In the
United States Court of Appeals
For the Seventh Circuit
No. 09-4116
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
R OBERT M ANDEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 CR 997—William J. Hibbler, Judge.
A RGUED O CTOBER 19, 2010—D ECIDED JULY 28, 2011
Before C UDAHY and R OVNER, Circuit Judges, and
A DELMAN, District Judge.
R OVNER, Circuit Judge. When Robert Mandel decided
to have his business partner killed, he turned to Patrick
Dwyer, a trusted friend and employee of the business,
for help in finding a killer. Dwyer instead went to the
authorities, was outfitted with a wire, and proceeded to
The Honorable Lynn S. Adelman, of the Eastern District
of Wisconsin, sitting by designation.
2 No. 09-4116
record a series of conversations in which he and Mandel
plotted the details of the murder in person and over the
telephone. A jury later convicted Mandel on multiple
charges that he used facilities of interstate commerce—
namely, a cellular telephone and his car—in furtherance
of a murder for hire scheme, in violation of 18 U.S.C.
§ 1958(a). Mandel appeals, contending that he was en-
trapped into discussing the murder on a cell phone, so
as to manufacture federal jurisdiction over an otherwise
local offense, and that his purely intrastate use of an
automobile does not constitute the use of an facility of
interstate commerce. We affirm.
I.
Mandel and Konstantinos “Gus” Antoniou each owned
a 50-percent share in G&D Excavating Company, a
firm that engaged in sewer and water work and trucking
in addition to excavations. Disagreements over the com-
pany’s finances and equipment caused their friendship
as well as their partnership to erode. As of April 2008,
the two men were in litigation over the company’s prop-
erty. As of the following October, Antoniou had locked
Mandel out of the company’s premises.
In late August 2008, members of the Chicago police
and the Federal Bureau of Investigation’s armed vio-
lence task force learned from Dwyer that Mandel had
discussed the possibility of hiring someone to murder
Antoniou. According to Dwyer, Mandel had said he
knew an unidentified individual who wanted Antoniou
killed and had asked Dwyer to find a hit man and deter-
No. 09-4116 3
mine how much it would cost. Mandel reportedly
offered to provide Dwyer with a gun, if needed.
Dwyer agreed to help the authorities investigate the
murder for hire scheme. He proceeded to engage Mandel
in a number of covertly recorded conversations, both
in person and on the telephone, in which the two men
laid out plans to engage a hit man to commit Antoniou’s
murder. These conversations would later form the
basis for federal charges against Mandel.
On August 28, Mandel met Dwyer at a job site on
the south side of Chicago where Dwyer was working. The
two men then went for a drive in Mandel’s car to in-
spect another job site. While en route and upon arrival
at the site, the two of them discussed the murder. Dwyer
had informed Mandel by telephone the day before
that he had located someone who was willing to kill
Antoniou. Mandel now confirmed to Dwyer that the
unnamed third party, along with a second unidentified
person, still wanted Antoniou killed—purportedly be-
cause he had cheated them out of $85,000—but not
until November. When Dwyer remarked that the hit man
might not be able to procure a gun on his own, Mandel
assured Dwyer that this would not be a problem. “Oh
I can get a gun,” he assured Dwyer. “I’ll get it from . . .
Indiana.” Gov. Ex. Aug. 28, 2008 Tr. 1. Mandel suggested
that when the time came, the hit man should lay in wait
for Antoniou at his home, to which he typically returned
in the late evening or early morning hours. Mandel
offered to drive Dwyer past the house to show him the
layout. As for the hit man’s fee, Dwyer advised Mandel
4 No. 09-4116
that he had talked the hit man down to five thousand
dollars from ten. Mandel agreed with Dwyer’s request
that the third parties who were commissioning the
murder be asked to pay six thousand dollars. “Leave
somethin’ for us, yeah.” Id. at 13. When Dwyer inquired
who else knew about the plan, and expressed concern
that neither he nor Mandel be identified as complicit,
Mandel repeatedly assured Dwyer that he had told no
one. “Nobody knows,” he told Dwyer. “Me and you.” Id.
at 2. Mandel had driven to this meeting in his auto-
mobile, a 2004 Mercury Marauder. His use of the car
in furtherance of the scheme formed the basis for
Count One of the indictment. The vanity license plate
on the Mercury Marauder bore the apt legend, “NoHalo.”
Truth bests fiction once again.
