IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________
Nos. 98-40568 & 98-40955
_____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BETTY LOUISE MAREK,
Defendant-Appellant.
consolidated with
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DORA GARCIA CISNEROS,
Defendant-Appellant.
__________________________________
Appeals from the United States District Court
For the Southern District of Texas
__________________________________
January 4, 2001
Before REYNALDO G. GARZA, POLITZ, JOLLY, HIGGINBOTHAM, DAVIS,
JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,
BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.*
WIENER, Circuit Judge:
*
Chief Judge King did not participate in this decision.
According to its title, the federal murder-for-hire statute,
18 U.S.C. § 1958 (“§ 1958"), criminalizes the “[u]se of interstate
commerce facilities in the commission of murder-for-hire.”1 The
statute proscribes paying another to commit murder, but only when
the defendant either (1) “travels in or causes another (including
the intended victim) to travel in interstate or foreign commerce,”
or (2) “uses or causes another (including the intended victim) to
use the mail or any facility in interstate or foreign commerce.”2
Both of the instant cases concern only the second prong of § 1958’s
jurisdictional element, the use of an interstate (or foreign)
commerce facility.
In United States v. Cisneros,3 a panel of this court suggested
in dicta that, to satisfy the jurisdictional element, a facility
must be used in an interstate fashion, i.e., that intrastate use of
a facility would not suffice, even though that facility is one that
generally is an interstate commerce facility. In contrast, a
divided panel of this court held, in United States v. Marek,4 that
wholly intrastate use of a facility that is an interstate commerce
facility is sufficient to satisfy § 1958’s jurisdictional element.5
1
Emphasis added.
2
18 U.S.C. § 1958.
3
203 F.3d 333 (5th Cir. 2000), vacating 194 F.3d 626 (5th Cir.
1999).
4
198 F.3d 532 (5th Cir. 1999), reh’g granted, 206 F.3d 449
(5th Cir. 2000).
5
Id. at 538.
2
The Marek majority acknowledged Cisneros but reasoned that it was
not binding because, in furtherance of her murder-for-hire scheme,
Cisneros had caused international telephone calls to be made, an
activity that indisputably satisfied the jurisdictional element
even if Marek’s wholly intrastate communication might not. Thus,
the portion of Cisneros that suggests that § 1958's application is
limited to interstate use of an interstate commerce communication
facility is dicta.6
To reconcile these differences and announce a consistent
position for this Circuit, we voted to rehear both cases en banc,7
which had the collateral effect of vacating both panel decisions.
We now adopt the position taken by the panel majority in Marek and
hold that § 1958’s use of a “facility in interstate commerce” is
synonymous with the use of an “interstate commerce facility” and
satisfies the jurisdictional element of that federal murder-for-
hire statute, irrespective of whether the particular transaction in
question is itself interstate or wholly intrastate.
I.
FACTS AND PROCEEDINGS
A. Marek
The facts are not in dispute. Defendant-Appellant Betty
Louise Marek pleaded guilty to paying an undercover FBI agent, who
was posing as a hit-man, to murder her boyfriend’s paramour. Marek
6
Id. at 534 & n.1.
7
206 F.3d 448, 448-49 (5th Cir. 2000).
3
was arrested after she used Western Union to transfer $500 to the
putative hit-man. Marek initiated the wire transfer in Houston,
Texas, and it was received in Harlingen, Texas. The government
introduced no evidence to show that the Western Union transmission
actually crossed the Texas state line en route from Houston to
Harlingen, so we must assume that it did not.8
After the district court had accepted Marek’s guilty plea and
subsequently sentenced her, she appealed her conviction, urging
that the district court erred when it found that she had admitted
to facts that satisfied each legal element of the crime charged.
Convinced that Western Union is “a facility in interstate
commerce,” and that this phrase is synonymous with “interstate
commerce facility,” a divided panel of this court affirmed her
conviction, holding that Marek’s wholly intrastate use of Western
Union was sufficient to satisfy the jurisdictional element of
§1958.9
8
As described in a recent Fifth Circuit case, however, the
Western Union procedure for wiring money from one Texas city to
another (in that case, from Lufkin to Beaumont) required Western
Union agents in both cities to call the company’s main computer in
Bridgeton, Missouri. See United States v. Brumley, 79 F.3d 1430,
1432-33 (5th Cir. 1996), rev’d on other grounds en banc, 116 F.3d
728, 731 (5th Cir. 1997) (affirming convictions and noting that the
wire transfers “were accomplished electronically through a Western
Union facility located outside of Texas”); see also United States
v. Davila, 592 F.2d 1261, 1263 (5th Cir. 1979) (upholding wire
fraud conviction under 18 U.S.C. § 1343 of defendant who used
Western Union to send money between San Antonio and McAllen when
all wire transfers were routed through Middletown, Virginia).
9
The facts are set forth more fully in the panel majority’s
opinion. Marek, 198 F.3d at 533.
4
B. Cisneros
The relevant facts in Cisneros also are undisputed at this
juncture. Doris Cisneros wanted to have her daughter’s erstwhile
boyfriend killed. Cisneros told this to her fortune teller and
asked if the seer would find someone to commit the murder for a
price. Acting as Cisneros’s agent, the clairvoyant —— through
another client —— ultimately located and employed two hit-men for
Cisneros. In doing so the oracle placed and received international
phone calls between Texas and Mexico. The hit-men traveled from
Mexico to Brownsville, Texas, where they shot and killed Cisneros’s
intended victim.10 A jury convicted Cisneros, and she appealed.
A panel of this court concluded that a reasonable jury could
have found that (1) the fortune teller had participated in
international telephone calls as Cisneros’s agent, and (2) those
calls were sufficiently connected to the murder to be “in
furtherance” of that crime.11 The panel therefore affirmed
Cisneros’s conviction.
A crucial factual distinction between Marek and Cisneros
exists: In Cisneros the subject telephone calls were
unquestionably international so the use of the telephone facility
was international (“foreign”), as is the telephone facility itself;
10
The facts are set forth more fully in the panel opinion.
Cisneros, 203 F.3d at 337-39.
11
Id. at 343-45.
5
in Marek, however, there was only an intrastate communication (a
wire transfer of funds between two Texas cities), albeit the
communication facility, Western Union, is an interstate commerce
facility. Therefore, to affirm Marek we must conclude that § 1958
reaches intrastate use of a facility in interstate commerce. In
Cisneros, on the other hand, even if we assume arguendo that the
statute should be accorded the narrowest interpretation possible,
we must affirm Cisneros’s conviction on the strength of the
international (foreign) telephone calls.
