18 U.S.C.

1341 MAIL FRAUD

-has to be mail in furtherance of scheme,
- doesnt personally have to mail it, enough if caused the mailing
-or if knew/should have anticipated the use of mails would
follow in OCB
-mailing need not be central to the scheme, need not be false, need
not be made by
-each mailing in furtherance of fraudulent scheme is a violation of act,
ONCE is enough
-not necessary for to have profited from scheme, not necessary for
victim(s) to suffer any loss
-dont need to show specific intent to use the mails
-but, cannot cause an innocent third party to make a mailing (unless
transmission by that party was unreasonable or unforeseeable)
-can be violated intrastate or interstate, applies to any mailing e.g.
commercial carriers
-protects against public/political corruption and breaches of fiduciary duties
in private sector
-statute used to attack corruption that deprived victims of other kinds of
intangible rights like election fraud and privacy violations (bribes and
kickbacks are the core honest services fraud precedents)
-federal interest in ISC and regulation of mail provided sufficient basis for
enacting these laws

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)

-The false or fraudulent representation (or failure to disclose) must relate to a

material
fact or matter. A material fact is one which would reasonably be expected to
be of concern to a
reasonable and prudent person in relying upon the representation or
statement in making a

-mailing that is incident to an essential part of the scheme satisfies mailing

element
 -if success of scheme in no way depends on the mailing then doesnt fit
definition
-innocent mailings can satisfy element, e.g. routine mailings,
newspapers Carpenter

"Schemes to Defraud" and Applications to Public Corruption

-originally for the purpose of preventing "thieves, forgers, and rapscallions...[from]
deceiving and fleecing the innocent people in the country."
-courts permit mail fraud prosecutions of public officials who deprived the
public of their intangible right to honest services
-breach of duties in official position, failing to act honestly or ethically,
concerned with own personal gain, criminal pursuits, undisclosed
conflicts of interest
-limited to acts performed within scope of employment
-real fraud: bad guy tells lies, which in turn deprives victim of property
-intangible rights (faux fraud): bad guy fails to disclose something to victim, victim
loses the right to bad guys honest services
-did not lose anything real and in some instances might have benefited

"Honest Services" fraud covers only schemes where a public official or

corporate executive enriches himself at the expense of the public or the
shareholders (skilling)
-broadly requires making official decisions according to publics best interest, or
employers

Durland v. United States 1896

HELD: scheme built on allurement of promises still a punishable
scheme given its fraudulent purpose but offense requires a specific intent to
defraud
-intent of the statute is to stop knowing liars from getting people's money
-protects public against all intentional efforts to despoil, prevents
against using mail
-includes everything designed to defraud, past/present misrepresentations
and future promises
-intention to break a contract at commencement of contract is fraud, lies,
intended to cheat
-D never intended to use scheme for anyones gain or returns except
his own
-never intended for bonds to mature, never made honest effort
to succeed
Intangible rights:
McNally v. United States (1987), mail and wire fraud statutes did not
extend to deprivations of intangible rights, only reached property rights.
ISSUE: whether a state officer violates the mail fraud statute if he chooses an insurance
agent to provide policy for State, but specifies that the agent must share its commissions
with other named insurance agencies, in one of which the officer has an ownership interest
and hence profits when his agency receives part of the commissions? Did not disclose info to
public.

-classic kickback 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.

DISCUSSION: given the governments failure to allege or establish that the

had solicited or accepted side payments, had not committed honest-
services fraud.
HELD that Section 1341 criminalizes only schemes in which the private
employee or public official accepts bribes or kickbacks. Declined to extend
Section 1341 to undisclosed self-dealing.
THEN Congress amends statute in 1989 to explicitly include
intangible rights to honest services 1346, to effectively overturn
McNally decision
Skilling v. United States (2010)- CEO worked to deceive public and
shareholders about corps finances challenged constitutionality of Section
1346, Supreme Court construed it narrowly rather than invalidating it as
unconstitutionally vague.
HELD, Court concluded that Congress intended the statute to reinstate
honest services law as it existed prior to McNally decision, statutes intent is
clear but text is vague
-breach of fiduciary duty (e.g. failure to disclose) = deprivation of honest
services

