REVISED February 23, 2000
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-40955
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DORA GARCIA CISNEROS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
_________________________________________________________________
February 3, 2000
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
ON PETITION FOR REHEARING & SUGGESTION FOR REHEARING EN BANC
The original opinion in this matter was issued by the panel on
October 28, 1999. A petition for rehearing is currently pending
before this panel. The petition for panel rehearing is granted to
the extent that we VACATE our previous opinion and replace it with
the following opinion. In all other respects, the petition for
panel rehearing is DENIED.
OPINION
Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Joey Fischer, a high school student, was murdered in cold
blood by a hired killer--a killer hired by the mother of an
erstwhile girlfriend.
Fischer and Christina Cisneros (“Christina”), were in high
school in Brownsville, a Texas border town. They began dating in
the spring of 1992. But Fischer ended the courtship after only
several weeks to the bitter disappointment of the Cisneros family.
Dora Cisneros (“Cisneros”), Christina’s mother, first tried to
persuade Fischer to change his mind. Fischer was not interested.
When this did not work, Cisneros went to a fortune teller named
Maria Martinez to find out whether Fischer was destined to marry
Christina. The tarot cards did not hold the answer she wanted, so
Cisneros told Martinez to put a curse on the young man.
Near the end of October, Cisneros turned to a more mundane
solution: she asked Martinez to find someone to beat up Fischer.
By winter, Cisneros had decided to have him murdered instead.
Now enter Daniel Garza. Garza had also been unlucky at love.
He and his wife separated in the spring of 1992. Soon afterwards,
he came to Martinez, asking what he might do to rekindle the fire
of romance with his wife. During one of their meetings in October
1992, Martinez’s thoughts reverted to the lost romance of the
scorned Christina. She asked Garza about finding someone to rough
up Fischer. In late January or early February, however, Martinez
2
upped the ante with Garza: she relayed that “the client” wanted the
boy killed.
Though Garza assured Martinez that he would find someone for
the job, he was more immediately concerned with rejuvenating his
own fast-fading love life. In the ensuing weeks, he frequently
called Martinez to discuss schemes to get his wife to return. In
the meantime, however, Martinez, was under almost daily pressure
from Cisneros for news on the planned retribution against Fischer.
Feeling the pressure, Martinez would interrupt Garza during their
conversations to find out if he had found someone to kill Fischer.
Garza lied several times and said he had found someone to commit
the crime. The two would then discuss the murder before returning
to the subject of a plan to plant the stirrings of love in the
heart of Garza’s wife.
There is an important--a highly important--question about
where Garza placed these calls. At trial, he testified that he
made at least four calls from two Mexican towns, San Fernando and
Matamoros. He said that he had placed them in “casetas,” booths
where a caller pays for the call after making it. During cross-
examination, however, defense counsel asked him why an FBI report
from his interview with an agent said that he had made the calls
collect. Garza testified that the agent was mistaken. Garza went
on to explain that collect calls from Mexico were difficult, though
he may have made one of them to Martinez. In its case-in-chief,
3
the defense tried to show that no calls were made from Mexico. FBI
Agent David Church was called as a defense witness. He testified
that while Garza had told him that all the calls were collect,
Martinez’s phone records did not show any such calls.
In early February 1993, Garza found the men to kill Fischer:
Israel Olivarez and Heriberto “Eddie” Pizana. He met them in
Brownsville, at the home of Olivarez’s uncle. Like Garza, they
worked for Rudy Cuellar in a drug smuggling and auto theft
operation stretching from Mexico to Chicago. Olivarez and Pizana
were car thieves and hit men for the organization. Garza met with
the two again in Dallas on February 14 to explain what he wanted.
Olivarez said that they would commit the crime the next time they
were in Brownsville. Garza gave them a photo of Fischer and a map
to his house.
On the afternoon of March 2, Garza was returning from San
Fernando, Mexico, to San Antonio, Texas. He stopped at the La
Quinta Inn in Brownsville, where he happened to find Olivarez.
Olivarez told him that “he was ready to do the job.”
We now turn to a development of uncertain connection to the
hired killers, but one that we must mention. At 6:39 that evening,
a car crossed into the United States from Mexico at the Brownsville
point of entry. Border authorities recorded its Mexican license
plate number as “821 THE7.” A vehicle with that plate had crossed
the border eighteen times between August 1992 and March 1993. At
4
8:26 p.m., Pizana and Ramon Palomares, another Cuellar hit man,
checked into the La Quinta Inn. The receptionist registered their
car as a white Grand Marquis with Mexican plates. Her handwriting
made it hard to decipher whether the plate number was “821 TWEX” or
“821 THE7.”
We now come to the implementation of this insane and tragic
scheme. A little after 7:00 a.m. on March 3, Fischer was shot and
killed in his driveway. The physical evidence consisted of a bail
bondsman’s business card found next to the body and a tennis
shoeprint on the outside air conditioning unit. The only other
clue to the killer’s identity was a witness who remembered passing
a four-door white car with Mexican plates driving in the vicinity
of Fischer’s house near the time of the murder. The witness
described the man in the car as Hispanic, twenty-three to twenty-
five years old, with a short beard.
Then the conspirators spread the news that the deed was done.
Between 7:00 and 8:00 the morning of the murder, Olivarez called
Garza to tell him that Fischer was dead. Garza immediately relayed
this news to Martinez, who said that she could not get the money
from her client without proof of the murder. Garza then discussed
the situation with Olivarez at the La Quinta Inn. Pizana was also
in the room, but not Palomares. After the discussion, Pizana and
Garza visited Martinez, who gave them the money. When the two
returned to the La Quinta, Garza tried to give Pizana the money,
5
but he declined and told Garza to give it directly to Olivarez.
Garza did that and noticed before leaving that Olivarez and Pizana
had two white vehicles: a white pickup truck with a black stripe
and a white Ford.
Fortunately, the bondsman’s business card had handwriting on
the back, and it matched Cuellar’s handwritten bond application.
They also began pursuing information on Cuellar’s associates,
Pizana, Olivarez, and Ramiro Moya. They learned about Garza
through Moya, Garza’s brother.
Garza became the key that opened the gate through which other
conspirators were herded. He agreed to set up a meeting with
Martinez and to wear a wire. He called her twice to tell her that
the gunmen wanted more money, and each time she gave it to him.
The police then arrested Martinez and had her wear a wire for a
meeting with Cisneros. They arrested Cisneros in her car as she
was giving Martinez $500.
At trial, testimony by a person working for Cuellar, Victor
Moreno, helped establish the link between Cuellar and the murder.
Moreno testified that he heard about the Fischer murder within the
Cuellar organization. He had also been with Cuellar when Palomares
phoned Cuellar to report the murder of “a boy” in Brownsville.
Cisneros and her accomplices were convicted in state court for
capital murder. The Texas appellate court overturned the
conviction, however, for insufficiency of evidence linking her to
6
the murder. The state then turned the case over to federal
prosecutors, who charged Cisneros under the federal murder-for-hire
statute, 18 U.S.C. § 1958. She was convicted in May 1998. The
district court then denied her motion for judgment notwithstanding
the verdict and for a new trial. Cisneros has now appealed, citing
seven different instances of insufficient evidence and error.
I
A
The first, and most complex, issue that this case presents is
whether there is sufficient evidence to show that Cisneros met the
interstate/foreign commerce requirement for a federal murder-for-
hire conviction. In 1993,1 the relevant parts of the statute read:
(a) Whoever travels in or causes another (including the
intended victim) to travel in interstate or foreign
commerce, or uses or causes another (including the
intended victim) to use the mail or any facility in
interstate or foreign commerce, with intent that a murder
be committed in violation of the laws of any State or the
United States as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything
of pecuniary value, shall be fined not more than $10,000
or imprisoned for not more than ten years, or both; and
if personal injury results, shall be fined not more than
$20,000 and imprisoned for not more than twenty years, or
both; and if death results, shall be subject to
imprisonment for any term of years or for life, or shall
be fined not more than $50,000, or both.
(b) As used in this section and section 1959 . . .
1
The murder occurred in 1993. In 1994, the statute was
amended to allow for capital punishment when death resulted from a
murder-for-hire. Pub.L. 103-322, § 60003(a)(11), 108 Stat. 1969,
2033 (1994).
7
(2) "facility of interstate commerce" includes
means of transportation and communication.
18 U.S.C. § 1958 (emphasis added). The government asserts that it
proved this interstate/foreign commerce requirement in two ways,
either of which was sufficient. First, Garza’s phone calls from
Mexico to Martinez in Brownsville qualify as use of a “facility in
interstate or foreign commerce” caused by Cisneros. Second, the
matching license plate numbers from the vehicle that crossed into
the United States from Mexico and was later registered at the La
Quinta Inn to Pizana and Palomares, combined with the sighting of
a white vehicle near the scene of the crime, demonstrates that
Cisneros caused another to travel in foreign commerce.
B
To determine whether the government presented evidence
sufficient to satisfy this element, we first need to determine what
the statute requires. Section (a), in setting out the crime, uses
the term “facility in interstate or foreign commerce.” Section
(b), however, confusingly defines “facility of interstate commerce”
for sections 1958 and 1959 and includes “means of transportation
and communication” in that definition. 18 U.S.C. § 1958. Since
neither section uses the term “facility of interstate commerce,”
8
the question is whether the broad definition in (b) should apply to
“facility in interstate or foreign commerce” in (a).2
This distinction is important.3 In this context, “of” means
“[b]elonging or connected to,” while “in” means “[d]uring the act
or process of.” Webster’s II New College Dictionary 557, 759
(Houghton Mifflin Co. 1995). Under the term in (a), the use of the
facility must have been in the process of interstate or foreign
commerce. That would require us to undertake a fact-intensive
inquiry to establish the interstate or foreign character of the
instant use. If the definition in (b) applies, however, the
statute would encompass even intrastate use of telephones or
2
We observe that (b) does not include foreign commerce in its
definition. We treat this as an oversight, inasmuch as there is no
discernible reason for its omission, if (b) is intended to explain
the substantive provisions in (a).
It also appears obvious that Congress made a mistake in mixing
the terms “of” and “in,” but it is not obvious which term reflects
congressional intent.
3
We disagree with the approach taken in United States v.
Coates, 949 F.2d 104, 105 (4th Cir. 1991), which ignored the
difference in the statute’s language between (a) and (b). The
breadth of this statute and its sister statute, § 1952, is the
subject of an ongoing debate among the circuit and district courts.
See, e.g., United States v. Heacock, 31 F.3d 249, 254-55 (5th Cir.
1994)(any use of the mails qualifies); United States v. Barry, 888
F.2d 1092, 1095-97 (6th Cir. 1989)(requiring interstate use of the
mail); United States v. Riccardelli, 794 F.2d 829, 830-34 (2d Cir.
1986)(any use of the mails qualifies); Krantz v. United States,
1999 WL 557524 at *3-7 (E.D.N.Y. 1999)(any use of mails qualifies);
United States v. Paredes, 950 F.Supp. 584, 585-90 (S.D.N.Y.
1996)(requiring interstate use of pagers).
9
vehicles, since those are items connected to interstate commerce.4
4
Existing case law establishes that telephones and automobiles
are instrumentalities of interstate commerce even when used solely
for intrastate purposes. See United States v. Hickman, 179 F.3d
230, 232 (5th Cir. 1999)(holding that a car is an instrumentality
of interstate commerce); Dupuy v. Dupuy, 511 F.2d 641, 644-45 (5th
Cir. 1975)(holding that intrastate use of phones qualifies as use
of an instrumentality of interstate commerce); United States v.
