State v. Federal
 Who decides?
Factors
 Federal priorities
 Nature & seriousness of crime
 Deterrent effect of prosecution
 Person’s culpability
Federal Priorities
 Anti-terrorism
 Violent Crime
 Opioids
 Exploitation of children & others
who need protection
 District by district priorities
 District prosecution guidelines
 Criminal history
 Willingness to cooperate
 Probable sentence
 Grounds for Commencing or Declining Prosecution
o Conduct violated federal law & there is admissible evidence sufficient to obtain a
conviction unless:
 No substantial federal interest would be saved by prosecution
 Subject to effective prosecution in another jurisdiction
 Adequate non-criminal alternative
 The Second Bite? Dual Prosecution Policy
o Dual Sovereignty: state and federal government can both charge Δ with crimes
involving the same act because each charge is for a different crime
o The Petite Policy: precludes the initiation or continuation of federal prosecution
following a state charge unless:
 1) Substantial federal interest
 2) Prior prosecution did not vindicate that interest
 3) Conduct constitutes violation of federal law and there is admission
 This policy applies only to charging decisions and does not apply to precharge investigations
 Petite Waiver (approval process)
 US Atty approval
 OEO- main justice
 DA AG main justice
 A AG for criminal division
 Some states constitutions say that they cannot prosecute after federal
prosecution for that same action.
 NC says that the state can prosecute after the federal government but not
after another state, State v. Myers (NC Ct. App. 1986).
Congressional Power to Enact Criminal Laws
 Crimes involving direct federal interest: immigration, federal property, counterfeiting,
piracy, international treaties, treason
 Expanded to crimes not involving federal interest
o 3 key clauses
 Commerce clause
 Postal clause
 Taxing clause
o Necessary & Proper Clause
Commerce Clause Power
 Regulation of
o Channels of interstate commerce (Transportation)
o Instrumentalities of interstate commerce (Airplanes)
o Substantial effect on interstate commerce (Primarily used by Congress now)
 Substantial effect can be a good or bad effect
 U.S. v. Lopez (1995)
 USSC looks to factors (in the statute)
o Economic activity, Jurisdictional element, & Congressional
findings on class of activities, can be intrastate
 Gonzales v. Raich (2005)
 Regulation of a “class of activity” that is economic in nature is
within the CC
Conspiracy
 Elements
o 1) Agreement, 2) 2 or more people, & 3) To commit a criminal offense
 Separate offense and does not merge like attempt!
 Wharton’s Rules: Δ can’t be convicted of conspiracy to commit a crime when the crime
itself requires two people for its commission (ex: adultery & dueling). Iannelli v. U.S.
o No Wharton’s Rule exception if charged conspiracy involves more people than
required for the substantive offense.
 18 USC §371: general conspiracy statute that makes it an offense to conspire to commit
any other federal crime
o Tag along statute
o 5 year max sentence
o Requires proof of overt act
 Specialized conspiracy statutes (lots)
o 21 USC §846: drugs
o 18 USC §1349: mail, wire, bank fraud
o 18 USC §844(n): arson
 Carries higher statutory maximum sentences then the tag along statute
 Does not require proof of overt act
 Bilateral Conspiracy Jurisdiction U.S. v. Paret-Ruiz (1st Cir. 2009)
o Undercover agent cannot be the other person in the conspiracy, unless acting
outside authority (like corrupt cop)
 Federal & NC
 Both sides of the agreement cannot be federal/ government agents
U.S. v. Evans (10th Cir. 1992)
 Conspiracies must have
o Agreement
o Shared objective
o Knowing & voluntary participation
o Interdependence
 Not all co-conspirators must know each other but they must have the same
goal and be connected in some way. Not buyer/ seller relationship= same
goal

Multiple Conspiracy Problem
o Need to show one conspiracy with everyone involved, interdependence is key.
 Variance
o Charge is not the same as the proof.
 Charge one conspiracy and prove multiple smaller conspiracies- not
allowed, when prejudicial.
