Close

Federal Crimes Outline - Professor Bolitho - Campbell Law - Part 4

By Miller Moreau
Professor Bolitho - 2021

Download the PDF version of this outline

<< Part 3 | Part 5 >>

h. Duration

  1. U.S. v. Jimenez Recio (2003) (Breyer)
    1. There is NO automatic termination rule, even where the objective becomes impossible
      1. Effect—even after the object is no longer attainable, even if due to gov’t frustration of purpose, other people can still join the conspiracy.
      2. Reasoning—(1) the crime of conspiracy contemplates the criminal agreement, not just the underlying act, the danger is broader in scope. (2) Most circuits limit termination to abandonment, completion, or withdrawal.
  2. Smith v. U.S. (2013 (Scalia)
    1. SoL begins upon withdrawal
    2. Where the affirmative defense does not negate an element of the crime, but rather excuses otherwise punishable conduct, the prosecution has NO constitutional duty to prove its nonexistence BRD.
    3. Imprisonment alone does not constitute withdrawal
    4. Passive non-participation does not sever the conspiracy. There must be an affirmative act

i. Pinkerton Liability

  1. U.S. v. Bingham (2011) (9th Cir.)
    1. The focus of Pinkerton Liability is on both (1) the foreseeability of the act and (2) within the scope of the conspiracy, not just the single criminal act.
    2. Minor Role EXCEPTION
      1. Pinkerton ONLY extends to those who play a substantial role in the conspiracy.
      2. Minor or marginal roles in a conspiracy do not confer vicarious liability. EX. Being Escobar’s secretary
    3. Merely agreeing to back each other up is NOT enough to show a conspiracy. There must be a desired objective.
    4. Basically, to be liable, the D must (1) be in a substantial conspiratorial role AND (2) the actual crime was reasonably foreseeable as a necessary or natural consequence of the conspiracy.
  2. When determining the scope of the agreement view it as if that agreement is the Articles of incorporation, then, look at the individual D’s agreement to find the scope pertaining to him. Upon a meeting of the minds, an individual’s scope may be limited.
VI. Firearms Regulation

a. Priorities of Operation Triggerlock

  1. Prosecute violent organizations
  2. Illegal gun trafficking
  3. Prosecution of prohibited persons

b. 18 U.S.C. § 922

  1. § 922(g) Prohibited Persons List
    1. Those convicted of a crime punishable by more than one year in prison
    2. Fugitives
    3. Addicts—Regular and repeat users
    4. Judicially adjudicated as mentally defective
    5. Aliens who are
      1. Illegal OR
      2. On a nonimmigrant visa
    6. Dishonorable discharge from the military
    7. Prior renunciation of citizenship
    8. Court imposed domestic, permanent restraining order
    9. Domestic violence conviction
  2. § 922(g) Elements (after Rehaif)
    1. D knew he possessed the firearm
    2. The item is actually a firearm
    3. IC
    4. After D obtained criminal status
    5. D knew he held that status
      1. No requirement that the D knows the law prohibits that class of people from possessing firearms, only that he is actually within the class.

c. 18 U.S.C. § 924(c) Use of a Firearm in a Crime of Violence/Drug Trafficking

  1. § 924(c)(1)
    1. First Offense
      1. Mandatory minimum for using a gun during a crime
        1. Use/carry/possessed = 5 years
        2. Brandished = 7 years
          1. Brandish—display any part for the purpose of intimidation
        3. Discharged = 10 years
    2. Second Offense
      1. Standard = 25 years
      2. Machinegun = life
    3. Other aspects
      1. No probation allowed to undercut the jail-time
      2. No concurrent sentencing
    4. Crime of Violence—924(c)(3)— (1) is a felony and (2) an element of it is violent.
  2. § 924(c)(3) Defining “Crime of Violence”
    1. (A) Elemental Prong
      1. The crime has as an element, the use or threat of physical force against a person or property
    2. (B) UNCONSTITUTIONAL (Davis) Residual Clause
      1. “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 the offense.”
  3. § 924(c)(5) Drug Crimes and AP rounds
    1. Standard = 15 years minimum
    2. Causes death:
      1. Murder = life
      2. Manslaughter = see § 1112