Dwyer contacted Mandel on Mandel’s cell phone on
September 10, 2008. When Dwyer inquired whether
Mandel had spoken with “them people yet,” Mandel
advised him that they were arriving in town on the fol-
lowing day and that he expected to speak with them
within a day or two after that. Gov. Ex. Sept. 10, 2008
Tr. 1. The conversation then turned to the hit man’s
payment. Dwyer suggested that Mandel ask the third
parties for money so that the hit man could be given
some portion of his fee up front. Mandel rejected the
idea. “Ah here’s the story[.] I’m not gonna give him any
money. Here’s what I wanna do is. I want to have all
the money in my hand [and] show it to you and he can
see it to[o].” Id. at 2. “When he’s done we’ll give it to
him,” Mandel told Dwyer. Id. Mandel’s use of his cell
phone to conduct this discussion of the murder for
No. 09-4116 5
hire scheme formed the basis for Count Two of the indict-
ment.
One week later, Dwyer spoke with Mandel, again via
Mandel’s cell phone. Dwyer placed the initial call to
Mandel but did not reach him; Mandel subsequently
returned Dwyer’s call. When Dwyer asked him whether
“that thing [is] still gonna happen,” Gov. Ex. Sept. 10, 2008
Tr. 1, Mandel assured him that it would. “Yes, it is. Yes,
it is. You gotta . . . it’ll happen soon.” Id. “I would say in
a week or so,” he added. Id. Dwyer told Mandel that
they would have to get together so that Mandel could
“show me that house and that again,” to which Mandel
responded “Okay.” Id. But when Dwyer then asked
Mandel to “get that thing for me from Indiana,” id., an
apparent reference to a gun for the hit man, Mandel
questioned whether it was necessary. “I thought he had
his own tools.” Id. at 2. Dwyer said he would ask the
hit man. This telephone call formed the basis for
Count Three of the indictment.
Delay set in (Mandel advised Dwyer that his
principals were not returning his calls), and when
Dwyer and Mandel spoke by phone on October 22, 2008,
Mandel said that he was now “working on something
of my own.” Gov. Ex. Oct. 22, 2008 Tr. 2. “It took me a
little while but I got some things going,” he told Dwyer. Id.
Mandel met Dwyer in the parking lot of a Des Plaines
restaurant/bar on November 7. Mandel announced that
he was ready to proceed with the murder without the
support of the third parties on whose behalf he had
been acting previously. “I’m ready to do it myself,” he
6 No. 09-4116
announced. Gov. Ex. Nov. 7, 2008 Tr. 1. “[T]hey won’t give
me the money.” Id. When Mandel asked Dwyer to
remind him how much the hit man wanted, Dwyer told
him five thousand dollars but suggested that he
(Dwyer) might unilaterally cut that price in half and pay
the hit man out of his own pocket. Mandel responded
that he would “like to give him some money too” be-
cause “[i]t would make my life easier too because then I’d
own all of G and D.” Id. at 8. Mandel disclaimed any worry
that he would be fingered for the hit, reasoning that he
was only one of many people who wanted Antoniou
dead. “[T]here’s too many other people that have more
to gain than I do,” he observed. Id. at 10. “Too many
people have already fuckin’ threatened him.” Id. at 12.
When Dwyer inquired of Mandel, “Well I mean should
I just send him to do it?” Mandel responded, “Yeah,
I’ll come over, show you exactly where everything is . . .”
Id. at 10-11. Mandel then told Dwyer that he could
help himself to some of G&D’s equipment once the
murder had been accomplished.
Mandel: Well get him done and I’ll give ‘em to ya.
I’ll give you so much shit back there you’re
gonna have to find a . . .
Dwyer: If I get rid of him.
Mandel: Get ‘em.
Dwyer: If I get rid of him. I’ll, I’ll get all the shit out
a there.
Mandel: I’ll get you as much as I can.
Id. at 11. As the meeting began to wind down, Dwyer
asked Mandel where Antoniou typically could be found.
No. 09-4116 7
Mandel reiterated, “The house is the best place. He never
comes home ‘til two in the morning. . . . Three in the
morning.” Id. at 14-15. Dwyer concluded the meeting
by urging Mandel to “get that done.” Id. at 15. Mandel
responded, “I’m in.” Id. at 16. Mandel promised Dwyer
that he would be reimbursed for the hit eventually. “You
can get it done, and pay for it later. I’ll get it done,” he
assured Dwyer. Id.
Later that month, on November 25, Mandel drove Dwyer
past Antoniou’s home and discussed the logistics of
the murder.1 Mandel suggested that when Antoniou
arrived home in his car, the hit man should approach
the car and kill Antoniou before he could exit the vehi-
cle. “I’d go right up to his car, shoot him right in the
door. Don’t even let him get out of it.” Gov. Ex. Nov. 25,
2008 Tr. 20. “I’d come around the front of the house, not
through the back, ‘cause he’ll see you comin’, then he can
back out. Come around the front, walk up to the drive-
1
There were actually two homes associated with Antoniou
that Mandel and Dwyer drove past on November 25: one
where Antoniou’s mother and her caretaker resided, and
another where his girlfriend, their two children, and her two
children from a prior relationship resided. Antoniou spent
most of his time at the second of these two homes, and it is
at that residence that Mandel suggested he be murdered.