Duration of Conspiracy
 Lasts until…
o Accomplishment
o Abandonment
 Must show a period of time where NO ONE was active
o Withdrawal Smith v. U.S. (2013)
 Individual can show
 Must be an affirmative act
o Not a defense to the crime of conspiracy unless overt act
required. Does not mean inactivity
 Affirmative Offense
o Does not negate elements
 SOL
o Must look at each individual
Pinkerton
 The overt acts of one partner in the crime is attributable to all members of the conspiracy
 Rule
o All members of the conspiracy are responsible for acts of other members if:
o Acts committed to help advance/ further the conspiracy, and
o Are within the reasonably foreseeable scope of the agreement
 Withdrawal terminates the Δ’s liability for post-withdrawal acts of his co-conspirators but
he remains liable for the pre-withdrawal acts of the conspiracy.
 Minor Player Exception
o Role was small in the conspiracy
 Where that line is drawn is determined by the jury
The Overt Act Requirement
 18 USC §371 (general conspiracy)
o A member of the conspiracy did one of the overt acts described in the indictment
for the purpose of advancing the conspiracy
o Doesn’t have to be an illegal act, just has to move the conspiracy (even slightly)
forward
o Just one act by one member is enough
Firearms Enforcement & Regulation
18 USC 922(g) Prohibited Persons Provision
Previous convicted felon Fugitives (2)
Drug users (3)
Mentally defective (4)
Illegal Alien (5)
Dishonorable discharge from
(institutionalized)
military (6)
Renounced citizenship
(8) Subject to domestic
Misdemeanor crime of violence
(7)
violence restraining order
(like domestic violence) (9)
18 USC §922(g)(1) Felon in Possession (FIP)
 Δ has been convicted of a crime punishable by excess of 1-year imprisonment
 Δ, following his conviction, knowingly possessed a firearm
o Actual or constructive possession:
 Constructive: Δ knowingly has as the power & intention to exercise
dominion & control over the firearm, either directly or through others, or
has dominion & control over the premises where firearm is located.
 Firearm crossed a state line prior to or during the alleged possession
o Manufactured outside the state where found
Δ can stipulate to felony status (Old Chief)
Single Bullet Theory: violation if a prohibited person possesses single ammunition
18 USC §922(g)(3) Drug User in Possession
 To determine if a drug user, the jury can consider the following factors:
o Pattern of regular & repeated use
o One time or infrequent (not enough)
o Need not possess gun at the moment of drug use
o Drug use period must reasonably cover the time a firearm was possessed
Proabition against collateral challenges: Δ cannot challenge validity of prior conviction in FIP
charge
18 USC §922(g)(9) Misdemeanor DV in Possession
 U.S. v. Hayes (2009) Gov must prove beyond reasonable doubt that there was a domestic
relationship in the initial misdemeanor charge (either proven by conviction itself if DV is
an element, or proven as a case within a case (witness))
18 USC §921(a)(20) Restoration
 Expunged, pardon or restoration of civil rights shall not be a conviction unless expressly
provides that the person may not ship, transport, possess, or receive firearms. Look at
date of possession not date of trial.
 No federal expungement available. There is a statutory procedure for restoration of civil
rights but congress will not fund ATF to allow process of these rights. Therefore, only
option is Presidential pardon.
18 USC §924(c) Firearm + “Crime of Violence” or “Drug Trafficking Crime”
 Use or carry or possess in furtherance
5 years
 Brandish
7 years
 Discharge
10 years
 Second conviction of 924(c)
25 years
 Mandatory minimum sentence on top of underlying sentence
 Δ often argues toy gun/ pellet gun defense
 Breaking down §924(c)
o Use or carry during & in relation to a drug trafficking crime or crime of violence,
Bailey v. U.S. (1995)
 Use: active employment, Δ must disclose or mention the gun to = “use”
o Possession in furtherance of a drug trafficking crime or crime of violence
 Possession can be actual or constructive (see above)
 In furtherance (guns & drugs go together) U.S. v. King (10th Cir. 2011)
 Factors for possession in furtherance
Type of drug activity (big/
How accessible is the firearm/ Type of firearm
small)
Proximity to Drugs
Legal status of firearm
Loaded or unloaded
Time & circumstances of
(registered/ concealed carry)
discovery
 Trading guns for drugs and drugs for guns, Watson v. U.S. (2007)
o Giver of the gun cannot be charged with 924 (c)
 Circuit split regarding possession in furtherance
Elements v. Sentencing Enhancements
 Element
o Jury decides (beyond a reasonable doubt)
o Increases statutory minimum or maximum
o Apprendi v. NJ (2000) ruled that any fact increasing the statutory maximum must
be proven beyond a reasonable doubt by jury or violation of 6th Amendment right.
o Alleyne v. U.S. (2002) rules that any fact that increases the floor (mandatory
minimum) or ceiling (statutory max.) are elements that must be found by a jury.