Schmuck v. United States (1989) Facts: D purchased cars, rolled back

their odometers, and sold them at a higher price because of the lower milage
to a dealer, who in turn sells the car to the consumer. The requisite mailing
alleged was an application to the DMV in order to transfer the title from the
dealer to the consumer sent out AFTER fraud occurs. Theories (1) D: victim
is the dealers, so the scheme ends once D sold the car to the dealer (2)
Government: ongoing fraud, the scheme is to defraud public consumers, so
the scheme does not end until the title is transferred
 HELD: Court agrees with the govt that now theres no "right" or
"wrong" fraud story, govt just needs to tell a rational enough story for the
jury to come to the conclusion that knowingly used the mails in their
scheme -a lot easier for the government to win.
-mailings were essential to perpetuating scheme/making $$, part of
execution of the fraud

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.

Protected Interests/Relationship to Other Crimes

-Real fraud case, can property be more than just what you can see/touch?

-Carpenter v. United States (1987) Facts: Columnist alleged to have

defrauded his employer, the Wall Street Journal by appropriating confidential
business information for his own interest. Winans gave advance notice of the
contents and timing of his column (which would affect stock prices) to
certain stock brokers who would then use that information to trade on the
stocks discussed in the column, despite Winans's knowledge that WSJ treated
the contents of the column as confidential before publication.
HELD: Confidential business information is considered to be property
because it has economic value (this was after McNally but before
1346, which meant that only real property counted under the statute--
or this would have been an easy honest services claim)
-Cleveland v. United States (2000) Facts: D applied for a license for
lottery machines by making a false statement that his children were to be
the beneficiaries, when actually D and his partner were. Theory of
government: the unissued poker license constitutes property under 1341
and therefore D is guilty of mail fraud, used the mails in a scheme to defraud
the government of the poker license--no honest services theory because D
owed no fiduciary duty.
HELD: the thing obtained must have been property in the hands of the
victim, and unissued video poker licenses are not property (have no value)
until they are issued under the mail fraud statute (1) and there is no
indication that D did not pay the fee for the license, only that he obtained
them under false pretenses--government not losing any money

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

1333 WIRE FRAUD

-have to prove transmission crossed state lines
-depriving someone of honest services or money schemes, has to be
accepting a bribe or kickback
-each mailing and wire transmission are separate crimes, dont have to be
successful to be guilty
-internet presumed to be interstate connection
In cases of overlapping statutes, the mail fraud statute can be used to fill
gaps that the statute on point does not cover a. ex: credit card fraud requires
that in order to prosecute, have to allege over $1000--but since these
transactions happen through the mail/wire prosecutors can use the mail
fraud statute for any amount this could undermine congressional intent to
keep smaller cases out of federal court, and have created new punishments
for crimes

Bribery of Public Officials and Witnesses 18 U.S.C.

201
18 U.S.C. 201 covers
(a) definitions of "public official", "person selected to be a public official", and
"official act"
(b) bribery (requires proof of quid pro quo)
(c) gratuities
-criminalizes both the receipt and payment of illegal bribes and gratuities, no
amount in controversy requirement
-"thing of value" is subjective to recipient, can be paid to third party
-intentions of the payor and payee will not necessarily be the same in bribery
and grat cases
-both may have requisite intent under 201 but it's possible that only
one party is guilty or that one party is guilty of receiving a gratuity and the
other of bribery
-i.e. donee's intent when receiving a gratuity may be innocent

Section 201, usually federal official

-for anyone using fed funds or govt programs for work as a contractor,
officer, or agent
-bribery of fed officials applies to all branches of govt
-punishable under necessary and proper clause bc it interferes with conduct
of fed program
-members of congress can invoke Speech or Debate Clause "for any
speech or debate in either House, senator or representative shall not be
questioned in any other place" Art. I section 6 and move to dismiss
-protected legislative acts like opinions, votes, hearings, investigations,
reports
-"corruption of officers occurs when the officeholder agrees to misuse his
office in the expectation of gain, whether or not he has correctly assessed
the worth of the bribe" 201b
-"thing of value" also includes intangible benefits like sexual favors or
providing official's companionship by girlfriend on vacation (sun diamond
provided payment for airplane ticket)
-govt promise of leniency in exchange for testimony is not a
thing of value, "if congress had intended to criminalize long established
prosecutorial practice it would have done so in clear language"