Antoniou would later testify that on most evenings he
would pick up his mother from the first residence between
9 and 11 p.m. and take her to a late dinner. After he returned
his mother to her home, he would then drive to the other
residence for the night, typically arriving there between
11:30 p.m. and 1:00 a.m.
8 No. 09-4116
way, and talk to him.” Id. at 21. Antoniou was expected
to have his son with him for visitation during the up-
coming Thanksgiving weekend, and because Antoniou’s
girlfriend would not allow the son in her house, Antoniou
was expected to stay at his mother’s home for the
duration of the visitation. So, during this meeting, in
order to determine when Antoniou would be returning
to his usual residence, Mandel telephoned a third party
on his cell phone to determine when Antoniou would
return the boy to Antoniou’s ex-wife. That call formed
the basis for Count Five of the indictment. The overall
encounter between Mandel and Dwyer, and Mandel’s
use of a car in connection with it, formed the basis for
Count Six.
On the evening of December 3-4, 2008, Dwyer made a
series of three phone calls to Mandel, ostensibly to report
on the hit man’s status, although no murder was in
fact occurring. Dwyer made the calls from the Chicago
office of the FBI. In the first of the three calls, Dwyer
informed Mandel that the hit was “gonna happen today”
and that “[m]y guy’s there, right now.” Gov. Ex. Dec. 3,
2008 Tr. 1-2. In the second call, which took place just
after midnight, Dwyer asked Mandel if he knew when
Antoniou might be returning home. Mandel advised
him, “Probably around twelve or one o’clock . . . .” Gov. Ex.
Dec. 4, 2008 12:01 a.m. Tr. 1. This telephone call formed
the basis for the final count of the indictment against
Mandel, Count Seven. Finally, more than four hours
later, at 4:28 a.m., Dwyer telephoned Mandel to apprise
him, “Hey Bobby, that’s done.” Gov. Ex. Dec. 4, 2008
4:28 a.m. Tr. 1. To which Mandel responded, “Ooohh . . . .”
No. 09-4116 9
Id. Mandel advised Dwyer that they would speak later.
Mandel was arrested a short time later at his apartment.
Mandel testified in his own behalf at trial. He denied
that he ever asked Dwyer to have Antoniou killed or
that he had any intent to kill Antoniou; it was Dwyer,
Mandel testified, who first raised the idea and there-
after kept pushing it on him. Mandel did not dispute
that he had had the recorded conversations with
Dwyer, and he admitted that when Dwyer first told him
in July or August 2008 that he (Dwyer) knew people
who could kill Antoniou, “I probably said, that would
be nice, you know, but that’s as far as it went.” Tr. 299.
Mandel maintained that although the tapes made it
seem that he was going along with the plan to murder
Antoniou, it was actually his intent to stall Dwyer. “I said
all them things on the tapes. But there is other tapes
they didn’t see that I tried to cool it down, yes, tried to
stop him.” Tr. 300. Mandel explained that the two
people he told Dwyer he was working with did not
really exist. “I never had nobody. That was just an
excuse to say, they didn’t want to do it. They changed
their mind. But [Dwyer] would never take that for an
answer.” Tr. 304. When his attorney asked him why
he didn’t just tell Dwyer no, Mandel responded, “I’m
stupid. I—he just pushed. He just was calling me all the
time.” Tr. 304. Mandel said that he did not think that
Dwyer would actually have Antoniou killed.
Mandel also presented testimony from a defense in-
vestigator that, based on her review of records related to
Dwyer’s cell phone number, Dwyer called Mandel a total
10 No. 09-4116
of thirty-one times from July 26 through August 26,
2008 (after which time the covertly monitored phone
calls and meetings between the two commenced), whereas
Mandel called Dwyer only five times during the same
period (excluding certain discrepancies). In rebuttal, the
government introduced records associated with Mandel’s
phone for five dates in August, 2008 when Dwyer and
Mandel had multiple telephone contacts. Those records
showed that on each of those dates, it was Mandel
who initiated the first call between himself and Dwyer.
At the end of the government’s case, the district court
dismissed Count Four of the indictment, which was
based on an unrecorded telephone call to set up the
meeting on the following day, November 25, when
Dwyer and Mandel drove by Antoniou’s home. At the
conclusion of the case, the jury convicted Mandel on
each of the remaining six counts of the indictment. The
district court subsequently denied Mandel’s post-trial
motions for a judgment of acquittal and for a new trial.
On December 2, 2009, the court ordered Mandel to serve
a prison term of 138 months.
II.