d. 18 U.S.C. § 924(e) Armed Career Criminal Act

  1. NOT a crime. Just a sentencing enhancement
  2. Requirements to qualify
    1. 3 previous convictions
      1. Current crimes do NOT count. Fair Step Act
    2. Each of which had a potential for more than 1 year in jail.
    3. For:
      1. Violent felonies OR
        1. A felony is “violent” if it (1) prior had an element of actual or threatened physical force; (2) was for burglary, arson, extortion, or involved explosives.
          1. Originally included a residual clause for “conduct that included a potential risk of serious physical injury,” which was declared void for vagueness by Johnson.
      2. Serious drug offenses
        1. Serious Drug Offense—any offense with a potential for 10 years imprisonment or more, which often varies by state.
  3. Result—15-year mandatory minimum

e. Jury Instructions

  1. Possession by a Convicted Felon (2 mens rea)
    1. Elements
      1. Prior conviction with over 1-year possible jail time
      2. Knowing possession of this firearm
      3. D knew of his prior conviction
      4. Firearm has crossed state lines
  2. Use or Carry during and in relation to violent/drug crime
    1. Elements
      1. D committed underlying crime
      2. Knowing use or carry of a gun
      3. Use or carry was in relation to the underlying crime
    2. “Use or carry”
      1. “carrying” includes having it in a readily accessible location such as the trunk of a nearby car
      2. “Use” contemplates active employment. Does NOT need to be employed as a weapon
    3. “During and in relation to”
      1. The gun had a purpose or effect with respect to the crime charged
  3. Possession in Furtherance of violent/drug crime (see King below)
    1. Elements
      1. D is guilty of underlying crime
      2. D knowingly possessed the gun
      3. Possession was in furtherance of the underlying crime
    2. In furtherance—to advance or promote the crime
      1. Factors
        1. Location/availability for use
        2. Loaded?
        3. Type of weapon
        4. If possession was legal
        5. Type of crime
        6. Time and circumstances of finding the gun
  4. Aiding and Abetting
    1. No commission of a crime is actually required, only need to show that he intentionally helped or encouraged someone
    2. Elements
      1. Underlying crime was committed
      2. D helped or encouraged another in committing the crime
      3. D intended to help or encourage
        1. Must have advance knowledge. i.e., knowledge at a time the D can attempt to alter the plan or withdraw
        2. NO requirement he knew of the plan to use the gun prior to the crime
          1. He is deemed to have advance knowledge of the gun where he learns of the gun and still has time to withdraw
  5. Possession Offenses/Domestic Violence—§ 922(g)
    1. Requirements
      1. The prior conviction MUST:
        1. Have “force” as an element AND—Castleman
        2. Person committing the crime had a domestic relationship with the victim—Hayes
    2. U.S. v. Hayes (2009) (Ginsburg)
      1. NO requirement that an element of the predicate crime be “that the relationship between the aggressor and victim was domestic.” BUT that relationship must be proven BRD
      2. “Domestic relationship” includes: parent, guardian, child, cohabitant, shared child, or someone similarly situated
    3. U.S. v. Castleman (Sotomayor) (2014)
      1. Force—the slightest offensive touching
      2. “violence” in the domestic context takes on a broader meaning than in everyday usage. Acts become domestic violence when their repeated use is likely to lead to one spouse’s control over the other.
        1. Light force is viewed in the context of its scope
    4. Lewis v. U.S.
      1. Cannot collaterally attack the validity of a prior conviction because it is viewed as final
Client Reviews
★★★★★
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together... J.R.
★★★★★
Bill Powers and his firm were a true blessing. If anyone is contacting an attorney, it's more than likely not from a positive life experience. If there was a rating for "bedside manner" for lawyers he'd get a 10/10 for that as well. The entire staff were helpful... K.C.
★★★★★
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
★★★★★
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.
Contact Us