RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0312p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 07-4473
v.
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Defendant-Appellant. -
STEPHANIE ACIERNO,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-00558-002—Solomon Oliver, Jr., District Judge.
Argued: April 24, 2008
Decided and Filed: August 27, 2009
*
Before: COLE and CLAY, Circuit Judges; CLELAND, District Judge.
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COUNSEL
ARGUED: Jonathan P. Witmer-Rich, FEDERAL PUBLIC DEFENDER’S OFFICE,
Cleveland, Ohio, for Appellant. Gary D. Arbeznik, ASSISTANT UNITED STATES
ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Jonathan P. Witmer-Rich,
Edward G. Bryan, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for
Appellant. Gary D. Arbeznik, ASSISTANT UNITED STATES ATTORNEY,
Cleveland, Ohio, for Appellee.
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OPINION
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CLELAND, District Judge. Defendant-Appellant Stephanie Acierno and her
boyfriend, Alan Kessler, through many fits and starts, eventually hired a “hit man” –
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 07-4473 United States v. Acierno Page 2
actually an undercover FBI agent– to murder her estranged husband, Christopher
Acierno (“Christopher”). They paid the agent a mere $100 which Defendant contends
was only for “expenses,” such as gas money, and argues that money for expenses cannot
constitute payment of “anything of pecuniary value” as required to sustain the conviction
she suffered: using a facility of interstate commerce with the intent that a murder be
committed in consideration for payment of money under 18 U.S.C. § 1958(b)(1).
Following the jury’s guilty verdict, the district court denied Defendant’s motion for
judgment of acquittal under Federal Rule of Criminal Procedure 29. Defendant
(“Stephanie”) appeals, and we AFFIRM in all respects.
I. BACKGROUND
A. Factual Background
On December 20, 2005, Alan Kessler called his old high school friend, Kyle
Burns, using interstate telephone lines. Kessler wanted Burns to find somebody to kill
Christopher Acierno, the estranged husband of Kessler’s girlfriend, Stephanie. Kessler
told Burns that if Christopher were killed, then Stephanie would receive the proceeds of
a $70,000 life insurance policy, her husband’s house, his car, and everything else that
her husband owned. Kessler indicated that he was serious and suggested a few scenarios
to carry out the murder, including a severe beating or disabling the brakes of
Christopher’s car.
Happily for Christopher, Burns reported Kessler’s lethal intentions to the state
police. They referred the matter to Cleveland Division FBI Special Agent Charles
Sullivan who in turn contacted Burns. Later that night, Kessler called Burns again and
told him not to kill Christopher but to engage him in a fight in an effort to induce
Christopher to violate his probation. Thereafter, FBI Agent Steven Martz interviewed
Burns and asked Burns to record any future conversations. During Kessler’s next
conversation with Burns, Burns asked Kessler why he changed his mind about killing
Christopher, and Kessler said, “[b]ecause Stephanie didn’t want him buried under the
No. 07-4473 United States v. Acierno Page 3
ground . . . [b]ecause they had 18 years of child support and alimony payments.” She
also said that she did not “want to take a chance of something being linked back to her.”
Kessler did not contact Burns again until February 16, 2006, when he called
Burns to say that he and Stephanie were interested in having Christopher killed. Burns
informed Agent Sullivan of the call, and Sullivan instructed Burns that if Kessler called
him again, he should refer Kessler to “Bob,” a fictitious army friend of Burns who would
actually be Agent Sullivan. Near the end of February, Kessler called Burns again. As
instructed, Burns told him that he had an old army buddy who owed Burns a favor and
that the buddy, “Bob,” would contact Kessler soon.