A. Entrapment into Using Facility of Interstate Commerce
Mandel was charged under the federal murder for
hire statute, which in relevant part prohibits the use of
a facility of interstate commerce with intent that a
murder be committed in exchange for money or other
things of value. § 1958(a). Counts Two, Three, Five, and
No. 09-4116 11
Seven of the indictment charged that Mandel used his
cell phone in furtherance of the scheme to have a hit
man kill Antoniou (named in the indictment as Individual
A). See United States v. Evans, 476 F.3d 1176, 1180 (11th
Cir. 2007) (telephones and cellular telephones are in-
strumentalities of interstate commerce) 2 ; United States
v. Clayton, 108 F.3d 1114, 1117 (9th Cir. 1997) (cellular
telephones are instrumentalities of interstate commerce);
United States v. Richeson, 338 F.3d 653, 660 (7th Cir.
2003) (use of telephone lines constitutes use of facility
of interstate commerce for purposes of section 1958(a),
even when telephone calls themselves are intrastate).
Counts One and Six charged that he used his automobile
in furtherance of the scheme. See United States v. Cobb,
144 F.3d 319, 322 (4th Cir. 1998) (automobiles qualify as
instrumentalities of interstate commerce).
Mandel challenges his conviction on three counts of the
indictment (Counts Two, Three, and Seven) which were
based on his use of a cellular telephone in furtherance
of the murder for hire scheme. At this point, he no
longer contests the sufficiency of the evidence estab-
lishing his intent to have Antoniou killed. But what
section 1958 prohibits is the use of a facility of interstate
commerce—in these counts, the cell phone—with the intent
to commit a murder for hire. It is the use of a facility
2
For present purposes, the terms “facility of interstate com-
merce,” as used in section 1958, and “instrumentality of inter-
state commerce,” as used in case law concerning the Commerce
Clause, e.g., United States v. Lopez, 514 U.S. 549, 558, 115 S. Ct.
1624, 1629 (1995), are essentially interchangeable. See United
States v. Marek, 238 F.3d 310, 317 n. 26 (5th Cir. 2001) (en banc).
12 No. 09-4116
of interstate commerce which transforms what would
otherwise be a state offense (murder for hire) into one
that is within the federal government’s authority under
the Commerce Clause to proscribe and prosecute. See
Const. art. I, § 8, cl. 3; United States v. Lopez, 514 U.S. 549,
561-62, 115 S. Ct. 1624, 1631 (1995). Mandel contends
that he was not predisposed to use a cell phone to
discuss the details of the murder for hire scheme with
Dwyer but rather was entrapped into doing so by
Dwyer, who initiated the telephone calls underlying
Counts Two, Three, and Seven by contacting Mandel on
his cell phone. (With respect to the calls underlying
Counts Two and Seven, Mandel answered his phone when
Dwyer called. As for the call underlying Count Three,
Mandel returned Dwyer’s call.) In his attorney’s words:
At best, the government can argue that Mr. Mandel
was predisposed to plot against Antoniou, a conten-
tion Mr. Mandel strenuously opposes. But even ac-
cepting the government’s contention, there is no
evidence that he was predisposed to pick up his
cellular phone and call Dwyer in furtherance of that
plot. The government cannot equate a predisposi-
tion to commit murder for hire with a predisposition
to use a facility of interstate commerce in furtherance
of that murder for hire. Not when that use of a
facility of interstate commerce, on that particular
occasion, constitutes a distinct crime. Even were
Mr. Mandel predisposed to plot against Antoniou, it
is pure conjecture that he would ever place a call to
Dwyer in connection with that plot, much less that
he would do so on three separate occasions.
No. 09-4116 13
Mandel Brief 9. We note that Mandel does not challenge
his conviction on Count Five, which was premised on
the cell phone call that he himself initiated to a third party
on November 25 to determine when Antoniou would
be returning his son to his ex-wife. See Mandel Br. 5.
Mandel concedes implicitly as to that count that neither
his use of the cell phone to make the charged call nor
his discussion of matters related to the murder for hire
were induced by the government.
As we have noted, the district court denied Mandel’s
motion for a judgment of acquittal, and we review that
ruling de novo. E.g., United States v. Tavarez, 626 F.3d
902, 906 (7th Cir. 2010), cert. denied, 131 S. Ct. 1713 (2011).
We consider, as the district court did, whether the
record contained sufficient evidence from which a rational
jury could find the defendant guilty beyond a reasonable
doubt. E.g., United States v. Vallar, 635 F.3d 271, 286 (7th
Cir. 2011). In making that assessment, we examine the
evidence in the light most favorable to the government,
having in mind that it was the jury’s job to gauge the
credibility of the witnesses and to decide what inferences
to draw from the evidence. Id.; Tavarez, 626 F.3d at 906.