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

quid pro quo

-something of value was offered in order to influence an official act
-salary and benefits of an unelected public employee are property for 201
determinations
-must prove that intentionally tried to defraud victims of that value
-violation of statute even if the bribed official never performs the requested
action, or lacks authority to do so
- verbal agreement to do it will satisfy intent requirement without a
corrupt intent
-intending to procure a quid pro quo agreement is enough for
corrupt intent
-offense is complete upon the offer or acceptance of bribe or grat
-specific intent to give or receive something of value in exchange for official
act

TO PROVE BRIBERY under 18 U.S.C 201 (b)

1. something of value was requested, offered, or given "corruptly"
2. to a federal public official
3. with intent to -influence any official act or
-influence such public official to commit or aid in committing or
collude in or allow any fraud or make opportunity for the
commission of any fraud on the U.S. or
-to induce such public official to do or omit to do any act in
violation of their lawful duty 201(b)(1-2)

-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

ILLEGAL GRATUITIES -201(c)

TO PROVE ILLEGAL GRATUITITY under 201(c), actor
1. directly or indirectly gives, offers, or promises thing of value (or receives
(B))
2. to a past, present or future federal official
3. for or because of any official act performed or to be performed by official
-DISTINGUISHED FROM BRIBERY, which requires intent "to influence" while
201(c)(1)(A) requires only that gratuity was given or accepted "for or
because of" any official act
-need not show particular act if you can show has intent to reward
past favorable acts or to make future ones more likely
-e.g. gifts given simply because of official's position as Secretary of
Agriculture
-can be either forward or backward looking, given with no strings attached
-rewards
-enticements for an official to maintain favorable position
-gifts to influence future official acts
201(c)(1)
a- offers to public official
b- receives/seeks illegal tip

United States v. Sun-Diamond Growers of California (1999)

Facts: , trade association involved in lobbying in DC, charged with giving
the Secretary of Agriculture illegal gratuities when it had an interest in
favorable treatment from official, but nothing Secretary received from was
part of an exchange for a specific act
-gifts given like sports tickets, meals, luggage, memorabilia, plane ticket for
girlfriend
-no particular link between any gift to any matter on officials agenda,
-read the statute narrowly as to not include innocent conduct (ex: giving the
President a jersey after winning championship)
-if read broadly, even trivial gifts to a person in office, because of his office
could constitute a federal offense, which is not what this statute was
intended to reach
-so because there was no official act that the gratuities could be tied to, no
violation of the statute, general goodwill isnt within the statute, has to be
"for or because of any official act performed or to be performed."
Args: The prosecution argued it was enough that Sun-Diamond had given
Espy the gifts because of his official status. Espy was in a position to take
future actions that would benefit Sun-Diamond. The gifts were an attempt to
curry favor and that, the prosecution argued, should be sufficient to make
them gratuities.

-criminalizing gift-giving based on another's official position (tenure in office)

would be absurd, not govts intent for 201(c) to outlaw tokens bestowed for
routine or ceremonial events
-Congress did not intend "official act" to mean "official position" or
office
HELD in order to establish violation of 18 U.S.C. 201(c)(1)(A) the gov't must
prove a link between thing of value conferred on public official and a specific
"official act" for or because of which it was given (but not quid pro quo
standard like bribes)
-must identify a particular official act to which the gratuity is linked.
-not enough to claim that gifts were to generate goodwill or because of
status/authority
DISCUSSION: illegal gifts may constitute merely a reward for some future act
that the public official will take (and may already have determined to take),
or for a past act that he has already taken
In a gratuities case, the focus is on the nature of the official action being
rewarded: Was this particular gift for or because of an exercise of discretion
involving an identifiable decision or action on a matter, proceeding or
controversy? Sun-Diamond concludes that an official act as defined in the
statute requires this kind of discretionary action, the public officials resolving
of a question before him or her.
In a bribery case, by contrast, the focus is not so much on the nature of the
act but on the question of influence, or quid pro quo. Of the three ways to
violate the bribery statute, only one requires an official act but all three
require the government to show that the public official was influenced or
induced to act a certain way. Whatever the nature of the action taken, the
key question is: Was it taken in exchange for the thing of value that was
given? Did the public official agree to sell the powers of his/her office?
RATIONALE FOR PROHIBITING GRATIUITIES: even if corruption not intended
by parties, still a tendency for donees to provide preferential treatment to
donors or elsewise reveal the Officials inefficient management of public
affairs.
SENTENCING
201 b- bribery up to 15 years, fine 3X the value of bribe, disqualified from
holding public office
201(c)- lesser gratuities offense up to 2 yrs prison, fine,

