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- Commerce Clause is a basis for Federal Jdx: To show Commerce Clause jdx, the act must use:
- 1- Channels of Commerce (Roads, rivers & railroads)
- 2- Instrumentality of Commerce (car, airplane, train, phone or internet) OR persons &
- things IN commerce
3- Intra-state activity that substantially affect interstate commerce.
4- JDX element showing individual effect on interstate commerce (Fed Crim Statute is written in such a way that the the prosecutor is required to show the affect on commerce… even if it is a de minimis effect -- MUST BE AN ECONOMIC CRIME)
- A- D engaged in a scheme to Defraud
- 1- Made material misstatements & Omissions
- 2 - D acted with SPECIFIC INTENT to defraud
- 3 - Scheme resulted OR would have resulted upon completion of fraud
- B- D used OR caused the use of the US Mail/Private Courier/ interstate wire/internet
- C- Use of mail/courier/wire was in furtherance of the scheme
- Mail element Rule-
- Sufficient for the mailing to be "incident" to an essential part of the scheme
- & Sufficient that mailing is a step in the plot.
- & Sufficient even if mailing is not an essential part of the scheme.
- & NOT sufficient - Post Fraud Accounting(Bank mailing check to drawee bank to collect $ after the fraud is complete does not satisfy mailing element)
-Mail Element - Scalia's DISSENT-
- The jdx hook is that use of mails in limited circumstances in which mail is A PART OF THE EXECUTION OF THE FRAUD.
- Mail Fraud IS NOT Mail + a Fraud
- To incur liability mailing must be in furtherance of the fraud.
-Limits on Federal Jdx -
The Federal Mail statute does not purport to reach ALL frauds, but only those limited instances in which the use of mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law.
-Honest Services Doctrine-
- 1 - offender must accept bribe, kickback, thing of value
- 2 - in exchange for making fraudulent reps/ stmts or giving a more favorable position
- 3 - for which the party to whom the D owes a fiduciary duty is misled (dishonesty)
- **Prosecutes QUID pro QUO NOT self-dealing**
- Any scheme or artifice to defraud OR scheme to deprive of the right to honest services, money or property by means of false pretenses, fraudulent representations can be prosecuted under the Mail Fraud Statutes.
- D must receive THING of value -
- D must have scheme to:
- obtain/take property from the victim
- for himself.
Victim must be defrauded of a thing of value, the ability to regulate licenses/permits is NOT property in the hands of regulatory office, it only become property once it is in the hands of the licensee.
Void for Vagueness
- To satisfy Due Process a penal statute must define the criminal offense with
- Sufficient definiteness such that ordinary people can understand what conduct is prohibited
- And in a manner that does not encourage arbitrary and discriminatory enforcements.
- Whoever obstructs, delays, or affects commerce OR affects commerce OR the movement of an ARTICLE or Commodity in commerce by
- 1- Robbery
- 2- Extortion by force, threat or force
- 3- Extortion under color of law(public office)
- 4- attempt/conspires (inchoate related to 1-3)
- ***NOT enough to merely deprive the victim of the property... the D MUST obtain the victim's property***
- **racketeering is NOT an element**
Hobbs Act Analysis
- - Was the crime of the D economic in nature?
- - Does the crime involve extortion, robbery or physical violence
- - Does the crime affect interstate commerce OR an article in interstate commerce?
**Gov't can only use aggregate theory to show affect on commerce when a business is the victim OR if the victim was targeted because of connection to a business*** (cannot be used for for individuals)
- Factors to determine if there is a connection to commerce to allow Fed. Jdx -
- Victim directly participate in Interstate Commerce
- Victim targeted because of status at company participating in interstate commerce
- Depletion of Assets that move in Interstate Commerce (this applies to biz... not individuals.. individuals are considered intra-state)
- Where the assets of a biz that engages in interstate commerce are targeted
-Factors for Individual Victims -
- Targeted individual because of connection to a business
- Depleted the assets of an individual who is directly & customarily engaged in interstate commerce.
