arguments that support removing the jurisdictional issue from the jury in criminal prosecutions are insufficient to support such a change."

46

ALLEGED UNWARRANTED EXPANSION OF JURISDICTION UNDER S. 1437

Of all the critical claims raised against S. 1437 in the Ninety-fifth Congress, none was asserted more zealously or enjoyed a greater following than the allegation that S. 1437 would cause an unwarranted expansion of federal jurisdiction and encroachment into areas of heretofore exclusive state domain. Professor John Quigley, in perhaps the most extreme indictment of the Code's jurisdictional scope, testified before the House Subcommittee on Criminal Justice that the Code would raise the specter of a "national police force" and would create approximately 180,000 new cases cognizable in federal court. Professor Quigley also alleged that the Senate Judiciary Committee's Report covered up expansive aspects of the bill. Some other commentators have subsequently decried the expansive effect of S. 1437.50 The various claims about S. 1437's jurisdictional reach implicate numerous provisions of the bill, but focus primarily on the Code's proposed use of three jurisdictional bases: affecting commerce, use of a facility of commerce, and the new concept of ancillary jurisdiction.53

52

49

47

48

51

Before answering these allegations of an unwarranted expansion of jurisdiction, some general observations are necessary. The initial observation is that, within reasonable limits, an increase in federal criminal jurisdiction should not be regarded as an evil in itself, nor should a decrease be regarded as a benefit. The propriety of an extension or contraction of federal criminal jurisdiction over an offense should depend on the need for greater or lesser federal involvement especially when the states have concurrent jurisdiction over the offense. Critics of the proposed Federal Criminal Code such as Professor Quigley apparently reject this perspective. Implicit in their analysis is the premise that federal criminal jurisdiction is currently at the outermost limit of tolerability, and that in no event should Congress expand it. The critics view jurisdictional enlargements as harmful in themselves, apparently without considering the underlying problem at which the legislation is directed. For example, Professor Quigley fails to acknowledge the need for even one additional federal offense to assist the states in deterring and punishing any form of criminal conduct. Given the prevalence of new white collar offenses, such as computer and federal program

46 Some critics of S. 1437 such as Professor Quigley also allege that the bill would transfer the "grading" issue, which requires resolution of factual questions relevant to the degree or classification of the crime, from the jury to the court, and cite this proposal as an "assault upon the jury and an impairment of the rights of the accused." Hearings, supra note 5, at 314 (statement of Professor John Quigley). The bill, however, contains no such proposal. Professor Quigley evidently assumes that the jury cannot determine the grading issue because S. 1437 would place grading factors in a separate subsection from that defining the substantive elements of the offense. See id. But S. 1437 would contain no provision requiring this result. Subsection (a) of Rule 25. I would treat proof of offenses, defenses, affimative defenses, and grading in its first four paragraphs. See S. 1437, supra note 1, tit. II, § 111(o). These provisions would be silent altogether on whether the proof would be submitted to judge or jury. They specify only that the prosecution would be required to prove the offense beyond a reasonable doubt. By contrast, Rule 25.1(b), which addresses proof of jurisdiction, see note 25 supra and accompanying text, would contain a separate sentence requiring the court to determine jurisdiction. Thus, it would expressly modify the jury's traditional role. The plain inference, absent a similar provision in subsection (a) of Rule 25.1. is that no alteration of the present practice, under which the elements of offenses, defenses, affirmative defenses, and grading factors are proved to the jury, is intended. The Senate Judiciary Report buttresses this conclusion by its failure to mention any proposed modification of the current procedure. Such a fundamental change would have received comment had it been intended by the draftsmen, because the Report throughout meticulously identified and attempted to justify all proposed changes of significance from existing law or practice. See, e.g., Senate Report, supra note 10, at 55-57. Its silence on this subject thus indicates that the bill would effect no such change in the jury's function. Nevertheless, to resolve any doubt, when the bill is reintroduced in the 96th Congress, the drafters should insert specific language making clear that the jury would continue to determine the grade of an offense. 47 See notes 68-69 infra and accompanying text.

48 Hearings, supra note 5, at 298. 317 (statement of Professor John Quigley).

49 Id. at 298 (statement of Professor John Quigley).

50 See id. at 773, 779 (statement of Evelle Younger. Attorney General of California); id. at 1187, 1190 (statement of John Shattuck & David Landau, American Civil Liberties Union).

51 See notes 68-83 supra and accompanying text. 52 See notes 84-101 supra and accompanying text. 53 See notes 108-30 supra and accompanying text.