“Bob” (Agent Sullivan) initiated contact with Kessler. During his first
conversation with Sullivan, Kessler freely spoke of murder, saying that he wanted it
done quickly–by the end of the week–because the divorce would soon be final. Kessler
told Sullivan that Stephanie had a couple of ideas about how to kill Christopher, which
were the same two scenarios given to Burns but in greater detail. Kessler also proposed
that Sullivan engage Christopher in a bar fight to violate his probation. Kessler said that
the decision about whether to kill Christopher or simply assault him was Stephanie’s
decision because the whole situation was “essentially Stephanie’s deal” as they were her
kids and her husband. Kessler only wanted to do what Stephanie wanted.
Kessler and Sullivan engaged in a series of telephone calls, during which they
discussed the murder. At some point, Stephanie and Kessler agreed to hire Sullivan to
commit the murder, agreeing to pay him money out of their life insurance proceeds. The
couple later said that they had changed their minds and had decided that they only
wanted Sullivan to assault Christopher. They said that they wanted to make sure
nothing could be traced to them, and Kessler indicated that Stephanie was “very
cautious.” When Sullivan became convinced the couple was not interested in
contracting to kill Christopher, he turned the matter over to the local police and the FBI
ended its investigation.
Six months later, however, in September 2006, Sullivan received another call
from Burns. Kessler had once more contacted Burns and asked him to tell “Bob” that
No. 07-4473 United States v. Acierno Page 4
he and Stephanie were now interested in killing Christopher. Burns said that the couple
were willing to pay $1,000 so that there were no traces of the victim. Kessler also said
that if “Bob” would not do it, then he had a friend who would do it for free.
Sullivan called Kessler on September 18, 2006. Kessler said to him, as he had
to Burns, that they might need him, but that they had found a secondary hit man to take
care of Christopher for free; Stephanie, Kessler said, did not want to leave a money trail.
At this point, Sullivan became concerned that there may actually be a second, unknown
hit man, so he contacted Christopher to warn him of the threat.
Throughout the next week, Burns continued to update Sullivan with any
conversations he had with Kessler. Sullivan tried to keep the communication lines
between him and Burns open, but at some point he began to think he had been “iced”
out–removed from consideration in the plot. Kessler told Sullivan that Stephanie did not
trust “Bob,” but that she trusted the other hit man they were considering. Sullivan at that
point offered to take care of the job for free as a favor to Burns.
On September 26, 2006, Kessler asked Burns to have “Bob” call him. He also
told Burns that he was “not backing down this time.” Sullivan called Kessler, and
learned from Kessler that Christopher had been granted standard unsupervised visitation
of his children, and that this had upset Stephanie. Kessler told Sullivan that Stephanie
had said to “basically go ahead,” but to make sure he does not get caught and to do it at
a time when Stephanie and Kessler had an alibi. According to Kessler, both he and
Stephanie were not changing their minds. Kessler confirmed that Stephanie was on
board with the plan and that the couple would lend Sullivan a picture of Christopher
from the children’s photo album.
The couple now wanted Sullivan to make it look like a car accident and to
murder both Christopher and his mother, who was added to the plan because, according
to Kessler, “the very day [Christopher] dies, she’s gonna be in a lawyer’s office talking
about visitation.” Sullivan asked Kessler for some money in connection with the
murder:
No. 07-4473 United States v. Acierno Page 5
Sullivan: Okay. Um, You know, since we’re dealing with two people,
now, is there any way I can, uh, you know, I’ve been out to, uh,
Ashtabula once to meet, ya, and, you know, coming out there
again, and then, you know, being out there a third time to actually
do this stuff, any way I can get, uh, you know, maybe a hundred
bucks to help pay my gas or anything?
Kessler: Um . . . Yeah, OK, we can do that.
Sullivan: Okay. I mean, do what you can, alright? You know, it’s not uh
. . . I’m not a millionaire, either. I’m sure you guys aren’t. So
you understand my pain.
Kessler: Yeah, I know. Um . . .
Sullivan: So if you can get me the, uh, you know, the pictures and maybe
some bucks, you know, to pay for my expenses and for taking
care of, you know, Chris and Sherrie for you, you know, that
would be great.
Kessler: Okay, Yeah. Um, should I do that? . . . I’ll, should I do that?