- The Acts caused/created the likelihood that the individual will deplete the assets of an entity engaged in interstate commerce
- If the number of individuals victimized OR the sum at stake is LARGE such that there can be a cumulative effect on interstate commerce
- Instrumentality v. De minimus Rule -
Where a general regulatory statute bears a substantial relation to commerce(crime included instrumentality or channel of commerce), the de minimus character of individual instances arising under that statute will be of no consequence!
- Extortion by a Public Official -
- An offense committed by
- 1- a public official, who took
- 2- 'by color of his office'
- 3- money that was not due to him
- 4- for the performance of his official duties. . . .
- *Requires: obtaining of property from another by inducing consent.*
- The under color of official right provision does not require that the public official take steps to induce the extortionate payment: It can be said that "the coercive element is provided by the public office itself."
- ***passive acceptance of payment is sufficient***
- **public official does not have to take substantial step towards official act, only has to agree***
- Extortion by Private Person/Private Entity -
- An offense of committing or conspiring to commit
- 1- robbery
- 2- extortion by threat or fear
- that obstructs/delays/affects/commerce OR affects an article/commodity in commerce
**D must acquire
something of value... not simply prevent/deprive the victim of property***
Extortion v. Bribery
Extortion -paying off a thug; Making a payment to MAINTAIN the status quo. Must be an element that victim fears he will not receive fair treatment/get less than expected/lose status quo if pmt is not made.
Bribery - Making payments to IMPROVE status quo
- Elements - Private/Local biz BUT receives Federal Funds
- D solicited/received/offered/gave thing of value
- Recipient was an agent of a state/local/tribal government - Principal received at least 10k in Fed Funds during period of offense
- Bribe/Thing of value worth 5k
- & given with Corrupt Intent to influence OR reward the recipient in connection with ANY transaction of government (i.e. Nexus between bribe & federal funds not required... bribe for ANY transaction is sufficient as gov't doesn't want compromised biz's receiving federal funds)
Federal Bribery/Illegal Gratuity Statute
- Illegal Gratuity -
- 1- D Received OR Gave something of value OR Conspired to give/receive
- 2- D (was/was selected to be) a Federal public official
- 3- Thing of value was given with intent to reward for official act either: a)already performed b)to be performed
Other than as provided by law for proper discharge of official duty. MUST CONNECT ACT with Gratuity
Official Bribery & Illegal Gratuity
- - Thing of value given/offered/requested
- - to a federal gov't official (either elected/appointed/employed by Fed Funds)
- - with Illicit Intent
- Intent for Bribery: Quid Pro Quo, to influence an official act
- Intent for Gratuity: to reward because of an official act (must link to official act)
Bribe or Gratuity need not be intended to affect Federal Funds... enough that bribe or gratuity was accepted by a biz that received federal funds
Official Bribery & Illegal Gratuity Statutes
- Who is a public official within the meaning of the statute -
- Any person that
- 1- signed a contract with the U.S.
- 2- agreed to act as the govt's agent
- 3- that occupies a position of public trust with official responsibilities
- are public officials within the meaning of section 201 & are liable for prosecution (includes privately held corps receiving gov't grants)
Official Bribery & Illegal Gratuity Statutes
- What qualifies as a Thing of Value -
Corruption of office occurs when the office holder agrees to misuse his office in the expectation of gain, it does not matter that the P.O. has/has not correctly assessed the worth of the bribe.
- Material Support Rule -
- Whoever knowingly (1) provides material support or resources or (2) conceals or disguises the nature, location, source or ownership of material support or resources (3) or attempts/conspires to do so Shall be fined under this title.
- The person must have knowledge that the organization is a designated terrorist organization/has engaged in terrorist activity/engages in terrorism.