 Must pled and prove all
 Sentencing Enhancements
o Judge decides (preponderance of the evidence)
U.S. v. Davis (2019)
What is a crime of violence?
 Element Clause
o Any felony that “has as an element the use, attempted use, or threatened use of
physical force against the person or property of another
 Residual Clause
o Any felony that “by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing
an offense”
o Court rules that the residual clause is void for vagueness. Therefore, 924 (c)
crime of violence must be an element
922(g) after U.S. v. Rehaif
 Δ knowingly possession
 A firearm
 That traveled in or affected interstate commerce
 After obtaining status specified in statute
 Δ knew of the status
Armed Career Criminal Act (Not a separate crime, a sentencing provision) imprisonment is
not less than 15 years.
 18 USC §924 (e)
o Convicted of a 922 (g) offense
o Previous convictions
 Proving the prior convictions
 Do not have to prove the prior convictions to the jury- exception to
Apprendi
 Almendarez-Torres: prior convictions can be proven to judge by
preponderance of the evidence
o Caution: Thomas hates! This may be overturned eventually
o For three or more “violent felonies” or “serious drug offenses” (any combo)
 Violent Felony
 Any crime punishable by imprisonment for a term exceeding one
year that
o (1) has as an element the use, attempted use, or threatened
use of physical force against the person or another, or
o (2) is burglary, arson, or extortion, involves the use of
explosives, or
o (3) VOID for vagueness (see Johnson)
 Serious Drug Offense
o Offense under the Federal Controlled Substances Act, or
o Offense under State law, involving manufacturing,
distributing, or possession with intent to distribute a
controlled substance, for which a maximum term of
imprisonment of 10 years or more is prescribed (possible)
o Committed on different occasions…
Federal Drug Laws
Comprehensive Drug Abuse Prevention & Control Act. Title 21 of US Code=drugs
 Congressional authority- class of activities
 2 major provisions: (1) 21 USC §841- substantive crimes (2) 21 USC §846- conspiracy
Basic System (Attorney General may add or move drugs around the schedules)
 5 schedules
o Schedule 1 (No medical use, high abuse, strict regulations)
 Heroin, LSD, peyote, marijuana, MDMA (ecstasy), methaqualone
o Schedule 2 (Limited medical use, high abuse)
 Cocaine, meth, methadone, dilaudid, fentanyl
o Schedule 3 (Medical use, limited to moderate abuse)
 Hydrocodone, Codeine, Ketamine, Anabolic Steroids
o Schedule 4 (Medical use, less abuse)
 Xanax, soma, valium
o Schedule 5 (Medical use, very low abuse)
 Codeine cough syrup, lyrica
Drug Analogues
 Intended for human consumption, substantially similar pharmacologically & effect to
scheduled substances. Ex: bath salts
 Drug Analogues Act
o If pharmacologically & effect, then it will be treated as a controlled substance.
o Prosecutor must prove intended for human consumption. Requires two experts:
chemical analyst and a pharmacologist
Core Offenses in §841
 Manufacturing: knowing
 Distributing: knowing (delivery or transfer, sale not required)
 PWID: (1) knowing possession of CS, (2) intent to distribute SC
o Proving: 404(b), circumstantial evidence, expert testimony
 §841(b)(1)(A) 1 kg heroin, 5 kg cocaine, 280 g crack, 50 g meth, 1,000 kgs marij
o 10 year mandatory min., prior drug offense = 15 year MM, 2 prior = 25 yr MM

§841(b)(1)(B) 100 g heroin, 500 g cocaine, 28 g crack, 5 g meth, 100 kgs marij
o 5 year MM, prior drug offense = 10 yr MM
 §841(b)(1)(C) lower quantities of the above, no MM
 CHARGE the quantity but jury ultimately decides the quantity
 Dorsey v. U.S. (2012) determined the Fair Sentencing Act applied as of sentencing date.
First Step Act of 2019 made the FSA fully retroactive if the court agrees with Δ’s motion.