Should I give that to him on Thursday when I see him?
Stephanie: (UI)
Kessler: Do you have any cash? Yeah. Stephanie said yeah, but it’s gas
money. That’s all it is.
Sullivan: Okay, that’s fine.
Kessler: So . . . Um, yes, so I can get that to you Thursday.
The call continued with various plans regarding how to kill Christopher and his
mother, and ended with Kessler stating that he “and Stephanie will give it some
thought.” Sullivan told them to come up with a scenario that would be easy to pull off
and to bring the pictures and “some cash for expenses” to a meeting they would have on
the upcoming Thursday. Kessler said they would “probably come up with a hundred”
and that they would meet on Thursday.
Sullivan met with Kessler on Thursday, September 28, 2006 in the parking lot
of Ashtabula County Medical Center. Kessler stated that Stephanie had developed the
murder plan: Sullivan was to hide outside Christopher’s house and surprise him by
hitting him on the head with a blackjack, pour whiskey down his throat, and then place
him on the railroad tracks near their house. Kessler gave Sullivan very specific
No. 07-4473 United States v. Acierno Page 6
instructions to make sure that Christopher’s head was laid face first on the tracks so that,
when the train hit him, it would obliterate his skull and be impossible to tell that a blow
had been struck to his head. Kessler showed Sullivan the photographs of Christopher,
but would not let him keep the pictures. Kessler gave Sullivan $100 to take care of
Sullivan’s expenses for killing Christopher and framing his mother so that she would not
be able to obtain custody of the children. Kessler told Sullivan where Christopher
worked, gave him directions on how to get there, and told him when Christopher’s work
schedule would change.
Agent Sullivan drove to Stephanie’s house on October 3, 2006 and said he
needed to see a photograph of Christopher again. Stephanie showed Sullivan a picture
of Christopher and told him that Christopher’s appearance had not changed. Sullivan
also asked if it had been Stephanie’s idea to put Christopher on the railroad tracks and,
when she acknowledged that it was, Sullivan left.
The next morning, Sullivan called Kessler’s cell phone and told him that the
murder was completed according to their plan. Kessler asked some questions about how
it was completed and thanked him several times. Sullivan asked him: “This is what you
and Stephanie wanted, correct?” Kessler acknowledged that it was.
B. Procedural Background
On December 5, 2006, a federal grand jury in the Northern District of Ohio
returned a two-count indictment against Alan Kessler and Defendant, charging them
with two violations of 18 U.S.C. §§ 1958 and 2: (1) conspiracy to cause someone to
travel in interstate commerce with the intent that a murder be committed in consideration
for payment of money (Count 1); and (2) using a facility of interstate commerce with the
intent that a murder be committed in consideration for payment of money (Count 2).
Kessler pleaded guilty and was sentenced to serve sixty-seven months imprisonment.
Defendant pleaded not guilty, and a jury trial commenced on June 27, 2006. The
jury returned a verdict of not guilty on Count 1 of the indictment and a verdict of guilty
on Count 2 of the indictment. The district court denied Defendant’s motion for judgment
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of acquittal under Federal Rule of Criminal Procedure 29 on October 15, 2007. The
district court also denied Defendant’s motion for reconsideration. Defendant was then
sentenced to forty-eight months imprisonment and three years of supervised release.
Defendant now appeals.
II. ANALYSIS
A. Standard of Review
We review the district court’s denial of a motion for acquittal based on
sufficiency of the evidence de novo. United States v. Mabry, 518 F.3d 442, 447-48 (6th
Cir. 2008). The district court’s denial must be affirmed “if the evidence, viewed in the
light most favorable to the government, would allow a rational trier of fact to find the
defendant guilty beyond a reasonable doubt.” Id. at 448 (quoting United States v.
Canan, 48 F.3d 954, 962 (6th Cir. 1995)). “The appellate court must view all evidence
and resolve all reasonable inferences in favor of the government.” United States v.