- **fundraising for organization is prohibited as $$ can be used for violence BUT allows independent advocacy**
-Challenging F T O designation-
- If an organization has been designated to be an FTO, a defendant is a criminal action or an alien in a removal proceeding SHALL NOT be permitted to raise any question concerning the validity of the issuance of such designation as a defense or an objection at any trial or hearing. (***only organization has standing to challenge designation as FTO)
- **designating organizations as FTO's are made by the Secretary of State - thus it is a political question that is not judisciable**
Drug Offense Enforcement
- Define: Mixture -
- A portion of matter consisting of:
- - two or more components that
- - do not bear a fixed proportion to one another and
- - however thoroughly co-mingled are regarded as retaining a separate existence.
Drug Offense Enforcement
May be either actual or constructive and may be joint among several people;
Drug Offense Enforcement
Define - “constructive possession”
Is ownership, dominion, or control over contraband, or over the vehicle in which the contraband was concealed
Drug Offense Enforcement - Distribution
Sharing drugs with another constitutes “distribution” under statute proscribing possession of narcotics with intent to distribute.
Drug Offense Enforcement - Possession with Intent to Distribute
“Intent to distribute is typically inferred from fact that amount is too large for any purpose other than distribution.”
Federal Firearms Offenses
- The Federal Gun Control Act of 1968 -
- The act prohibits possession of a firearm by any person convicted of a felony.
- In 1996, Congress extended the prohibition to include: persons convicted of a misdemeanor crime of domestic violence.
Federal Firearms Offense
-Misdemeanor crime of Domestic Violence -
- A misdemeanor crime of domestic violence is any offense that
- - is a misdemeanor under Federal, State or Tribal law, and
- - has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon, committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person co-habitating as a spouse, parent or guardian or similarly situated to those roles
- ***while the government must prove beyond a reasonable doubt that the victim had a familial/intimate relationship with the offender, it need not be an element of the predicate offense.***
Federal Firearms Offenses
§ 924 offense - Firearms in Drug Trafficking Offenses
- Government must prove -
- 1. D committed a Violent Crime or a Drug Trafficking Crime.
- 2. D knowingly carried or used a firearm in relation to a drug trafficking crime OR
- That the D possessed a firearm "in furtherance" of that crime.
- 3. D did so during and in relation to the crime.
(D convicted even though he left gun in car during drug deal, Ct reasoned that he wanted extra protection for large amt of cash)
Federal Firearms Offenses§ 924 offense
- Firearm used "IN FURTHERANCE" drug offense
- Government must prove -
Whether the "in furtherance" requirement is met is a "fact based" inquiry into the nexus between possession of the firearm and the drug crime.
Requires evidence sufficient to show an active employment of the firearm by the D, a use that makes the firearm an operative factor in relation to the predicate offense.
- Factors towards "in furtherance":
- 1) proximity
- 2) accessibility
- 3) strategic location of the firearm in relation to the locus of drug activity.
- 4) presence of firearm emboldens or protects owner
Federal Firearms Offenses§ 924 offense
- IN FURTHERANCE -
Uniformed Police Officer Weapon part of uniform -
A gun possessed for legitimate purposes will nonetheless invoke an offense of §924 if, a D intends to have it available as a device to lend courage during a dug trafficking offense.
(in Gonzalez, the agent testified that he would not have left G alone with the drugs if he were unarmed, because doing so would have put G in danger/ G's possession of the gun was "crucial" to his decision to leave G there alone/ G admitted that drug trafficking was dangerous and having gun protected him & lent him an air of legitimacy and reduced chance of interruption)
Federal Firearms Offense
"USE" of firearm in drug trafficking Crime
- Mere possession does not amount to "Use". There must be an "active employment" of a firearm. A use that makes the firearm an operative factor in relation to the predicate offense.
- A firearm can be used without being carried, an offender that has a gun on display during a transaction or barters with a firearm without handling it.
If the guns is not disclosed or mentioned by the offender, it is not actively employed, and it is not "used".
