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18 U.S.C. 1341
1. knowingly devised a scheme to defraud or to obtain money or property or
the intangible right of honest services by materially false or fraudulent
pretenses, representations or promises (or willfully participated in such a
scheme with knowledge of its fraudulent nature,);
2. acted with the intent to defraud; intentional deprivation of anothers $ or
rights, and
3. That in advancing, furthering, or carrying out the scheme, used the
mails or caused the mails to be used (committed for the purpose of
executing the scheme)
Args: It was not argued that, in the absence of the alleged scheme, State would have paid a
lower premium or secured better insurance. Officials received part of the commissions but
those were not the States money. Nor was the jury charged that, to convict, it must find that
the State was itself defrauded or deprived of control over how its money was spent. Officials
asserted control that State may not have but the premium for insurance would have been
paid to some agency therefore their decision was not inappropriate.
As Justice Ginsburg made clear, [o]verlap with other federal statutes does not
render 1346 superfluous. The principal federal bribery statute, 201, for example,
generally applies only to federal public officials, so 1346s application to state and
local corruption and to private-sector fraud reaches misconduct that might
otherwise go unpunished. Skilling, 130 S. Ct. at 2934 n.46. Additionally, 18 U.S.C.
666 covers only bribes over $5,000 in value, while the honest-services statute has
no minimum.
SENTENCING
-maximum penalty, 20 years, controlled by the number of counts
-penalty actually imposed will be based on nature of offense (amount of $
involved in scheme, impact on the victims etc.) and s criminal history
201(a) definitions:
-"public official"
-to determine status, issue is not whether a K was signed but rather
WHETHER THE PERSON OCCUPIES A POSITION OF PUBLIC TRUST WITH
OFFICIAL FEDERAL RESPONSIBILITIES?
-"official act"
"any decision or action on any question, matter, cause which may at
any time be pending or which may by law be brought before any public
official in their official capacity
201(b) "corruptly"
201(b)(1) criminalizes the payment of bribe, "offers or promises anything of
value to any public official..." with intent to influence or induce
201(b)(2) criminalizes the receipt (bribee), "or agreement to receive.." with
intent of being influenced or induced
-for "official act" charge, must prove nexus between thing of value conferred
on public official and a specific "act", requires quid pro quo
-need not be one-on-one connection between payments and acts,
proof of a quid pro quo may be satisfied upon a showing that a government
official received a benefit in exchange for his promise to perform official acts
or to perform such acts as the opportunities arise U.S. V. SUN DIAMOND
- may be attempting to "influence"/"induce" official to adopt a certain
course of action
-covers "this for these" or "these for these" bargains, not limited to
exchanging "this for that"
-bribery is future-oriented
bribery v. extortion
(1) difference between purchasing an advocate (bribery) and paying off a
thug (extortion)
(2) look at the baseline--fair treatment/expected treatment/status quo
(a) if the person harmed/threatened harm to the baseline, and you
would receive worse treatment, then its extortion
(b) if they are threatening the loss of a gain, there has been no harm
to your baseline, still treated fairly
(c) what about getting fair treatment by illicit means? can you claim
the fair treatment then on that basis?
I. some courts say retrogression to fair treatment is an extortion
claim, other say that because the fair treatment was received by illegal
means, no extortion
f. Scheidler Cases
(1) Facts: abortion clinics sued Operation Rescue and anti-abortion
protesters alleging that their violent tactics amounted to a Hobbs Act
violation of extortion
(2) Scheidler II: alleged that not being able to run a business can amount to
economic loss extortion, court disagreed, stating that D has to obtain the
property, and Ds aren't obtaining property from the abortion clinics
(a) attempt to use the Hobbs Act to get a greater punishment for actions
that were covered under the PACE Act
(3) Scheidler III: tried to use the Hobbs Act to cover threats against persons
or property in commerce without reference to extortion or robbery, referring
to the scope of "violence in furtherance of"
(a) different ways of interpreting
I. affecting commerce
II. affecting commerce through a violation of the Hobbs Act**
cant just be regular violence, has to have some connection to a
Hobbs Act violation
h. United States v. Gotti (2006)
(1) Facts: Union was taken over by the mob, property interest was wages,
and other benefits, that were not going directly to the mob, but to the people
that were given jobs because of the involvement of the mob in the union
(2) Holding: D obtained the union members' rights to free speech and
democratic participation by controlling the elected officials' performance of
union duties in a way that would benefit them financially
The Hobbs Act also reaches extortionate acts by public officials acting under
the color of right. A public official commits extortion under the color of right
when he obtains a payment to which he is not entitled knowing that it was
made in exchange for official acts.[5] 1951 therefore not only embraces the
same conduct the federal bribery statute (18 U.S.C. 201) prohibits, it goes
further in two ways:
1. 1951 is not limited to federal public officials.