II.
STANDARDS OF REVIEW
Cisneros was convicted by a jury. If, after viewing the
evidence and all reasonable inferences in the light most favorable
to the verdict, we conclude that a rational trier of fact could
find that the government proved each essential element of the crime
of conviction beyond a reasonable doubt, we must affirm.12
Marek, in contrast, pleaded guilty. We review guilty pleas
for compliance with Rule 11 of the Federal Rules of Criminal
Procedure. Here, the determinative question is whether there is an
adequate factual basis in the record from which the district court
could conclude as a matter of law that Marek’s conduct satisfies
each element of § 1958. That Marek pleaded guilty —— a legal
conclusion on her part —— ostensibly admitting to discrete facts
supporting the charge against her, is not itself sufficient to
12
Cisneros, 203 F.3d at 343 (citing United States v. Grossman,
117 F.3d 255, 258 (5th Cir. 1997)).
6
support her guilty plea.13 Subsection (f) of Rule 11 requires the
district court to determine that the factual conduct to which the
defendant admits is sufficient as a matter of law to constitute a
violation of the statute.14 Rule 11(f) reads:
(f) Determining accuracy of plea. Notwithstanding
the acceptance of a plea of guilty, the court should not
enter a judgment upon such plea without making such
inquiry as shall satisfy it that there is a factual basis
for the plea.
The Supreme Court has explained that this requirement —— mandating
that the district court compare (1) the conduct to which the
defendant admits with (2) the elements of the offense charged in
the indictment or information —— “is designed to ‘protect a
defendant who is in the position of pleading voluntarily with an
understanding of the nature of the charge but without realizing
that his conduct does not actually fall within the charge.’”15
Implicit in the district court’s acceptance of Marek’s plea of
guilty, then, was its determination that her admitted conduct
satisfies every legal element of the federal murder-for-hire
statute.
Marek did not raise a challenge to the adequacy of the factual
basis underlying her guilty plea in the district court, either by
13
United States v. Briggs, 939 F.2d 222, 227-28 (5th Cir.
1991); United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.
1984).
14
Briggs, 939 F.2d at 227-28.
15
McCarthy v. United States, 394 U.S. 459, 467 (1969) (quoting
Fed. R. Crim. P. 11, Notes of Advisory Committee on Criminal Rules)
(emphasis added).
7
making her plea conditional pursuant to Rule 11(a)(2) or by
objecting thereafter, such as at her sentencing. Rather, she
raised it for the first time on appeal. We have repeatedly held
that when a defendant, for the first time on appeal, presents a
straightforward issue of law —— here, whether the undisputed
factual basis is sufficient as a matter of law to sustain the
guilty plea —— we will review that issue for plain error.16
Plain error review requires the appellant to show (1) there is
an error, (2) that is clear and obvious, and (3) that affects his
substantial rights.17 If these factors are established, the
decision to correct the forfeited error still lies within our sound
discretion, which we will not exercise unless the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.18
The first of the three facets of plain error that we must
address is whether there was error. To answer this threshold
question when Rule 11(f) is implicated, we must examine, parse, and
interpret § 1958, the criminal statute under which Marek was
16
United States v. Angeles-Mascote, 206 F.3d 529, 530 (5th Cir.
2000); see also United States v. Johnson, 194 F.3d 657, 660 (5th
Cir. 1999), vacated on other grounds, 120 S. Ct. 2193 (2000);
United States v. Ulloa, 94 F.3d 949, 951-54 (5th Cir. 1996); United
States v. Knowles, 29 F.3d 947, 950-51 (5th Cir. 1994).
17
United States v. Calverly, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc) (citing United States v. Olano, 507 U.S. 725, 730-
37 (1993)), abrogated in part on other grounds, Johnson v. United
States, 520 U.S. 461 (1997).
18
Olano, 507 U.S. at 735-36.
8
convicted of murder-for-hire. Only by determining the elements of
that crime and comparing each element to the facts admitted by
Marek, as set forth in the factual basis during the plea colloquy,
can we determine if there was error vel non.
III.
STATUTORY CONSTRUCTION
In Marek’s case we must ask whether, for purposes of
satisfying the jurisdictional element of the federal murder-for-
hire statute, it is sufficient that the defendant used an
interstate commerce facility in an intrastate fashion. Asked
differently, is it necessary that both (1) the facility and (2) the
defendant’s use of that facility be in interstate or foreign
commerce? To answer this question, we will look first to the plain
language of the statute and second to its statutory context.
A. Statutory Language
§ 1958. Use of interstate commerce facilities in the
commission of murder-for-hire
(b) 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, or
who conspires to do so, shall be fined [or
imprisoned] under this title[.]
(b) As used in this section and section 1959 ——
(1) “anything of pecuniary value” means anything
of value in the form of money, a negotiable
9
instrument, a commercial interest, or anything
else the primary significance of which is
economic advantage;
(2) “facility of interstate commerce” includes
means of transportation and communication; and
(3) “State” includes a State of the United States,
the District of Columbia, and any
commonwealth, territory, or possession of the
United States.19
As is patent on the face of the statute, this crime can be
committed by engaging in either of two distinct activities: (1)
travel or (2) use. If, in Marek or Cisneros (or both), the
jurisdictional element was satisfied, it must have been under the
use prong, as the travel prong is nowhere implicated.20 The travel
and use prongs are distinguishable by the divergent natures of the
two activities: Travel requires the physical movement of a person,
such as by walking, running, or riding in or on a bike, car, wagon,
train, bus, or airplane; in contrast, use contemplates a
perpetrator who remains essentially stationary while causing an
inanimate object to be (1) communicated (e.g., a letter, telegram,
or money order) or (2) transported (e.g., a gun, a bomb, or cash).21
19
18 U.S.C. § 1958 (emphasis added).
20
The record in Cisneros reveals that the hit-men traveled from
Mexico to Texas to perform the murder-for-hire. The panel
concluded that the jurisdictional element was satisfied by the
international telephone calls and thus did not consider if the
jurisdictional element was satisfied by international travel.
Cisneros, 203 F.3d at 345. We do the same.
21
See 18 U.S.C. § 1958(b)(2) (stating that “‘facility of
interstate commerce’ includes means of transportation and
communication”).
10
The statute’s definition of travel never mentions the facility;
presumably a perpetrator could violate the travel prong on foot,
using no “facility” at all, as, for example, by hiking cross-
country to deliver the blood money.