(D who traded drugs for a gun is said to "have used drugs to get gun"... thus he did not USE gun/employ gun's use... HOWEVER the trader that trades/uses gun to get drugs did USE the gun to get drugs and is thus guilty under this statute)
Federal Firearms Statute - Sentencing Enhancements v. Elements
The word "Shall" often divides offense-defining provisions from those that specify sentences.
- Sentencing Enhancements for §924
- - BRANDISHING a firearm
- - a D brandishes a firearm when he displays the firearm or makes the presence of the firearm known to another in order to intimidate the individual (pistol whipping is a way of "brandishing" a firearm)
- - discharging a firearm
- - factor to determine if element or sentencing factor the Severity (does not increase sentence substantially=enhancement... severe increase=Element (30 yr increase in Machine Gun)
Armed Career Criminal Act - §924
- Punishes offenses that are Purposeful, Violent & Aggressive!
- 3 previous convictions by ANY court for a violent felony OR a serious drug offense OR both....
- Committed on occasions different from one another
- Such person shall be fined under this title and imprisoned not less than 15 years
Armed Career Criminal Act - §924
- what qualifies as a Violent Felony-
- Any crime punishable by imprisonment for a term exceeding one year OR
- Any act of juvenile delinquency involving use/carrying firearm, knife or destructive device that would be punishable by imprisonment for such term if committed by an adult that
- has an element of use, attempted use or threatened use of physical force against another;
- OR is burglary, arson or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another
- AND the term "conviction" includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.
Money Laundering Elements §1956
- Intent /Knowledge that transaction involves Dirty Money AND
- Intent/Knowledge that trans. is intended to Conceal dirty money
- ***Bank teller can be guilty of Money Laundering if the teller has knowledge as well***
- 1.Conduct or attempt to conduct
- 2. financial transaction
- 3. involving the proceeds of specified unlawful activity
- 4. knowing that the property involved in the transaction represents the proceeds of some form of unlawful activity
- Mens rea regarding criminal nature of transaction:
- a.With intent to promote the specified unlawful activity (it is your purpose)
- b. With the intent to evade taxes
- c. With knowledge that the transaction is intended to conceal information about the proceeds of unlawful activity (Must be intent to disguise/conceal & the spender must share/know of that intent -- may need to analyze whether the laundering resulted in concealment or merely purchases?! )
- d. With knowledge that the transaction is intended to evade a currency reporting requirement.
- Transmission/transport/transfer -
(2) Whoever transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States
- (A) with the intent to promote the carrying on of specified unlawful activity; or
- (B) knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part—
- (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or
- (ii) to avoid a transaction reporting requirement under State or Federal law,
- Shall be sentenced to a fine of not more than
- $500,000 or twice the value of the monetary instrument or funds involved in the transportation, transmission, or transfer, whichever is greater, or imprisonment for not more than twenty years, or both.
- Money Laundering Transactions with a Financial Institution -
- 1.Engage or attempt to engage
- 2.In a monetary transaction
- 3.In property derived from specified unlawful activity
- 4.Which property is of a value greater than $10,000
- 5.Knowing that the property is criminally derived. (Knowledge of the specific crime is not required)
- ***If individual writes a check to pay for a car with dirty money... he can be convicted under this statute***
- "knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity" means -
the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law, regardless of whether or not such activity is specified in paragraph (7)
- "financial transaction" means -
- (A) a transaction which in any way or degree affects interstate or foreign commerce
- (i) involving the movement of funds by wire or other means or
- (ii) involving one or more monetary instruments, or
- (iii) involving the transfer of title to any real property, vehicle, vessel, or aircraft, or
- (B) a transaction involving the use of a financial institution which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree;
- RICO makes it unlawful for:
- 1 - any person
- 2- employed by or associated with any enterprise engaged in, or the activities which affect interstate or foreign commerce,
- 3- to conduct or participate (directly or indirectly) in the conduct of such enterprises affairs
- 4-through a pattern of racketeering activity or collection of unlawful debt.