57

56

54

fraud, and the irrational gaps in present laws, such a parochial viewpoint is untenable. The theory that jurisdictional enlargements are in themselves harmful would logically condemn proposals in S. 1437 that would address new areas of crime. One such proposal would amend the civil rights laws to prohibit sex discrimination and an act by an individual that deprives another person of his civil rights. Other proposals in S. 1437 would specifically prohibit such white collar crimes as pyramid sales schemes 5 and such corruption crimes as bribery involving union membership and work placement and embezzlement of union funds. Proponents of S. 1437 make no attempt to conceal or minimize the effect of these proposals. Rather, these provisions are among the most heralded aspects of the bill. Anti-federal jurisdiction spokesmen, however have ignored these areas of intentionally enlarged federal jurisdiction in S. 1437. Although the political astuteness of these critics in ignoring these meritorious proposals is admirable, their ploy has undermined their criticisms of other aspects of S. 1437 because their criticisms assume that enlargements of Federal jurisdiction are evil per se. Moreover, virtually all criticism of the scope of federal criminal jurisdiction proposed in S. 1437 uses existing laws as a guidepost. Preserving the present federal-state law enforcement "balance," however, is inconsistent with the critics' goal of limiting federal jurisdiction because this "balance" is not the product of narrow federal laws. Present federal criminal jurisdiction is frequently plenary in scope, giving the federal government sweeping power to prosecute many offenses over which states and localities have concurrent jurisdiciton. The practical limitations on the exercise of this jurisdiction are the government's limited resources and lack of inclination to engage in such an expensive prosecutorial effort. For example, federal jurisdiction over robberies, extortion, loansharking, automobile thefts, and drug offenses is so broad that the Department of Justice could probably expend its entire law enforcement budget investigating and prosecuting cases within these statutes. Congress has shown no inclination to alter this situation. On the contrary, almost every Congress passes more criminal statutes extending federal concurrent jurisdiction into areas of exclusive state jurisdiction. In 1976, for example, Congress created concurrent federal jurisdiction over various common law offenses, such as murder, kidnapping, and assault when a foreign official is the victim, and in 1978 Congress extended federal concurrent jurisdiction over hijackings of cigarettes on which taxes are due.64

60

62

58

63

Thus, the extent of present federal jurisdiction over offenses, the standard against which critics like Professor Quigley measure the impact of S. 1437 on the current federal-state relationships in the fight against crime, is an inapposite gauge of the relationship. Congress has chosen fiscal rather than jurisdictional limitations to preserve the federal-state balance in criminal law enforcement responsibility. If Congress decides that the federal government, rather than the states, should investigate and prosecute most liquor store and grocery store robberies, low-level drug transactions, small scale loan-sharking activities, and other local crimes, it need pass no new laws, but need only increase, albeit by

54 For example, while an elaborate statutory scheme applies to robbery of federally insured banks and other financial institutions, no similar statute specifically addresses extortion from these institutions, and the applicability of the Hobbs Act, 18 U.S.C. § 1951 (1976), to these disputed. See Senate Report, supra note 10, at 631. Compare United States v. Golay, 560 F. 2d 866, 868-69 (8th Cir. 1977) with United States v. Beck, 511 F. 2d 997, 1000 (6th Cir.), cert. denied, 423 U.S. 836 (1975). S. 1437 would close this gap. 55 S. 1437, supra note 1, §§ 1501-1505. Under current law, only conspiracies to deprive persons of their civil rights are illegal. See U.S.C. § 241 (1976).

58 S. 1437, supra note 1, § 1437.

57 Id. 1752.

58 See 18 U.S.C. §§ 1951, 2113 (1976).

50 See id. §§ 875-877, 1951, 1952.

60 See id. §§ 892-894.

61 See id. § 2312.

62 See 21 U.S.C. §§ 801-966 (1976).

63 See Act for the Prevention and Punishment of Crimes Against Internationally Protected Persons, Pub. L. No. 94-467, § 8, 90 Stat. 1997 (1976) (codified at 18 U.S.C. § 878 (d) (1976)).

64 See Act of Nov. 2, 1978, Pub. L. No. 95-575, 92 Stat. 2463 (to be codified at 18 U.S.C. §§ 2341-2346). Moreover, nearly every year members of Congress demand the enactment of additional statutes, often over the opposition of the Department of Justice. Congress continually pressures the Department of Justice to intensify its enforcement efforts in other areas of existing concurrent jurisdiction, such as arson. See generally Arson-forProfit: Its Impact on State and Localities: Hearings Before the Subcomm. on Intergorernmental Relations of the Senate Governmental Affairs Comm. 95th Cong., 2d sess. (1977).

