Howard B. Bloomgarden v. California

In part, the Travel Act makes it a crime to “travel[] in interstate or foreign commerce….with the intent to…[(a)(2)] commit any crime of violence to further any unlawful activity…and thereafter [to] perform[] or attempt[] to perform an act described in paragraph (2)…..” 18 U.S.C. § 1952(a)(2)(B). “Unlawful activity” includes several crimes, including extortion. Id. 1952(b). Elsewhere, “the government [has] acknowledged that a circuit split exists as to whether the crime of violence and unlawful activity can be based on the same conduct” in a Travel Act prosecution. Johnson v. United States, No. 10-2984 (JBS), 2013 U.S. Dist. LEXIS 33703, at *13 (D.N.J. Mar. 12, 2013). The Ninth Circuit says no; the Fourth Circuit says yes. The judgment below took the Fourth Circuit’s approach. But had the court sided with the Ninth Circuit, a state statutory bar against successive prosecutions would have applied here because of his prior Travel Act conviction in federal court. To resolve the circuit split about federal law, the question presented is the following: 1. Did the court below err in holding that “extortion” was both the “unlawful activity” and “crime of violence” in Petitioner’s conviction under 18 U.S.C. § 1952(a)(2)(B) when the “crime of violence” was actually murder?