- Elements -
Make sure that there is an insider that is conducting the organizations
affairs through a pattern of racketeering activity (the organization is the "enterprise" for purposes of RICO)
- 1. An Enterprise existed
- 2.Person committed two or more predicate acts.
- 3.Commission of predicate acts constituted
- “pattern” of racketeering activity that affects interstate commerce.
- a. Invested proceeds of racketeering activity (PORA) in enterprise.
- b. Acquired interest or maintained control of enterprise through PORA.
- c. Defendant employed by or associated with enterprise conducted its affairs through PORA.
- d. Conspired to do (a), (b) or (c).
- Enterprise - Element
- Association in fact Defined-
An entity separate and apart from the activity in which it engages,” whose existence can be proven by “evidence of an ongoing organization, formal or informal, and by evidence that the various associates act as a continuing unit.”
Association in fact Elements
- Evidence must show:
- (1)Common Purpose
- (2)Relationship among those associated/members
- (3)Longevity sufficient to permit these associates to pursue the enterprise's purpose (sufficient to establish a pattern of activity)
- ***must affect interstate commerce for fed jdx****
***must prove the D committed a pattern of §1955 violations OR a pattern of state-law gambling crimes***
-PERSON Element -
Any individual or ENTITY capable of holding a legal or beneficial interest in property.
- Same entity cannot be both the person & the enterprise there must be a distinction between the person and the enterprise.
- ***Governmental agencies and the State have Immunity and can never be a person charged under RICO... however it can be shown as the "enterprise"***
- PERSON Element -
- as applied to Outside Agents of Enterprise -
The agents role in the enterprise's illegal acts cannot be merely incidental, the enterprise must be shown to USE its agents or affiliates in a way that bears at least a family resemblance to the paradigmatic RICO case in which a criminal obtains control of a legitimate (or legitimate-appearing) firm and uses the enterprise as the instrument of his criminality.
RICO under 1962***(c)***
-Conduct Element -
- the Operation or Mangement Test as applied to outsiders who may assist with an enterprise's affairs -
- Requires that one must:
- participate in the operation OR managment of the enterprise. (make sure that the ENTERPRISE that is charged is the one that the ptys are corrupting... if they are not corrupting the org. may be more successful under association in fact)
Not limited to rung of upper management, lower level participants in an enterprise that facilitate the activities of those who are operating the enterprise in an illegal manner can be charged under RICO
Accounting firm was not liable as it merely conducted it's own affairs (the accounting) was not involved in conducting or participating in the enterprise's affairs.
-Conspiracy under 1962(d)-
For conspiracy the person charged must knowingly agree to services of a kind which facilitate the activities of those who are operating (or managing) the enterprise in an illegal manner.
***low level employees agree to accept bribes to facilitate an outsider's legal control over the enterprise***
-to establish a "Pattern"-
- 1 – (2) ACTS of criminal activity (2 acts related to each other in a single course of conduct… cover up of first act is not enough to constitute a 2nd act) **Within 10 years of each other)**- conspiracy to commit a state crime can satisfy one act BUT general conspiracy under federal statute cannot be used (exception: statutes that have internal Conspiracy provisions such as the Hobbs Act) & if conspiracy and the person commits the crime, the Ct may allow the conspiracy and crime to count as 2 separate acts *** ALSO CRAZY But can use prior state charges that D was ACQUITTED of in State Ct in RICO since Double jeopardy does not apply as fed & state are separate sovereigns & it can be tried again under fed ct.
- 2 - Continuity
- 3 - Relationship
-Conspiracy to Commit RICO violations-
- Focus is NOT on the person BUT on the enterprise
- Did the person agree / help / further the criminal ends of the organization?
To Prove: must show D agreeing to facilitate/further acts of criminal activity...
a conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense.