ 1343

Mailing/Wiring in Furtherance (Schmuck):

  • Mailing or wiring need not itself be fraudulent; incident to scheme suffices
  • Schmuck: title application mailing essential because resale depended on passage of title
  • Kann: mailings after scheme reaches fruition do not qualify
  • Parr: credit card invoices not essential because company would collect payment regardless
  • Maze: credit card receipts mailed by motel after theft not essential to scheme
  • Legally compelled mailings: generally must still be in furtherance (Lake — SEC disclosures not)

Money or Property (Cleveland; Carpenter):

  • “Thing obtained must be property in the hands of the victim”
  • Government licenses not property: state not deprived of property when fraudulent license issued (Cleveland — video poker)
  • Confidential business information = intangible property with exclusivity value (Carpenter)
  • Testing service score reports = property of ETS (Al Hedaithy)
  • Right-to-control theory (Binday): depriving victim of right to control assets by withholding economically valuable information; must go to essential element of bargain; later limited by Ciminelli (S.Ct. 2023)
  • Elected official’s salary: not property deprived from electorate (Ratliff)

Honest Services Fraud (§ 1346):

  • McNally: pre-§ 1346, § 1341 limited to money/property; intangible “honest services” excluded
  • Congress enacted § 1346 reversing McNally; Skilling then narrows § 1346
  • Skilling: § 1346 covers only bribery and kickback schemes — not undisclosed conflicts of interest
    • Void-for-vagueness: fair notice + risk of arbitrary/discriminatory prosecution (Kolender)
    • Federalism: local corruption left to state regulation
  • Kickback (DeMizio): employee steering business to third party in exchange for share of profits
  • Pre-Skilling: fiduciary duty to public could arise from state/local law, breach of which is deprivation of honest services

IV. Official Corruption

Federal Bribery (§ 201(b)) — Elements:

  1. Public official (or person selected/nominated)
  2. Corrupt intent — quid pro quo
  3. Something of value given, offered, or promised
  4. In exchange for an “official act”
  5. On a specific “pending” matter or one that may be brought before the official

“Official Act” after McDonnell (2016):

  • Must involve a decision or action on a “question, matter, cause, suit, proceeding or controversy”
  • Must be a formal exercise of governmental power: analogous to lawsuit, agency determination, legislative committee hearing
  • Must be specific and focused — pending or capable of being brought before the official
  • Setting up meetings, hosting events, calling other officials: NOT official acts standing alone
  • Official can commit official act by providing advice that forms basis of another official’s formal action
  • Custom/practice can define official act (Birdsall); need not be in written rules
  • “As opportunities arise” schemes qualify if tied to future specific official acts (Ganim)

Gratuities (§ 201(c)):

  • Payment “for or because of” an official act
  • Nexus to specific identified official act required — not general goodwill (Sun-Diamond)
    • Example: championship team jerseys given to President without link to specific act = not gratuity
  • 2-year maximum vs. 15-year for bribery

Program Bribery (§ 666):

  • Federal program receiving > $10,000 in federal funds; agent of organization
  • Corrupt solicitation/acceptance “in connection with” organization’s business
  • Broader reach than § 201: no “official act” element; no quid pro quo required (Boyland)
  • Spending power basis: Congress can protect federal funds from corruption (Sabri)
  • Misapplication theory: deliberate misuse of federal funds constitutes bribery (Baroni — bridge closures)

Hobbs Act (§ 1951) — Under Color of Official Right:

  • Knowing receipt of payment to which official not entitled, knowing it is in exchange for official action (Evans)
    • No inducement required; coercive element inherent in public office itself
    • Payor is not accomplice; extortion and bribery conceptually distinct (Evans, Thomas dissent debate)
  • Campaign contributions: explicit quid pro quo required for Hobbs Act violation (McCormick)
  • “Official act” transplanted from § 201 after McDonnell
  • Commerce element: de minimis effect sufficient; Taylor (Raich grafted onto Hobbs Act — drug robbery)
  • Property obtained “from another”: third-party extortion theory (A threatens B to get C’s property) (Silver)
  • Obtaining property: must acquire something transferable; coercing recommendation not enough (Sekhar)

Foreign Corrupt Practices Act (FCPA):