The key question of statutory construction presented in Marek
is whether, under the use prong of § 1958, the phrase “in
interstate or foreign commerce” modifies “use” or modifies
“facility.” Purely from a structural viewpoint, we must conclude
that “in interstate or foreign commerce” is an adjective phrase
that modifies “facility,” the noun that immediately precedes it ——
not an adverbial phrase that modifies the syntactically more remote
verb, “[to] use.” We see the former conclusion as the more natural
and sensible reading of the relevant portion of the statute.
Primarily because of the proximity of “in interstate or foreign
commerce” to “facility,” the word which that phrase modifies is
facility and not use. A contrary conclusion —— that “in interstate
or foreign commerce” modifies “use” —— would require a strained
structural interpretation of the statute.22
22
The dissent argues that the statute’s drafters need have
resorted to an unduly awkward grammatical construction to modify
“in interstate or foreign commerce” with “use.” Were that
Congress’s intention, however, the statute could have been phrased
smoothly several different ways: To criminalize any use of the
mail but only interstate use of other facilities, for example, the
drafters could have targeted “interstate use of a facility or use
of the mail with intent that a murder be committed.” To further
narrow the statute and criminalize only interstate use of the mail
or any other facility, one possible phrasing would be “interstate
use of a facility or the mail with intent that a murder be
committed.” Congress knows how to write this requirement when it
so chooses. See, e.g., 18 U.S.C.A. § 247(b) (formerly
11
B. Statutory Context
When it adopted § 1958, Congress was acting within the second
of three broad categories identified by the Supreme Court in
United States v. Lopez23 as conduct appropriately subject to
regulation under the Commerce Clause.24 Of the second category,
the Court wrote that “Congress is empowered to regulate and
protect the instrumentalities of interstate commerce, or persons
or things in interstate commerce, even though the threat may come
only from intrastate activities.”25 When Congress regulates and
protects under the second Lopez category, therefore, federal
jurisdiction is supplied by the nature of the instrumentality or
facility26 used, not by separate proof of interstate movement.27
criminalizing damage to religious property by a defendant who “uses
a facility or instrumentality of interstate or foreign commerce in
interstate or foreign commerce”; amended to apply to offense that
“is in or affects interstate or foreign commerce” by Church Arson
Prevention Act of 1996, Pub. L. No. 104-155, § 3(3), 110 Stat. 1392
(1996)).
23
514 U.S. 549 (1995).
24
U.S. Const. art. 1, § 8, cl. 3.
25
Lopez, 514 U.S. at 558 (emphasis added). The Court cited,
inter alia, Shreveport Rate Cases, 234 U.S. 342 (1914) (holding
that the Interstate Commerce Commission could regulate intrastate
railway rates to protect interstate commerce), and Southern R. Co.
v. United States, 222 U.S. 20 (1911) (upholding amendments to
Safety Appliance Act as applied to vehicles used in intrastate
commerce).
26
We find no meaningful distinction between the terms
“facilities” and “instrumentalities” of interstate commerce.
Cisneros, 203 F.3d at 340 n.4.
27
See Peter J. Henning, Maybe It Should Just Be Called Federal
Fraud: The Changing Nature of the Mail Fraud Statute, 36 B.C. L.
12
Under statutes similar to § 1958, federal jurisdiction based on
intrastate use of interstate facilities is an appropriate exercise
of the commerce power, as this and other circuit courts repeatedly
have found.
In United States v. Heacock,28 this circuit concluded that the
U.S. Post Office is a “facility in interstate commerce,” and that
intrastate mailings satisfied the jurisdictional requirement of
the Travel Act.29 Significant to our analysis today, the Heacock
opinion alludes to the mail’s unique history but never mentions
Congress’s postal power,30 instead stressing the status of the mail
as an interstate commerce facility:
In other words, whenever a person uses the
United States Post Office to deposit, to
transport, and to deliver parcels, money, or
other material by means of the mail, that
person clearly and unmistakably has used a
“facility in interstate commerce,”
irrespective of the intrastate destination of
the item mailed.31
Rev. 435, 471 (1995).
28
31 F.3d 249, 255 (5th Cir. 1994).
29
18 U.S.C. § 1952. We have previously held that it is
appropriate to interpret § 1958 in light of § 1952 given that the
two sections employ similar language, and that § 1958 was intended
to supplement § 1952. United States v. Edelman, 873 F.2d 791, 794
(5th Cir. 1989).
30
U.S. Const. art. 1, § 8, cl. 7.
31
Heacock, 31 F.3d at 255. The dissent argues that our Heacock
decision was based on the Second Circuit’s reasoning in United
States v. Riccardelli, 794 F.2d 829 (2d Cir. 1986), that the mail
is a “special case, separate and distinct from ‘facilities in
interstate or foreign commerce.’” While it is undoubtedly true
that the mail is a “special case,” the Riccardelli analysis that we
13
Congress had made the sufficiency of intrastate mailings
plain in a 1990 amendment entitled “Clarification of applicability
of 18 U.S.C. 1952 to all mailings in furtherance of unlawful
activity.”32 The amendment changed § 1952’s wording slightly to
mirror that of § 1958, targeting “[w]hoever travels in interstate
or foreign commerce or uses the mail or any facility in interstate
or foreign commerce.”33 As Congress thus expressly made clear that
§ 1952 applies to intrastate mailings, and did so by importing
§ 1958's wording into § 1952, logic dictates that precisely the
same wording in § 1958 must apply equally to intrastate use of
other interstate facilities, such as Western Union.
In a similar vein, through passage of a 1994 amendment to the
federal mail fraud statute, Congress expanded 18 U.S.C. § 1341 to
actually quoted in Heacock —— reproduced here in its entirety ——
does not support the dissent’s inference: “‘The positioning of the
phrase ‘including the mail’ in the statute singles out the mail for
special treatment and thus consistent with the historical
understanding of the United States mail, equates the use of the
mail with the use of other facilities of interstate and foreign
commerce; it does not indicate that the mailing itself must be
interstate.’” Heacock, 31 F.3d at 255 (quoting Riccardelli, 749
F.3d at 831) (emphasis added).
32
Crime Control Act of 1990, Pub. L. No. 101-647, § 1604, 104
Stat. 4789, 4843 (1990); see also Krantz v. United States, 1999 WL
557524, at *4 (E.D.N.Y. 1999), appeal dismissed, 224 F.3d 125 (2d
Cir. 2000). The amendment was passed a year after the Sixth
Circuit held in United States v. Barry, 888 F.2d 1092 (6th Cir.
