You Say Intrastate, I Say Interstate: Why We Should Call the Whole Thing Off

By Andrew Wiktor

As society evolves, so do criminals. In the early twentieth century, America embraced the automobile, passed the Volstead Act, and created a national highway program. These developments inadvertently paved the way for interstate criminal enterprise. Infamous gangsters such as Al Capone were able to operate large-scale racketeering syndicates without fear of being prosecuted for two primary reasons: (1) states lacked jurisdiction,
resources, or both to go after such criminals, and (2) there was no federal
criminal statute to fill the gap left by the states.

But as criminals evolve, so does society. In 1961, Congress, at the urging of Attorney General Robert F. Kennedy, passed the Travel Act. This statute makes it a federal crime to use interstate facilities to promote certain offenses that would otherwise have amounted to only state-level crimes. The Travel Act enumerates several crimes falling within its scope, including, but not limited to, gambling, prostitution, arson, bribery, and extortion.

While the statute’s legislative history makes it clear that the Act targeted gangsters like Capone who were using interstate facilities to conduct interstate crimes, the Ninth Circuit has held that the federal government can exercise its jurisdiction whenever a facility of interstate commerce is used, even when that facility is used to facilitate wholly intrastate conduct. Interstate facilities include automated teller machines (ATMs), banks, cars,
and cellphones, making the enumerated crimes in the Travel Act nearly always chargeable by the federal government under this holding.

Given the potential breadth of the Ninth Circuit’s holding, this Note considers whether the Travel Act’s jurisdictional interstate requirement can be satisfied by the intrastate use of interstate facilities. Ultimately, this Note concludes that while reading the Act’s scope to include wholly intrastate activity may initially appear disconcerting, such an expansive interpretation should be encouraged.