Chapter 2: Jurisdiction
JURISDICTION OF THE FEDERAL GOVERNMENT TO ENACT CRIMINAL LAWS
Overview: Under the American federal system, states have the general power to make criminal laws and prosecute violators (police power). The federal government only enacts criminal laws within its constitutionally granted powers. Each federal statute must trace its jurisdictional origin to one of those powers.
Core source of federal authority: The Commerce Clauses in Article I, Section 8 of the Constitution.
Clause 3 gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Clause 18 empowers Congress to pass laws that are “necessary and proper” to carry out these powers.
Practical rule for commerce power: Congress can regulate activity that involves more than one state (interstate commerce) via criminal or civil means. Activity solely within a single state (intrastate) is generally not within federal purview.
Example illustrating limits: United States v. Lopez, 514 U.S. 549 (1995)
A Texas schoolboy’s conviction under a federal statute for carrying a gun in a Texas schoolyard was invalid because schoolyards are not ordinarily part of interstate commerce.
State-level punishment remains available, but not federal.
Dual constitutional framework: Supreme Court recognizes a dual system where federal power is limited to enumerated powers, while states retain broad police power.
The Commerce Clause is used to regulate activity that substantially affects interstate commerce, or instrumentalities of commerce, or channels of interstate commerce (with a substantial relation to interstate commerce).
See Lopez for limits and Jones & Laughlin Steel for the substantial relation concept.
Indian Commerce Clause: Interpreted broadly to provide Congress plenary power to legislate in Indian Affairs; this can broaden federal reach in Indian country relative to purely intrastate activity.
See United States v. Lara, 541 U.S. 193 (2004).
Foreign commerce and international reach: The Foreign Commerce clause is less settled; lower courts have split on how far it can reach conduct with foreign components or foreign-country activity.
Notable 2015 decisions illustrate varying interpretations:
United States v. Bollinger, 798 F.3d 201 (4th Cir. 2015) – question whether foreign-country conduct by a U.S. citizen can be punished under federal law under the Foreign Commerce Clause. (Court: Yes.)
United States v. Al-Maliki, 787 F.3d 784 (6th Cir. 2015) – likely not; cert denied 136 S. Ct. 204 (2015).
Other general federal powers (beyond Commerce): The federal government also has three broad categories of power to enact criminal laws:
Crimes committed in places beyond state jurisdiction (e.g., District of Columbia, overseas by the military, or on U.S.-controlled ships/aircraft).
Crimes that interfere with federal government activities (e.g., mail fraud, robbing federally insured banks, tax offenses, attempts to overthrow the government).
Crimes committed against federal officers.
Examples of federal homicide jurisdiction (illustrative):
Within the special maritime and territorial jurisdiction;
When death results from terrorism, sabotage, or reckless destruction of federally controlled facilities;
When the victim is the President, Vice President, or successors;
When the victim is performing federal duties;
When death occurs in connection with a federally punishable bank robbery;
When homicide occurs during an offense defined by 18 U.S.C.A. 245 (Civil Rights Act of 1968).
When a U.S. citizen is killed anywhere in the world under the Comprehensive Crime Control Act of 1984.
Federal Crimes Frequently Used to Support State and Local Enforcement: Federal law officers can supplement state/local enforcement beyond borders. The federal domain allows federal intervention where there is missing or evolving jurisdiction. Key examples of frequently used federal crimes include:
Unlawful Flight Statute (Fugitive Felon Act), 18 U.S.C.A. 1073: Enables federal assistance locating fugitives who fled from one state to another; rarely leads to federal prosecution but enables interstate cooperation.
Federal Kidnapping, 18 U.S.C.A. 1201: Interstate or maritime/territorial jurisdiction for kidnapping for ransom.
Federal Conspiracy, 18 U.S.C.A. 371: Illegal when two or more persons conspire to commit offenses against U.S. law or to defraud the U.S.; broad, covers many federal offenses (see Chapter 4 for conspiracy law details).
RICO (Racketeer Influenced and Corrupt Organizations), 18 U.S.C.A. 1963, 1964: Used widely in federal enforcement; state RICO statutes exist (Little RICO).
The Federal Domain: One-third of America:
The federal government owns/controls up to about one-third of U.S. land via territories and enclaves (federal enclaves).
The District of Columbia is a federal enclave with federal police power to enact a complete criminal code if needed.
Assimilative Crimes Act (ACA), 18 U.S.C.A. 13 (1948): Incorporates the surrounding state’s criminal law into federal enclave whenever not punishable by a federal statute.