1989), that only interstate use of the mail satisfied § 1952's
jurisdictional nexus. The Second Circuit earlier had decided the
opposite in Riccardelli.
33
Before amendment, § 1952 applied to “[w]hoever travels in
interstate or foreign commerce or uses any facility in interstate
or foreign commerce, including the mail.” This is the language
interpreted in Heacock.
14
reach private interstate commercial carriers, such as Emery, DHL,
and Federal Express, in addition to the U.S. Postal Service.
Although no circuit court has addressed whether that amendment
requires the crossing of state lines to establish jurisdiction,
one district court recently held that the amended statute does
cover “purely intrastate delivery of mails by private or
commercial carriers as long as those carriers engage in interstate
deliveries. . . .While jurisdiction lies only under the Commerce
Clause for the use of private or commercial carriers, Congress may
still regulate their intrastate activities because they are
instrumentalities of interstate commerce.”34 Here again, the
conclusion is appropriate because intrastate use of interstate
facilities is properly regulated under Congress’s second-category
Lopez power.
Mail and delivery services are not the only “means of
transportation and communication” amenable to congressional
Commerce Clause protection under Lopez during wholly intrastate
use. Interstate commerce facilities that have created a criminal
federal jurisdictional nexus during intrastate use include
telephones,35 automobiles,36 and airplanes.37 Perhaps most analogous
34
United States v. Photogrammetric Data Services, Inc., 103 F.
Supp. 2d 875, 882 (E.D. Va. 2000).
35
United States v. Weathers, 169 F.3d 336, 341 (6th Cir. 1999)
(“It is well established that telephones, even when used
intrastate, constitute instrumentalities of interstate commerce.”),
cert. denied, 528 U.S. 838 (1999); United States v. Gilbert, 181
F.3d 152, 158-59 (1st Cir. 1999) (finding jurisdiction under 18
U.S.C. § 844(e), concerning threats made “through the use of the
15
to Marek’s use of Western Union are the facts of United States v.
Baker,38 an Eighth Circuit case holding that an interstate network
of automatic teller machines (“ATMs”) is a facility in interstate
commerce “squarely within the literal language of the Travel Act.”39
In Baker, the Eighth Circuit upheld a Travel Act conviction based
on an extortion victim’s cash withdrawal from his local bank using
another local bank’s ATM.
The Baker court noted that, even though the transaction at
issue was strictly local, customers could use the ATM network to
mail, telephone, telegraph, or other instrument of interstate or
foreign commerce, or in or affecting interstate or foreign
commerce”); United States v. Clayton, 108 F.3d 1114, 1117 (9th Cir.
1997) (cellular telephones); United States v. Houlihan, 92 F.3d
1271, 1292 (1st Cir. 1996) (assuming that telephones are facilities
in interstate commerce under § 1958); Alley v. Miramon, 614 F.2d
1372, 1379 (5th Cir. 1980) (stating, in a securities case, that the
court “has consistently held that the intrastate use of the
telephone may confer jurisdiction over a private action under
Section 10(b) and Rule 10b-5.” Rule 10b-5 supplies jurisdiction
“by the use of any means or instrumentality of interstate commerce
or of the mails.”).
36
United States v. Bishop, 66 F.3d 569, 589 (3d Cir. 1995)
(writing that Congress’s power to criminalize intrastate carjacking
“derives from the [automobiles’] status as instrumentalities”); see
also United States v. Cobb, 144 F.3d 319, 322 (4th Cir. 1998);
United States v. McHenry, 97 F.3d 125, 126 (6th Cir. 1996); United
States v. Oliver, 60 F.3d 547, 550 (9th Cir. 1995), rev’d on other
grounds, Jones v. United States, 526 U.S. 227 (1999).
37
United States v. Hume, 453 F.2d 339, 340 (5th Cir. 1971)
(finding that 18 U.S.C. § 32, which criminalizes damage to “civil
aircraft used, operated, or employed in interstate, overseas, or
foreign commerce,” protects aircraft even while they are not
actually operating interstate).
38
82 F.3d 273 (8th Cir. 1996), cert. denied, 519 U.S. 1020
(1996).
39
Id. at 276.
16
make interstate deposits and withdrawals, and the court noted:
“Though [the victim’s] withdrawal triggered an entirely intrastate
electronic transfer between [the two local banks], the jury found
that [the defendant] caused [the victim] to use a facility in
interstate commerce.”40
The dissent notes that we are splitting with the Sixth
Circuit’s interpretation of § 1958 in United States v. Weathers,41
in which that court found jurisdiction proper based on a
defendant’s in-state call using a cellular telephone that sent an
interstate search signal. Although the holdings of this case and
Weathers do not actually conflict with each other, it is true that
our reasoning does. As noted above,42 however, the Sixth Circuit’s
reasoning that the use of an instrumentality in interstate commerce
(i.e., the mail) requires the crossing of state lines was expressly
rejected by congressional amendment of the Travel Act.43 We did not
40
Id. at 275.
41
169 F.3d 336 (6th Cir. 1999), cert. denied, 528 U.S. 838
(1999).
42
See supra note 32.
43
The Sixth Circuit reasons that a statute regulating a
“facility in interstate commerce” governs channels of interstate
commerce, the first Lopez category, while a “facility of interstate
commerce” falls into the second Lopez category, comprising the
instrumentalities of interstate commerce. We conclude that the
“use of facilities (in or of) interstate commerce” in violation of
§ 1958 falls into the second category. Because it is not necessary
to this case, we do not decide whether § 1958's “travel in
interstate commerce” prong refers to the channels of interstate
commerce, or to Lopez’s second-category “persons or things in
interstate commerce.” See Lopez, 514 U.S. at 558.
17
follow that reasoning in Heacock and we decline to do so now,
particularly given Congress’s use of the very language of § 1958 we
interpret today to remove any possible doubt that the Travel Act
applies even to intrastate mailings.44
We are satisfied that when § 1958 is read as a whole and
viewed in context as part of the power of Congress to regulate and
protect the instrumentalities of interstate commerce, even when the
threat comes from intrastate activities,45 it becomes clear that the
facility, not its use, is what must be “in interstate or foreign
commerce.” In the instant context, then, when a facility employed
to advance murder-for-hire is in interstate or foreign commerce
generally, the jurisdictional element of § 1958 is satisfied even
though the particular use of the facility on the specific occasion
in question is only intrastate. Thus, both (1) Marek’s intrastate
use of Western Union —— a quintessential facility in interstate
commerce —— to transfer funds within Texas, and (2) Cisneros’s
international telephone calls, are sufficient to satisfy the
44
The dissent, like the Sixth Circuit, would decide this case
based on perceived differences in the meanings of “of” and “in.”