 §841(b) death or serious bodily injury results from use of substance = 20 yr MM to life
o Burrage but for causation problem (use only when one drug in system)
Hobbs Act Robbery 18 U.S.C. §1951
Obstructs, delays, or affects commerce by robbery or extortion
 3 ways to violate: 1) robbery, 2) extortion by force, threat or fear, 3) extortion under color
of official light (public official). Conspiracy is imbedded in statute, no need for overt act
Extortion by Force, Threat, or Fear
 Δ took property of the victim
o Sekhar v. U.S. property something of value that can be exercised/ transferred/ sold
 Knowingly and willfully
 By extortion (meaning the property was obtained w/ victim’s consent but consent was
induced by the use of actual or threatened force, violence, or fear.
o U.S. v. Edwards (5th Cir. 2002) fear includes losing actual particular economic
benefit but not a potential economic benefit.
 Affect on interstate commerce
Extortion Under Color of Official Right
 Public Official, candidate is not a public official
 Uses power & authority of office
o Evans v. U.S. (1992) Inducement is not an element
o McCormick v. U.S. (1991) Explicit quid pro quo needed for campaign
contribution. Implicit QPQ for non-campaign. Fulfillment not needed
 In order to obtain money, property, or something of value from another
 That the public official had no official right to obtain
 Knowing that the payment was made in return for taking, withholding, or influencing
official acts
Hobbs Act Robbery
 Δ took property from the victim
 Δ did so knowingly & willfully by way of robbery
o Robbery: unlawful taking or obtaining of personal property from the person or in
the presence of another, against his will, by means of actual or threatened force,
violence, or fear of injury
 As a result of Δ’s actions, interstate commerce was obstructed, delayed, or affected.
o Depletion of assets/ aggregation. U.S. v. Jimenez-Torres (1st Cir. 2006) De
Minimus affect on IC is enough
Money Laundering 18 USC § 1956 & 1957
Conspiracy is included in statute. 20 yr Stat Max; forfeiture. Specified unlawful activity required
 CTR- currency transaction report. Banks must report transaction of $10K or more
 SAR- suspicious activity (like transaction of $9999), not used in court.
 Structuring: felony, knowledge of CTR requirement & action intended to evade CTR
Laundering of Monetary Instruments 18 USC §1956
 Δ conducted a financial transaction
o Affects IC or involving “monetary instrument” or transfer of title to property or
involving financial institution
 Financial transaction involved property that represented the proceeds of [SUA]
o Commingling: no tracing required
 Δ knew the property involved was the proceeds of some crime
o U.S. v. Corchado-Peralta (1st Cir. 2003) enough to know that came from some
form of a felony even if not which felony
 Δ had the intent to promote the carrying on of the SUA (a)(1)(A) or the intent to conceal
the true nature of the proceeds (a)(1)(B).
§1957 Money Laundering (spending) 10 year stat max
 Knowingly engaged in “monetary transaction”
 Criminally derived property that is $10,000 +
 Derived from SUA
Commingling & §1957 (3 approaches)
Rutgard (9th Cir.)
Moore (4th Cir.)
Loe (5th Cir. 2001)
No 1957 with commingling
Commingling  presumption Commingling 
unless precise tracing shows
that for 1957 purposes
proportionality rule in 1957
transaction involved
transaction involved
cases. % of account that is
criminally deprived proceeds criminally derived proceeds
dirty & % of account that is
clean. Apply same % to the
transaction, & see if it
exceeds the $10K threshold
Differences between §1956 and § 1957
§1956
§1957
Specific intent promote or conceal
No specific intent
Financial transaction=monetary transaction as Monetary transaction=deposits, withdrawals,
well as certain real estate & personal property transfers, & exchanges through a financial
transfers
institution engaged in interstate commerce
Any proceeds
Must be over $10,000
Commingling allowed
Commingling can be problematic (see above)
20 year Statutory Maximum
10 year Statutory Maximum
Mail Fraud 18 USC §1341 Wire Fruad 18 USC §1343 every mailing constitutes a new act
 Δ knowingly participated in/ devised a scheme or artifice to defraud in order to obtain
money or property
o McNally v. U.S. (1987) intangible theory right was struck down but Congress
responded by enacting 18 USC §1346 that included intangible right of honest
service
 Skilling v. U.S. (2010) Honest services/ intangible rights theory may only
be prosecuted if it involves a bribe or kickback. Rejected “undisclosed
self-dealing by public official or private employee”.
