The Travel Act

The Travel Act, 18 U.S.C. § 1952, makes it a federal crime to travel, use the mail, or use any facility in interstate or foreign commerce for the purpose of furthering an “unlawful activity.”

At the time of its enactment in 1961, the Travel Act was originally intended to give the federal government a leg up in the fight against organized crime. An example of the sort of situation that the Travel Act was intended to target is where a crime boss resided in one state and operated an illegal enterprise in another. In such a situation, it was feared that neither state would have jurisdiction to prosecute the crime boss for operating the illegal enterprise and, in the absence of something like the Travel Act, the conduct would go unpunished.

From its origins combatting organized crime, the Travel Act has since been used in a variety of other contexts, including in conjunction with the Foreign Corrupt Practices Act (“FCPA”), as a predicate offense under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and, recently, in health care corrupt payment prosecutions.

What Does the Travel Act Prohibit?

The Travel Act makes it an imprisonable offense for a person to:

• travel in interstate or foreign commerce or use the mail or any facility in interstate or foreign commerce (the “interstate commerce element”);
• with the intent to:
  • distribute the proceeds of any unlawful activity,
  • commit any crime of violence to further any unlawful activity, or
  • otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity (the “intent element”), and
• thereafter perform or attempt to perform one of these acts (the “performance element”).[1]

What is the Interstate Commerce Element?

The interstate commerce element is the lynchpin of the Travel Act and what gives the federal government its “jurisdictional hook” to prohibit the conduct in question. Typically, the individual states have “primary authority for defining and enforcing criminal law.”[2] The federal government has authority to create criminal offenses only within the scope of those powers delegated to it by the Constitution.[3] Among the powers that the Constitution delegates to Congress is the power “[t]o regulate Commerce with foreign Nations, and among the several States . . . .”[4]

Thus, some connection with interstate or foreign commerce is essential for the federal government to gain jurisdiction over the conduct that the Travel Act prohibits. However, the exact nature of this connection and its sufficiency in supporting a conviction under the Travel Act remains a source of contention. An interstate telephone call or email or the use of the interstate banking system may be enough to meet the interstate commerce element.

What are the Intent and Performance Elements?

In order to satisfy the intent element, the government must show that the defendant intended to facilitate an activity that the defendant knew to be an “unlawful activity” under federal or state law. For the performance element, the government must show that the defendant performed or attempted to perform an act to distribute the proceeds of an unlawful activity, commit any crime of violence to further an unlawful activity, or otherwise facilitate the carrying on of an unlawful activity.

What is an Unlawful Activity?

For purposes of the Travel Act, an “unlawful activity” is defined as:

• any business enterprise involving gambling, liquor (where the federal excise tax has not been paid), narcotics or controlled substances, or prostitution offenses in violation of state or federal law,
• extortion, bribery, or arson in violation of state or federal law, or
• money laundering.[5]

If the unlawful activity involves gambling, liquor, drugs or prostitution, the government must prove that there was a business enterprise. A business enterprise is a continuous course of conduct, or a series of transactions designed to earn a profit. It is not enough that someone engaged in sporadic, isolated, or casual activity associated with these vices. Furthermore, the business enterprise does not need to be the defendant’s primary job, and it does not need to be an ongoing activity. It is enough that the defendant simply participated in the course of conduct.

What are the Penalties for Violating the Travel Act?

If the law is violated with the intent to commit any crime of violence to further unlawful activity, the maximum penalty is twenty years in prison. If someone dies as a result of the violence, then the punishment is life in prison. If the law is violated with the intent to commit any other act in furtherance of an unlawful activity, the maximum punishment is five years in prison.

 

[1] 18 U.S.C. § 1952.

[2] U.S. v. Lopez, 514 U.S. 549, 561 n.3 (1995) (quoting Brecht v. Abrahamson, 507 U. S. 619, 635 (1993) (quoting Engle v. Isaac, 456 U. S. 107, 128 (1982))).

[3] Screws v. U.S., 325 U. S. 91, 109 (1945) (plurality opinion).

[4] See U.S. Const. art. I, § 8, cl. 3.

[5] 18 U.S.C. § 1952(b).

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