In Dupuy v. Dupuy, 511 F.2d 641, 642-43 (5th Cir. 1975), we found
significant that the Securities Act of 1933 based jurisdiction on
the use of instruments in interstate commerce, while the Securities
Exchange Act of 1934 required use of an instrumentality of
interstate commerce. We do not contend that similarly varying
phraseology never can have statutory significance; we merely
conclude, based on the grammatical structure of § 1958 and the use
of both phrases interchangeably in the statute and its legislative
history, that Congress’s particular deployment of these two
prepositions in § 1958 is not dispositive of this case.
45
Lopez, 514 U.S. at 558.
18
jurisdictional element of § 1958, and —— more importantly —— that
jurisdictional element is present in the statute through a valid
exercise of congressional Commerce Clause power under the second
Lopez category.
As Marek’s use of Western Union satisfies the jurisdictional
element of the statute, the district court properly discharged its
duty under Rule 11(f). Thus, there was no error. And, in the
absence of an error, there obviously can be no plain error.
C. Statutory Ambiguity
Marek nevertheless contends that subsection (b)(2) of § 1958
—— which explains that “facility of interstate commerce” includes
both means of transportation and means of communication ——
introduces an ambiguity into the statute. Marek’s argument goes as
follows: There is an inconsistency between the statute’s
substantive subsection (§ 1958(a)), which uses the phrase “facility
in interstate or foreign commerce,” on the one hand, and subsection
(b)(2)’s “defining” of the phrase “facility of interstate
commerce,” on the other. Marek contends that the phrase used in
the substantive subsection (“facility in interstate commerce”)
implicates a more restricted class of facilities than does the
phrase used in the “definitional” subsection (“facility
of interstate commerce”) because, she insists, for a facility to be
in interstate commerce, there must be a nexus between the facility
and its use in interstate commerce. In other words, in Marek’s
view, facilities are only in interstate commerce when they are
19
employed in an interstate fashion, whereas a facility that is
almost always used in interstate commerce (like Western Union)
remains a facility of interstate commerce, even in instances when
its use is intrastate. Given this inconsistency between the
substantive provision of subsection (a) and the explanatory
provisions of subsection (b)(2), urges Marek, the substantive
subsection must predominate. Thus, continues Marek’s argument, as
her use of Western Union (which she admits is a facility of
interstate commerce) was wholly intrastate it was not the use of a
facility in interstate commerce, even though the facility itself is
an interstate commerce facility. Not surprisingly, we disagree.
First, we find the inconsistency between § 1958(a) and (b)(2)
to be more apparent than real, and that use of slightly different
phraseology in the clarification section (“of” rather than “in”)
was not intended by Congress to limit the scope of the statute.
Subsection (b)(2) does not “define” facility; rather, it merely
clarifies that a facility can be a means of transportation, such as
an interstate delivery service, or a means of communication, such
as a telegraph or telephone network. As the travel prong of the
statute never mentions “facility,” subsection (b)(2) applies only
to the use prong, merely clarifying that it covers the sending of
things as well as messages. For example, sending a bomb from
Houston to Harlingen via UPS would involve transportation because
a “thing” is sent, but sending a letter from Houston to Harlingen
via Federal Express would involve communication because only a
20
message is sent. In both instances, however, a “facility” is
“used.” Despite Marek’s effort to create ambiguity out of whole
cloth, we perceive none.
The legislative history of § 1958 is even more persuasive. A
1983 Senate Judiciary Committee report describes the offense
punishable under the murder-for-hire statute as “the travel in
interstate or foreign commerce or the use of the facilities of
interstate or foreign commerce or of the mails, as consideration
for the receipt of anything of pecuniary value, with the intent
that a murder be committed.”46 The report later explains that
“[t]he gist of the offense is the travel in interstate commerce or
the use of the facilities of interstate commerce or of the mails
with the requisite intent and the offense is complete whether or
not the murder is carried out or even attempted.”47 Even though the
statute was not intended to usurp the authority of state and local
officials, the report states, “the option of Federal investigation
and prosecution should be available when a murder is committed or
planned as consideration for something of pecuniary value and the
proper Federal nexus, such as interstate travel, use of the
facilities of interstate commerce, or use of the mails, is
present.”48 In a discussion of the murder-for-hire portion of the
46
S. Rep. No. 98-225, at 304 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3484.
47
Id. at 306, 3485.
48
Id. at 305, 3484.
21
bill extending over three pages, the Senate report uses the phrase
“facility [or facilities] of interstate commerce” four times and
“facility in interstate commerce” only once, drawing no apparent
distinction between the two. We find inescapable the conclusion
that “of” and “in” were considered and used by Congress as synonyms
in regards to this particular statute.
We hold today that the statute is unambiguous and clear on its
face. But even if we were to assume, for argument’s sake, that the
statute is ambiguous, any lingering doubt regarding the statute’s
meaning is laid to rest by the title of the section. The title of
§ 1958 —— “Use of interstate commerce facilities in the commission
of murder-for-hire” —— plainly eliminates any claim of ambiguity.
The title is unambiguous and clearly employs “interstate commerce”
to modify “facility,” not “use.” The Supreme Court has held that
it is appropriate to consider the title of a statute in resolving
putative ambiguities:
Among other things which may be considered in
determining the intent of the legislature is
the title of the act. . . . Where the mind
labors to discover the design of the
legislature, it seizes everything from which
aid can be derived; and in such case the title
claims a degree of notice, and will have its
due share of consideration. . . . The title of
an act cannot control its words, but may
furnish some aid in showing what was in the
mind of the legislature.49
49
Holy Trinity Church v. United States, 143 U.S. 457, 462
(1892).
22
More recently, the Court reiterated: “While the title of an act
will not limit the plain meaning of the text, it may be of aid in
resolving an ambiguity.”50 The title of § 1958 spells out the
activity Congress meant to punish under the statute, eschewing
ambiguity.51
Section 1958 employs three phrases to describe “facility” in
the context of the statute: “interstate commerce facilities” in the
title; “facility in interstate or foreign commerce” in subsection
(a); and “facility of interstate commerce” in subsection (b)(2).