  • Prohibits payments to foreign officials to influence official acts, induce breach of duty, or secure improper advantage
  • Grease payments for routine governmental actions excepted
  • Applies to corporate entities and individuals; DOJ and SEC enforcement

V. RICO (18 U.S.C. §§ 1961–1968)

§ 1962(c) Elements:

  1. Enterprise (legal or illegal)
  2. Interstate commerce nexus
  3. Defendant associated with the enterprise
  4. Defendant conducted or participated in the conduct of enterprise’s affairs
  5. Through a pattern of racketeering activity (≥ 2 predicates + relatedness + continuity)

Enterprise:

  • Any legal entity OR association-in-fact (Turkette)
  • Association-in-fact: group with common purpose, ongoing relationships, longevity (Boyle)
  • Must have ascertainable structure beyond that inherent in the racketeering itself
  • No hierarchical structure, formal leader, or long-term master plan required
  • Government offices, municipalities, nonprofits can be enterprises (Cianci, Thompson)
  • Enterprise and pattern evidence “may in particular cases coalesce”

Operation or Management Test (Reves):

  • Defendant must participate in operation or management of the enterprise — be on the “ladder”
  • Outside accounting firm: not liable unless directing affairs (Reves — horizontal question)
  • Downward extension: implementing decisions with meaningful discretion qualifies (Oreto, Shamah)
  • Ministerial employees with only incidental access: excluded (Viola — janitor; Cummings — clerk)
  • Does NOT apply to RICO conspiracy § 1962(d) (Wilson)

Pattern of Racketeering Activity (H.J. Inc.):

  • At least 2 predicate acts from § 1961(1) list within 10 years
  • Two acts necessary but NOT sufficient
  • Relatedness: same/similar purposes, results, participants, victims, or methods; not isolated events
  • Continuity:
    • Closed-ended: substantial period of racketeering activity
    • Open-ended: past conduct plus threat of continued activity; predicates are regular way of doing business
  • Both vertical (each act linked to enterprise) and horizontal (acts linked to each other) relationships generally satisfied by linking each predicate to enterprise (Daidone)
  • Predicates: state/federal crimes; outside statute of limitations; prior conviction not bar

Civil RICO (§ 1964(c)):

  • Private right of action; injury to business or property “by reason of” RICO violation
  • Treble damages; reasonable attorney’s fees
  • No extra “racketeering injury” requirement beyond injury from predicate acts (Sedima)

RICO Conspiracy (§ 1962(d)) (Salinas):

  • Agree to further an endeavor that, if completed, would satisfy all substantive RICO elements
  • Need not agree to commit or facilitate every predicate act
  • Can join without knowing identities of all co-conspirators or all details
  • Operation-or-management test inapplicable (Wilson)

VI. Federal Conspiracy (18 U.S.C. § 371)

Elements:

  1. Agreement (express or implied from coordinated conduct and circumstances)
  2. Knowing entry with intent to further the criminal purpose
  3. Overt act in furtherance by any conspirator (§ 371; not required for § 846 drug conspiracy)

Two Clauses:

  • Offense clause: conspiracy to commit any federal offense
  • Defraud clause: conspiracy to defraud United States or obstruct any lawful government function (Haas v. Henkel); broader than offense clause

Key Doctrines:

  • Willful blindness satisfies knowledge (Svoboda: high probability + deliberate avoidance)
  • Wharton’s Rule: no conspiracy charge when substantive crime requires two parties (adultery, bigamy); limited applicability
  • Buyer-seller exception: mere purchase = no conspiracy; wholesale quantities implying seller has stake in buyer’s resale can be conspiracy (Parker)
  • Withdrawal: defendant bears burden; affirmative act to disavow or defeat purpose required (Smith)
  • Ocasio (2016): bribe payor can conspire in extortion of himself if goes beyond mere acquiescence

Pinkerton Liability (Pinkerton v. United States):

  • Conspirator liable for substantive offenses of co-conspirators if:
    1. Crime committed in furtherance of the conspiracy
    2. Crime was reasonably foreseeable from the conspiracy
    3. Defendant was a member at the time
  • Criminal intent established by formation of the conspiracy
  • Rosalez: murder is foreseeable result of conspiracy to assault the victim

Accomplice Liability (§ 2):