The ACA generally applies when a federal enclave has no separate federal criminal statute for the conduct; it does not apply if a federal statute already covers the conduct.
United States v. Sharpnack (Supreme Court) upheld ACA’s constitutionality.
Enclaves include federal lands, military posts, national parks, federal buildings, etc.; assimilation can be full or by reference to state laws.
If a conflict exists between a federal statute and assimilated state law, the federal statute controls; however, where Congress has enacted a general federal law applicable to civilians on bases, that statute may preempt assimilation for the same conduct.
Extradition:
Definition: The surrender of a person from one jurisdiction to another for trial (international) or for proceedings in other states (interstate).
The U.S. has ~80 treaties permitting extradition; treaty terms determine whether extradition is permitted.
Important interstate/extradition principle: The Uniform Criminal Extradition Act has altered common-law extradition procedures; states must extradite, provided proper procedures and identity/fugitive status are confirmed (New Mexico v. Reed, 1998).
International matters: Extradition involves treaties and can be influenced by Status of Forces Agreements (SOFAs).
Patterson v. Wagner, 785 F.3d 1277 (9th Cir. 2015): Even if time limits/double jeopardy claims exist, extradition may still be required.
Illustrative international extradition cases highlight complexities: e.g., Polanski and “extraordinary rendition” debates illustrate cross-border criminal handling (not exhaustive).
General principle: A federal statute may require extradition when a crime is committed in another country or involves multinational elements; many treaties reflect this.
The Expanding Federal Criminal Code:
Since the post-Civil War era, the number of federal crimes has expanded dramatically.
By the mid-2010s, there were over 4,500 federal crimes; approximately 400 enacted between 2008 and 2013.
The expansion has included a focus on white-collar crimes (Chapter 15), lowering mental state requirements in some statutes and potentially increasing the risk of incidental criminal liability for ordinary conduct.
Courts act as a check on federal expansion by interpreting statutes (e.g., limiting scope) to prevent overreach.
Notable 2014–2015 cases illustrate limiting interpretations:
Yates v. United States, 135 S. Ct. 1074 (2015): SOX 1519 destruction of tangible documents; held that the statute targets destruction of documents to store/record information, not discarded fish.
Bond v. United States, 134 S. Ct. 2077 (2014): 18 U.S.C. 229 (toxic chemical weapon) applied to a broad chemical, but the Court found the statute did not apply to local, non-internationally-conducted crimes; statute aimed at international chemical warfare. The Court emphasized the need for a treaty-based scope for chemical weapons crimes.
Hate Crimes and Expansion of Federal Authority:
2009: Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, 18 U.S.C. 249(a)(1), making it a federal crime to commit certain assaults because of the victim’s race.
In United States v. Cannon, 750 F.3d 492 (5th Cir. 2014) cert. denied 135 S. Ct. 709 (2014), the court upheld federal hate crimes authority under the Thirteenth Amendment’s “enabling clause” to enforce anti-slavery provisions.
You Be the Judge (jurisdictional questions):
Question: Does stealing one marijuana cigarette affect interstate commerce under the Hobbs Act?
In Gonzales v. Raich (2005) the Supreme Court held intrastate drug sales could be regulated if they affect the national drug trade; thus, the Hobbs Act jurisdiction may apply depending on context and national market effects.
See United States v. Taylor, 754 F.3d 217 (4th Cir. 2014); Supreme Court certiorari granted 136 S. Ct. 26 (2015).
NATION-TO-NATION JURISDICTION
Rationale: Nations extend jurisdiction to crimes to avoid jurisdictional voids on the seas and in the air; piracy and other international offenses are subject to international law and treaties.
Piracy, high seas, and law-of-nations offenses:
The U.S. Constitution (Article I, Section 8, clause 9) gives Congress power to define and punish Piracies and Felonies on the high seas, and offenses against the law of nations.
International conventions, such as the Tokyo Convention (1967) and later global efforts, provide shared jurisdiction or universal jurisdiction for certain crimes.
International conventions and war-crimes law:
Historical development includes:
Nuremberg, Tokyo Trials
ICTY (in the former Yugoslavia)
ICTR (Rwanda)
ICC (The Hague), established by the Rome Statute (Treaty of Rome, 2002).
The United States did not ratify the ICC treaty; the ICC’s jurisdiction is limited to crimes defined by treaty for states that ratified it, and to crimes committed in those states.
Jurisdictional overlap: Multiple countries may