Gilbert, 1999 WL 397424 at *6 (1st Cir. 1999)(holding that a
telephone is an instrumentality of interstate commerce, regardless
of whether it is used in an interstate manner); United States v.
Weathers, 169 F.3d 336, 341 (6th Cir. 1999)(intrastate telephone
calls qualify as use of instrumentality of interstate commerce);
United States v. Cobb, 144 F.3d 319, 322 (4th Cir.
1998)(automobiles qualify as instrumentalities of interstate
commerce); United States v. Randolph, 93 F.3d 656, 660 (9th Cir.
1996)(“[C]ars are themselves instrumentalities of interstate
commerce.”).
Of course, these cases all refer to “instrumentalities,” not
“facilities.” The case law is less clear when dealing with
statutes referring to “facilities of interstate commerce.” Some
cases seem to find that any use of a phone or car is enough without
discussing its intrastate or interstate character. See, e.g.,
Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 655 (8th
Cir. 1982)(seemingly including any use of telephone); United States
v. Goldfarb, 643 F.2d 422, 426 (6th Cir. 1981)(interpreting the
Travel Act). Others seem to require interstate or foreign use of
such a facility. See, e.g., Mendendez v. United States, 393 F.2d
312, 314 (5th Cir. 1968)(emphasizing that use of phone was “long
distance”); United States v. Markiewicz, 978 F.2d 786, 814 (2d Cir.
1992)(emphasizing that the phone call was international); United
States v. Smith, 789 F.2d 196, 203 (3d Cir. 1986)(requiring
interstate travel).
We believe, however, that the important distinction is between
the use of “of” and “in,” not between “instrumentality” and
“facility.” The Sixth Circuit analyzed this statute and reached
the same conclusion. United States v. Weathers, 169 F.3d 336, 341-
42 (6th Cir. 1999). Our own circuit has not been bereft of
discussions on the subject. See United States v. Miles, 122 F.3d
235, 246 (5th Cir. 1997)(DeMoss, J., concurring)(distinguishing
between “of” and “in” interstate commerce). A “facility of
interstate commerce” is one by which interstate commerce is
typically accomplished, regardless of its use in a particular
instance. Use of a “facility in interstate commerce,” on the other
hand, indicates that the facility is “in” interstate commerce when
10
Both theories that the government presented to show how Cisneros’s
murder-for-hire satisfied the foreign commerce requirement,
therefore, would easily qualify under the statute. Cisneros’s plan
obviously caused people to use both telephones and automobiles.
We begin statutory construction with an examination of the
statute’s language. United States v. Alvarez-Sanchez, 511 U.S.
350, 356, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994). There are two
parts to 18 U.S.C. § 1958, the substantive portion setting out the
criminal act, (a); and (b), the portion providing definitions for
the terms used in (a). Oddly, part (b) defines a term that is not
found in subpart (a). Reading the statute literally, almost
mathematically, we would disregard the “irrelevant” definition and
apply the substantive portion, (a), alone.
But this rigid approach glosses over the ambiguity that does
exist, the seemingly superfluous definition. The canons of
construction do not help. We recognize that in reading a statute,
every word should be given significance. United States v. Nordic
Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 117 L.Ed.2d 181
(1992). But this gets us nowhere. The canon obviously counsels
against ignoring the definition in (b). If we use (b)’s broad
definition to interpret “facility in interstate commerce,” however,
it is being used in the particular instance; in other words, a
facility “in” interstate commerce has a temporal element or
requirement that a facility “of” interstate commerce lacks.
11
then the portion of (a) dealing with interstate and foreign travel
would be rendered superfluous. Use of a “means of transportation”
would cover any type of travel as well. The application of this
canon, therefore, does not resolve our statutory quandary.
Another potential guide for us is case law interpreting the
Travel Act, 18 U.S.C. § 1952. We have previously held that
reviewing section 1958 in the light of section 1952 is appropriate,
since section 1958 follows section 1952's format and was intended
as its supplement. United States v. Edelman, 873 F.2d 791, 794
(5th Cir. 1989). It is, therefore, potentially relevant that our
circuit construed the Travel Act to include intrastate mailing.
See United States v. Heacock, 31 F.3d 249, 254-55 (5th Cir.
1994)(construing the Travel Act to include intrastate mailing).
We conclude, however, that our interpretation of the Travel
Act in Heacock is inapplicable here. Heacock concerned an
interpretation of the Travel Act as it read in 1988. At that time,
the relevant portion read: “Whoever . . . uses any facility in
interstate or foreign commerce, including the mail.” Id. at 254.
A circuit split had developed between the Sixth and Second
Circuits concerning whether purely intrastate use of the mails
qualified under this portion of the statute. See United States v.
Barry, 888 F.2d 1092, 1095 (6th Cir. 1989)(requiring interstate use
of mail); United States v. Riccardelli, 794 F.2d 829, 831-33 (2d
Cir. 1986)(intrastate use of the mail would qualify). The Sixth
12
Circuit had held in Barry that the statute applied to facilities,
including the mail, that were being used in interstate or foreign
commerce. Barry, 888 F.2d at 1095. Thus, intrastate use of the
mail would not fall within the statute’s domain. In Riccardelli,
on the other hand, the Second Circuit had held that “mail” in
“including the mail” referred to the entire preceding clause,
“facilit[ies] in interstate or foreign commerce.” In other words,
according to that court, the statute made clear that the mail was
to be treated as distinct from all other facilities; that is, as a
facility inherently “in interstate or foreign commerce.”
The Second Circuit’s treatment of the mails as distinct from
all other facilities under the Travel Act was based on a thorough
analysis of the statute and the history of the postal service. As
the court explained, the U.S. Constitution specifically granted
Congress the power to establish the postal service. U.S. Const.
art. I § 8 cl. 7. From the presidency of James Monroe until the
1970 reorganization under President Nixon, the postal service was
its own executive department, after which it became a government-
owned corporation. Riccardelli, 794 F.2d at 831.