  • Actus reus: facilitation of any one element of a compound offense suffices (Rosemond)
  • Mens rea: purpose to make the venture succeed (Peoni); knowledge + assistance making success more likely (Blankenship/Ortega)
  • Advance knowledge required for compound crimes that add a firearm element (Rosemond)
  • Willful blindness: subjective belief of high probability + deliberate avoidance (Global-Tech)
  • Exceptions: victim of crime; class protected by statute; buyer-seller of drugs (Abuelhawa)

VII. Money Laundering (18 U.S.C. §§ 1956–1957)

§ 1956(a)(1) — Full Elements:

  1. Financial transaction
  2. That in fact involves the proceeds of a specified unlawful activity (SUA)
  3. Defendant knows transaction involves proceeds of some form of illegal activity
  4. Done either (A) with intent to promote the SUA, or (B) knowing transaction is designed to conceal/disguise nature, location, source, ownership, or control of proceeds

Proceeds (Santos):

  • Plurality: “proceeds” = profits, not gross receipts (rule of lenity)
  • Congress responded: § 2(f) defines proceeds as gross receipts; § 2(g) codifies distinctness requirement
  • Merger/distinctness rule: laundering transaction must be distinct from underlying offense (Edgmon)

Concealment Prong — Key Points:

  • Need not know which specific SUA, only that some felony generated the funds
  • Concealment of source of funds required — not necessarily identity of launderer (Tekle)
  • Red flags: unusual cash, false ownership, no legitimate business purpose, routing through intermediaries

§ 1957:

  • Transaction > $10,000 in criminally derived property
  • Knowledge of criminal derivation sufficient; no concealment or promotion required
  • Sixth Amendment exception: transactions for legal fees
  • 10-year maximum

VIII. Civil Rights Crimes

§ 242 — Deprivation Under Color of Law:

  • Under color of state law + willfully + deprive of federally secured right
  • Willfulness (Screws): specific intent to deprive of constitutional right; open defiance or reckless disregard
  • “Clearly established” right (Lanier): unlawfulness must be apparent from pre-existing law — Supreme Court, circuit, or state supreme court decisions
  • “Under color of law”: misuse of power possessed by virtue of state law (Classic); does not require being on duty

§ 241 — Conspiracy Against Civil Rights:

  • Specific intent to interfere with a federal right
  • Applies to private actors (Magleby — cross burning to interfere with housing right)

§§ 245, 249 — Hate Crimes:

  • § 245: double motivation (because of race AND because of use of federally protected activity); requires DOJ certification
  • § 249(a)(1): race/religion/national origin; 13th Amendment basis; no state action required
  • § 249(a)(2): sexual orientation/gender/disability; Commerce Clause basis
  • “Because of” = but-for causation (Miller)
  • § 249 eliminates double-intent requirement and limits to violent acts

IX. Material Support (§§ 2339A, 2339B)

§ 2339A — Support Knowing It Will Be Used for Terrorism:

  • Mens rea: knowledge (not purpose); broader than conspiracy/accomplice liability
  • No agreement required; actus reus is the provision of support
  • Covers preparation as well as commission of underlying terrorism offense
  • Can aid and abet a conspiracy (Awan)

§ 2339B — Support to Designated Foreign Terrorist Organization (Holder v. HLP):

  • Applies even to ostensibly lawful activities if coordinated with FTO
  • Does not prohibit independent advocacy or mere membership
  • First Amendment satisfied: narrowly drawn to cover coordination with/direction by FTO

X. Drug Offenses

CSA Framework:

  • § 841(a): knowing or intentional distribution/manufacture of controlled substance
  • § 846: drug conspiracy; no overt act required
  • § 841(b): mandatory minimums by drug quantity; crack/powder disparity; Fair Sentencing Act reforms
  • Scheduling: AG (via DEA); binding HHS scientific recommendation; 8 factors

Commerce Clause: Raich — CSA application to homegrown marijuana upheld; comprehensive regulatory scheme prevents intrastate cultivation from undercutting interstate market

Analogue Act (§ 813): Must know substance is scheduled OR know its identity (McFadden)

Key Doctrines

Key Cases

Exam Approach

1. Federal Hook

  • Identify the statute and find the jurisdictional element
  • Commerce Clause: channels / instrumentalities / substantial effect (Lopez)? Comprehensive regulatory scheme (Raich)?
  • Hobbs Act: de minimis effect sufficient; case-by-case; Taylor (drug robbery satisfies commerce)
  • Mail/Wire Fraud: mailing or wiring “in furtherance of” scheme