Hughes, 505 F.3d 578, 592 (6th Cir. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Searan, 259 F.3d 434, 441 (6th Cir. 2001)). In doing so,
however, the court cannot independently weigh the evidence nor substitute its judgment
for that of the jury. Id. (citations omitted). “This standard is a great obstacle to
overcome, and presents the appellant in a criminal case with a very heavy burden.”
Hughes, 505 F.3d at 592 (citing United States v. Winkle, 477 F.3d 407, 413 (6th Cir.
2007) and United States v. Jackson, 473 F.3d 660, 669 (6th Cir. 2007)).
B. Discussion
The federal murder-for-hire statute provides:
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 of 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
under this title or imprisoned for not more than ten years, or both; and if
No. 07-4473 United States v. Acierno Page 8
personal injury results, shall be fined under this title or imprisoned for
not more than twenty years, or both; and if death results, shall be
punished by death or life imprisonment, or shall be fined not more than
$250,000, or both.
18 U.S.C. § 1958(a). Thus, in order to obtain a conviction, the Government was
required to prove that Defendant (1) caused a person to use any facility of interstate
commerce, (2) with the intent that a murder be committed, in violation of the laws of
Ohio, and (3) that the murder was to be committed as consideration for the promise or
agreement to pay anything of pecuniary value. The only element which Defendant
attacks in this appeal is whether the Government established beyond a reasonable doubt
that Defendant had promised or agreed to pay anything of pecuniary value as
consideration for “Bob” committing the murder. Under § 1958, “anything of pecuniary
value” means “anything of value in the form of money, a negotiable instrument, a
commercial interest, or anything else the primary significance of which is economic
advantage.” 18 U.S.C. § 1958(b)(1).
Defendant argues that there was insufficient evidence to convict her because,
even viewed in a light most favorable to the Government, the evidence could only
establish a $100 payment to cover “expenses,” and therefore the $100 does not constitute
consideration or payment for a murder. Defendant further argues that “expenses” cannot
meet the standard for “pecuniary value” as a matter of law. We disagree.
1. A rational jury could find that the $100 was payment for the murder, and not just to
cover expenses
The evidence is sufficient to support a finding that Defendant agreed to pay
Sullivan $100, not just to cover expenses, but also as consideration for the murder of her
estranged husband. In preliminary discussions between Kessler and “Bob,” Kessler
affirmatively agreed to hire Sullivan to commit the murder, agreeing to pay him money
out of Defendant’s life insurance proceeds. Although the couple later wanted
Christopher assaulted, not murdered, Kessler indicated it was because they wanted to
make sure nothing could be traced to them and that Defendant was “very cautious.” Six
months later, in September 2006, Burns told Sullivan that the couple was willing to pay
$1,000 so that there were no traces of Christopher. When Sullivan followed up with
No. 07-4473 United States v. Acierno Page 9
Kessler, Kessler told Sullivan that Defendant did not want to leave a money trail and that
they had found a secondary hit man who would perform the murder for free. In the
recorded conversation between Sullivan and Kessler, Sullivan asked if he could get $100
dollars “to help pay [his] gas or anything,” and Kessler agreed. Although Kessler
indicated that Defendant had said, “it’s gas money,” in light of the substantial history of
negotiating this murder, the jury was within the realm of reason to conclude that this
$100 was payment for the murder. The jury could reasonably conclude that Defendant’s
insistence that the payment was “gas money” was some sort of misguided attempt at not
creating the “money trail” she feared. (Id.) Moreover, Sullivan stated in his
conversation with Kessler that he wanted “some bucks” to “pay for my expenses and for
taking care of, you know, Chris and Sherrie [Christopher’s mother]. . .” (Id.)
Whatever label Defendant applied to the money is not dispositive of the question of
whether the $100 was consideration for the murder of her estranged husband.