65

geometric proportions, the budgets and personnel of federal law enforcement agencies. Congress, of course, will not and should not take this action. In assessing the claims that certain S. 1437 proposals for enlarged federal criminal jurisdiction would "radically alter" the fabric of federalism, "sharply" increase the "caseload of the federal courts," and overpopulate federal prisons, legislators should recognize that fiscal controls by Congress, and Executive Branch policies of restraint in the exercise of federal jurisdiction necessitated by such controls, rather than explicit statutory restrictions on jurisdiction, have maintained the current balance in federal-state law enforcement efforts.

An examination of the most far-reaching claims concerning the bill's expansionist nature will reveal further defects of logic and methodology." Because Professor Quigley, a leading spokesman for the proposition that S. 1437 would unduly expand federal criminal jurisdiction, is a participant in this symposium, this article examines his allegations as representative of those made by persons who have criticized S. 1437 on this ground.

"Affecting Commerce" Jurisdiction: Robbery

68

69

Professor Quigley contended, in his Statement submitted to the House Subcommittee on Criminal Justice, that the proposal in S. 1437 to apply an "affecting commerce" jurisdictional base to robbery would probably increase federal prosecutions by approximately 150,000 per year. This increase represented more than eighty percent of the total alleged increase in the federal criminal docket 70 that Professor Quigley attributed to various facets of the bill. Noting that the current annual number of federal criminal prosecutions is approximately only 40,000, Professor Quigley concluded his statement with the alarmist message that enactment of S. 1437 would increase prosecutions by a factor of between four and five, “raising the annual caseload well above 200,000."

Although Professor Quigley recognized that the present Hobbs Act," which makes robbery a federal crime, contains an "affecting commerce" jurisdictional base, he argued that the Act had been limited to "racketeering" activities, defined as robberies "carried out as part of an ongoing interstate crime ring." " He cited two United States Court of Appeals decisions, United States v. Yokley" and United States v. Culbert."

to support his construction of the jurisdictional requirement.

Even if Professor Quigleys' specious premise, which equates an increase in jurisdiction with a rise in actual prosecutions, is accepted, his interpretation of the Hobbs Act is erroneous because the Supreme Court, shortly after the submission of his statement, unanimously reversed Culbert, holding that the Hobbs Act includes no "racketeering" limitation." But Professor Quigley is guilty of

65 See Hearings, supra note 5, at 298 (statement of Professor John Quigley). 66 The failure of critics such as Professor Quigley to argue for a general cutback in federal jurisdiction as a means of consolidating or strengthening the role of the states in criminal law enforcement indicates their recognition of the true basis for the balance. This failure undermines their argument that increased federal jurisdiction would be harmful per se. because, as Professor Louis Schwartz of the University of Pennsylvania Law School, the former staff director of the Brown Commission, has noted: "If Prof[essor] Quigley were serious about the dangers of broad federal jurisdiction he should have called for a 'roll-back' of the jurisdiction adopted in laws relating to drugs, gambling, usury, and racketeering. . . . ." See Hearings, supra note 5. at 794 (statement of Professor Louis Schwartz, Americans for Democratic Action) (emphasis in original).

67 For example. Professor Quigley erroneously attributes jurisdictional significance to the bills provision. in § 303 (d) (2), that, except as expressly provided, scienter would not be required in establishing federal jurisdiction. See id. at 314 (statement of Professor John Quigley). This provision would essentially codify current case law. See United States v. Blassingame. 427 F. 2d 329, 330 (1970), cert denied, 402 U.S. 945 (1971). He also fails to recognize the various areas in which S. 1437 would narrow federal criminal statutes. See, e.g., S. 1437. supra note 1. § 1831 (riots); id. § 1841 (gambling); id. $ 1842 (obscenity): id. § 1843 (prostitution). See also Hearings, supra note 5, at 793 (statement of Professor Louis Schwartz. Americans for Democratic Action). 68 See S. 1437. supra note 1. § 1721 (c).

Hearings, supra note 5, at 300 (statement of Professor John Quigley).

70 Professor Quigley estimated that S. 1437 would cause an increase of 183, 150 criminal cases in the federal courts. Id. at 317 (statement of Professor John Quigley). Id.

72 18 U.S.C. § 1951 (a) (1976).

73 Hearings, supra note 5, at 299-300 (statement of Professor John Quigley).

4 542 F. 2d 300. 304 (6th Cir. 1976).