In Heacock, we examined this split and sided with the Second
Circuit. The special character of the mail automatically made it
a “facility in interstate commerce.” Heacock, 31 F.3d at 255.
In 1990, Congress amended the Travel Act in a manner
consistent with this interpretation. The heading to the relevant
13
section read “CLARIFICATION OF APPLICABILITY OF 18 U.S.C. 1952 TO
ALL MAILINGS IN FURTHERANCE OF UNLAWFUL ACTIVITY.” Act of Nov. 29,
1990, Pub. L. No. 101-647, § 1604, 1990 U.S.C.C.A.N. (104 Stat.
4843)(to be codified at 18 U.S.C. § 1952). The new language read:
“Whoever . . . uses the mail or any facility in interstate or
foreign commerce.” 18 U.S.C. § 1952 (emphasis added). This was
the version of the Travel Act that the federal murder-for-hire
statute was to supplement and from which the drafters of 18 U.S.C.
§ 1958 drew their language.
Thus, it is clear that our Heacock analysis is limited to use
of the mail, especially after Congress’ 1990 amendment, because the
mail is unique. It is plainly and unmistakenly treated separately
from all other “facilities.”
Ultimately, Heacock and other cases interpreting the Travel
Act are not helpful to our inquiry because they do not face the
same contradictory statutory language that we do today in the
murder-for-hire statute. In construing the Travel Act, one need
not wrestle with the distinctions and differing implications
between “of” and “in.” But we cannot avoid confronting them. Each
term leads to a different result; the telephone used in making an
in-state call is not one actually engaged in interstate or foreign
commerce with respect to the particular use at issue, even though
14
the telephone is itself a facility of interstate or foreign
commerce.
We next turn to the legislative history of 18 U.S.C. § 1958,
which finally provides some helpful guidance. The Senate Judiciary
Committee’s report on the bill supports a narrow reading of the
statute in the interest of comity:
The committee is aware of the concerns of local
prosecutors with respect to the creation of concurrent
federal jurisdiction in an area, namely murder cases,
which has heretofore been the almost exclusive
responsibility of state and local authorities. . . . This
does not mean, nor does the committee intend, that all or
even most such offenses should become matters of federal
responsibility.
S. Rep. No. 225, 98th Cong., 1st Sess. 1983, 1984 U.S.C.C.A.N.
3182, 3484.
This legislative history plainly suggests that we should
eschew the broader reading of the statute. Using the definition in
(b) to interpret “facility in interstate commerce” would extend the
reach of the federal murder-for-hire statute to new realms of
traditionally-exclusive state jurisdiction. It is difficult to
imagine a murder-for-hire scheme that would not involve the use of
a telephone or an automobile. This definition, therefore, would
markedly increase criminal liability in this area. The narrower
interpretation of the statute, which applies the substantive part
of the statute in (a), appears to be the appropriate one to use.
15
Because we are reluctant to rely solely on legislative history
to eliminate ambiguity, however, we also look to the quasi-
constitutional rule of lenity, which counsels us to resolve
ambiguity in criminal statutes by construing them narrowly. The
rule of lenity fosters the fundamental principle of due process:
This practice [of resolving questions of the ambit of
criminal statutes in favor of lenity] reflects not merely
a convenient maxim of statutory construction. Rather, it
is rooted in fundamental principles of due process which
mandate that no individual be forced to speculate, at
peril of indictment, whether his conduct is prohibited.
Dunn v. United States, 442 U.S. 100, 112, 99 S.Ct. 2190, 60 L.Ed.2d
743, (1979). Its propriety was recently reaffirmed by the Supreme
Court in United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct.
1259, 127 L.Ed.2d 611 (1994). The rule of lenity also supports a
narrow interpretation of this statute rather than the imposition of
potentially-unanticipated federal criminal liability.
Finally, this narrow interpretation accords with the Sixth
Circuit’s decision in United States v. Weathers, 169 F.3d 336, 342
(6th Cir. 1999). That court ignored the definition in (b) because
“the key prohibition creating the criminal offense is found in
subsection (a).” We agree.
16
C
In reviewing its sufficiency, we view the evidence in the
light most favorable to the verdict and affirm if a rational trier
of fact could find that the government proved all essential
elements beyond a reasonable doubt. United States v. Grossman, 117
F.3d 255, 258 (5th Cir. 1997). The government’s proof need not
exclude every reasonable hypothesis of innocence. United States v.
Haas, 171 F.3d 259, 265 (5th Cir. 1999).
Though the interstate/foreign commerce requirement in 18
U.S.C. § 1958 is jurisdictional, United States v. Edelman, 873 F.2d
791, 794-95 (5th Cir. 1989), it is also an element of the offense.
United States v. Feola, 420 U.S. 671, 677 n.9, 95 S.Ct. 1255, 43
L.Ed.2d 541 (1975). This circuit does require proof beyond a
reasonable doubt of interstate/foreign commerce. See, e.g., United
States v. Thompson, 130 F.3d 676, (5th Cir.), cert. denied, 118
S.Ct. 2307 (1998)(using beyond reasonable doubt standard).
Labeling this requirement “jurisdictional,” however, does
eliminate the need to prove scienter of that element. United
States v. Razo-Leora, 961 F.2d 1140, 1148 (5th Cir. 1992). It is
enough that the proof showed interstate or foreign commerce in the
commission of the offense and that Cisneros had knowledge of the
nature of the offense that she promoted. Edelman, 873 F.2d at 795.
The government did not need to establish that Cisneros intended to
17
cause interstate/foreign commerce or even that she knew it
occurred. Id.