In order to prove a defendant guilty of violating section
1958(a) based on the use of a facility of interstate com-
merce, the government must show that (1) the defendant
knowingly used or caused another to use a facility of
interstate commerce, (2) the facility of interstate com-
merce was used with the intent that a murder be com-
mitted in violation of state law, and (3) something of
pecuniary value was promised or agreed to be paid in
consideration for the murder. United States v. Preacher,
14 No. 09-4116
631 F.3d 1201, 1203 (11th Cir. 2011); United States v.
Acierno, 579 F.3d 694, 699 (6th Cir. 2009), cert. denied, 130
S. Ct. 1567 (2010); United States v. Robertson, 473 F.3d
1289, 1292 (10th Cir. 2007); R. 49 at 17 (district court’s
jury instruction).
A defendant is entrapped when he (1) lacks the predis-
position to commit a crime, and (2) is induced by the
government to engage in the offense. See, e.g., United States
v. King, 627 F.3d 641, 650 (7th Cir. 2010). Whether the
defendant is predisposed to commit the charged crime
depends on a number of factors, see, e.g., United States
v. Orr, 622 F.3d 864, 870 (7th Cir. 2010), cert. denied,
131 S. Ct. 2889 (2011), “the most important of which is
‘whether the defendant evidenced reluctance to engage
in criminal activity which was overcome by repeated
Government inducement.’ ” King, 627 F.3d at 650 (quoting
United States v. Blassingame, 197 F.3d 271, 281 (7th Cir.
1999)). Inducement must be extraordinary to establish
entrapment, “the sort of promise that would blind the
ordinary person to his legal duties.” United States v.
Haddad, 462 F.3d 783, 790 (7th Cir. 2006) (quoting United
States v. Evans, 924 F.2d 714, 717 (7th Cir. 1991)). “If a
person takes advantage of a simple, ordinary opportunity
to commit a crime—‘not an extraordinary opportunity, the
sort of thing that might entice an otherwise law-abiding
person’—then the person is not entrapped.” Id. (quoting
Evans, 924 F.2d at 717).
One preliminary point bears noting before we address
the merits of Mandel’s challenge. The entrapment argu-
ment that Mandel is making now is different from the
one he made below. At trial, Mandel’s contention was
No. 09-4116 15
that he had no predisposition to kill Antoniou and that
Dwyer, on the government’s behalf, induced him to join
in a (fictitious) plot that Dwyer himself had concocted
and repeatedly pressed on Mandel. See, e.g., R. 82 at 31, 35-
36; R. 83 at 242; R. 85 at 438-39, 443-45, 452. Nowhere in
the record below do we find a contention that Mandel
was entrapped into using his cell phone in furtherance
of that plot. However, because the government does not
contend that Mandel forfeited the particular entrap-
ment argument he is making now by not making the
same argument below, we shall proceed to the merits.
See United States v. Smith, 618 F.3d 657, 663 (7th Cir.
2010); United States v. Leichtnam, 948 F.2d 370, 375 (7th
Cir. 1991).
The evidence presented to the jury was more than
sufficient to dispel the notion that Mandel was en-
trapped into using his cell phone in furtherance of the
scheme to murder Antoniou. Granted, Dwyer invited
Mandel to use a facility of interstate commerce in con-
nection with the murder plot by placing calls to Mandel’s
cell phone in order to discuss that subject. But, as is so
often the case when entrapment is claimed, Dwyer, on
the government’s behalf, simply provided Mandel with
an opportunity to commit a criminal act that Mandel
accepted without any real inducement, let alone one
strong enough to support an inference of entrapment.
Mandel posits that he would not have discussed the
murder scheme on a cell phone but for Dwyer taking
the initiative in contacting him on his cell, but the
evidence suggests otherwise. First, the cell phone was
Mandel’s own phone, and although use of such tele-
phones was rare thirty years ago, it is commonplace
16 No. 09-4116
today—in both law-abiding and criminal domains. Sec-
ond, Mandel took Dwyer’s calls (and, as the call under-
lying Count Three demonstrates, returned them) and
readily discussed the scheme to kill Antoniou without
any apparent reluctance or hesitation. Third, Mandel
was not simply a passive recipient of the calls. The call
underlying Count Five is one that Mandel himself placed
to someone other than Dwyer in order to determine
when Antoniou’s visitation with his son would be
ending and Antoniou would be returning to his usual
abode, so that an appropriate date for the hit could be
determined. Mandel’s self-initiated use of his cell phone
in that instance puts the lie to the notion that he would
not have used the phone in furtherance of the scheme
but for Dwyer’s prompting. Finally, to the extent that
Dwyer’s calls to Mandel’s cell phone could be character-
ized as inducement to use that phone to discuss the
scheme, they were hardly the sort of extraordinary in-
ducement that is necessary to show entrapment. See
United States v. Podolsky, 798 F.2d 177, 179-80, 181 (7th Cir.