FEDERAL PROGRAM BRIBERY 18 U.S.C. 666

18 USC 666 - Theft or bribery concerning programs receiving Federal funds
-corruption of any state or local (or federal) employee/agent falls within
reach of statute if meets value of 5k+, penalty no more than10 yrs prison
18 U.S.C .666
(A)(1) Whoever as an agent in circumstance of (b)
(A)(1)(B) corruptly solicits or accepts anything of value with an intent to
influence or reward agent in connection with any business, transaction or
series of transactions of such organization, govt or agency involving $5k or
more
(A)(2) corruptly offers or gives w. intent to influence or reward agent in
connection with any business of such organization, govt or agency, involving
anything $5k+
(b) for circumstances where organization, govt or agency received in any 1
yr period benefits in excess of $10k under a fed program/aid/grant
-additional anti-bribery provision and potentially also anti-gratuity w/
"reward" term, except the prison sentence is much longer and language
"corruptly" "intent to influence" doesnt conform to 201(c) gratuity violation
-doesn't require quid pro quo proof of connection, but would be same as
under 201
-evidence could include a relationship based on a pattern of exchange
in which favors flow to Official in exchange for official actions favorable to
donor, specific acts
Salinas v. United States 1997
-Sheriff and deputy () accepted series of payment from federal prisoner in
exchange for granting conjugal visits
-in return for his assistance with scheme, prisoner gifted a designer watch
and a truck
- anything of value covers all personal prop transferred to Bribee AND
intangible benefits, court determined market value of conjugal visits and
concluded case had reached $ threshold
-can apply 666 to facts because preferential treatment of prisoner
threatened the integrity (policy arg.) and proper operation of the federal
program which relocated fed prisoners to s county as part of grant
agreement
RULE: don't need to prove connection between bribe and expenditure but
HERE, relationship was close-enough since bribe was related to a prisoner in
facilities paid for by federal funds
-might be connected in the first place since only Congress can
appropriate public funds
-Intent to influence or be influenced in a transaction "involving anything of
value of $5,000 or more " prong sets the monetary threshold. Supreme Court
placed no limitation on this language, statute seemingly permits federal
prosecutors to aggregate the value of a "series of transactions" in alleging
the threshold provided that the prosecutors can tie the corrupt act to the
"series."
Args: argued that his conviction for federal bribery could not stand because
there was no proof that the bribery affected federal funds.
HELD: expansive language doesnt support interpretation that that federal
funds must be affected to violate 666(a)(1)(B)
-broad definitions bring maximum amount of cases and parties in purview of
law
-might require some kind of connection, an identifiable nexus

The Hobbs Act: Extortion 18 USC 1951:

criminalizes 1) robbery, 2) extortion by threat, fear, or force, 3) extortion

under color of law a. Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so to do, or
commits or threatens physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of this section
shall be fined under this title or imprisoned for not more than twenty years,
or both
b. as used in this section (1) robbery means the 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...[against him or his family or
his property] (2) extortion means the obtaining of property from another,
with his consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right

The Hobbs Act, broken down--creates crimes of

a. extortion/attempt/conspiracy
(1) fear/threat/force
(2) color of official right = taking a bribe
b. robbery/attempt/conspiracy

Force, Violence, or Fear

a. United States v. Edwards (5th Cir. 2002)
(1) Facts: D governor of Louisiana, sent associates to various establishments
to "help" people get riverboat licenses, but then if they refused the help (i.e.
didnt make a payment to them) the associates said that they would not be
able to get a license. D charged with violence/force/fear extortion
(2) Holding: Sufficient evidence of fear of economic loss to convict.
(a) What counts as economic loss?
I. fear of economic harm/loss
II. fear of affirmative harm--getting blackballed

c. United States v. Enmons (1973)

(1) Facts: Union trying to use force in an attempt to obtain money from an
employer
(2) Holding: Hobbs Act does not apply to the use of force to achieve
legitimate labor ends (i.e. strike causes economic loss, but if it is used
correctly, its ok)--so the coercive means has to have a wrongfulness
component
(3) however, if coercive force was used for illegitimate means, the Hobbs Act
would apply

d. United States v. Pendergraft (11th Cir. 2002)

(1) Issue: does the threat of a lawsuit supported by perjured/fabricated
testimony rise to a Hobbs Act violation?
(2) Holding: No. Look to the end, the end was a lawsuit, which is a legal end,
so it did not matter that the means were wrongful--but this is also a situation
where the court had an interest in not criminalizing false testimony under the
Hobbs Act because there is a great interest in protecting witnesses from
liability (or else risk censorship)

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

4. Color of Official Right

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).