5548 F. 2d 1355, 1357 (9th Cir. 1977), rev'd, 435 U.S. 371 (1978).

76 United States v. Culbert. 435 U.S. 371, 380 (1978).

more than mere unreliability as a Supreme Court prognosticator." His preposterous claim would have been inaccurate even if the Supreme Court had affirmed the lower court's holding in Culbert. Professor Quigley failed to mention that the Yokley and Culbert decisions are the only two appellate court decisions to construe the Hobbs Act in such a limited manner in its more than forty-year history. Yokley was the first appellate court decision to require proof of a "racketeering" nexus as an element of the offense. Thus, Professor Quigley's view that S. 1437's use of the "affecting commerce" jurisdictional base in robbery would create 150,000 "new" robbery prosecutions is illusory, because the government, until 1976, was prosecuting robbery cases under an interpretation of the Hobbs Act identical to that in S. 1437. Passage of the bill would probably produce no greater federal robbery caseload than existed in 1976, or than exists today. In the wake of the Supreme Court's holding in Culbert, an appreciable increase in the number of Hobbs Act robbery prosecutions will probably never develop. An increase in robbery prosecutions is unlikely because the operative factor limiting federal prosecutive involvement in this area is not a lack of jurisdiction, but a policy of restraint in the exercise of jurisdiction. This restraint is motivated by a desire to leave the primary responsibility for enforcement of criminal laws with the states. The United States Attorney's Manual, issued by the Department of Justice and binding on United States Attorneys, sets forth the position, long adhered to by the Department, that the robbery provisions of the Hobbs Act should be applied only in cases which involve organized criminal activity or which are part of some wide-ranging scheme," and mandates that a prosecutor consult the appropriate section of the Criminal Division before initiating a Hobbs Act robbery prosecution." Statistics compiled by the Administrative Office of the United States Courts demonstrate the effect of this policy. The data indicate that the total number of federal non-bank, non-postal robbery offenses, a category including more than just Hobbs Act robbery cases," for the years 1975, 1976, and 1977, is 71. 67, and 42, respectively, compared to Professor Quigley's estimate of 150,000 potential federal Hobbs Act robbery prosecutions under S. 1437.81 This comparison emphasizes that the policy of the Department of Justice, rather than statutory limits on jurisdiction produces the low volume of federal robbery prosecutions.

80

The question may arise whether, in light of this policy, Congress should limit the Hobbs Act to robberies involving “racketeering.” Such a change would be inadvisable because if a statutory limitation rather than prosecutive discretion is used to effectuate the desired limitation, the government would need to prove the presence of "racketeering" activity as an element of the offense. As the Supreme Court noted in Culbert, this element might pose constitutional difficulties because of the vagueness of the concept of racketeering.82

Even if Congress could devise a meaningful and constitutional definition of racketeering, the addition of this element of proof would significantly impede successful prosecution, possibly causing some defendants to be acquitted who are currently convicited. Although Congress confronts this type of choice fre

Although Professor Quigley has erroneously condemned the Senate Judiciary Committee's Report on S. 1437 for consistently covering un expansive aspects of the bill through failure to cite leading court decisions that conflict with its interpretation of current law, Hearings, supra note 5, at 297-98 (statements of Professor John Quigley). he inexcusably failed to note that ample precedent existed in other federal circuits, specifically reiecting the narrow construction of the Hobbs Act in Yokley and Culbert, See, e.g., United States v. Frazier, 560 F. 2d 884. 886 (8th Cir. 1977). cert. denied, 435 U.S. 968 (1978): United States v. Warledo. 557 F. 2d 721. 729-30 (10th Cir. 1977); United States v. Brecht. 540 F. 2d 45, 51 (2d Cir. 1976); cert. denied, 429 U.S. 1123 (1977). Professor Quigley might also have acknowledged the Supreme Court's previous observation in Stirone v. United States. 361 U.S. 212. 215 (1960), that the "broad language" of the Hobbs Act manifests "a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence." 78 Dept. of Justice. United States Attorneys' Manual tit. 9. § 131.110. This policy contradicts Professor Quigley's assertion that federal prosecutors have traditionally pushed jurisdictional bases to the limit. See Hearings, supra note 5 at 317 (statement of Professor John Quigley).

79 See 18 U.S.C. § 153 (1976) (prohibiting robbery on an Indian reservation); id § 2111 (prohibiting robbery on a federal enclave): id. § 2112 (prohibiting robbery of United States property).

80 See [1977] Ad. Off. United States Cts. Ann. Rep. 253 [hereinafter cited as Annual Report]. The 1977 Report also noted that the more than 40% decline in federal automobile theft prosecutions under the Dyer Act. 18 U.S.C. 2312 (1976). since 1973 represents the Department of Justice policy of prosecuting defendants involved in organized crime rings. Annual Report, supra at 252.