D
The government did present sufficient evidence for a rational
juror to conclude that Garza made international calls in arranging
the murder-for-hire for Cisneros. Garza testified that from late
1992 until early 1993, he called Martinez four times from Mexico,
twice from San Fernando, and twice from Matamoros. He explained
that he made the calls from casetas and paid for them immediately
afterwards because collect calls from Mexico were difficult to
make.
During the calls, Garza would attempt to discuss his marital
problems, but Martinez would interrupt and ask whether he had found
someone to kill “the boy” for “her client.” Although Garza
initially lied to her about finding “men to do the job,” the
urgency of Martinez’s demands did not diminish. During each of
Garza’s calls, Martinez continued to press him to find assassins
for “her client.”
Cisneros makes two arguments in response. First, she contends
that Garza’s testimony about the Mexico calls lacks corroboration
and contradicts Church’s FBI report and testimony. It is true that
Church’s report and testimony indicate that he believed Garza told
him the calls from Mexico to Martinez were collect, and that
18
Martinez’s phone records did not show any such calls. Garza,
furthermore lacked any receipts proving they occurred.
The government’s evidence, however, was nevertheless
sufficient to prove the international phone calls. Credibility
determinations are the exclusive province of the jury, United
States v. Ruiz, 987 F.2d 243, 250 (5th Cir. 1993), and the jury is
entitled to choose among reasonable constructions of the evidence.
United States v. Thompson, 130 F.3d 676, 685-86 (5th Cir. 1997).
As already explained, we read that evidence in the light most
favorable to the jury verdict. Grossman, 117 F.3d at 258.5 Here,
Garza provided a reasonable explanation for why the calls were not
collect. Given his language difficulties, some confusion during
the interview with Church would be expected. Finally, Garza’s
lack of a receipt for these calls five years, or even five minutes,
after they were made is not surprising. The conclusion that the
calls were made, therefore, is legally supportable. It is not our
province to become embroiled in a credibility debate between Church
and Garza.
Second, Cisneros contends that the evidence did not establish
that the international calls were “in furtherance” of the murder-
5
This is true even when the jury reaches a general verdict
based on two alternative theories. See Griffin v. United States,
502 U.S. 46, 49-51, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991)(holding
the jury verdict valid in this situation); United States v. Powers,
168 F.3d 741, 746 (5th Cir. 1999)(evaluating sufficiency of the
evidence with deference).
19
for-hire. In other words, Cisneros argues that there was not a
sufficient nexus between the foreign telephone calls and the murder
scheme to violate the federal murder-for-hire statute.6 She draws
the support for her argument from the First Circuit’s decision in
United States v. Houlihan, 92 F.3d 1271, 1292 (1st Cir. 1996),
where the First Circuit panel required the use of the facility in
interstate commerce to be “in furtherance” of the underlying murder
scheme. That is not the standard our circuit uses, however. In
cases examining the nexus requirement in the context of the Travel
Act, we merely require that the use of the facility in interstate
or foreign commerce--here, the telephone--“facilitated” the
underlying crime or “made it easier.” United States v. Garrett,
716 F.2d 257, 266 (5th Cir. 1983), United States v. Pecora, 693
F.2d 421, 424 (5th Cir. 1982), and United States v. Perrin, 580
F.2d 730, 736 (5th Cir. 1978). There is no reason that the nexus
requirement for § 1958 should be any different.
When we consider Cisneros’s argument challenging the
sufficiency of the evidence based on the appropriate standard, it
does not succeed. There was sufficient evidence to establish a
sufficient nexus between the use of the facility in foreign
6
There was some confusion in Cisneros’s original brief about
whether “in furtherance” related to causation, intent, or to the
nexus between use of the facility and the underlying crime.
Cisneros only clarified this argument in her motion for rehearing.
As we now understand it, “in furtherance” refers to the nexus
between the crime and the use of the facility in foreign commerce.
20
commerce and the murder scheme because the telephone calls
unquestionably facilitated in arranging the murder. Without
Martinez’s incessant reminders during those calls, it is reasonable
for a jury to have believed that Garza would not have made as
serious an effort to find a hit man. In this respect, the nexus
here is at least as strong as those in the Travel Act cases
previously mentioned.7
Cisneros’s contention that Garza’s lie during the telephone
conversation--that he had already found someone to commit the
murder--actually hindered, rather than facilitated, the murder is
not persuasive. It was only Martinez’s constant cajoling of Garza
that prompted Garza to accelerate his efforts to find the hit men.
In short, those telephone conversations facilitated Martinez’s
efforts in getting Garza to find them.
7
In Perrin, 580 F.2d 730, the defendants had bribed an
employee of a geophysical surveyor to obtain seismic data. After
obtaining the data, one of the defendants made an interstate
telephone call to lawfully purchase maps to make sense of that
data. The court held that the interstate nexus to the underlying
crime was sufficient in that case. Id. at 736.
Similarly, in Pecora, 693 F.2d 421, a single interstate phone
call again satisfied the interstate nexus by “facilitat[ing]” a
bribery scheme. There had already been numerous discussions about
payoffs and even one $9,000 payoff during the course of the scheme.
During that interstate call, all that occurred was that the details
of the scheme were further discussed. But the court held that this
was enough to meet the interstate nexus hurdle, and that there was
no exception for cases where the interstate nature of the call was
fortuitous and incidental. Id. at 424.
Finally, in Garrett, 716 F.2d at 266, a call requesting funds
for a bribery scheme “facilitated” and made the bribery scheme
“easier,” thereby constituting a sufficient interstate nexus.
21
Because these telephone calls satisfy the interstate nexus
requirement, we need not address the more complicated issue, the
car travel between Mexico and Texas.
II
Cisneros raises several other arguments on appeal, none of
which require reversal of her conviction.
A
Cisneros asks for a new trial based upon two instances of the
government eliciting testimony about state court proceedings
related to the murder. The trial court had issued an order that
prohibited eliciting testimony that Cisneros had been tried for the
offense in state court.