1986); United States v. Gardner, 516 F.2d 334, 344-45 (7th
Cir. 1975). All that Dwyer had to do to get Mandel to use
a facility of interstate commerce in furtherance of the
scheme was to invite that use by placing calls to Mandel’s
cell phone and raising the subject of Antoniou’s demise.
Mandel accepted the invitation without hesitation. The
district court remarked that the evidence that Mandel
was entrapped into plotting Antoniou’s murder was
“scant at best,” R. 62 at 1, and that is even more true of
the assertion that he was entrapped into using a facility
of interstate commerce in furtherance of the plot.
No. 09-4116 17
Mandel is left to rely on the notion that the govern-
ment improperly “manufactured jurisdiction” over his
conduct by having Dwyer initiate calls to Mandel’s cell
phone in order to ensure Mandel’s use of a facility of
interstate commerce and thus to establish a key element
of the federal offense. See United States v. Archer, 486 F.2d
670 (2d Cir. 1973). The Second Circuit in Archer reversed
the defendants’ convictions under the Travel Act, 18 U.S.C.
§ 1952, where the evidence disclosed that a federal agent
had crossed state lines to place a telephone call to one
of the defendants (which the defendant then returned)
“for the precise purpose of transforming a local bribery
offense into a federal crime.” 486 F.2d at 681. See also
United States v. Coates, 949 F.2d 104 (4th Cir. 1991). The
Archer decision presupposes that it is improper for a gov-
ernment agent to initiate some action in interstate com-
merce for the sole purpose of ginning up federal juris-
diction over an offense, even if, as in Archer, the de-
fendant himself willingly reciprocates the agent’s inter-
state action.
But as Mandel acknowledges, this Circuit has declined
to embrace Archer’s broad proscription against manufac-
tured jurisdiction. We have been skeptical of the con-
tention that the government “manufactures” jurisdiction
simply because its agent invites the defendant to take
some action in or affecting interstate commerce and the
defendant accepts that invitation. We pointed out in
Podolsky that the defendant in Archer “knew when he
returned [the agent’s] phone call he was making an
interstate phone call and one related to the corrupt prac-
tices for which he and Archer were later prosecuted, so
18 No. 09-4116
there could be no argument that [the defendant] lacked
criminal knowledge or predisposition.” 798 F.2d at 181.
We added, thirteen years after the Archer decision, that
“no conviction has ever been set aside on the sole basis
of the principle announced by it, even in the Second
Circuit.” Id. at 180. The same was still true more than
thirty years after Archer was decided. United States v.
Skoczen, 405 F.3d 537, 543 (7th Cir. 2005) (“No case has
ever turned on the principle set forth in Archer.”). Only
where the actions of the government amount to entrap-
ment have we been willing to recognize an Archer-like
challenge to the conviction. See Gardner, 516 F.2d at 345
(construing Archer’s holding as one based on entrapment:
“The essence of [Archer’s] holding is that the defendants
were not merely taking advantage of an opportunity to
complete their scheme provided by the Government, and
that they were not predisposed to make the telephone
calls.”); Podolsky, 798 F.2d at 181 (noting that post-Archer
cases cast doubt on any “independent principle . . . that
forbids the ‘manufacture’ of federal jurisdiction in cir-
cumstances not constituting entrapment and not can-
celing any element of the crime such as criminal intent”);
United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462
(7th Cir. 2006) (reading Podolsky as holding that “Archer
has no force unless the agents’ acts amount to entrap-
ment”).
Mandel’s resort to Archer consequently fails, because
as we have already discussed, he was not entrapped into
using a facility of interstate commerce to discuss the
murder for hire. At most, the government, through
Dwyer, merely presented Mandel with the opportunity
No. 09-4116 19
to use his own cell phone to plan the murder, which
Mandel readily did with no extraordinary inducement
by Dwyer.3
B. Intrastate Use of Automobile
Counts One and Six were based on Mandel’s use of an
automobile in furtherance of the murder for hire
scheme. Count One was based on the encounter of
3
For these and additional reasons, we find no merit to Mandel’s
complaint that the government had the ability to lengthen his
sentence by initiating multiple telephone calls, thereby manu-
facturing a potentially endless number of section 1958 charges
against him and in turn making it possible for him to be
sentenced to consecutive prison terms on each charge. First,
Mandel’s sentence does not represent the type of gross sort
of sentence “stacking” that Mandel envisions. Mandel Br. 13.
The district court instead imposed concurrent terms of 120
months on Counts 1 through 3 and 18 months on Counts 5
through 7, with the sentences on the second group of counts
to run consecutively with the sentences on the first, for a
total prison term of 138 months. Furthermore, to the extent
that Mandel’s concern implicates the doctrine of sentencing
manipulation, that is a doctrine not recognized in this circuit.
