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Conservatism, Federalism, and Criminal Law

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When applying simplistic labels, it is common to assume that the "conservative" position is in favor of the prosecution in criminal cases, and the "liberal" position favors the defendant.

It is more complicated than that, especially when the issue is federal criminal law. Conservatives tend to oppose expansive interpretations of federal power.  In addition, strict "textualist" reading of statutes may favor the defendant, as Marie Gryphon of the Manhattan Institute notes in this commentary at NLJ, on some recent federal criminal cases in the Supreme Court.

Today from the Ninth Circuit, we see an unusual split between Judges Kleinfeld and Callahan in United States v. Bennett, No. 06-50580. The question is whether the defendant violated a federal statute against "defraud[ing] a financial institution," 18 U.S.C. §1344.  The entity defrauded was not a "financial institution," but it was a wholly-owned subsidiary of one, Bank of America. 

Judge Kleinfeld joined Judge Wardlaw's opinion that the defendant's conduct does not violate the federal statute. Judge Callahan dissents. There is, of course, a more general prohibition against "defraud[ing] any other person of money...." It is found in California Penal Code §484(a).

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