First, it is true that the government improperly elicited
testimony in violation of the order:
Q: Do you remember what you charged him [Garza] with?
A: Yes, sir.
Q: What was that?
A: Capital Murder.
Q: The same charge that you had charged Maria
Martinez and Dora Cisneros with?
A: Yes, sir.
Defense counsel immediately moved for a mistrial, which the trial
court denied.
We will not reverse the court’s denial because it was not an
abuse of discretion. United States v. Krout, 56 F.3d 643, 647 (5th
Cir. 1995). “A new trial is required only if there is a
‘significant possibility’ that the prejudicial evidence had a
22
‘significant impact’ upon the jury verdict, viewed in light of the
entire record.” United States v. Layne, 43 F.3d 127, 134 (5th Cir.
1995). Simply stated, in a trial lasting seven days, any
prejudicial effect from this interchange is not enough to justify
a mistrial. The government spent almost five-and-a-half days
presenting a thorough case-in-chief. The defense, on the other
hand, used half a day to present its case.8 With such a gross
imbalance of evidence in favor of the government, it is hard to
believe that the brief interchange above had any impact on the
jury’s decision. Denial of a mistrial was not an abuse of
discretion.
Second, the government elicited testimony six days after this
interchange that Garza had been convicted of capital murder in the
Fischer homicide. Defense counsel objected, and the trial court
overruled the objection. Cisneros now charges that the government
tried to get the jury to infer that since Garza and Cisneros were
both charged, and since Garza was convicted, that Cisneros was also
tried in state court.
The admission of this testimony was not an abuse of
discretion, since there was no chance of any “significant impact”
on the jury verdict. United States v. Morgan, 117 F.3d 849, 861
(5th Cir. 1997); Layne, 43 F.3d at 134. By itself, this testimony
8
The seventh day was spent on closing argument and jury
instruction.
23
did not violate the district court’s order. The defense can only
take issue with the testimony by tying it to the earlier testimony
about charges against Cisneros. There is no reason to believe that
the jury drew such a connection to conclude that Cisneros had also
been convicted. The government had good reason, moreover, to ask
Garza about his conviction. The prosecutors wanted to minimize the
effectiveness of any cross-examination about the deal they had
given him.
B
Cisneros next objects to denial of five of her proposed jury
instructions. We review refusal to include requested instructions
for an abuse of discretion. United States v. Storm, 36 F.3d 1289,
1294 (5th Cir. 1994). Defendants are entitled to an instruction as
to any recognized defense for which there exists evidence
sufficient for a reasonable jury to find in their favor, Mathews v.
United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54
(1988). But refusal to include a requested instruction is
reversible error only if the requested instruction is substantially
correct, the actual charge given the jury did not substantially
cover the content of the proposed instruction, and the omission of
the proposed instruction would seriously impair the defendant’s
ability to present a defense. United States v. Pettigrew, 77 F.3d
1500, 1510 (5th Cir. 1996).
24
Cisneros first sought to instruct the jury that the use of the
facility in foreign commerce had to have been “in furtherance” of
the murder-for-hire. As we have previously observed, “in
furtherance” is not the requirement in this circuit; “facilitated”
or “made easier” is. Garrett, 716 F.2d at 266. That is, Garza’s
calls need not have been made for the purpose of furthering the
murder-for-hire. It is enough that those calls facilitated the
scheme incidentally, or by mere happenstance. Id. at 265-66.
Here, it may well be true that Garza did not place the calls
“in furtherance” of the murder-for-hire scheme. He called Martinez
for marital advice. Martinez was the one who would bring up the
subject of the Fischer murder. But those international calls gave
Martinez the opportunity to pursue her earlier requests that Garza
arrange the murder. In that sense, they facilitated the murder,
even though the use of the telephone across national boundaries was
purely incidental. The difference between “in furtherance” and
“facilitated,” therefore, can be significant. For that reason,
Cisneros’s proposed instruction was not substantially correct, and
the district court’s failure to give it does not constitute
reversible error. United States v. Pettigrew, 77 F.3d 1500, 1510
(5th Cir. 1996).9
9
We note that the district court gave no instruction on the
nexus requirement.
25
Cisneros’s second proposal was a “theory of the defense”
instruction. What she requested was essentially an extended
instruction on the government’s burden of proof. Since the
district court repeatedly emphasized that the government carried
that burden, its instruction covered Cisneros’s desired
instruction. Moreover, the court’s refusal did not hinder
Cisneros’s presentation of a defense in any way.
Part of Cisneros’s “theory of the defense” instruction did go
beyond restatement of the burden of proof. It set forth Cisneros’s
position that any of Pizana’s travel in foreign commerce on March 2
was related to the stolen vehicle or drug businesses, not the
murder-for-hire. It also explained that Cisneros believed any of
Garza’s calls to Martinez were made for the purpose of discussing
his marital difficulties. Since these represent mere “judicially
narrated accounts” of Cisneros’s facts, their submission to the
jury was unnecessary. See Pettigrew, 77 F.3d at 1514.
Cisneros’s third proposed instruction sought to limit the
jury’s consideration of tape-recorded conversations between Garza
and Martinez and between Martinez and Cisneros.10 When the
government offered those tapes into evidence, however, Cisneros’s
counsel failed to object properly:
THE COURT: Any objection to the admission of the tapes?
10
These conversations related to the purpose behind money
transfers between Garza, Martinez, and Cisneros.
26
MR. CANALES: No.
...
MR. CANALES: Multiple purposes of impeachment, I
understand.
MR. MOSBACKER: No, Your Honor. They are being offered
for purposes of rehabilitation of the witness and also
for completeness of the conversations.
THE COURT: There being no objections, all [the tapes] are
admitted into evidence.