A review of the statute, its legislative history, and the United
States Code as a whole indicates that, at least in this statute,
Congress used these terms interchangeably as synonyms.
Not to be dissuaded, Marek further contends that: (1) Even if
we reject her construction of the statute in favor of the
government’s, we must nevertheless find that both constructions are
reasonable and choose the narrower one pursuant to the rule of
lenity; (2) the government’s construction raises doubts about the
statute’s constitutionality, which must be resolved in a way that
avoids potential constitutional infirmity; and (3) the federal
50
McGuire v. Commissioner of Internal Revenue, 313 U.S. 1, 9
(1941) (citations omitted).
51
The text of other sections of the U.S. Code use the same
terminology as that found in § 1958’s title. Both 18 U.S.C.A.
§ 1961 and § 2516 specifically refer to § 1958 and describe § 1958
as relating to the use of “interstate commerce facilities” in the
commission of murder-for-hire. Thus, the title’s reference to
“interstate commerce facilities” is not isolated, and cannot be
presumed to be accidental.
23
murder-for-hire statute criminalizes conduct that is traditionally
the province of state law enforcement, and Congress should not be
presumed to have altered the federal-state balance unless it speaks
with unmistakable clarity. We dispose of each of these contentions
in turn.
1. Rule of Lenity
The rule of lenity —— a rule of narrow construction rooted in
concern for individual rights, awareness that it is the legislature
and not the courts that should define criminal activity, and belief
that fair warning should be accorded as to what conduct is criminal
—— applies when, but only when, “after seizing every thing from
which aid can be derived, the Court is left with an ambiguous
statute.”52 We are convinced that this is not such a case and,
under these circumstances, we will not “blindly incant the rule of
lenity to ‘destroy the spirit and force of the law which the
legislature intended to and did enact.’”53
Additionally, the rule of lenity should not be invoked here
because it was no surprise to Marek that murder-for-hire is a
serious crime with serious penalties. The principle behind the
rule of lenity is that no one should be forced to speculate whether
52
Smith v. United States, 508 U.S. 223, 239-40 (1993) (internal
citations, quotations, and alterations omitted) (quoting United
States v. Bass, 404 U.S. 336, 347 (1971) (quoting United States v.
Fisher, 2 Cranch 358, 386 (1805))).
53
Huddleston v. United States, 415 U.S. 814, 832 (1974)
(alteration omitted) (quoting American Tobacco Co. v. Werckmeister,
207 U.S. 284, 293 (1907)).
24
her conduct is prohibited.54 It would be absurd to say that Marek
did not know that her conduct —— hiring an assassin to commit
murder —— was prohibited.
2. Constitutional Doubt
The rule of constitutional doubt is likewise inapplicable.
Marek contends that a broad application of § 1958 to intrastate
activities would violate the Tenth Amendment, compelling adoption
of the narrow interpretation of the statute she advocates to save
it from constitutional infirmity. For all the reasons stated
above, however, the statute’s requirement that a perpetrator either
travel in interstate commerce or use an interstate commerce
facility confirms that the statute raises no constitutional
concerns, given Congress’s clear constitutional authority to
regulate interstate commerce. “[T]he authority of Congress to keep
the channels of interstate commerce free from immoral and injurious
uses has been frequently sustained, and is no longer open to
question.”55
3. Federal-State Balance
Finally, Marek argues that the intention to alter the federal-
state balance in this area —— traditionally the province of state
law enforcement —— must be evidenced by unmistakable clarity. For
the same reasons that we reject application of the rule of lenity
—— that (1) the statute is plain on its face, and (2) even if we
54
Dunn v. United States, 442 U.S. 100, 112 (1979).
55
Caminetti v. United States, 242 U.S. 470, 491 (1917).
25
concede for the sake of argument that there is some slight internal
inconsistency in terminology, it is resolved by the statute’s
legislative history and title —— we reject the notion that Congress
has not spoken with sufficient clarity to criminalize conduct
traditionally the subject of state criminal laws.
Like Marek’s, the dissent’s lament over the perceived
trampling of states’ rights misses the mark by the palpable failure
to include a crucial observation: Under § 1958, federal
authorities have nothing more than concurrent jurisdiction over the
subset of murders-for-hire that bear the requisite nexus with
interstate commerce. The legislative history plainly states that
federal investigation and prosecution should be no more than an
“option” to be “used in appropriate cases” to assist state and
local authorities, and that “Federal jurisdiction should be
asserted selectively based on such factors as the type of
defendants reasonably believed to be involved and the relative
ability of the Federal and State authorities to investigate and
prosecute.”56
The records in both of these cases eschew any possibility that
federal authorities preemptively muscled aside local law
enforcement; rather, federal law enforcement was invited by the
locals to become involved. Cisneros first was tried and convicted
of capital murder in state court. Only after a Texas appellate
56
S. Rep. No. 98-225, at 304-05 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3484.
26
court reversed that conviction for insufficiency of the evidence
did the state take the initiative and turn over her case to federal
prosecutors.57 As for Marek, a county sheriff’s deputy tipped to
her quest for a mercenary killer referred the case to the Texas
Rangers, who in turn referred the case to the FBI. The two cases
before us illustrate the very “[c]ooperation and coordination
between Federal and State officials” that Congress intended that
§ 1958 foster.58 The embodiment of such clear legislative intent
in providing for concurrent jurisdiction and not preemption must
not be overlooked in analogizing the extent of congressional
intrusion into spheres of state and local law enforcement. With
all due respect, we believe that the dissent would be well advised
to pull back its states’ rights argument. Failure to acknowledge
that § 1958 creates concurrent jurisdiction only subjects the
dissent’s objectivity to question. For despite its power to
preempt this area when regulating commerce, Congress exercised
restraint and comity, in the true spirit of Federalism, by creating
only concurrent jurisdiction.
IV.
CONCLUSION
For the foregoing reasons, we hold that both Cisneros’s and
Marek’s murder-for-hire transactions violated 18 U.S.C. § 1958.
57
Cisneros, 203 F.3d at 339. In fact, Cisneros charged before
her trial in district court that the federal prosecution was
“merely a sham or tool for the State of Texas.”
58
S. Rep. No. 98-225, at 305 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3484.
27
Cisneros did so by causing her agent to make qualifying telephone
calls between the United States and Mexico, thereby using a
facility in foreign commerce to facilitate a murder-for-hire.
Marek did so by using an interstate commerce facility, Western
Union, to wire blood money between Houston and Harlingen, Texas.