2. Mail and Wire Fraud

  1. Scheme to defraud: intent to defraud; false promises included (Durland); scheme must go to essential element of bargain (Shellef, Takhalov)
  2. Materiality: capable of influencing victim’s decision (Neder); contemporaneous intent (Countrywide)
  3. Mailing/wiring in furtherance: need not be fraudulent; incidental to ongoing scheme suffices (Schmuck); post-fruition mailings don’t qualify (Kann)
  4. Money or property in victim’s hands?: licenses not property (Cleveland); confidential business info is (Carpenter); right-to-control via economically valuable information going to essential element (Binday, but post-Ciminelli watch for limits)
  5. Honest services (§ 1346)?: must be bribery or kickback (Skilling); undisclosed conflicts OUT

3. Official Corruption

StatuteKey ElementsCases
§ 201(b) BriberyCorrupt quid pro quo + “official act” on specific pending formal matterMcDonnell, Sun-Diamond
§ 201(c) GratuityPayment “for or because of” specific identified official act; nexus requiredSun-Diamond
§ 1951 Hobbs ActNot lawfully due + knowing it is in exchange for official action; explicit QPQ for campaign $$Evans, McCormick, McDonnell
§ 666Federal program >$10K; agent; corrupt solicitation “in connection with” business; no QPQ requiredSabri, Baroni

“Official Act” (McDonnell): Formal exercise of governmental power on specific pending question/matter. Ask: (1) specific pending matter? (2) decision or action (or agreement) on that matter? Setting up meetings, calls, events = NOT sufficient standing alone. Advice forming basis of another official’s formal act = can qualify.

4. RICO

  1. Enterprise: legal entity or association-in-fact? If association-in-fact: common purpose + ongoing relationships + longevity + ascertainable structure beyond the racketeering (Boyle)
  2. Pattern: ≥ 2 predicates from § 1961(1); relatedness (same purpose/participants/methods/victims); continuity (closed-ended: substantial period; open-ended: regular way of doing business + threat of repetition) — H.J. Inc.
  3. Conducting/Participating: operation-or-management test (Reves); on the management ladder — making or implementing decisions with meaningful discretion
  4. Civil RICO (§ 1964(c)): injury to business or property; treble damages
  5. RICO conspiracy (§ 1962(d)): agreement to further endeavor satisfying substantive RICO; operation-or-management test does NOT apply; partial knowledge of co-conspirators/details OK

5. Conspiracy (§ 371)

  1. Agreement: express or implied; willful blindness satisfies knowledge
  2. Intent: knowing entry + intent to further criminal purpose
  3. Overt act: any act in furtherance by any conspirator (§ 371 requires; § 846 does not)
  4. Pinkerton: was co-conspirator’s offense in furtherance and reasonably foreseeable?
  5. Buyer-seller exception: mere purchase = no conspiracy; wholesale seller with stake in resale may differ
  6. Defraud clause: conspiracy to obstruct any lawful government function
  7. Withdrawal: defendant’s burden; must affirmatively disavow or defeat conspiracy’s purpose

6. Money Laundering

  1. § 1956(a)(1): financial transaction + proceeds of SUA
    • Promotion prong: intent to promote SUA
    • Concealment prong: knowing transaction designed to conceal source/ownership/nature
  2. Proceeds: now gross receipts by statute; must be distinct from underlying offense (merger problem)
  3. Knowledge: need not know which specific SUA; some felony sufficient; willful blindness qualifies
  4. § 1957: transaction >$10,000 + criminally derived property + knowledge; no concealment needed

7. Mens Rea

  • Is it a public welfare offense? → strict liability possible (Dotterweich, Balint)
  • If not, presume knowledge required as to each element (Morissette)
  • Does the statute say “willfully”?
    • Tax: specific knowledge of legal duty (Cheek)
    • Firearms: general knowledge conduct not innocent (Bryan)
    • § 242 civil rights: specific intent to deprive of clearly established constitutional right (Screws, Lanier)
  • Rule of Lenity: genuine ambiguity → resolve in defendant’s favor (Bass)
  • Jurisdictional elements: no knowledge required (Yermian, Feola)

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