81 The figure is derived from data indicating the total number of robbery arrests in the United States.

82 435 U.S. 371, 374 (1978).

quently in defining the boundaries of federal offenses, the generally satisfactory experience with the Hobbs Act suggests that Congress has acted wisely in drafting the statute broadly and leaving to the Executive Branch broad flexibility and discretition in deciding which violations to prosecute. The Hobbs Act is one of the many areas in which Congress has created broad jurisdiction for offenses relying on the discretition of the Executive Branch and Congressional control on this discretition, such as oversight hearings and the power of the purse. Congress recognizes that the Executive Branch will utilize little of the jurisdiction the legislature grants but apparently wishes to make the jurisdiction available for use in an unusual or extraordinary case.

83

Professor Quigley, basing his analysis on the faulty premise that S. 1437 would increase federal jurisdiction, regularly leaps to the conclusion that a vast increase in actual prosecutions would result. Quigley's illogical leap stems from his failure or refusal to recognize the residual character of federal concurrent criminal jurisdiction; Congress has conferred jurisdiction based on the understanding, whether explicit or implicit, that the Department of Justice will defer to state and local law enforcement authorities in routine cases and exercise federal jurisdiction only in situations implicating a perceived substantial or compelling federal interest.

Thus, Professor Quigley's charge that S. 1437's treatment of robbery jurisdiction would produce 150,000 new federal prosecutions is meritless. Rather, the bill would merely retain the current language in the Hobbs Act, which, despite its unrestrained construction by the Supreme Court, has rarely been utilized by the federal Executive Branch to prosecute purely local, minor robbery offenses, which Professor Quigley, as well as the Department of Justice, believe should remain the exclusive responsibility of state and local authorities. Professor Quigley attributes more than eight percent of his predicted increase in the federal criminal caseload to the proposed change in the Hobbs Act robbery offense. His assertions about the bill's overall effect on federal criminal jurisdiction is therefore grossly exaggerated. Professor Quigley's claims concerning the remaining twenty percent expansion of jurisdiction are also fraught with analytical errors and inaccurate conclusions.

Extortion and the Travel Act, 18 U.S.C. § 1952.

85

Professor Quigley contends that S. 1437 would produce 8500 new federal criminal cases per year by expanding federal jurisdiction over extortion. According to Professor Quigley, S. 1437 would cause this expansion by failing to incorporate a "rackeeting" limitation assertedly present in the current Travel Act, and by modifying the jurisdictional base in the Travel Act to include use of “any facility of interstate or foreign commerce" rather than use of "any facility in interstate or foreign commerce." 88

Neither contention has merit. Opponents of S. 1437 have erroneously assumed that the Travel Act currently contains a "racketeering" limitation. Although the legislative history of the Travel Act reveals that it was "aimed primarily at organized crime,' ,,87 the means chosen by Congress to accomplish this purpose do not require the government to prove as an element of the offense that a defendant was involved in organized crime, or was a "racketeer." Rather, the Travel Act proscribes specified illicit business activities that are generally associated with organized crime and provide it with its profits. The United States Court of Appeals for the Ninth Circuit, in sustaining a conviction under the Travel Act for playing gin rummy for money, explained that Congress had not limited section 1952 to persons who were members of an organized criminal group or to offenses usually committed by racketeers. It reasoned that Congress rejected such limitations to avoid the difficulty of proving an individual's association with a clandestine criminal organization and the possibility that racketeers would evade liability through adoption of new forms and techniques of illicit trafficking." The court relied on the legislative history in concluding that Congress intended

88

83 See notes 68-77 supra and accompanying text.

84 Hearings, supra note 5, at 303 (statement of Professor John Quigley).

86 18 U.S.C. § 1952 (1976).

88 Hearings, supra note 5, at 301-02; see, e.g., S. 1437, supra note 1, §§ 1722 (d)(2), 1843 (e) (2).

87 See Rewis v. United States. 401 U.S. 808. 811 (1971).

88 United States v. Roselli, 432 F. 2d 879, 885 (9th Cir. 1970), cert. denied, 401 U.S. 924 (1971). See also United States v. Walsh, 544 F. 2d 156, 159 (4th Cir. 1976), cert. denied, 429 U.S. 1903 (1977); United States v. Peskin, 527 F. 2d 71, 76-77 (7th Cir. 1975), cert. denied. 429 U.S. 818 (1976).

8432 F. 2d at 885.

89