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Federal Crimes Outline - Professor Bolitho - Campbell Law - Part 6

By Miller Moreau
Professor Bolitho - 2021

Download the PDF version of this outline

<< Part 5 | Part 7 >>

b. Core Offenses

  1. § 841 Distribution
    1. Neal v. U.S. (Kennedy) (1996)
      1. Issue—What was the proper method for determining the weight?
      2. Holding—Use the Chapman Method: Congress directed the weight to be focused on the market, evidenced by the weight being determined by the “mixture” the substance is contained in, they use the weight of the medium storing the drug since it cannot be easily separated.
      3. Whenever the Guidelines conflict with the statute, the statute prevails.

c. Quantities in Conspiracies

  1. The factual quantity total is found by accounting for the type and its total amount across the entire conspiracy

d. Safety Valve and Substantial Assistance

  1. Safety Valve
    1. Decided by
    2. Requirements
      1. D has 4 or fewer points on prior criminal history
      2. D did not engage in violence
      3. Dis not result in death or serious injury
      4. D did not play a key conspiratorial role AND
      5. D provided substantial assistance toward uncovering new leads
        1. Does NOT matter that the government already had the information

e. Jury Instructions

  1. PWI
    1. Elements
      1. Knowingly possessed a drug
        1. Established by the fact there is a law
      2. With intent to distribute
        1. Distribute—intent to deliver or transfer
    2. No requirement D knows what drug it is
    3. Circumstantial factors
      1. Quantity
      2. Street value
      3. Purity
      4. Packaging
      5. Presence/Absence of:
        1. Weapons
        2. Lots of cash
        3. Equipment used to sell
  2. Distribution
    1. Elements
      1. Knowingly distributed
      2. D knew it was a controlled substance
  3. Conspiracy
    1. Elements
      1. Conspiracy existed
      2. Knowingly and voluntarily joined

f. Disparity in Crack and Cocaine

  1. Fair Sentencing Act
    1. Reduced the ratio of crack and cocaine to 18:1
    2. Retroactively applied the ratio
VIII. Hobbs Act 18 U.S.C. § 1951

a. Criminalizes 3 forms of conduct (1) robbery, (2) extortion by force, (3) extortion under color of official right.

  1. Not everything that could feasibly fit within the Act is covered. i.e., does not criminalize union strikes—Culbert

b. Jurisdiction exists if the conduct “affects commerce or the movement of ANY article or commodity in commerce”

c. 18 U.S.C. § 1951

  1. 20 year maximum
  2. Robbery
    1. Elements
      1. D took property from the victim
      2. Knowingly and willfully
      3. As a result of D’s actions, commerce was obstructed, delayed, or affected.
  3. Extortion
    1. Elements
      1. Is currently a public official
        1. Candidates for office do not count
      2. Obtaining property from another
        1. Property—tangible items or intangible things of value.
      3. With his consent
      4. Induced by
        1. Fear or actual/threatened use of force
        2. Under color of official right
    2. Does NOT require an element of deception

d. Extortion by, Force, Violence, or Fear

  1. Fear—Anxiety, concern, or worry over expected injury, physical or economic. The fear must be reasonable under the circumstances existing at the time of D’s actions.
  2. U.S. v. Edwards (5th Cir.) (riverboat gambling case)
    1. Issue—Did the payments create the opportunity or did they just give a better chance that an already fair opportunity will result in a better chance.
      1. If they created the opportunity, then it is likely extortion.
    2. Extortion by fear also includes fear of economic harm
      1. Must be able to ID the specific harm, not merely a loss of a potential benefit
    3. Bribery v. Extortion
      1. “There is a difference in purchasing an advocate and buying off a thug”
  3. Sekhar v. U.S. (Scalia) (2013)
    1. Issue—Whether a person attempting to compel another to recommend that his employer approve an investment constitutes “obtaining property from another.”
    2. Obtaining Property
      1. Requires: (1) Deprivation of another’s right and (2) acquisition by defendant.
      2. Property MUST be transferrable in order to be extorted
    3. Coercion is NOT extortion
    4. Alito (concurring)
      1. Black’s Law—Extortion extends to every species of valuable right, (Alito) BUT that does not extend to everything capable of econ gain.
      2. Gov’t employees have no property right to their internal recommendations. For a right to be someone’s sole property, it should be their sole right to possess, sell, or transfer.

e. Extortion Under Official Right

  1. Evans v. U.S. (Stevens) (1992)
    1. Acceptance of a bribe implicitly shows a promise to use one’s official position to serve the interests of the bribe-giver.
    2. Holding—There is NO requirement that the public official take some affirmative act of inducement to be guilty under the Hobbs Act.
      1. Passive acceptance of a benefit IS sufficient IF the official knows he is being offered payment in exchange for a specific requested exercise of his official power.
      2. Basically, if a public official takes a bribe, it is extortion under color of official right because his status as an official presents an element of coercion.
    3. No requirement that the quid pro quo is actually met. The crime is complete upon acceptance of the funds.
    4. Thomas (dissent)
      1. Rule of lenity should lead to attaching “induced” to under color of official right.
      2. Condemns the majority view that public office alone provides an element of coercion
      3. This is an egregious extension of federal jurisdiction by the judiciary, overall, it could be within fed jurisdiction, but this does not fall within the Hobbs Act itself.
  2. Campaign Contributions
    1. McCormick—Quid pro quo is an essential of Hobbs Act prosecution based upon payments identified as campaign contributions. For a campaign contribution to be extortion there MUST be an explicit promise or undertaking. The contribution must control the official’s conduct.

f. Affecting Interstate Commerce (IC)

  1. Hobbs Act passes constitutional muster because it has a jurisdictional element.
  2. Stirone—The Hobbs Act is intended to go to the outermost bounds of Congress’s IC jurisdiction. The only thing required is a de minimis effect.
  3. U.S. v. Jimenez-Torres (1st Cir.)
    1. IC element may be proven by showing the crime closed or negatively affected a business engaged in IC. Must show (1) business was engaged in IC
      1. Depletion of Assets Theory—If the business involved, in ANY way, engages in IC, then the loss will deplete them of assets they could/would have used to engage in future IC. Provides a seemingly limitless breadth of the IC power.
  4. Where is the jurisdictional line?
    1. Robbing of personal assets is NOT Hobbs Act robbery, BUT
    2. If the property taken from the individual involves business assets, and the business engages in IC, then it IS Hobbs Act robbery
    3. Taylor—Can charge Hobbs robbery in the robbery of a drug dealer.
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