Assuming that some portion of the tapes included hearsay, Cisneros
did not raise a timely objection to its admission. She is required
to do so under Fed.R.Evid. 103(a)(1). United States v. Wake, 948
F.2d 1422, 1435 (5th Cir. 1991). Without such an objection, we
review for plain error. Id. The admission of this evidence, to
the extent it was erroneous, did not seriously affect the fairness,
integrity, or public reputation of judicial proceedings, especially
since it was the defendant who first alluded to portions of the
tapes. See United States v. Olano, 507 U.S. 725, 731-36, 113 S.Ct.
1770, 123 L.Ed.2d 508 (1993).
Cisneros’s fourth requested instruction was an explanation of
“causation”:
A person “causes” another to travel in foreign commerce
or to use facilities in foreign commerce if he does an
act with knowledge that the foreign travel or use of
facilities in foreign commerce will follow in the
ordinary course of business, or where such foreign travel
or use of facilities in foreign commerce can reasonably
be foreseen, even though not actually intended.
Although this instruction is loosely based on the causation
requirement for violation of the federal mail fraud statute, see
United States v. Sneed, 63 F.3d 381, 385 n.4 (5th Cir. 1995), the
27
district court did not abuse its discretion in rejecting the
instruction. First, we note that the source was, to be sure, from
a different statute. Second, and more importantly, Cisneros’s
version is simply incorrect. One problem is that it confuses
intent with causation: “. . . if he does an act with knowledge that
the . . . use of the facilities in foreign commerce will follow.”
Yet, even more significantly, the instruction requires that the
specific use of the facility in interstate travel that actually
occurred must have been foreseeable: “where such foreign travel or
use of facilities in foreign commerce can reasonably be foreseen.”
That is not what is required by the simple causation element.
Consequently, her proposed instruction was not substantially
correct, and the failure to give it does not constitute an abuse of
discretion.11
Cisneros’s fifth instruction concerned the five-year statute
of limitations. Its omission did not impair Cisneros’s ability to
present a defense because there was no defense under the statute of
limitations. It is well recognized that the time period begins to
11
Again, we note that the district court failed to give an
instruction explaining the notion of causation to the jury.
Instead, the one it gave related to the mens rea requirement with
respect to causation. The reason for this instruction instead of
one explaining causation can be attributed, at least in part, to
the confusion in Cisneros’s proposed instruction, which mixed the
two together. This confusion continued to appear in Cisneros’s
briefs to this court.
28
run when the crime is complete. Toussie v. United States, 397 U.S.
112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). And one of the
elements of the federal murder-for-hire offense is receipt of
pecuniary value or a promise or agreement to pay. 18 U.S.C. §
1958. Accord United States v. Finley, 175 F.3d 645, 646 (8th Cir.
1999); United States v. Sanchez, 3 F.3d 366, 367 (11th Cir. 1993).12
In this case, Cisneros’s indictment charged her with
“caus[ing] another to . . . use a facility in foreign
commerce . . . with the intent that the murder of Albert Joseph
(Joey) Fischer, Jr. be committed . . . as consideration for a
promise and agreement to pay, and the receipt of, $3,000.” The
crime, as charged and tried by the government, was complete upon
the receipt of the $3,000 payment. The government presented
uncontroverted testimony that Martinez paid Garza $3,000 on the day
of the murder, March 3, 1993. Cisneros was indicted less than five
years later, on February 23, 1998. The statute of limitations,
therefore, was not a defense available to Cisneros.13
12
This conclusion is consistent with our decision in Thompson,
130 F.3d 676. In that case, payment occurred simultaneously with
use of the facility in interstate commerce--payment was sent by
mail. Thus, both elements of the offense were met at the same time
and completed the offense.
13
Cisneros’s additional contention, that evidence of the
foreign calls fell outside the statute of limitations, is
meritless:
The statute of limitations is a defense to prosecution,
not a rule of evidence. Therefore, once prosecution is
29
C
Cisneros’s next argument, that the district court erred in
admitting the evidence of Fischer’s murder under Fed.R.Evid. 403,
is foreclosed by United States v. Hall, 152 F.3d 381, 400-03 (5th
Cir.), cert. denied, 119 S.Ct. 1767 (1999). Contrary to Cisneros’s
assertion, her offer to stipulate to the shooting of Fischer did
not reduce the probative value of evidence of how Fischer’s parents
found their son, the pathologist’s testimony about Fischer’s
autopsy, or the photographs of Fischer’s corpse. This testimony
and these pictures were not more gruesome or more disturbing than
those admitted in Hall or the cases cited therein. See Hall, 152
F.3d at 401 (citations omitted). The probative value of the
challenged evidence, therefore, was not substantially outweighed by
the danger of unfair prejudice. See id. (citations omitted).14
timely instituted, the statute of limitations has no
bearing on the admissibility of evidence. It would be a
bizarre result indeed if a crime properly prosecuted
within the limitations period could not be proven because
an essential element, such as intent, could only be
established by proof of incidents occurring outside the
period.
United States v. Ashdown, 509 F.2d 793, 798 (5th Cir. 1975). In
addition, elements of a continuing offense, such as we have here,
may fall outside the statute of limitations period without running
afoul of the statute of limitations. United States v. Bustamante,
45 F.3d 933, 942 (5th Cir. 1995).
14
Cisneros’s reliance on Old Chief v. United States, 519 U.S.
172, 183 n.7 (1997) is misplaced. The Supreme Court expressly
noted that its holding was limited to cases involving proof of
felon status. Old Chief, 519 U.S. at 183 n.7.
30
D
We also reject Cisneros’s argument that the conviction should
be reversed because the district court failed to maintain an
appearance of impartiality in its questioning of witnesses and
comments made during the trial. First, Cisneros contends that in
questioning Garza, the district court made the government’s case
instead of merely clarifying the evidence. Second, Cisneros
maintains that the district court unfairly assisted the government
in overcoming objections. One was a hearsay objection to a police
officer’s testimony about Ramiro Moya’s involvement in Fischer’s
murder, and the other was an objection to the form of the question
asking Moreno about Cuellar’s state of mind after Palomares
telephoned to report the murder. Third, Cisneros argues that the
court’s treatment of defense counsel exhibited favoritism in front
of the jury.