United States v. Evans (1992)

(1) Facts: D, county commissioner, approached by an undercover FBI agent
who asked for help with a zoning issue, FBI agent gave D $8,000, $7,000 in
cash and $1,000 by check payable to the campaign account, never
asked/demanded a bribe, just took what was offered on the table. D asserted
that this money was a campaign contribution and the FBI agent was a
supporter
(2) Theories: no bribery claim because not a federal actor under 201, also
not under 666
(a) could have been charged with deprivation of honest services under
the mail fraud statute (assuming you could find a mailing, maybe the
check) but that has a small punishment compared with Hobbs Act
(3) Holding: This money constituted a bribe
(a) "if a public official demands or accepts money in exchange for a
specific requested exercise of his or her official power, such a demand
or acceptance does constitute a violation of the Hobbs Act regardless
of whether the payment is made in the form of a campaign
contribution."
(b) does NOT require an affirmative act of inducement, court looks at
CL definition
(c) extortion by color of official right: an official who took by the color
of his office money that was not due to him for the performance of his
official duties--a demand is not an element of this offense extortion by
color of official right: an official who took by the color of his office
money that was not due to him for the performance of his official
duties--a demand is not an element of this offense
(d) EXTORTION UNDER COLOR OF OFFICIAL RIGHT = TAKING A BRIBE
I. government only needs to show "that a public official has
obtained a payment to which he was not entitled, knowing that
the payment was made in return for official acts."
-so a gratuities offense now can come with 20 year
punishment
(e) this interpretation is further supported by the text of the statute
itself, which includes "induced" in the
private, threat of force provision, but does not include that term in the
public official provision
 (f) How to separate legitimate campaign contributions from bribes?
fact based inquiry
I. here is was a bribe because it was paid mostly in cash, which
is not usual for contributions, and D failed to report the cash part

McCormick v. United States (1991): proof of a quid pro quo is an essential

element of a Hobbs Act prosecution based on payments identified as
campaign contributions
(1) so higher standard to show that campaign contributions are bribes,
because you dont want to prosecute for legitimate campaign
contributions, especially because in our system they are essential

so 2 quid pro quo standards?

(1) strict for campaign contributions
(2) looser, implied for all other bribes
(3) but what about the distinction between bribery and illegal
gratuities, why should both be swept together in the Hobbs Act, when
in the illegal gratuities and bribery statutes the former gets a much
lesser punishment?

DRUG OFFENSES

The Comprehensive Drug Abuse Prevention and Control Act (1970)

-This was the first law to attempt a comprehensive scheme for both narcotics and
dangerous drugs.
-It remains in force today, and its Congressional findings are the basis for all
contemporary drug laws.
-It established classes of controlled substances, each with its own sentencing
schedule.
-In the 1980s Congress increased the penalties for most existing drug offenses,
setting mandatory minimum sentences for most 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.
-

841 v. Lopez (Gun Free Public Schools Act)

1. There is no express jurisdictional requirement to be met by the prosecution.
2. It is hard to tell where drugs originate from, whereas guns can be traced.
3. No interstate commerce need be shown (a la Lopez gun law)
4. 841 doesnt encounter the same constitutional problems as the gun law in
Lopez.
In Lopez, the statute attacked mere possession, while 841 attacks drug
dealing, actual transactions that are inherently commerce.
a. It is easier to prove the effects on commerce from drug-dealing than from
gun possession. Congress thoroughly analyzed and documented drugs
effects on commerce, i.e., that drugs are often shipped, consumption
affects productivity, etc.