Satisfied that intrastate use of an interstate commerce facility
has satisfied federal jurisdiction under § 1958, there was no
error, plain or otherwise, in Marek’s conviction or her plea of
guilty. We therefore affirm both appellants’ convictions and
sentences.
AFFIRMED.
E. GRADY JOLLY, Circuit Judge, joined by JONES, SMITH, BARKSDALE,
and DeMOSS, Circuit Judges, dissenting:
Because I find that § 1958 requires that the use of the
facility be in interstate or foreign commerce, I respectfully
dissent.
I
In 1993,59 the time of these offenses, the relevant part of
§ 1958 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
59
In 1994, the statute was amended to allow for capital
punishment when death resulted from a murder-for-hire. Pub.L.No.
103-322, § 60003(a)(11), 108 Stat. 1969, 2033 (1994).
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 . . .
(2) "facility of interstate commerce" includes
means of transportation and communication.
Thus, the issue before us is simply stated: what does the
phrase “uses or causes another to use the mail or any facility in
interstate or foreign commerce” mean? Does it mean that the
particular use must be in interstate or foreign commerce at the time
of the offense, or does it mean that the facility must be one
generally engaged in interstate or foreign commerce? The former is
the proper way to read the statute.
A
In our original panel opinion in Cisneros, we began by noting
a difference between § 1958(a) and § 1958(b). Part (a) refers to
facilities “in interstate or foreign commerce,” while (b) mentions
facilities “of interstate commerce.” At that time, we were not sure
how to treat part (b). It appeared to be purely definitional, but
it purported to define a term, “facility of interstate commerce,”
that was not present in (a). In truth, “of interstate commerce”
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29
means something very different from “in interstate commerce.” Thus,
we concluded that (b) was in conflict with (a), and proceeded with
our analysis to resolve that conflict.60
We all now appear to agree, however, that (b) is not
definitional in the sense that the Cisneros panel construed it.
Instead, (b) merely provides examples of what might constitute a
“facility” for purposes of the statute--means of transportation and
communication. Read in this way, (b) does not conflict with (a),
as it does not define a term not present in (a).
B
We will therefore focus on part (a) and ask what “use a
facility in interstate or foreign commerce” means. The threshold
question is whether the phrase “in interstate or foreign commerce”
describes the word “use” or the word “facility.” If the phrase
modifies use, then the statute clearly requires that the particular
use be “in interstate or foreign commerce.” We believe this is the
proper construction.
60
We ended up ignoring (b) altogether. We acknowledged that
the canon against superfluousness counselled against doing this.
But this canon cut both ways, because replacing “in” in (a) with
“of” would have rendered the part of (a) related to travel
superfluous. Interstate travel would always require use of a
facility of interstate commerce. At least by ignoring (b) rather
than part of (a), however, we were giving precedence to the
operational, as opposed to the definitional, part of the statute.
See United States v. Weathers, 169 F.3d 336, 342 (6th Cir. 1999).
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30
The majority first contends that because “in interstate or
foreign commerce” falls next to “facility,” that is the term the
phrase modifies. But consider how the statute would have read if
the drafters did intend the meaning we propose and had followed the
majority’s “rule of proximity”: “whoever causes another to use, in
interstate or foreign commerce, the mail or any facility.” This
arrangement of words is an awkward grammatical construction that
Congress was unlikely to accept. This is true, not only because the
construction is awkward, but because it would require the use of the
United States mail to be in interstate or foreign commerce before
federal jurisdiction would attach.61 Thus, the rule of proximity
does not appear helpful here.
The majority also considers § 1958's title, “Use of interstate
commerce facilities in the commission of murder-for-hire.”
According to the majority, this suggests that the “in interstate or
foreign commerce” clause modifies “facilities.” But this title is
cursory and intended only as a quick, general description. The
title is so inconsistent with the statute that it omits any
reference to “foreign facilities.” Does that mean that use of
facilities in foreign commerce really does not qualify under the
statute? No, of course not. The title of a statute is of little
61
This would be a different conclusion from the one we reached
in United States v. Heacock, 31 F.3d 249, 254-55 (5th Cir. 1994),
with respect to the Travel Act, § 1952.
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31
help when ascertaining the statute’s meaning requires untangling
subtleties.
Instead, we return to the phrase in question: “Whoever travels
in interstate or foreign commerce, or uses the mail or any facility
in interstate or foreign commerce.” Because the phrase “in
interstate or foreign commerce” is used more than once, it is
appropriate to look at the other uses of the term and to interpret
them in a consistent manner. In the first part of the statute
(“[w]hoever travels in . . . interstate or foreign commerce”), the
phrase “in interstate or foreign commerce” is used as an adverbial
clause that modifies the verb “travels.” The “in” clause tells us
where the travel occurred. The second use of the phrase reads: “or
uses or causes another to use . . . any facility in interstate or
foreign commerce.” If the “in” clause is used in a consistent
manner in the statute, this second use is an adverbial clause as
well, telling us where that use must occur, that is, “in interstate
or foreign commerce.”
Thus, relating “in interstate or foreign commerce” to “use”
appears to be the proper way to read the statute. But even if one
does not agree with this reasoning, one must concede that, at a
minimum, the statute is ambiguous as to which words “in interstate
or foreign commerce” modifies.
If we then turn to the alternative, that the “in interstate or
foreign commerce” clause modifies “facility,” it creates greater
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32
ambiguity. There are two possible interpretations of that
grammatical construction: either any facility that is generally
engaged “in” interstate or foreign commerce will qualify, or the
facility must be “in” interstate or foreign commerce at the moment
of the offense. If, however, we chose the first, we would be
interpreting “in interstate or foreign commerce” as though Congress
had said “of interstate or foreign commerce.” Any facility that is
generally engaged “in interstate or foreign commerce” is, by
definition, a facility “of interstate or foreign commerce.” But the
phrase “facility of interstate or foreign commerce” evokes something
different from “facility in interstate or foreign commerce.”62 This
very significant distinction weighs against the first interpretation
and suggests instead that the facility should be in interstate or
foreign commerce at the time of the offense. At the very minimum,
there is ambiguity in the statute.
If one concedes the statute’s ambiguity, the next place to
turn is the canons of construction. One is particularly apt: when
facing a statute that could potentially alter the delicate balance
between the state and federal government, especially in the area of
62
If the dictionary definitions of the two words is not enough,
consider the Supreme Court’s discussion of Congress’ interstate
commerce powers under United States v. Lopez, 514 U.S. 549, 558-59
(1995). The Court clearly differentiated between “in interstate
commerce” and “of interstate commerce”: “the instrumentalities of
interstate commerce, or persons or things in interstate commerce."
