Evidence of ambiguity: the effect of circuit splits on the interpretation of federal criminal law.

Author:Smith, Julian W.

    Federal criminal laws have rampantly escalated in number and effect. (1) They have increased overwhelmingly in recent years, some becoming harsher, and some overlapping state laws that punish the same acts. (2) States generally enact and enforce criminal laws--a tradition entrenched in the United States Constitution and promoted by dual sovereignty and Federalism. (3) But now prosecutors find within the morass of federal criminal law a bounty of offenses to charge and numerous ways to increase the severity of those offenses. (4) As a result, defendants find little mercy from the federal criminal justice system. (5)

    The federal criminal justice system affords defendants some measure of relief when courts construe ambiguous statutes in favor of the defendant. (6) Courts apply principles of statutory construction to interpret federal criminal laws. (7) If a statute remains ambiguous after a court applies the traditional methods of statutory construction, the court should apply the rule of lenity, a doctrine that requires courts to resolve ambiguities in criminal statutes in the defendant's favor. (8) But federal courts of appeals sometimes interpret the same federal criminal statute differently, thus creating a judicial irony dubbed the "circuit split." (9) Circuit splits indicate that the law in question not only had the ability to be interpreted multiple ways, but that it was actually interpreted multiple ways. (10) Do these alternative interpretations present prima facie evidence of ambiguity? (11)

    This Note advocates closer review of federal criminal statutes where a circuit split exists regarding their interpretation. (12) A circuit split should evidence the statute's ambiguity, be considered by the deciding federal circuit before construing the statute against the defendant, and thus support an interpretation favoring the defendant. (13) Part II assesses this Note's premise: the negative consequences of the current state of overcriminalization of federal law and various circuit splits within federal criminal law. (14) Part III provides the history of resolving statutory ambiguity in the defendant's favor through various modes of statutory construction and examines the ways federal circuits treat circuit splits when interpreting federal criminal laws. (15) Part IV first argues a necessary remedy for overcriminalization of federal law: A court should favor the defendant when a criminal statute is ambiguous. (16) Part IV then analyzes how federal circuits appropriately look to other circuits to aid in statutory interpretation. (17) Finally, Part IV advocates that a circuit split presents evidence of ambiguity and should thus help define a court's interpretation of a criminal statute. (18) Part V concludes that the deciding court should construe such a statute in favor of the defendant. (19)


    Federal criminal laws have ballooned recently. (20) This is largely due to increased legislative interest in policies propagated by proponents on both sides of the political aisle. (21) Regardless of cause, the effect remains: Enforcing "repetitive and overlapping statutes" treads on states' rights and on a defendant's individual freedoms. (22) The ballooned federal criminal law threatens to float beyond reach without hope of coming back to earth. (23)

    Manufacturing a glut of federal laws inevitably allows more federal prosecutions. (24) This glut bolsters the prosecutor's power, especially when statutes are vague, thereby providing great latitude to define criminal behavior. (25) A want of specificity further allows prosecutors to charge a federal crime for an act that also violates state law. (26) This dual-charge ability generates harm where federal criminal laws "smother[]" state and local criminal laws, thus "preempt[ing] local solutions to local ... problems." (27) Additionally, and more dangerously, federal criminal laws duplicate state and local criminal laws and overlap existing federal criminal laws, providing an overabundance of crimes to charge against a defendant's single act. (28) Indeed, preempting state and local laws endangers the checks and balances against unfairness to the defendant inherent within American federalism. (29)

    The unfairness of overcriminalization exists plainly in the dual sovereign doctrine whereby a state court can convict a defendant of a state crime and a federal court can convict that same defendant for a federal crime arising from commission of the same act. (30) Astoundingly, this dual-charging does not violate constitutional protections guarding against double jeopardy. (31) The dual sovereign doctrine epitomizes a surreptitious inequity of federalism; pitting the defendant against two governments in two trials in two court systems for violation of two laws for one act. (32) The overextension of federal criminal law makes this inequity unbearable. (33)