2. The government need only prove a public official agreed to take some
official action in exchange for payment as opportunities arose to do so
(i.e. a "stream of benefits" theory) to sustain a 1951 charge whereas,
under 201, the government must prove an express quid pro quo (or
something approaching one).
DRUG OFFENSES
21 USC 841
- This is now main substantive statute in the WOD.
- It criminalizes the manufacture, distribution, or possession with intent to
distribute any controlled substance.
- It features the 5 different schedules for controlled substances. These schedules
can change, however.
o Schedule I drugs have the highest potential for abuse, no accepted
medical use and are therefore subject to the strictest controls.
o Some of the classifications are rather odd. For example, marijuana is
Schedule I, while crack and cocaine are Schedule II.
- Congress amended it in the 1980s to feature minimum sentences.
- The CA and AZ laws legalizing some drug use are trumped by 841, so there can
still be federal prosecutions in those states.
- 841s penalty scheme also applies to the offenses of attempt and conspiracy.
(21 USC 846)
- Congress has supplemented the standard 841 offenses (manufacturing,
distribution, possession with intent to distribute) with various provisions
increasing the maximum sentences applicable to the underlying conduct when
one or more criteria are met.
-
Charging a conspiracy:
HAGER
-so long as D enters into unlawful agreement before the killing, and conspiracy is
ongoing when killing occurs, drug offense and killing elements of 848(e)(1)(a) are
satisfied by independent acts that overlap in time
-dont need to occur contemporaneously but must prove substantial
connection
HELD: D was engaging in an offense punishable under 841 when he killed victim
and there was a substantive connection between drug trafficking conspiracy and
the murder
-murder must be related to at least one drug-offense motivation
-intertwined with drug conspiracy, D killed to eliminate threat to himself and
business
-King acknowledged owning the rifle and had access to it in trunk of baby
mamas car
-admission and corroborating evidence = constructive possession
-must also be in furtherance of drug trafficking
-firearms are tools of the drug trade, probably not coincidental w/ narcotics
found in trunk
-mere possession of gun in area where criminal act occurs is not enough,
weapon must further or advance the drug trafficking crime
-intent to possess gun to further drug crime proven through
circumstantial evidence
-relevant factors to identify a nexus between gun and drug offense:
type of drug activity, accessibility of firearm, type of, legal status of weapon,
its proximity to drugs
-FIREARM WAS KEPT AVAILABLE FOR USE SHOULD IT BE NEEDED DURING
DRUG TRANSACTION
-fact that gun was under lock and key and concealed at irrelevant
times doesnt matter
-reference or brandishing of firearm calculated to bring about change is USE
OF
-use=active employment, carry retains independent meaning
-strategic placement of gun may show Ds use w/ greater participation in
committing crime
MONEY LAUNDERING
18 U.S.C. 1956(a)(1) provides that:
Whoever, knowing that the property involved in a financial transaction represents
the proceeds of some form of unlawful activity, conducts or attempts to conduct
such a financial transaction which in fact involves the proceeds of specified
unlawful activity-
(A)(I) with the intent to promote the carrying on of specified unlawful activity;* *
*; or
(B) knowing that the transaction 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
commits a crime.