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33
criminal law, we require an unmistakably clear statement by Congress
that this was its intent. Gregory v. Ashcroft, 501 U.S. 452, 460,
111 S.Ct. 2395, 2401, 115 L.Ed.2d 410 (1991); Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87
L.Ed.2d 171 (1985); United States v. Rewis, 401 U.S. 808, 812, 91
S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1071); United States v. Bass, 404
U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). The
construction the majority proposes would alter this balance
significantly. The majority’s interpretation would make virtually
every murder-for-hire a federal crime, because any use of a
telephone or an automobile would qualify.63 It is difficult to
63
This expansion of federal power stems from the majority’s
broad interpretation of “in interstate or foreign commerce” to be
synonymous with the phrase “of interstate or foreign commerce.”
Because § 1958(b)(2) specifies that “means of transportation and
communication” are facilities of interstate commerce for purposes
of the statute, any use of a telephone or automobile would be
sufficient to invoke the statute. Moreover, courts typically treat
the similar term “instrumentality of interstate commerce” as
encompassing “means of transportation and communication” like cars
and telephones. See 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.”); United States v.
Bishop, 66 F.3d 569, 588 (3d Cir. 1995)(motor vehicles are
instrumentalities 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).
Of course, these cases all refer to “instrumentalities,” not
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imagine a murder-for-hire scheme that would not involve the use of
a phone or a car at some point. But nothing in the language of the
statute suggests that Congress intended to make all such crimes a
matter of federal concern. Thus, this canon weighs heavily against
the majority’s interpretation.
Moving on from parsing the language and construction of the
statute, the majority also refers to United States v. Heacock, 31
F.3d 249, 254-55 (5th Cir. 1994) for support of its position. In
that case, we construed § 1958's companion statute, the Travel Act,
to encompass purely intrastate use of the mails. And, as the
majority notes, we have previously used jurisprudence interpreting
the Travel Act as a guide in construing § 1958.
Heacock is not, however, helpful in the inquiry before us.
First, the language in the Travel Act at the time was different from
that before us in § 1958: “whoever . . . uses any facility in
interstate or foreign commerce, including the mail.” Any
conclusions about the meaning of those words are of questionable
value in construing the meaning of a different set and arrangement
of words. Second, we based our Heacock decision on the reasoning
applied in United States v. Riccardelli, 794 F.2d 829, 831-33 (2d
Cir. 1986). In that case, the court concluded that the mails were
“facilities.” As we explained in our original Cisneros opinion,
however, the important distinction is between the use of “of” and
“in,” not between “instrumentality” and “facility.” Cisneros, 194
F.3d at 632, n.4.
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a special case, separate and distinct from “facilities in interstate
or foreign commerce.” The historical and constitutional pedigree
of the postal service indicates that this entity is inherently
federal in nature, and that Congress has special concern in
regulating its use. Thus, any use of the mail qualified under the
statute. But Heacock does not, therefore, extend to any intrastate
use of other facilities for purposes of § 1958.
Neither is the legislative history supportive of the majority’s
reading of the statute. Although the majority points to passages
from a report by the Senate Judiciary Committee for the proposition
that Congress intended to extend federal authority under § 1958 to
almost all murders-for-hire, limited only by the prosecutor’s
discretion, it omits passages clearly supportive of a congressional
intent to limit jurisdiction to cases in which a facility is in
interstate or foreign commerce at the time of the offense. For
instance, the report’s example of a situation in which the federal
nexus is present plainly contemplates the use of a facility in
interstate commerce: “Thus, an interstate telephone call is
sufficient to trigger federal jurisdiction.” S. Rep. No. 225, 98th
Cong., 1st Sess. 1983, 1984 U.S.C.C.A.N. 3182, 3485. The report
does not assert that any use of a telephone is sufficient. Instead,
it suggests that the actual use must be in interstate or foreign
commerce. Similarly, in describing the prosecutorial discretion
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36
involved, the report notes that “the committee fully appreciates
that many state and local police forces and prosecutors offices are
quite capable of handling a murder for hire case notwithstanding the
presence of some interstate aspects . . .” Id. at 3484. This
passage suggests that Congress envisioned that all of the cases
falling under the statute would have some “interstate aspects,” and
not just local use of the facilities of interstate commerce.
Admittedly, the report does use both the language “facility of
interstate commerce” and “facility in interstate commerce.” This
alternative use in a legislative report cannot conclusively
establish Congress’ intent in drafting the statute. Ultimately, as
is often the case, the legislative history is inconclusive, and thus
unreliable.
All of the ambiguity we have outlined in this dissent leads us
to the same conclusion reached in the original Cisneros opinion--
that the rule of lenity is applicable to this case. The rule
applies when, after “seizing everything from which aid can be
derived, we can make no more than a guess as to what Congress
intended.” United States v. Wells, 519 U.S. 482, 499, 117 S.Ct.
921, 931, 137 L.Ed.2d 107 (1997)(quoting Smith v. United States, 508
U.S. 223, 239, 113 S.Ct. 2050, 2059, 124 L.Ed.2d 138 (1993), and
Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3
L.Ed.2d 199 (1958)). We believe this is the situation here.
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37
The rule of lenity counsels us to resolve ambiguity in criminal
statutes by construing such statutes narrowly. This rule is rooted
in the due process requirement that Congress clearly articulate what
conduct it has made criminal:
‘(W)hen choice has to be made between two readings of
what conduct has made Congress has made a crime, it is
appropriate, before we choose the harsher alternative, to
require that Congress should have spoken in language that
is clear and definite. We should not derive criminal
outlawry from some ambiguous implication.’ . . . This
policy of lenity means that the Court will not interpret
a federal criminal statute so as to increase the penalty
that it places on an individual when such an
interpretation can be based on no more than a guess as to
what Congress intended.
Ladner v. United States, 358 U.S. 169, 178 , 79 S.Ct. 209, 214, 3
L.Ed.2d 199 (1958) (quoting United States v. Universal C.I.T. Credit
Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 229, 97 L.Ed. 260
(1952)). In our case, the rule weighs in favor of requiring that
the use of the facility be in interstate or foreign commerce.
The majority has reached a different conclusion. In doing so,
they split from the Sixth Circuit. United States v. Weathers, 169
F.3d 336, 342 (6th Cir. 1999). I respectfully dissent.
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38