 Bribery: as receiving thing of value in return for an official act
 McDonnell v. U.S., Official Act requires: 1) question, matter, issue,
ect must be pending or may by law be brought before the public
official, AND 2) public official made a decision or took action on
that question or matter.
o Carpenter v. U.S. (1987), includes intellectual property. Cleveland v. U.S. (2000),
issuance of license in hands of state is not property but in hands of licensee is
property.
 Scheme included a material misrepresentation or concealment of a material fact
o Neder v. U.S. (1999), material: natural tendency to influence or capable of
influencing the decision of a person of ordinary prudence & comprehension
 Δ had the intent to defraud
o Durland v. U.S. (1896), includes everything designed to defraud by
representations as to the past or present or suggestions & promises as to the future
 Mail in furtherance of the scheme (or for §1343 wire was used)
o Schmuck v. U.S. (1989), mailing need not be essential, need only be incident to an
essential part of the scheme or a step in the plot.
Bribery 18 USC §201(b) & Gratuities 18 USC §201(c) Both giver & receiver can be charged
Difference between Bribery and Gratuity
Bribery
Gratuity
Intent to influence official act
Accepted for or because of official act
Quid pro quo, explicit (no required that QPQ No quid pro quo, wink/ nod
goes through or authority to complete bribe)
Forward looking
Forward or backward looking
Must link to particular official act
Must link to particular official act
15 year statutory maximum
2 year statutory maximum
“thing of value” can include any value, even job offer
Federal Program Bribery 18 USC §666
 Δ was employee or agent of an organization
 Organization received in any one-year period in excess of $10,000 in federal funds
o Salinas v. U.S. (1997), no nexus required between bribe & federal funds but DOJ
policy requires a nexus.
 Δ corruptly solicited or accepted (or gave or offered) anything of value with the intent to
be influenced
 That the business transaction or series of transactions involved a value of $5,000 or more
Foreign Corrupt Practices Act (FCPA) note speech & debate clause (protects congress)
 Payment, offer, promise to pay money or thing of value
 To foreign government official
 With corrupt motive
 For the purpose of influencing any act or decision or securing an improper advantage
 In order to assist in obtaining or retaining business
Affirmative Defenses
 Local law (think international) & reasonable bona fide business expense
False Statements 18 USC §1001
 The Δ made a statement (or submitted documents)
 That was false, fictitious or fraudulent
 That was material
o U.S. v. King (9th Cir. 2013), materiality= natural tendency to influence or capable
of influencing. Does not need to actually influence, propensity is enough
 The Δ acted knowingly & willfully; and
 The statement pertained to a matter within the jurisdiction of the federal executive,
legislative or judicial branch
Recantation is not a defense. BUT some courts allow if almost immediate (if not complete
statement). Purgery allows recantation in certain time/ way.
Pleas Bargaining & Guilty Pleas
 Must be knowing, intelligent, & voluntary
o Knowing & intelligent = Δ aware of:
 Possible punishments
 Max, MM, supervised release, restitution
 Guidelines application
 Constitutional rights being waived
 Elements of crimes(s)
 Terms of any plea agreement
o Voluntary
 Coercion, threats, promises (unless in agreement or adding additional
charges)
 Trial Penalty: Δs who go to trial usually get a higher penalty because
o Acceptance of responsibility 2 levels off and another level off if gov motion
 Cooperation Agreements
 USSG § 5K1.1 & 18 USC § 3553(e)
o Substantial assistance motion can only be filed by gov. no
way to appeal or contest not filing
 First Steps in Cooperation
 Proffer Session
o “use”
 Can’t use statement but other evidence not obtained
in proffer session
o “transactional immunity”
 Can’t be charged with that offense
Sentencing
 Apprendi v. New Jersey (2000): any fact that increases penalty past stat. max must be
submitted to the jury and proved BRD
 Blackely v. Washington (2004): under state guidelines, trial judge found facts by POE at
sentencing that increased sentence. Court = violation of 6th Amend. jury trial right
 U.S. v. Booker (2005): 6th Amend. violation. 2 options
o Guidelines are advisory. Appellate review for reasonableness
o 18 USC § 3553(a) factors
 District court’s job is “sentence sufficient but not greater than necessary”
 Variance concept created: upward or downward