After reviewing the transcript, we cannot conclude that the
district court’s behavior was so “prejudicial that it denied the
defendant a fair, as opposed to a perfect trial.” United States v.
Bermea, 30 F.3d 1539, 1569 (5th Cir. 1994) (citations omitted).
The questions to the witnesses, periodic assistance to government
counsel, and occasional chastisement of defense counsel did not
make the trial unfair.
The first issue is the court’s questioning of witnesses.
During trial, Garza explained that he had called Martinez from San
31
Fernando, 100 miles south of the Rio Grande. The district court
interjected and asked Garza if San Fernando was located in Mexico
and whether he had talked to Martinez from Mexico. Garza answered
both questions affirmatively. The court also asked Garza whether
he and Martinez had discussed “something else” beyond his marital
problems when he called her from Mexico. Garza replied that the
two had discussed whether he had found the “guys [that] she
[Martinez] wanted to cause harm to this boy.”
Garza later testified that he met Olivarez in Dallas to tell
him about “a lady in Brownsville who had . . . $3000.00 to beat up
or kill this person.” Garza then said he provided a picture and
address to help Olivarez identify Fischer. The district court
immediately asked Garza whether he had the picture during his
initial conversation with Olivarez in Dallas. The court also asked
Garza whether Olivarez agreed during the meeting to commit the
murder. Garza answered “whenever they would go to Brownsville.”
The district court’s questions did not deny Cisneros a fair
trial. A trial court has the discretion to clarify testimony, even
if that elicits facts harmful to the defendant. United States v.
Saenz, 134 F.3d 697, 708 (5th Cir. 1998) (citations omitted). The
district court may also bring out new facts through its
questioning. United States v. Cantu, 167 F.3d 198, 202 (5th Cir.
1999), petition for cert. filed, 67 U.S.L.W. 3749 (U.S. Jun. 1,
1999) (No. 98-1928) (citations omitted). The trial court stayed
32
within these limits. Garza was a difficult witness to understand
because of problems with English. The court’s questions were
designed to clarify his vague, confusing, and often incomplete
statements.
The record further establishes that the court’s assistance in
overcoming Cisneros’s objections did not exhibit bias in the
government’s favor. In both instances, the district court merely
instructed prosecutors to rephrase their questions. The district
court properly controlled the tempo of the trial so as to avoid
repetitious objections and to keep the proceeding moving forward.
See Bermea, 30 F.3d at 1570-71.
Finally, Cisneros points to several instances where the court
treated defense counsel with less than perfect courtesy. Having
examined the transcript, these do not go beyond acceptable
courtroom behavior, especially in the face of some of defense
counsel’s antics.
In sum, we find that the district court’s intervention in the
trial hardly rises to the level we found objectionable in Saenz,
134 F.3d at 713-14. Indeed, nothing in the district court’s
questions or comments “could have led the jury to a predisposition
of guilt by improperly confusing the functions of the judge and the
prosecutor.” Bermea, 30 F.3d at 1569 (citing United States v.
Samak, 7 F.3d 1196, 1197-98 (5th Cir. 1993)).
33
The district court, moreover, twice instructed the jury
regarding the court’s participation in the trial. We have
previously held that curative instructions such as this one
ameliorate potential prejudicial effect of a district court’s
comments or questions. See Bermea, 30 F.3d at 1571-72 (citations
omitted). At the beginning of the trial as well as at the close of
the evidence, the district court explained to the jury that it did
not have an opinion about the case, and to disregard any statements
that might indicate otherwise. The court then charged the jury not
to give the court’s question more or less weight than those of the
lawyers.
E
Finally, the district court did not abuse its discretion in
admitting Moreno’s testimony under the co-conspirator exception to
the hearsay rule, Fed.R.Evid. 801(d)(2)(e). Cisneros argues that
assuming arguendo there existed a conspiracy to kill Fischer, the
admission of Moreno’s testimony under the co-conspirator exception
was in error because Moreno had no involvement in the murder. We
find this argument frivolous.
Moreno testified that he and Garza were both employed in
Cuellar’s organization and that Palomares and Olivarez acted as hit
men for the organization. Moreno also acknowledged that because he
34
was a member of Cuellar’s crime family,15 Cuellar told him about
conversations with Garza concerning the “Brownsville murder.” In
early February 1993, Moreno accompanied Garza to a Dallas gun shop
where Garza bought a .38 Super–-the same type of pistol as the one
used to shoot Fischer. The record further shows that Moreno gave
Garza the purchase money, which had been supplied by Cuellar.
Immediately after the sale, Moreno took possession of the weapon
and delivered it to Cuellar that same day. Moreno later overheard
a conversation between Palomares and Cuellar, during which
Palomares stated that he had killed a person in Brownsville.
Finally, Moreno stated that Palomares, Pizana, and Olivarez were
involved in the “Brownsville murder” and that the murder was
committed because of a contract Garza made with “a certain person.”
The government met its burden of proving the co-conspirator
exception to the hearsay rule by a preponderance of the evidence.
See United States v. Narviz-Guerra, 148 F.3d 530, 536 (5th Cir.),
cert. denied, 119 S.Ct. 601 (1998); United States v. Ruiz, 987 F.2d
243, 247 (5th Cir.), cert. denied, 510 U.S. 855 (1993). Moreno was
integrally involved in the operations of Cuellar’s organization,
the one that planned and executed Fischer’s murder.
III
15
Moreno was an enforcer for Cuellar. He picked up drug money
and delivered drugs to Cuellar’s stash houses.
35
For the reasons stated herein, Cisneros’s conviction is in all
respects
A F F I R M E D.
36