    Numerous splits exist throughout the federal circuits regarding the interpretation of federal criminal law. (34) Federal circuits split on the interpretation of language in a felon-in-possession law: whether "in any court" includes foreign courts. (35) The circuits vary on interpreting the intent requirement of the same felon-in-possession law, namely whether an accomplice had to have "knowledge" that the possessor was a felon. (36) Federal circuits split on whether a drug trafficking law presumed intent to distribute based solely on the quantity of the drug. (37) These and other circuit splits provide a backdrop for their effect on federal criminal law. (38)


    While federal criminal laws multiply exponentially and prosecutors exert vast powers, defendants find few reprieves. (39) A court has the duty to apply these laws to defendants in specific cases, but judicial construction should not unduly broaden the scope of a law passed by Congress. (40) A court must interpret the federal criminal law's meaning to apply it against a defendant, but when a court considers it ambiguous, it may employ canons of statutory construction to interpret the ambiguous law and may ultimately interpret the law in the defendant's favor absent any ability for clear interpretation. (41) The final step, resolving ambiguity in the defendant's favor, constitutes application of lenity. (42) Lenity "promotes fairness in that it helps avoid overcriminalizing allegedly criminal conduct," meaning that Congress must "plainly and unmistakably" make some act a crime. (43) Further, applying lenity protects against abuses of power. (44)

    Various courts have applied lenity after they found a statute ambiguous. (45) The guiding factor in determining whether to apply lenity is the statute's measure of ambiguity. (46) Some courts apply lenity more leniently, and others more strictly. (47) In whatever way a court applies lenity, it works to belie the oppressive effect of the burgeoning federal criminal law. (48)

    Lenity does protect against abuses of power in this mushrooming mass of law, but courts have lessened its application in recent years. (49) Some courts refuse to apply lenity despite its favor in scholarly legal analysis. (50) This is largely due to the focus on applying other canons of statutory construction--examination of the ambiguous statute's language, structure, and legislative history--before applying lenity. (51) But when courts apply lenity, they balance the scale of justice that would otherwise tip defendants skyward, as beset by the mass of federal criminal law. (52)

    Another method courts use to determine the statutory meaning that can affect the defendant is to analyze how other courts from around the country, world, and throughout history, interpret and understand a statutory term. (53) From this analysis, courts can discern that particular word or phrase's common-law meaning. (54) When a federal criminal statute contains a common-law term of established meaning without otherwise defining it, a court will give the term its common-law meaning. (55) Even this seemingly neutral method of statutory interpretation can profoundly affect a defendant. (56) In this method of statutory interpretation, courts apply laws against defendants after first interpreting its meaning by examining court decisions both in and out of its jurisdiction. (57) When courts search for a common-law meaning, they may look to other circuits for interpretive guidance on how to construe a particular law. (58)

    Federal circuit courts do not need to follow the decisions of other federal circuits, but are required to follow decisions within its circuit and the United States Supreme Court. (59) Circuit courts do, however, look to other courts' decisions to benefit their reasoning in the case before it. (60) Therefore, federal court decisions--even those without precedential effect--can influence statutory interpretation in other federal courts. (61)

    Circuit splits can affect the Supreme Court's case load; the Court often cites resolving a circuit split as a reason for granting certiorari of a case. (62) The Court further understands that circuit splits can leave a law without sufficient certainty as required for fair warning. (63) The Court permits a federal court of appeals to recognize other circuits' interpretations of a law when determining whether the defendant had fair warning, applying the statute against the defendant only if the defendant had fair warning. (64) Federal courts of appeals can take into account circuit splits when deciding whether certain principles or rules are satisfied. (65) The Court can instead note a circuit split without attributing any affect to it. (66) The Court may also note a circuit split and explicitly state that it did not affect its ruling. (67)

    A circuit split has varying effects on federal courts of appeals as well. (68) A federal court of appeals may cite to a split, merely noting it...

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