Given the record evidence, a rational jury could, and indeed did, find that the
$100 payment was intended as consideration for the murder of Christopher. We must
“resolve all reasonable inferences in favor of the government.” Hughes, 505 F.3d at 592
(citations omitted). It is certainly reasonable to infer that Defendant intended that the
$100 payment be made in consideration for the murder, and the jury could similarly
reasonably reject her insistence that the $100 was for “gas money” only. Accordingly,
we reject Defendant’s argument that no rational juror could find her guilty beyond a
reasonable doubt.
2. Money to cover expenses qualifies as payment of something of pecuniary value
Further, even if the Government could prove only that the $100 payment was for
gas money, we do not agree that payment for expenses related to a murder contract
cannot constitute “consideration” under 18 U.S.C. § 1958.
The murder-for-hire statute requires that the murder or intended murder be
committed “as consideration for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value . . . .” 18 U.S.C. § 1958(a). We have not
addressed directly the consideration element of murder-for-hire, but other circuits have
No. 07-4473 United States v. Acierno Page 10
held that the statute requires “a mutual understanding that something of value will be
exchanged for committing a murder.” United States v. Wicklund, 114 F.3d 151, 154
(10th Cir. 1997). “Consideration” in the law is, principally, “[t]he inducement to a
contract.” BLACK'S LAW DICTIONARY 306 (6th ed. 1991). State courts typically find that
contractual consideration exists where there is “a benefit on one side, or a detriment
suffered, or service done on the other.” Plastray Corp. v. Cole, 37 N.W.2d 162, 165
(Mich. 1949) (citation omitted); see also Wood v. Lowery, 238 S.W.3d 747, 755-756
(Tenn. Ct. App. 2007) (“The court in University of Chattanooga v. Stansberry, 9 Tenn.
App. 341, 343 (1928), defined consideration as ‘either a benefit to the maker of the
promise or a detriment to, or obligation upon, the promise[e].’”); Costanzo v. Nationwide
Mut. Ins. Co., 832 N.E.2d 71, 79 (Ohio Ct. App. 2005) (“In Ohio, consideration is either
a benefit to the promisor or a detriment to the promisee.”) (citations and quotations
omitted); Huff Contracting v. Sark, 12 S.W.3d 704, 707 (Ky. Ct. App. 2000) (“[T]he
term “consideration” is . . . defined [as] ‘[a] benefit to the party promising, or a loss or
detriment to the party to whom the promise is made.’”) (citing Phillips v. Phillips, 171
S.W.2d 458, 464 (Ky. Ct. App. 1943)). The plain meaning of § 1958’s “language
undeniably contemplates a quid-pro-quo (or at least the promise of such) between the
parties to the transaction, the murderer and the solicitor.” United States v. Hernandez,
141 F.3d 1042, 1057 (11th Cir. 1998); see also United States v. Hardwick, 523 F.3d 94,
99-100 (2d Cir. 2008) (requiring quid pro quo, bargained-for exchange); United States
v. Richeson, 338 F.3d 653, 657 (7th Cir. 2003) (same). We agree with our sister circuits
and hold that the consideration element of the statute requires a quid pro quo between
the parties of something of pecuniary value.
We find further that the payment of a mere $100, even if it were offered as
having been related only to the “expenses” of the receiving party, was still paid as a quid
pro quo for “Bob’s” agreement to murder Christopher. Everyone has “expenses” of
various kinds and, as we have earlier observed, “money is fungible.” In re Gray Elec.
Co., No. 96-2518, 1998 WL 109989, *2 (6th Cir. Mar. 4, 1998); cf. Sabri v. United
States, 541 U.S. 600, 605-06 (2004) (“It is true . . . that not every bribe or kickback . . .
will . . . show up in the guise of a quid pro quo for some dereliction in spending a federal
No. 07-4473 United States v. Acierno Page 11
grant. But . . . [m]oney is fungible . . . . Liquidity is not a financial term for nothing;
money can be drained off here because a federal grant is pouring in there.”) (citations
omitted).