The Schoolyard Statute (21 USC 860):

- Maximum penalties from manufacturing, distribution, or possession with intent
to distribute are DOUBLES for the first offense and TRIPLED for any subsequent
offense occurring within 1000 feet of a school.
- Do these penalties apply where the offender merely possesses the drugs within
1000 feet of a school, but intended to distribute them elsewhere?
o Circuits are split, but several circuit courts have said yes, because
Congress intended to create drug-free school zones. (But many have
questioned the circuit courts reasoning.)

21 USC 846 Conspiracy:

-Occurs when two or more people agree to commit a crime.
-The goal of the crime doesnt have to be formulated; there just has to be a plan.

Charging a conspiracy:

-Usually based on 841

-Must pick a beginning and an end date for the conspiracy activity
-Defendant becomes liable for all (but only) those acts committed within that
timespan.
-Must pick a narcotic
-Circumstantial evidence can be used in order to prove a conspiracy, so it is
worthwhile to look at activities and statements of everybody involved, and generally
the context of the crime.
-This makes conspiracy convictions pretty easy to obtain.
-Mere presence is one of the most common defenses to conspiracy charges.

848(e)(1)(a) DEATH ENHANCEMENT

-penalty enhanced for any person engaging in a drug offense (841) who
intentionally kills or causes killing of an individual
-applies to drug offenses and drug conspiracies
PROVE
1. drug conspiracy existed at time of killing
2. D was member of conspiracy
3. Murder was connected to drug offense in meaningful way

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

21 USC 843(B) FACILITATION OFFENSE

-unlawful for any person to knowingly use communications facility in committing a
drug crime
-any and all public instruments for transmission/communication
-each separate use is separate offense
-charge can be added or substituted for a drug offense

Abuelhawa v. United States, 556 U.S. 816 (2009),

-Supreme Court held that a defendant who used a cellphone for the misdemeanor
purchase of cocaine could NOT be charged with a felony for using a "communication
facility" to facilitate the distribution of an illegal drug under 21 U.S.C. 843(b).
DISCUSSION: Government's interpretation of "facilitate" exposed a first-time buyer
using a phone "to punishment 12 times more severe than a purchase by a repeat
offender and clearly not in line with Congress's intent, since it conflicted with the
classification of the drug sale itself as a misdemeanor.
-intended to impede illegal drug transactions facilitated by modern
communications but not in this way
FIREARMS POSESSION
-possession of contraband like drugs or guns can be actual or constructive
-constructive possession when D knowingly holds power and control over
firearm, ABILITY
 -often where D has ownership, dominion or control over premises
wherein found
-without exclusive possession, must prove nexus between D and
gun

924(C) outlaws possession of a firearm in furtherance of, or use of a firearm

during and in relation to, a predicate offense. The predicate offenses are crimes of
violence and certain drug trafficking crimes. The drug trafficking predicates include
any felony violation of the Controlled Substances Act, the Controlled Substances
Import and Export Act, or the Maritime Drug Law Enforcement Act.24 The crime of
violence predicates are statutorily defined as any federal felony that either (A) has
as an element the use, attempted use, or threatened use of physical force against
the person or property of another, or (B) 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 the offense.
Government need not produce the gun itself at trial. It need do no more than
present sufficient testimony, including the testimony of law witnesses, in order to
prove beyond a reasonable doubt that a defendant used, possessed or carried a
firearm as that term is defined for purposes of 924(c). Yet conviction must rest
on some evidence of the presence of a firearm.
UNLAWFUL TO
1. use or carry a firearm during and in relation to the underlying offense; OR
- including a crime of violence or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a deadly or dangerous weapon or
device
2. possess a firearm in furtherance of the underlying offense
-both dispositive
-by making this distinction, Congress may well have intended in furtherance to
impose a more stringent standard than in relation to
Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013)(Because the finding of
brandishing increased the penalty to which the defendant was subjected, it was an
element, which had to be found by the jury beyond a reasonable doubt). Alleyne
overruled Harris, which had held that brandishing was a sentencing factor that
might be entrusted to the judge to find by a preponderance of the evidence (Harris
v. United States, 535 U.S. 545, 556 (2002)); United States v. Hackett, 762 F.3d 493,
502 (6th Cir. 2014); United States v. King, 751 F.3d 1268, 1278-280 (11th Cir. 2014).
The fact of a second or subsequent conviction, however, remains a sentencing
factor, because the Supreme Courts holding in Almendarez-Torres v. United States,
523 U.S. 224 (1998), to that effect has not been withdrawn, United States v. King,

-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.