E.g., United States v. Turner, 569 F.3d 637, 641 (7th Cir. 2009). We
do, on the other hand, recognize the doctrine of sentencing
entrapment, but a claim of sentencing entrapment requires
proof that the defendant lacked the predisposition to commit
the offense and “that his will was overcome by ‘unrelenting
government persistence.’ ” Id. (quoting United States v. Gutierrez-
Herrera, 293 F.3d 373, 377 (7th Cir. 2002)). Mandel could not
make either showing.
20 No. 09-4116
August 28, 2008, when Mandel met Dwyer and drove
him to another G&D job site and discussed the prospect
of having Antoniou killed while in the car and upon
arrival at the job site. Count Six was premised on the
encounter of November 25, 2008, when Mandel drove
Dwyer past Antoniou’s home to discuss where and how
the murder should be committed. Mandel does not
suggest that he was entrapped into using his automobile
in connection with the scheme. Nor does he dispute that
an automobile, as a “means of transportation,” constitutes
a facility of interstate commerce for purposes of the
federal murder for hire statute. § 1958(b)(2). His conten-
tion, rather, is that the intrastate use of a personal auto-
mobile falls outside of Congress’s Commerce Clause
power and thus cannot form the basis for a federal charge.
This argument was not made at any point in the pro-
ceedings below. Consequently, our review is for plain
error alone. See United States v. Williams, 410 F.3d 397, 400
(7th Cir. 2005) (applying plain-error review to forfeited
Commerce Clause challenge to defendant’s conviction
under 18 U.S.C. § 922(g)(1)). We find no plain error in
convicting Mandel under section 1958 based on his intra-
state use of a private automobile.
The Constitution’s Commerce Clause permits Congress
to regulate three broad categories of activity: (1) use
of the channels of interstate commerce: (2) the instru-
mentalities of commerce, or persons or things in inter-
state commerce; and (3) activities that substantially
affect commerce. United States v. Lopez, supra, 514 U.S. at
558-59, 115 S. Ct. at 1629-30. The federal murder for hire
No. 09-4116 21
statute is aimed at the second of these categories, and
specifically prohibits (as relevant here) use of the instru-
mentalities of interstate commerce with the intent that
a murder be committed for financial or other remunera-
tion. § 1958(a); United States v. Richeson, supra, 338 F.3d at
659. Facilities of interstate commerce are defined to
include means of transportation as well as communica-
tion, § 1958(b)(2), and as we have noted, Mandel does not
dispute that a car is a means of transportation as the
term is defined for purposes of section 1958.
The statute, as Mandel all but concedes, does not require
that a facility of interstate commerce actually be used in
interstate commerce. This was a point that we settled in
Richeson. As it was worded at that time, the statute pro-
scribed the use of a “facility in interstate commerce” (rather
than a “facility of interstate or foreign commerce,” as the
statute now reads) in furtherance of a murder for hire
scheme. The defendant contended that his intrastate
telephone calls, although employing a facility of inter-
state commerce as defined by section 1958, was not a use
of such a facility in interstate or foreign commerce. We
rejected the notion that the facility must actually have
been employed in interstate commerce in order to bring
the defendant’s conduct within the reach of the statute:
We believe there is only one way to reach the plain
language of the murder-for-hire statute, and that is
to require that the facility, and not its use, be in inter-
state or foreign commerce. We wholly agree with
the Fifth Circuit that § 1958’s construction, plain
language, context in the realm of commerce clause
22 No. 09-4116
jurisprudence, and legislative history all lead to the
conclusion that “it is sufficient [under § 1958] that
the defendant used an interstate commerce facility
in an intra state fashion.” Marek, 238 F.3d at 315. This
reading of the statute makes sense from both a
logical and legal standpoint; as noted in Marek, even
the title of the statute, “Use of interstate commerce
facilities in the commission of murder-for-hire,” shows
that Congress intended “interstate commerce” to
modify “facility” and not “use.” Id. 238 F.3d at 321.
Moreover, even if the language of § 1958 was ambigu-
ous (we believe it is not), the statute’s history indicates
that Congress sought to punish contract killings
pursuant to its authority to regulate the instrumentali-
ties of interstate commerce, identified in United States
v. Lopez, 514 U.S. 549, 558, 115 S. Ct. 1624 (1995), as one
of three broad categories of conduct appropriately
regulated by Congress using its commerce power. . . .
338 F.3d at 660-61 (emphasis in original). Accord United
States v. Nowak, 370 Fed. Appx. 39, 44-45 (11th Cir.), cert.
denied, 131 S. Ct. 1910 (2010) (nonprecedential decision)
(plain-error review); United States v. Howard, 540 F.3d
905, 908 (8th Cir. 2008); United States v. Means, 297 Fed.
Appx. 755, 758-59 (10th Cir. 2008) (nonprecedential deci-
sion); United States v. Thomas, 282 Fed. Appx. 244, 246 (4th
Cir. 2008) (nonprecedential decision); United States v.