Defendant relies on United States v. Chong, 419 F.3d 1076 (9th Cir. 2005), in
which the Ninth Circuit held that “[m]oney to cover incidental expenses rather than as
compensation for carrying out the murder-for-hire does not meet § 1958’s
requirements.” Id. at 1083. While this language, in isolation, appears to support
Defendant’s position, the facts in Chong are readily distinguishable from the instant
case. In Chong, the evidence at trial could not establish that anyone was given money
in exchange for carrying out a murder. There was no doubt that money was given, but
it was equally clear that it was not for a murder as murder had not yet been discussed.
The Government was able to prove only that a person was given $100 to perform a
“dangerous job” without knowing that the true character of the job was to perform a
murder. Under those facts, the Ninth Circuit stated:
As to the Bike Ming assignment, however, the evidence shows only that
Casey volunteered for a dangerous assignment and wound up getting
some walking-around money in the course of traveling to Boston.
Money to cover incidental expenses rather than as compensation for
carrying out the murder-for-hire does not meet § 1958’s requirements.
See [United States v. Ritter, 989 F.2d 318, 321-22 (9th Cir. 1993)]
(holding that although defendant was paid $70 to build a bomb, the
money was not payment for commission of the murder). On the record
here, we hold that the jury had insufficient evidence to find that Casey
agreed to travel to Boston to kill Bike Ming in exchange for something
of pecuniary value offered by Chong or his co-conspirators.
Id. at 1083-84 (footnote omitted). In view of the circumstances surrounding the payment
in Chong, we do not interpret Chong as creating a bright-line rule that a payment of
“incidental expenses” can never constitute consideration for a murder for purposes of
§ 1958. Instead, Chong establishes only that the payment must be made in consideration
for the act of murder. This standard cannot be met where the future hitman is unaware
that he will commit murder at the time he receives payment. See id.
No. 07-4473 United States v. Acierno Page 12
In this case, however, there was sufficient evidence to support the jury’s
conclusion that the $100 was given to Sullivan specifically connected to and as
consideration for him to perform the murder. The nature of the job had been made
amply clear on several occasions. The fact that Defendant called it “gas money” does
not detract from the evidence that she agreed to pay that money as a form of
consideration for Sullivan to murder Christopher.1 While $100 is not a substantial
amount of money, it is, nonetheless, money. To meet the requirements of § 1958 the
“[p]ayment need only be a quid pro quo contractual arrangement between the hiring and
hired parties.” United States v. Washington, 318 F.3d 845, 854 (8th Cir. 2003) (citation
omitted) (holding that two and a half ounces of heroin was sufficient to meet the
requirements of § 1958(b)). The cash given to Sullivan fully meets the definition of
“anything of pecuniary value” as it is something “of value in the form of money, a
negotiable instrument, a commercial interest, or anything else the primary significance
of which is economic advantage.” 18 U.S.C. § 1958(b)(1).
III. CONCLUSION
For the foregoing reasons, we AFFIRM judgment of conviction and the district
court’s denial of the Rule 29 motion.
1
Defendant additionally relies on an unpublished Third Circuit case, which is also distinguishable
from the facts of this case. In United States v. Black, 38 F. App’x 767, 768 (3d Cir. 2002), the Third
Circuit did not hold, as Defendant suggests, that the “mailing of $100 for expenses satisfied the interstate
commerce element of § 1958, but the pecuniary value element of § 1958 was proven by separate payment
in cocaine, not the $100 for expenses.” (Def.’s Final Br. at 23.) Instead, in Black, the defendant argued
on appeal that “the consideration element was presented to the jury on alternative theories, money or
cocaine, and that one theory was invalid: cocaine is not covered by the statutory definition of consideration
and thus cannot be deemed ‘a thing of pecuniary value as required by 18 U.S.C. [§] 1958.” Black, 38 F.
App’x at 768. The Third Circuit rejected this argument and found that the language of the statute was
“broad enough to include cocaine. Cocaine qualifies as ‘anything else the primary significance of which
is economic advantage’ because it is something that is bought and sold.” Id. (quoting § 1958).