Perez, 414 F.3d 302, 304-05 (2d Cir. 2005). As the Eleventh
Circuit pointed out in United States v. Drury, 396 F.3d
1303, 1311 (11th Cir. 2005), when Congress later amended
section 1958 in 2004 to substitute the words “facility of”
No. 09-4116 23
for “facility in,” any doubt on this subject was resolved:
“This amendment makes absolutely clear that § 1958 estab-
lishes federal jurisdiction whenever any ‘facility of inter-
state commerce’ is used in the commission of a murder
for hire offense, regardless of whether the use is inter-
state in nature . . . or purely intrastate in nature . . . .”
As applied to Mandel’s intrastate use of his automobile,
the statute does not plainly exceed the scope of Congress’s
Commerce Clause authority. Lopez recognizes that Con-
gress may regulate the facilities and instrumentalities
of interstate commerce, “even though the threat may
come only from intrastate activities.” 514 U.S. at 558, 115
S. Ct. at 1629. Thus, as we observed in Richeson, “[W]hen
Congress elects to regulate under the second prong of
Lopez, ‘federal jurisdiction is supplied by the nature of
the instrumentality or facility used, not by separate proof
of interstate movement.’ ” 338 F.3d at 660-61 (quoting
Marek, 238 F.3d at 317). Automobiles are designed to
move people and goods over distances both long and
short, and as such they play a crucial role in interstate
commerce. As the Third Circuit observed in considering
the constitutionality of the federal carjacking statute,
18 U.S.C. § 2119:
Instrumentalities differ from other objects that affect
commerce because they are used as a means of trans-
porting goods and people across state lines. Trains
and planes are inherently mobile; highways and
bridges, though static, are critical to the movement
of automobiles. It would be anomalous, therefore,
to recognize these categories of instrumentalities
24 No. 09-4116
but to suggest that the similarly mobile auto-
mobile is not also an instrumentality of interstate
commerce.
United States v. Bishop, 66 F.3d 569, 588 (3d Cir. 1995).
See also United States v. Cobb, supra, 144 F.3d at 322
(Wilkinson, J.) (“The fact that not every car, train,
or plane trip has an interstate destination has never
been thought to remove these means of transportation
from the category of instrumentalities of commerce.
Cars, like trains and aircraft, are both inherently mobile
and indispensable to the interstate movement of persons
and goods.”).
Mandel’s contrary position, that a private automobile
must actually be used in interstate commerce in order
for it to come within the scope of the commerce power,
is not wholly without support. The Eleventh Circuit,
in Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242,
1249-50 (11th Cir. 2008), declined to sustain the Graves
Amendment, 49 U.S.C. § 30106, which shields car rental
and leasing firms from vicarious liability for injuries
to persons or property arising from their customers’
use of the lent vehicles, as a valid regulation of instru-
mentalities of interstate commerce. The court was con-
cerned that if a car’s status as an instrumentality of inter-
state commerce were by itself sufficient to support
the exercise of the commerce power, there would be
no limit to the aspects of automobile use that Congress
could regulate. “If cars are always instrumentalities of
interstate commerce . . . Congress would have plenary
power not only over the commercial rental car market, but
No. 09-4116 25
over many aspects of automobile use” including “such
quintessentially state law matters as traffic rules and
licensing drivers.” Id. at 1250. The court instead upheld
the statute on the basis of the third category of activities
identified in Lopez: activities that substantially affect
interstate commerce. Id. at 1251-53. For similar reasons,
the late Judge Edward R. Becker dissented from the
Third Circuit’s decision in Bishop, noting that whereas
rail, plane, and commercial truck traffic is almost
always commercial in character, the use of private auto-
mobiles is often neither interstate nor commercial; the
mere fact that private cars can be used in interstate com-
merce thus was insufficient, in his view, to justify the
exercise of the commerce power. 66 F.3d at 598.
But these citations merely demonstrate a difference
of opinion as to the reach of federal authority vis-à-vis
automobiles, not plain error. Our own decision in
Richeson, although it resolved a statutory rather than a
constitutional argument, supports Mandel’s convictions
on Counts 1 and 6, and certainly cases such as Marek and
Bishop, which rejected the very constitutional argument
that Mandel is making, do so. His conviction cannot
be deemed plainly erroneous given the state of the law
on this subject. See United States v. Aslan, Nos. 08-1486 et
al., 2011 WL 1793759, at *20-*21 (7th Cir. May 12,
2011); United States v. Gibson, 530 F.3d 606, 612 (7th
Cir. 2008); United States v. Stott, 245 F.3d 890, 900 (7th Cir.
2001).
26 No. 09-4116
III.
For the foregoing reasons, we A FFIRM Mandel’s con-
victions. We thank Mandel’s appointed counsel for his
vigorous advocacy on behalf of his client.
7-28-11